U.S. v. Beaty, 70 M.J. 39

Military Justice Personnel: Military Judge: Discretion

1. while an appellate court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion

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

1. possession of child pornography, whether actual or virtual, may constitutionally be prosecuted under clauses 1 and 2, Article 134, UCMJ
2. the maximum sentence for the offense with which appellant was charged, possession of “what appears to be” child pornography charged under clause 1 or clause 2 of Article 134, UCMJ, cannot be determined with reference to 18 USC § 2252A or 18 USC § 2252(a)(4)(B); the US Code does not criminalize possession of “what appears to be” child pornography; an offense comprised of acts that cannot be criminally charged under the US Code at all is neither directly analogous nor essentially the same as one that can be; as such, it was error to reference either federal statute to determine the maximum punishment in this case, because under neither statute is the offense with which appellant was charged punishable at all
3. while the government can charge an offense of possession of “what appears to be” child pornography under Article 134, UCMJ, the maximum punishment under the US Code for possession of “what appears to be” child pornography is no punishment at all
4. under RCM 1003(c)(1)(B)(ii), where an Article 134, UCMJ, offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the US Code, the maximum punishment is that authorized by the custom of the service
5. when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the US Code, and where there is no maximum punishment authorized by the custom of the service, they are punishable as general or simple disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months
6. the maximum sentence for appellant’s offense of possession of “what appears to be” child pornography charged as an Article 134, clause 1 or 2 offense, was four months of confinement and forfeiture of two-thirds pay per month for four months, where the offense was not listed in the MCM, not included in or closely related to any other offense listed in Part IV of the MCM, and not provided for in the US Code, where there was no custom of the service specific to the offense, and where use of confinement for life without eligibility for parole as the jurisdictional maximum for a GCM would violate the rule of lenity

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. the maximum sentence for the offense with which appellant was charged, possession of “what appears to be” child pornography charged under clause 1 or clause 2 of Article 134, UCMJ, cannot be determined with reference to 18 USC § 2252A or 18 USC § 2252(a)(4)(B); the US Code does not criminalize possession of “what appears to be” child pornography; an offense comprised of acts that cannot be criminally charged under the US Code at all is neither directly analogous nor essentially the same as one that can be; as such, it was error to reference either federal statute to determine the maximum punishment in this case, because under neither statute is the offense with which appellant was charged punishable at all
2. while the government can charge an offense of possession of “what appears to be” child pornography under Article 134, UCMJ, the maximum punishment under the US Code for possession of “what appears to be” child pornography is no punishment at all
3. under RCM 1003(c)(1)(B)(ii), where an Article 134, UCMJ, offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the US Code, the maximum punishment is that authorized by the custom of the service
4. when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the US Code, and where there is no maximum punishment authorized by the custom of the service, they are punishable as general or simple disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months
5. the maximum sentence for appellant’s offense of possession of “what appears to be” child pornography charged as an Article 134, clause 1 or 2 offense, was four months of confinement and forfeiture of two-thirds pay per month for four months, where the offense was not listed in the MCM, not included in or closely related to any other offense listed in Part IV of the MCM, and not provided for in the US Code, where there was no custom of the service specific to the offense, and where use of confinement for life without eligibility for parole as the jurisdictional maximum for a GCM would violate the rule of lenity

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

1. the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo
2. while an appellate court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion