United States v. McDonald ( 2016 )


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  •                   UNITED STATES NAVY-MARINE CORPS
    COURT OF CRIMINAL APPEALS
    WASHINGTON, D.C.
    Before
    J.A. FISCHER, T.H. CAMPBELL, T.P. BELSKY
    Appellate Military Judges
    UNITED STATES OF AMERICA
    v.
    JAMES F. MCDONALD
    CHIEF AVIATION ELECTRICIAN’S MATE (E-7), U.S. NAVY
    NMCCA 201400357
    SPECIAL COURT-MARTIAL
    Sentence Adjudged: 23 June 2014.
    Military Judge: CAPT A.H. Henderson, JAGC, USN.
    Convening Authority: Commanding Officer, Strike Fighter Squadron ONE TWO
    TWO, Naval Air Station, Lemoore, CA.
    Staff Judge Advocate's Recommendation: LT G.K. Bradley, JAGC, USN.
    For Appellant: LT Jacqueline M. Leonard, JAGC, USN.
    For Appellee: Brian Keller, Esq.
    19 May 2016
    ---------------------------------------------------
    OPINION OF THE COURT
    ---------------------------------------------------
    THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
    PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
    PER CURIAM:
    A military judge, sitting as a special court-martial, convicted the appellant, pursuant to
    his pleas, of four specifications of indecent visual recordings, in violation of Article 120c(a),
    Uniform of Military Justice, 10 U.S.C. § 920c(a). The adjudged sentence included confinement
    for 250 days, reduction to pay grade E-4, and a bad-conduct discharge. On 29 September 2014,
    the convening authority (CA) approved the sentence as adjudged, suspended all confinement in
    excess of six months pursuant to the terms of a pretrial agreement, and with the exception of the
    bad-conduct discharge, ordered the sentence executed.
    On appeal, the appellant raised two assignments of error: 1) that the CA VIOLATED RULE
    FOR COURTS-MARTIAL 1107, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
    thereby requiring a new CA’s action; and 2) that a sentence including a bad-conduct discharge
    was inappropriately severe. In its answer, the Government conceded error concerning the CA’s
    action. On 31 July 2015, this court set aside the CA’s action and ordered a new staff judge
    advocate’s recommendation and CA’s action. The CA complied with our order and the record of
    trial is again before us for consideration of the appellant’s remaining assignment of error
    concerning the severity of his sentence. We disagree with the alleged error and conclude that no
    error materially prejudicial to the substantial rights of the appellant remains.
    Factual Background
    At the time of his offenses, the appellant was the Administration Officer at Strike Fighter
    Squadron ONE TWO TWO’s permanent detachment, located on board Naval Air Facility El
    Centro, California.1 While at this duty station, the appellant volunteered to serve as a barracks
    inspector for the specific purpose of committing his offenses.2 In this role, the appellant was
    able to access rooms located in the female barracks.3 Sometime between 28 June and 14 July
    2012, the appellant accessed the female barracks room shared by Petty Officer Second Class
    (PO2) J.U., U.S. Navy, and Petty Officer Third Class (PO3) H.N., U.S. Navy.4 The appellant
    knew PO3 H.N. because she worked for him.5 While in uniform, and under the guise of
    performing a barracks inspection, the appellant hid a motion-activated camera in the bathroom.6
    The camera recorded PO2 J.U. and PO3 H.N. on several different occasions using the bathroom,
    capturing images of their exposed buttocks.7 Several days after installing the camera, the
    appellant removed the device and connected it to a laptop computer so that he could view the
    recordings.8
    On or about 24 July 2012, acting again under the guise of a barracks inspection, the
    appellant installed the same camera in the barracks bathroom of PO2 E.K., U.S. Navy.9 This
    1
    Prosecution Exhibit 1 at 1-2.
    2
    Record at 47.
    3
    
    Id. at 44-45,
    47.
    4
    PE 1 at 3.
    5
    Record at 207-08.
    6
    PE 1 at 3-4.
    7
    
    Id. at 5-6;
    Record at 204.
    8
    PE 1 at 4; Record at 48-49.
    9
    PE 1 at 4-5.
    2
    time, however, PO2 E.K. discovered the device several days after it was installed and turned it
    over to members of the Naval Criminal Investigative Service.10 Examination of the camera
    revealed videos of PO2 J.U. or PO3 H.N. using the bathroom, videos of PO2 E.K. showering and
    using the bathroom, and videos of PO2 R.D., U.S. Navy., a male acquaintance of PO2 E.K., also
    using the shower and bathroom.11
    Discussion
    Sentence Severity
    The appellant alleges a sentence that includes a bad-conduct discharge is inappropriately
    severe in light of his nineteen and one-half years of otherwise honorable service, including five
    deployments.12 We disagree.
    This court reviews de novo questions concerning the severity of an appellant’s sentence.
    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 punishment he
    deserves.” United States v. Healy, 
    26 M.J. 394
    , 395 (C.M.A. 1988). This requires
    “‘individualized consideration’ of the particular accused ‘on the basis of the nature and
    seriousness of the offense and character of the offender.’” United States v. Snelling, 
    14 M.J. 267
    ,
    268 (C.M.A. 1982) (quoting United States v. Mamaluy, 
    27 C.M.R. 176
    , 180-81 (C.M.A. 1959)).
    However, despite our significant discretion in reviewing the appropriateness of a sentence, we
    may not engage in acts of clemency. United States v. Nerad, 
    69 M.J. 138
    , 145-47 (C.A.A.F.
    2010).
    In the present case, we recognize the appellant’s lengthy and commendable service prior
    to his offenses. However, the appellant’s rank, experience, and position of authority make the
    conduct more egregious. The appellant was a chief petty officer who purposefully invaded the
    privacy of junior Sailors, including a Sailor who worked for him. He manipulated circumstances
    by “volunteering” for duty as a barracks inspector and then abused the authority entrusted to him
    so that he could videotape Sailors in their most private and personal moments. After considering
    evidence of the appellant’s character, we are firmly convinced that the sentence is appropriate
    not only [because of?] the nature of his offenses, but also the manner in which he committed
    them.
    10
    
    Id. at 5.
    11
    
    Id. at 5-6.
    12
    Appellant’s Brief of 4 Feb 2015 at 11-12.
    3
    Conclusion
    The findings and sentence as approved by the CA are affirmed.
    For the Court
    R.H. TROIDL
    Clerk of Court
    4
    

Document Info

Docket Number: 201400357

Filed Date: 5/19/2016

Precedential Status: Precedential

Modified Date: 5/20/2016