This opinion is subject to administrative correction before final disposition.




                                Before
                    KING, STEPHENS, and GASTON
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                        Anthonie L. SCOTT
                     Major (O-4), U.S. Marine Corps
                               Appellant

                             No. 201900003

                           Decided: 27 May 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                            Military Judges:
                    Eugene H. Robinson (arraignment)
                       Stephen C. Reyes (motions)
                         Mark D. Sameit (trial)

 Sentence adjudged 21 August 2018 by a general court-martial con-
 vened at Marine Corps Base Camp Butler, Okinawa, Japan, consisting
 of a military judge alone. Sentence approved by the convening authori-
 ty: dismissal.

                             For Appellant:
                  Captain Kimberly Hinson, JAGC, USN

                             For Appellee:
           Lieutenant Commander Timothy Ceder, JAGC, USN
                      Captain Brian Farrell, USMC

                        _________________________
                  United States v. Scott, NMCCA No. 201900003
                              Opinion of the Court

           This opinion does not serve as binding precedent, but
            may be cited as persuasive authority under NMCCA
                     Rule of Appellate Procedure 30.2.

                           _________________________

KING, Senior Judge:
    Pursuant to his pleas, Appellant was convicted of violating a lawful gen-
eral regulation, making false official statements, and larceny, in violation of
Articles 92, 107, and 121, Uniform Code of Military Justice [UCMJ], 10
U.S.C. §§ 892, 907, 921. Appellant now raises several summary assignments
of error. After review, we affirm his convictions and sentence.

                               I. BACKGROUND

    While stationed at Marine Corps Base Camp Lejeune, North Carolina,
Appellant received permanent change of station [PCS] orders to Okinawa,
Japan. Prior to transferring, Appellant moved his family to California. On 31
July 2015, Appellant flew to Okinawa and filed a travel voucher listing Santa
Clara, California as his family’s final destination, even though his family
moved to Murrieta, California, a location with a lower Basic Allowance for
Housing [BAH] rate. As a result, over the next thirty months, Appellant was
overpaid more than $60,000 in housing allowance to which he was not
entitled. After clerks contacted Appellant’s wife to verify her home address,
and in an effort to continue drawing the higher BAH, Appellant made two
false official statements regarding his family’s address, one to a Corporal and
one to a Chief Warrant Officer 2.
    After arriving in Okinawa, Appellant met Hospitalman Third Class
[HM3] SD, a female Sailor who worked in the same vicinity as Appellant.
Over the course of several months, Appellant engaged in overt, unwelcome
sexual behavior towards HM3 SD. Appellant would frequently visit HM3 SD
at her workstation and request that she accompany him on “smoke breaks.”
On these breaks, and in the presence of others, Appellant would make lewd
sexual remarks to HM3 SD and refer to her by a nickname he had given her.
HM3 SD reported Appellant’s behavior to her chain of command and later
testified that the repeated sexual comments from a senior officer made her
feel “degraded, embarrassed, and disrespected.” 1 According to HM3 SD, the



   1   Record at 137.




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               United States v. Scott, NMCCA No. 201900003
                           Opinion of the Court

comments continued even after a senior petty officer confronted the Appellant
about his “unprofessional behavior.” 2
    Appellant eventually entered into a pretrial agreement, pleaded guilty,
and admitted to the allegations detailed above. During the sentencing
hearing, the Government admitted several pieces of documentary evidence, to
all of which Appellant’s trial defense counsel specifically stated he had “no
objection.” The Government also made oral argument regarding an appropri-
ate sentence without any objection.
    Appellant now raises several summary assignments of error, asserting it
was “plain error” for the military judge to admit certain evidence on sentenc-
ing, that trial counsel engaged in improper argument, and that these
combined errors merit relief under the “cumulative error” doctrine. Appellant
additionally asserts that his sentence was inappropriately severe. Having
fully considered Appellant’s summarized arguments regarding “plain” and
“cumulative” error, we find them to be without merit, warranting neither
discussion nor relief. United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
We take up his assertion of sentence inappropriateness below. In addition,
while not briefed by the parties, we find the military judge abused his
discretion in accepting Appellant’s plea to the larceny specification as
charged. We modify that finding to comport to Appellant’s statements during
providency and affirm the findings as modified and the sentence.

                              II. DISCUSSION

A. Sufficiency of Guilty Plea
    Appellant’s larceny charge alleged he stole BAH funds from on or about 1
August 2015 until on or about 1 January 2018. The investigation into this
allegation revealed that Appellant moved his family to California in August
2015, the same month he executed PCS orders to Okinawa. Upon arrival in
Okinawa, Appellant claimed his dependents resided in Santa Clara when
they in fact had moved to Murrieta.
    However, during providency, Appellant stated that for a period of time he
was unaware his dependents were not living in Santa Clara. Specifically,
Appellant informed the military judge that when he left for Japan, his
dependents were in Santa Clara, where he believed they would be moving
into an apartment. According to Appellant, it was not until 3 July 2017 that



   2   Id.




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                  United States v. Scott, NMCCA No. 201900003
                              Opinion of the Court

he first discovered that his dependents actually lived in Murrieta, even
though he had visited his family in Murrieta while on leave prior to 3 July
2017. Once he became aware, Appellant admitted to the military judge that
he decided to keep the overpayment and, to do so, made a false official
statement on 27 November 2017 wherein he claimed his dependents resided
in San Jose, California—a city with a BAH rate similar to Santa Clara.
   During this same month, military authorities contacted Appellant’s wife
and inquired as to her actual residential address. Upon learning of this
inquiry on or about 29 November 2017, Appellant again falsely certified to
military authorities that his dependents resided in San Jose, California.
Appellant continued to wrongfully obtain BAH for San Jose until on or about
1 January 2018. The military judge accepted Appellant’s guilty plea to
stealing BAH overpayments for the period charged.
    Prior to accepting a guilty plea, a military judge must ensure the plea is
supported by a factual basis. Article 45(a), UCMJ; United States v. Care, 40
C.M.R. 247 (C.M.A. 1969); Rule for Courts-Martial 910(e). The military judge
must elicit sufficient facts to satisfy every element of the offense in question,
and a military judge’s decision to accept a plea of guilty is reviewed for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008). We will only reject a guilty plea if there is a substantial basis in law or
fact to question the plea. United States v. Pena, 64 M.J. 19, 259, 267
(C.A.A.F. 2007) (citing United States v. Prater, 32 M.J. 433, 466 (C.M.A.
1991)).
    The elements for the crime to which Appellant pleaded guilty, as correctly
recited by the military judge, were as follows:
             First, that between on or about 1 August 2015 and on or
         about 1 January 2018, at or near Okinawa, Japan, [Appellant]
         wrongfully withheld certain property, that is, basic allowance
         for housing, from the possession of the United States; Second,
         that the property belonged to the United States government;
         Third, that the property was of a certain value of more than
         $500; and Fourth, that the withholding by [Appellant] was with
         the intent permanently to deprive or defraud the United States
         government of the use and benefit of the property or perma-
         nently to appropriate the property to [Appellant’s] own use or
         the use of someone other than the United States government. 3



   3   Record at 81.




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                  United States v. Scott, NMCCA No. 201900003
                              Opinion of the Court

   The military judge further explained:
             A taking or withholding is wrongful only if done without the
         consent of the owner with a criminal state of mind. And as we
         talked about before, an obtaining is wrongful only when it is
         accomplished by false pretenses with a criminal state of mind. 4
    Thus, a withholding or obtaining of property is only wrongful if accompa-
nied by the requisite intent. 5 Here, providency established that Appellant
lacked such intent until 3 July 2017, when he claims he first discovered his
receipt of BAH at the Santa Clara rate was erroneous. Lacking Appellant’s
admission otherwise, there is a substantial basis in fact to question Appel-
lant’s plea of guilty to the Specification of Charge I as drafted and the
military judge abused his discretion by accepting Appellant’s guilty plea to
that charge without modifying the beginning date.
    However, we find no substantial basis to question the providence of Ap-
pellant’s guilty plea to the Specification of Charge I, modified as follows:
             In that [Appellant], while on active duty, did, at or near
         Okinawa, Japan, between on or about 3 July 2017 and on or
         about 1 January 2018, steal Basic Allowance for Housing of a
         value more than $500, the property of the United States, with
         intent permanently to deprive the United States of the use and
         benefit of said property.
   Having modified the Specification of Charge I, we must now consider
whether we can reassess the sentence. United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013); United States v. Moffeit, 63 M.J. 40, 41-42
(C.A.A.F. 2006); United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986).
After analyzing the four factors laid out by our superior court in Winckel-
mann, we can confidently and reliably determine that Appellant’s sentence
would still include a dismissal.

B. Whether Appellant’s Sentence was Inappropriately Severe
    We review the appropriateness of a sentence de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). This Court “may affirm only such findings
of guilty, and the sentence or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis of the entire record,



   4   Id.
   5   See MCM, Part IV, ¶ 46(c)(1)(f)(i).




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               United States v. Scott, NMCCA No. 201900003
                           Opinion of the Court

should be approved.” Art. 66(c), UCMJ. “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). The analysis requires “ ‘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) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-
181 (C.M.A. 1959)). However, we are “not authorized to engage in exercises of
clemency . . . .” Healy, 26 M.J. at 395.
    Appellant joined the Marine Corps as an enlisted Marine twenty-five
years before his sentencing hearing. During that time, he deployed twelve
times, to thirty-seven countries, and spent a total of over 7 years at sea. Over
the course of his career, Appellant moved from staff non-commissioned
officer, to warrant officer, to commissioned officer—a promotion path
achieved by very few. The evidence the Defense submitted at Appellant’s
sentencing hearing substantiates these promotions.
    On the other hand, Appellant stole tens of thousands of dollars from the
government, a scheme that included lying to juniors in the course of his
official duties while they were in the course of theirs. Moreover, he used his
rank and position to subject a junior Sailor to his sexual comments and
innuendos, and did so in front of other junior Service Members, one of whom
intervened in an unsuccessful attempt to convince Appellant to cease. But
Appellant did not cease, leaving a wake of distrust and disrespect. These are
serious crimes exposing Appellant to decades of confinement. Weighing the
gravity and circumstances of this misconduct against his record of service
and the other evidence in extenuation and mitigation, we are convinced that
justice was done and Appellant received the punishment he deserves. See
Healy, 26 M.J. at 395.

                              III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings as modified and sentence are
correct in law and fact and find no error materially prejudicial to Appellant’s
substantial rights occurred. Arts. 59, 66, UCMJ. Accordingly, the findings, as
modified by this Court, and sentence as approved by the convening authority
are AFFIRMED.
   The supplemental court martial order shall reflect the following finding to
the Specification of Charge I: Guilty, except the words and figures “1 August
2015” and substituting therefore the words and figures “3 July 2017.” To the



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              United States v. Scott, NMCCA No. 201900003
                          Opinion of the Court

excepted words, not guilty, to the Specification and Charge as excepted and
substituted, guilty.
   Judges STEPHENS and GASTON concur.


                              FOR THE COURT:




                              RODGER A. DREW, JR.
                              Clerk of Court




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