U.S. v. Irvin, 60 M.J. 23

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

1. in past cases, we have affirmed convictions for a lesser-included offense under clause 2 of Article 134 for the “possession of images depicting sexually explicit conduct by minors”; as in those cases, appellant in this case admitted to and discussed with the military judge the character of his conduct as service-discrediting and prejudicial to good order and discipline; under these circumstances, the record reflects no substantial basis in law or fact for questioning the providence of his guilty plea

Trial Stages: Merits: Guilty Pleas

1. appellant was charged under clauses 1 and 2 of Article 134 with engaging in conduct prejudicial to good order and discipline or of a nature to bring discredit to the armed forces by wrongfully and knowingly possessing visual depictions of minors engaging in sexually explicit conduct; the criminal nature of the conduct did not derive from a clause 3, Article 134 charge specifying a violation of the CPPA of 1996 (CPPA); thus, the providence of his guilty plea must be assessed against the elements of that offense, not the elements of the CPPA offense at issue in O’Connor and Free Speech Coalition
2. we find no substantial basis in law or fact to question the providence of appellant’s plea where (1) in advising appellant of the elements of the clauses 1 and 2 Article 134 offense, the military judge did not make any reference to the terms struck down as constitutionally overbroad in Free Speech Coalition; (2) the criminal offense that was explained to appellant and to which he pleaded guilty did not include a reference to visual depictions that “appear to be” of a minor engaging in sexually explicit conduct, or materials that were pandered in a manner that “conveys the impression” that they include visual depictions of minors engaging in sexually explicit conduct; (3) the offense that the military judge explained to appellant and to which he pleaded guilty was drawn strictly in terms of “visual depictions of minors engaging in sexually explicit conduct”; and (4) appellant’s explanation to the military judge was not cast in terms of images that “appeared to be” child pornography as was the case in O’Connor, but rather in terms of visual depictions that he knew “were, in fact, minors engaging in sexually explicit conduct”
3. in past cases, we have affirmed convictions for a lesser-included offense under clause 2 of Article 134 for the “possession of images depicting sexually explicit conduct by minors”; as in those cases, appellant in this case admitted to and discussed with the military judge the character of his conduct as service-discrediting and prejudicial to good order and discipline; under these circumstances, the record reflects no substantial basis in law or fact for questioning the providence of his guilty plea

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