U.S. v. O'Connor, 58 M.J. 450

First Principles: Constitutional Matters: First Amendment

1. this Court has long recognized that the First Amendment rights of civilians and members of the armed forces are not necessarily coextensive; at the same time, however, this Court must ensure that the connection between any conduct protected by the First Amendment and its effect in the military environment be closely examined

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. conduct is punishable under Article 134 if it prejudices good order and discipline in the armed forces [clause 1], if it is of a nature to bring discredit upon the armed forces [clause 2], or if it is a crime or offense not capital [clause 3]; the three clauses do not create separate offenses, but rather provide alternative ways of proving the criminal nature of the charged misconduct
2. in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court concluded that the First Amendment prohibits any prosecution under the Child Pornography Prevention Act based on "virtual" child pornography; in the wake of Free Speech Coalition, the "virtual" or "actual" status of the images at issue has constitutional significance
3. in order to plead guilty to knowingly possessing or receiving child pornography in violation of the Child Pornography Prevention Act under Article 134, UCMJ, it is no longer enough to knowingly possess or receive visual depictions that "appear to be" of a minor engaging in sexually explicit conduct; in the wake of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the relevant provisions the CCPA require that the visual depiction be of an actual minor engaging in sexually explicit conduct; the "actual" character of the visual depictions is now a factual predicate to any plea of guilty under the CPPA

Trial Stages: Merits: Guilty Pleas

1. for a guilty plea to be provident, the accused must be convinced of, and be able to describe, all of the facts necessary to establish guilt; in order to establish an adequate factual predicate for a guilty plea, the military judge must elicit factual circumstances as revealed by the accused himself that objectively support that plea
2. in order to plead guilty to knowingly possessing or receiving child pornography in violation of the Child Pornography Prevention Act under Article 134, UCMJ, it is no longer enough to knowingly possess or receive visual depictions that "appear to be" of a minor engaging in sexually explicit conduct; in the wake of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the relevant provisions the CCPA require that the visual depiction be of an actual minor engaging in sexually explicit conduct; the "actual" character of the visual depictions is now a factual predicate to any plea of guilty under the CPPA
3. in this case, where it is unclear from the providence inquiry and the record whether appellant was pleading guilty to possession and receipt of virtual or actual child pornography, his pleas of guilty to violating clause 3 of Art. 134 by possessing and receiving child pornography in violation of the CPPA cannot be sustained as provident; an inquiry into the "actual" versus "virtual" distinction now has critical significance; in the absence of any discussion or focus in the record regarding the "actual" character of the images, appellant's plea of guilty to violations of the CPPA was improvident
4. an improvident plea to a CPPA-based clause 3 offense under Article 134 may be upheld as a provident plea to a lesser-included offense under clause 2 of Article 134
5. in the wake of Free Speech Coalition, the "virtual" or "actual" status of the images at issue has constitutional significance; that constitutional significance may, in turn, bear on the nature of the prohibited conduct, i.e., its service-discrediting character; appellant's plea inquiry was focused on the question of whether or not his conduct violated the CPPA, not the question of whether or not, under the circumstances, his conduct was of a nature to bring discredit upon the armed forces; as such, there was no specific discussion with appellant concerning the service-discrediting character of his conduct, much less any constitutional implications his conduct may or may not have had; in the absence of any conscious discussion regarding those issues, the record here does not demonstrate that appellant clearly understood the nature of the prohibited conduct; accordingly, this Court cannot view appellant's plea as provident to the lesser-included offense of service-discrediting conduct under clause 2 of Article 134

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. for this Court to set aside a finding based upon a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the guilty plea
2. in order for this Court to find appellant's plea provident, his plea inquiry and the balance of the record must objectively support the existence of a factual predicate for the offense