United States v. Disotell

United States Navy-Marine Corps
Court of Criminal Appeals
_________________________
UNITED STATES
Appellee
v.
Joshua L. DISOTELL
Electronics Technician,
Submarine Navigation First Class (E-6),
U.S. Navy
Appellant
_________________________
No. 201800147
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Decided: 2 February 2019
_________________________
Military Judge:
Captain Ann K. Minami, JAGC, USN.
Approved Sentence: Reduction to E-1, confinement for two years, 1 and
a bad-conduct discharge. Sentence adjudged 16 January 2018 by a
general court-martial convened at Naval Base Kitsap, Bremerton,
Washington, consisting of a military judge sitting alone.
For Appellant:
Lieutenant Commander Derek C. Hampton, JAGC, USN.
For Appellee:
Captain Chris D. Tucker, JAGC, USN;
Lieutenant Kimberly Y. Rios, JAGC, USN.
1 The convening authority suspended confinement in excess of 14 months pursu-
ant to a pretrial agreement.
United States v. Disotell, No. 201800147
_________________________
This opinion does not serve as binding precedent but
may be cited as persuasive authority under NMCCA
Rule of Practice and Procedure 30.2.
_________________________
Before WOODARD, FULTON, and HITESMAN,
Appellate Military Judges.
PER CURIAM:
A military judge sitting as a general court-martial convicted the appel-
lant, pursuant to his pleas, of three specifications of violating a lawful gen-
eral order 2 and one specification of adultery, in violation of Articles 92 and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 934.
In his sole assignment of error, the appellant contends that his sentence
to two years’ confinement is inappropriately severe. We disagree and affirm
the findings and sentence.
I. BACKGROUND
The appellant, a married U.S. Navy recruiting office leading petty officer,
engaged in consensual but prohibited sexual contact with two female high
school students who were in various stages of the recruitment process. The
first student was 18 years old and was an applicant 3 for enlistment in the
Navy. The second student was 17 years old and was a prospect 4 for enlist-
ment in the Navy. The appellant had inappropriate sexual contact with the
18-year-old applicant immediately after she was sworn in at the Military En-
trance Processing Station (MEPS), Seattle, Washington. The appellant drove
her from the recruiting office to the MEPS in a government-owned vehicle
(GOV). Before returning the applicant to the recruiting office, the appellant
parked the GOV behind a nearby theater and asked for and received oral sex
from her. While working with the 17-year-old prospect on her potential en-
2 Commander, Navy Recruiting Command Instruction (COMNAVCRUITCOM-
INST) 5370.1H, Fraternization (31 May 2016); Department of Defense (DoD)
5500.7R, Joint Ethics Regulations (Aug. 1993).
3See COMNAVCRUITCOMINST at 2. An applicant is “[a]ny person who has
commenced processing for enlistment.”
4 Id. A prospect is “[a]ny person who has expressed, to recruiting personnel, an
interest in enlisting.”
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United States v. Disotell, No. 201800147
listment, the appellant engaged in a sexual relationship with her that lasted
approximately three months until it was discovered and exposed by her
mother.
During the presentencing hearing, the appellant presented evidence in
extenuation and mitigation. Through documents from his service record book,
witnesses, and his own unsworn statement, the appellant presented evidence
that his mother was murdered and that he was severely traumatized by that
tragic event. He also presented some evidence that he suffered from post-
traumatic stress disorder (PTSD), which caused a severely negative change in
his behavior. The appellant argued his mother’s murder and the guilt he felt
for not being able to help her caused him to engage in destructive behavior.
The appellant further argued that because he had over 10 years of commend-
able service and had made positive progress in the treatment of his PTSD
and other issues, no confinement should be adjudged in his case.
II. DISCUSSION
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused gets the pun-
ishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
This requires our “individualized consideration of the particular accused on
the basis of the nature and seriousness of the offense and the character of the
offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation
and internal quotation marks omitted). In making this assessment, we ana-
lyze the record as a whole. Healy, 26 M.J. at 395. Despite our significant dis-
cretion in determining sentence appropriateness, we must remain mindful
that we may not engage in acts of clemency. United States v. Nerad, 69 M.J.
138, 146 (C.A.A.F. 2010).
As a general rule, “sentence appropriateness should be determined with-
out reference to or comparison with the sentences received by other offend-
ers.” United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985). One narrow
exception to this general rule requires the court “to engage in sentence com-
parison with specific cases . . . in those rare instances in which sentence ap-
propriateness can be fairly determined only by reference to disparate sen-
tences adjudged in closely related cases.” United States v. Wacha, 55 M.J.
266, 267 (C.A.A.F. 2001) (citations and internal quotation marks omitted).
When requesting relief under this exception, an appellant’s burden is twofold:
the appellant must demonstrate “that any cited cases are ‘closely related’ to
his or her case and that the resulting sentences are ‘highly disparate.’” Unit-
ed States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). If the appellant succeeds
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United States v. Disotell, No. 201800147
on both prongs, then the burden shifts to the government to “show that there
is a rational basis for the disparity.” Id.
For cases to be considered closely related, they “must involve offenses that
are similar in both nature and seriousness or which arise from a common
scheme or design.” United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R.
1994). This threshold requirement can be satisfied by evidence of “co[-]actors
involved in a common crime, servicemembers involved in a common or paral-
lel scheme, or some other direct nexus between the servicemembers whose
sentences are sought to be compared.” Lacy, 50 M.J. at 288-89 (finding cases
were closely related “where appellant and two other Marines engaged in the
same course of conduct with the same victim in each other’s presence.”)
Here, the appellant’s request for sentence comparison and relief is based
on five cases he argues are similar in nature yet resulted in much less severe
sentences. All five cases include convictions for violating a lawful general or-
der, with two of the cases involving a recruiter having sexual intercourse
with a potential recruit. However, the mere similarity of offenses is insuffi-
cient to demonstrate that the cases are closely related. United States v. Wash-
ington, 57 M.J. 394, 401 (C.A.A.F. 2002).
We find no “direct nexus” between the appellant’s misconduct and that of
his proposed comparison cases, especially considering that the appellant’s
specifications involve the additional misconduct of adultery and improperly
using a government vehicle to engage in prohibited sex acts with an applicant
for enlistment. Lacy, 50 M.J. at 288. Moreover, the appellant cannot identify
any close relationship between his case and the five he cites for comparison.
The cases cited by the appellant were convened by different commands of the
Navy and Marine Corps. Far from being “co-actors” or “servicemembers in-
volved in a common or parallel scheme,” the appellant’s offenses and those
committed by the other five accused servicemembers took place at different
times, in different parts of the world, in disparate branches of service, and
involved unrelated paramours under different factual circumstances. Id.
Therefore, the appellant has failed to satisfy his burden of showing that his
case and the cases he cites are closely related.
The appellant admitted to violating Commander, Navy Recruiting Com-
mand Instruction 5370.1H when he engaged in personal and sexual activity
with two high school students interested in enlisting in the Navy. The appel-
lant additionally admitted to violating the Joint Ethics Regulations when he
used a GOV to engage in sexual activity with the 18-year-old applicant. Fi-
nally, the appellant admitted to adultery based on having sexual intercourse
with the 17-year-old prospect. Given the nature of the target audience for re-
cruiting and the position of authority and trust granted to a recruiting office
leading petty officer, these offenses are serious and the appellant could have
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United States v. Disotell, No. 201800147
been awarded seven years’ confinement based on his convictions. His brazen
misconduct while in a representative and leadership position far outweighs
the mitigation evidence presented.
Having given individualized consideration to the nature and seriousness
of these crimes, the appellant’s otherwise commendable record of service, and
all other matters contained in the record of trial, we conclude the sentence is
not inappropriately severe and is appropriate for this offender and his offens-
es. United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J.
at 395-96. Granting sentence relief at this point would be to engage in clem-
ency, which we decline to do. Healy, 26 M.J. at 395-96.
III. CONCLUSION
Having carefully considered the appellant’s assigned error, the record of
trial, and the parties’ submissions, we conclude the findings and sentence are
correct in law and fact and that no error materially prejudiced the appellant’s
substantial rights. Arts. 59(a) and 66(c), UCMJ. Accordingly, the findings and
sentence as approved by the CA are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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