Umphreyville v. Gittins
| Decision Date | 30 September 2009 |
| Docket Number | Civil Action No. 5:07CV00096. |
| Citation | 662 F.Supp.2d 501 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | Kevin C. UMPHREYVILLE, Plaintiff, v. Charles W. GITTINS, Defendant. |
Kevin C. Umphreyville, Cary, NC, pro se.
William Leonard Mitchell, II, Allison Grace Clary-Bauer, Eccleston and Wolf, P.C., Washington, DC., for Defendant.
The plaintiff, Kevin C. Umphreyville, proceeding pro se, filed this diversity action against the defendant, Charles W. Gittins, asserting claims for breach of contract and legal malpractice. The action stems from the defendant's representation of the plaintiff during the course of military justice proceedings at the Marine Corps Recruit Depot in Parris Island, South Carolina. The matter is presently before the court on Gittins' motion for summary judgment. For the reasons that follow, the court will grant Gittins' motion.
Umphreyville previously served as a Lance Corporal in the United States Marine Corps. In March of 2002, Umphreyville was stationed at Parris Island, where he had the military occupational specialty designation ("MOS") of military policeman.
On March 9, 2002, Kayleen Anderson, a 17-year-old woman, accused Umphreyville of sexually assaulting her at a residence within the confines of the Marine Corps installation at Parris Island. During the subsequent Naval Criminal Investigative Service ("NCIS") investigation, another female civilian, Melissa Nortum, came forward and accused Umphreyville of sexually assaulting her in March of 2002.
Based on the information and evidence gathered from the NCIS investigation, Umphreyville was charged with violating four articles of the Uniform Code of Military Justice ("UCMJ"). The first charge was for conspiring to impede an investigation, in violation of Article 81 of the UCMJ, 10 U.S.C. § 881. The second charge involved two specifications of rape, in violation of Article 120, 10 U.S.C. § 920. The third charge was for committing sodomy with Kayleen Anderson, in violation of Article 125, 10 U.S.C. § 925. The fourth charge involved seven specifications of either soliciting indecent acts or using indecent language, in violation of Article 134, 10 U.S.C. § 934.1
Mary Fran Quindlen (nee Gallagher) was appointed to serve as Umphreyville's military defense counsel. Given the serious nature of some of the charges, Quindlen recommended that Umphreyville retain civilian counsel to assist with his defense. Quindlen referred Umphreyville to several attorneys, including the defendant, Charles Gittins, a retired Marine Corps judge advocate who resides in Winchester, Virginia.
Gittins was subsequently retained to represent Umphreyville in May of 2002. The terms and conditions of Gittins' representation were outlined in a May 2, 2002 retainer letter addressed to Umphreyville's father. The retainer letter provided, in pertinent part, as follows:
The purpose of this letter is to confirm the terms and conditions under which I will undertake the representation of your son, Kevin, in connection with the court-martial proceedings now pending preferral at MCRD Parris Island, South Carolina.
My attorney's fees for representation in this matter will be as follows:
— $5,000 for representation in the Article 32 hearing, payable by cashier's or certified check at the time I am retained to represent you.
— $9,000 for representation in court-martial proceedings, through submission of post-trial matters to the convening authority in the event of a conviction, payable in full via cashier's or personal check within 2 weeks after the charges are referred to trial. This portion of the fee shall be due only if the charges are referred to trial and shall be considered earned in full in the event I am successful in winning a final dismissal of the charges prior to trial.
In addition to my fees, I will be entitled to payment or reimbursement for costs and expenses incurred in performing services such as photocopying, computerized research, travel (including mileage, parking, lodging, meals), long-distance telephone, and telecopying. Because this case will be tried in Beaufort, South Carolina, I expect that I will be required to make up to three trips to South Carolina, including an overnight trip for the Article 32 hearing, an overnight trip for motions, in the event we have any to litigate prior to trial, and finally, several days for trial, if one is ordered. I will endeavor to keep my expenses to a minimum, consistent with what is necessary to zealously and professionally represent your son in these proceedings.
(Compl. Ex. A). Gittins was subsequently paid $5,000 to represent Umphreyville during the course of the Article 32 proceeding.2
After Gittins was retained to represent Umphreyville, Gittins obtained and reviewed the NCIS investigative file. Additionally, Gittins and Quindlen agreed that Quindlen would interview potential witnesses and assist Gittins in preparing for the Article 32 hearing. However, the attorneys agreed that Gittins would have first-chair responsibility at the hearing.
The Article 32 hearing was conducted by the Investigating Officer on June 11 and 12, 2002. During the hearing, Gittins cross-examined several witnesses called by the government, including Melissa Nortum, one of the alleged rape victims. The other alleged rape victim, Kayleen Anderson, did not appear at the hearing.3 Gittins did not call any defense witnesses. Instead, Umphreyville tendered an unsworn statement, in which he admitted that he had participated in consensual oral sex with Anderson. Following the Article 32 hearing, Gittins submitted a memorandum to the Investigating Officer, in which Gittins advocated for the dismissal of all of the charges against Umphreyville.
On June 20, 2002, the Investigating Officer submitted his Report and Recommendations to the Commanding Officer. The Investigating Officer recommended the dismissal of the conspiracy charge, both specifications of rape, and four of the seven specifications under Article 134 of the UCMJ. However, the Investigating Officer found that sufficient evidence had been presented to permit the sodomy charge to proceed to court-martial, as well as the three remaining specifications under Article 134. The Investigating Officer further determined that the evidence supported an additional charge for supplying alcohol to a minor, in violation of Article 134. The Investigating Officer recommended that the charges be referred to a summary court-martial.4
On July 16, 2002, after the Investigator's Report was issued, Gittins sent Umphreyville's father a memorandum analyzing the disposition options, the ranges of potential punishment, and the likelihood of a successful defense. Gittins recommended that Umphreyville enter "a plea of guilty at a summary court-martial to the charges [Gittins] believe[d] the Government [could] and [would] prove at trial—sodomy, solicitation and indecent language." (Def.'s Ex. K).
Rather than referring the remaining charges to a summary court-martial, as recommended by the Investigating Officer, the Commanding Officer ultimately offered to have the charges resolved at an Article 15 nonjudicial punishment ("NJP") proceeding, and Umphreyville accepted the offer.5 At Quindlen's direction, Umphreyville sent the Commanding Officer a letter on July 18, 2002, which indicated that Umphreyville strongly believed that he could prove his innocence, but that he "would be willing to face any punishment under Non-Judicial Punishment."6 (Def.'s Ex. P) (emphasis in original). Umphreyville further requested that he "be allowed to retain [his] MOS as a Military Police Officer and not be separated from the Marine Corps." (Def.'s Ex. P.).
On August 20, 2002, Umphreyville signed a "free and voluntary" typewritten statement regarding the sodomy charge and the remaining specifications under Article 134. (Def.'s Ex. J). With respect to the sodomy charge, Umphreyville stated that he "allowed [Kayleen] A. Anderson, on the morning of 09Mar02, to perform oral sex on [him]," but that he "never asked for or expected it." (Def.'s Ex. J). As for the Article 134 specifications of soliciting indecent acts and using indecent language, Umphreyville admitted that he asked Anderson on March 9, 2002 if she would also sleep with Lance Corporal Marek. Umphreyville emphasized, however, that he was merely joking with Anderson and that he did not mean to imply that he was interested in group sex. Umphreyville also acknowledged that the possibility of a "threesome" involving himself, Lance Corporal Marek, and Melissa Nortum was discussed in Nortum's presence, but that "in reality it was brought up more in [Nortum's] absence." (Def.'s Ex. J).
On August 26, 2002, Umphreyville signed and initialed several documents affirming his understanding of his rights with respect to the NJP process. Umphreyville also acknowledged that he did not have to agree to the process, and that by doing so, was waiving his right to have the remaining charges adjudicated at a court-martial proceeding.
Mary Fran Quindlen met with Umphreyville and discussed the NJP process with him. However, neither Quindlen nor Gittins represented Umphreyville at the NJP hearing. According to Quindlen, "military detailed defense counsel are not permitted to attend or represent accuseds at NJP," and "it was [her] understanding that the Convening Authority disfavored attorneys serving as spokespersons at NJP proceedings." (Quindlen Aff. at para. 37). Consequently, Quindlen believed that Umphreyville "would be disserved at the NJP if he attended with counsel."7 (Quindlen Aff. at para. 37).
Umphreyville appeared before his Commanding Officer for the NJP hearing on September 6, 2002. For reasons that are disputed, the hearing was abruptly terminated and rescheduled for September 11, 2002.8 Between September 6, 2002 and September...
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