United States v. Pelletier

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40277
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UNITED STATES
Appellee
v.
Nicholas T. PELLETIER
Master Sergeant (E-7), U.S. Air Force Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 12 September 2023
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Military Judge: Colin P. Eichenberger.
Sentence: Sentence adjudged 7 March 2022 by GCM convened at Tinker
Air Force Base, Oklahoma. Sentence entered by military judge on 12
April 2022: Dishonorable discharge, confinement for 5 years, forfeiture
of all pay and allowances, and reduction to E-1.
For Appellant: Major David L. Bosner, USAF; Major Alexandra K.
Fleszar, USAF; Jacob P. Frankson (legal intern). 1
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Captain
Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, CADOTTE, and BREEN, Appellate Military Judges.
Judge BREEN delivered the opinion of the court, in which Chief Judge
JOHNSON and Senior Judge CADOTTE joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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1 Jacob P. Frankson is a legal intern who was at all times supervised by an attorney
admitted to practice before this court.
United States v. Pelletier, No. ACM 40277
BREEN, Judge:
A military judge sitting as a general court-martial found Appellant guilty,
in accordance with his pleas and pursuant to a plea agreement, of one specifi-
cation of wrongful distribution of child pornography and one specification of
wrongful possession of child pornography in violation of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934.2 The military judge sen-
tenced Appellant to a dishonorable discharge, confinement for five years, for-
feiture of all pay and allowances, and reduction to the grade of E-1.3 The con-
vening authority suspended the adjudged forfeitures then waived automatic
forfeitures for the benefit of Appellant’s dependents.
Appellant raises one issue on appeal: whether the conditions of Appellant’s
confinement subjected him to cruel and unusual punishment in violation of the
Eighth Amendment4 and Article 55, UCMJ, 10 U.S.C. § 855.5 We find no error
that materially prejudiced Appellant’s substantial rights, and we affirm the
findings and sentence.
I. BACKGROUND
On 12 June 2020, a Special Agent with the Federal Bureau of Investiga-
tion’s (FBI) Child Exploitation Human Trafficking Task Force in Salt Lake
City, Utah, discovered an account posting a video on a streaming service of
what appeared to be child pornography. The FBI subpoenaed the subscriber
data for the account and traced that data to an Internet protocol address asso-
ciated with Appellant. Based on this information, the FBI obtained a search
warrant for Appellant’s home. On 20 August 2020, the FBI executed the search
warrant and conducted an interview with Appellant after securing his resi-
dence.
Appellant waived his rights against self-incrimination and admitted that
he was the person who utilized the account in issue. He also admitted using
another social media platform for similar purposes. Appellant joined groups on
these platforms related to a shared interest in child pornography. After logging
into the group, he would use a link to download or upload child pornography
2 All references to the UCMJ are to the Manual for Courts-Martial, United States (2019
ed.).
3 Specifically, the military judge sentenced Appellant to five years for each of the two
specifications of which Appellant was convicted and, in accordance with the plea agree-
ment, the military judge directed all terms of confinement to run concurrently.
4 U.S. CONST. amend. VIII.
5 Appellant personally raises this issue pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
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United States v. Pelletier, No. ACM 40277
from a password-protected electronic storage drive that he kept in a desk
drawer in his house. Appellant knew the files were child pornography because
they depicted young, “underdeveloped” girls who appeared to be between the
ages of approximately 9 and 13 years, engaging in sexually explicit conduct. In
all, Appellant distributed at least 5 and possessed approximately 70 images or
videos of child pornography.
Prior to sentencing, the military judge verified Appellant’s military defense
counsel (ADC) had previously advised Appellant orally and in writing of his
post-trial and appellate rights. Appellant acknowledged his signature on the
written advisement document and confirmed to the military judge that he did
not have any questions regarding his rights. This document, which is included
in the record as an appellate exhibit, included the following information:
In order to get relief for the poor conditions of your confinement,
you ordinarily must first exhaust every administrative avenue
available to try to correct the issue. . . . To exhaust administra-
tive avenues for relief, you should do each of the following: (1)
submit a complaint to the confinement facility, preferably in
writing; (2) request relief through clemency, if known at that
time; and (3) file a complaint with the commander who ordered
your confinement under Article 138, UCMJ, [10 U.S.C. § 938,]
which needs to be done within 90 days of your discovery of the
improper confinement conditions.
Appellant received his sentence on 7 March 2022 and he entered confine-
ment at the Weber County Correctional Facility (WCCF), an institution oper-
ated by the State of Utah. During his time at WCCF, Appellant was held in
solitary confinement for 23 hours a day, with only 1 hour of dayroom time per
day. Appellant remained at WCCF for approximately five months until he was
transferred to the Naval Consolidated Brig in Miramar, California, on 3 Au-
gust 2022.
On 17 March 2022, Appellant’s ADC submitted Appellant’s clemency re-
quest to the convening authority, which consisted of a memorandum from the
ADC and copies of Appellant’s sentencing exhibits. None of these documents
discussed Appellant’s confinement conditions.
On appeal, Appellant moved to attach to the record a declaration by him
dated 9 March 2023, along with documentation related to his medical condi-
tions and additional declarations related to his confinement conditions at
WCCF. Appellant complained that he was held “under excessive conditions”
and lacked access to appropriate medical treatment and equipment for his “di-
agnosed” sleep apnea. He claimed he was housed in a section of WCCF in-
tended for inmates suffering from mental health issues and he was subjected
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United States v. Pelletier, No. ACM 40277
to “loud screaming” and an unsanitary shower that he felt obliged to clean him-
self every day. Appellant argued these conditions resulted in a deterioration of
his physical and mental health. Appellant claimed he did not file any griev-
ances with WCCF because he was not informed on how to file grievances or
where he could find a copy of the WCCF rules. Eventually, he learned he could
file complaints via a computer tablet, but he did not “immediately” receive a
tablet upon request. However, his wife did complain to military personnel
about Appellant’s confinement conditions.
In response, the Government moved to attach a declaration from the WCCF
Inmate Grievance Officer (IGO), dated 17 May 2023. According to that decla-
ration, Appellant was housed alone in a section comprised of 15 other two-man
cells and, pursuant to a Memorandum of Agreement between the WCCF and
Hill Air Force Base, he was permitted one hour per day alone outside his cell.
The grievance process was outlined in the inmate handbook on the inmate tab-
lets and on “visiting monitors” in the housing area. Inmates receive a paper
form on which to file a grievance which, upon completion, can be placed in a
mailbox in the housing area. Medical equipment is permitted on a case-by-case
basis, but an inmate must make the medical staff aware of the need for equip-
ment. A review of Appellant’s inmate account revealed that he ordered com-
missary food, hygiene items, and other products on 20 occasions; the orders did
not include sleep apnea equipment. Additionally, on 23 March 2022, Appellant
purchased a “tablet subscription,” which essentially reserved the same inmate
tablet for his use during his time at WCCF. The WCCF IGO confirmed Appel-
lant did not file any grievances during his time in their facility.
II. DISCUSSION
A. Law
We review de novo whether an appellant has been subjected to impermis-
sible conditions of confinement in violation of the Eighth Amendment or Article
55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007) (citing
United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)).
“[T]he Eighth Amendment prohibits two types of punishments: (1) those
‘incompatible with the evolving standards of decency that mark the progress
of a maturing society’ or (2) those ‘which involve the unnecessary and wanton
infliction of pain.’” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006)
(quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). To demonstrate a vio-
lation of the Eighth Amendment, an appellant must show:
(1) an objectively, sufficiently serious act or omission resulting
in the denial of necessities; (2) a culpable state of mind on the
part of prison officials amounting to deliberate indifference to
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United States v. Pelletier, No. ACM 40277
[his] health and safety; and (3) that he “has exhausted the pris-
oner-grievance system . . . and that he has petitioned for relief
under Article 138, UCMJ, 10 USC § 938 [(2000)].”
Id. (second alteration and omission in original) (footnotes omitted) (quoting
United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).
Solitary confinement is not a per se Eighth Amendment violation. United
States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (footnote omitted) (citing Sostre
v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971) (en banc)). Rather the totality of
the circumstances of the confinement conditions are considered in determining
whether a sufficiently serious deprivation under the Eighth Amendment has
been shown. Id. at 102. The length of a period of segregation “does not, by itself,
constitute cruel and unusual punishment, but is simply a factor to be consid-
ered along with the other aspects of confinement.” Id. (citation omitted) (ob-
serving “courts have also rejected the contention that deprivation of human
contact, including the harmful effect it may potentially have on a prisoner’s
mental health, violates the Eighth Amendment” (citations omitted)).
B. Analysis
As an initial matter, Appellant did not raise concerns regarding the condi-
tions of his post-trial confinement in any post-trial submissions to the conven-
ing authority. Although his declarations and the WCCF IGO’s declaration are
not matters “raised by materials in the record,” we may consider this evidence
to evaluate Appellant’s claims of cruel and unusual punishment in violation of
the Eighth Amendment and Article 55, UCMJ. United States v. Pullings, 83
M.J. 205, 210 (C.A.A.F. 2023) (citing United States v. Jessie, 79 M.J. 437, 444
(C.A.A.F. 2020)). We have considered whether a post-trial evidentiary hearing
is required to resolve contradictions between Appellant’s declarations and
those of the WCCF IGO. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997); United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967) (per curiam). We
find such a hearing is not necessary. To the extent these documents may be
inconsistent, resolving any factual disputes in Appellant’s favor would not re-
sult in relief.
For the purpose of obtaining relief under the Eighth Amendment or Article
55, UCMJ, Appellant bears the burden to demonstrate all three prongs of the
Lovett test have been satisfied. Pullings, 83 M.J. at 209 (citing Lovett, 63 M.J.
at 215). Appellant failed to meet his burden. Appellant must show that “absent
some unusual or egregious circumstance,” he exhausted the prisoner-grievance
system. Wise, 64 M.J. at 471 (quoting White, 54 M.J. at 472) (additional citation
omitted). Appellant conceded that he did not file any grievances during his
time at WCCF. Although he attempted to blame this deficiency on a lack of
initial instruction by the WCCF staff, Appellant admitted he was “made
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United States v. Pelletier, No. ACM 40277
aware” of the grievance process by other prisoners. Therefore, his failure to file
a grievance after he learned about the process constituted a conscious failure
to avail himself of the prisoner-grievance system and not an unusual circum-
stance that inhibited his ability to complain.
Additionally, Appellant never filed an Article 138, UCMJ, complaint seek-
ing commander intervention regarding his confinement conditions. Again, de-
spite his argument that he did not have a meaningful ability to contact Air
Force officials, his declaration admitted that he did have the ability to “com-
municate” to government personnel at his own expense. Appellant acknowl-
edged his understanding of his post-trial rights, which included exhaustion of
administrative remedies, during his court-martial, but failed to take any action
regarding his confinement conditions until his appeal. Therefore, Appellant
cannot prevail, and his claims do not warrant relief.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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