U.S. v. Mason, 60 M.J. 15

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

1. we expressly acknowledged in O’Connor, but did not answer, the question as to whether, in the wake of Free Speech Coalition, the possession, receipt or distribution of images of minors engaging in sexually explicit conduct (regardless of their status as “actual” or “virtual”) could constitute service-discrediting conduct for purposes of Article 134; such inquiry must necessarily be undertaken on a case-by-case basis; in analyzing this constitutional dimension, the ultimate question is whether the status of the images in the present case as “virtual” or “actual” is of consequence in the context of assessing the providence of appellant’s guilty plea under clauses 1 and 2; we conclude that it is not
2. the receipt or possession of “virtual” child pornography can, like “actual” child pornography, be service-discrediting or prejudicial to good order and discipline; even if we were to assume that the specific images that serve as the basis for appellant’s “child pornography” charge are “virtual” in nature, this still involves a commissioned officer of the United States Air Force receiving and viewing such images on a government computer in his workplace; under those circumstances, the distinction between “actual” child pornography and “virtual” child pornography does not alter the character of appellant’s conduct as service-discrediting or prejudicial to good order and discipline
3. while the issue as to whether the images of child pornography are “virtual” or “actual” may have a potentially dispositive effect in prosecutions under the CPPA in both civilian and military settings, it is not inherently dispositive of their impact on the esteem of the armed forces or good order and discipline; those are the yardsticks by which the criminality of conduct under clauses 1 and 2 are measured; even assuming the images at issue here are “virtual,” appellant’s conduct in receiving those images on his government computer can constitutionally be subjected to criminal sanction under the uniquely military offenses embodied in clauses 1 and 2 of Article 134

Trial Stages: Merits: Guilty Pleas

1. under our decision in O’Connor, a provident guilty plea to a violation of the CPPA must reflect that the accused violated those portions of the statute not affected by the Supreme Court’s ruling in Free Speech Coalition; the absence of any focus on or discussion concerning those aspects of the statute in the present record coupled with the use of the unconstitutionally overbroad definition during appellant’s plea colloquy render this case indistinguishable from O’Connor; accordingly, we cannot view appellant’s plea of guilty to violating the CPPA, and thus to violating clause 3 of Article 134, as provident
2. we have recognized in the past that an improvident plea to a clause 3 offense under Article 134 based on a federal child pornography statute may be upheld as a provident plea to a lesser-included offense under clause 2 of Article 134; those past cases involved admissions by the accused during the plea inquiry as to the service-discrediting character of their conduct and we characterized those discussions as demonstrating that the accused clearly understood the nature of the prohibited conduct
3. the plea colloquy in O’Connor was focused solely on the nature of the prohibited conduct under the CPPA, without any discussion or acknowledgement of the criminal nature of the conduct deriving alternatively (and independently) from its character as service-discrediting or prejudicial to good order and discipline; absent any discussion with the military judge as to how his conduct might be criminal under clause 1 or 2 as distinct from criminal under clause 3, we could not view O’Connor’s guilty plea as provident to a lesser-included offense under clause 2
4. the record here contains what was missing in O’Connor; the plea colloquy between the military judge and appellant demonstrates that he clearly understood the nature of the prohibited conduct in terms of that conduct being service-discrediting and prejudicial to good order and discipline; the clause 1 and clause 2 elements were explained to him as a basis for finding his conduct criminal apart from clause 3 and his discussions with and admissions to the military judge were made in that context; absent some other distinguishing factor, we could deem appellant’s guilty plea provident as to a lesser-included offense under clause 1 and clause 2 under the principles embodied in past cases
5. we recognized in O’Connor that there is a distinguishing factor at play here: the impact of Free Speech Coalition and its creation of “a constitutional dimension that was not at issue” in our past cases; that constitutional dimension flows from the Supreme Court’s extension of First Amendment protection to certain depictions of minors engaging in sexually explicit conduct, i.e., “virtual” as opposed to “actual” images; we expressly acknowledged in O’Connor, but did not answer, the question as to whether, in the wake of Free Speech Coalition, the possession, receipt or distribution of images of minors engaging in sexually explicit conduct (regardless of their status as “actual” or “virtual”) could constitute service-discrediting conduct for purposes of Article 134; such inquiry must necessarily be undertaken on a case-by-case basis; in analyzing this constitutional dimension, the ultimate question is whether the status of the images in the present case as “virtual” or “actual” is of consequence in the context of assessing the providence of appellant’s guilty plea under clauses 1 and 2; we conclude that it is not
6. the receipt or possession of “virtual” child pornography can, like “actual” child pornography, be service-discrediting or prejudicial to good order and discipline; even if we were to assume that the specific images that serve as the basis for appellant’s “child pornography” charge are “virtual” in nature, this still involves a commissioned officer of the United States Air Force receiving and viewing such images on a government computer in his workplace; under those circumstances, the distinction between “actual” child pornography and “virtual” child pornography does not alter the character of appellant’s conduct as service-discrediting or prejudicial to good order and discipline
7. while the issue as to whether the images of child pornography are “virtual” or “actual” may have a potentially dispositive effect in prosecutions under the CPPA in both civilian and military settings, it is not inherently dispositive of their impact on the esteem of the armed forces or good order and discipline; those are the yardsticks by which the criminality of conduct under clauses 1 and 2 are measured; even assuming the images at issue here are “virtual,” appellant’s conduct in receiving those images on his government computer can constitutionally be subjected to criminal sanction under the uniquely military offenses embodied in clauses 1 and 2 of Article 134

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

1. for this Court to reject a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the plea