U.S. v. Finch, 73 M.J. 144

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it
2. in order to ensure a provident plea, the military judge must accurately inform appellant of the nature of his offense and elicit from him a factual basis to support his plea; an essential aspect of informing appellant of the nature of the offense is a correct definition of legal concepts; the judge’s failure to do so may render the plea improvident

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

1. the specifications in this case alleging that appellant distributed child pornography and received and possessed child pornography, both in violation of Article 134, UCMJ (conduct prejudicial to good order and discipline and service-discrediting conduct), were directly analogous to the federal offenses of distribution of child pornography (18 USC § 2252A(a)(2)) and possession of child pornography (18 USC § 2252A(a)(5)) in calculating the maximum punishment for those offenses; because the offenses were directly analogous to 18 USC § 2252A(a)(2) and (5), they were punishable by sentences of twenty years and ten years respectively; all the elements of the federal offenses, except the jurisdictional element, were included in the specifications; the offenses alleged images of minors, not images of virtual minors, and thus were not charged as simple disorders punishable by four months of confinement; the term child pornography is defined in § 2256(8)(B) to include any visual depiction of a minor engaging in sexually explicit conduct; the definition does not distinguish between minors and actual minors; as such, the CCA did not err in holding that the maximum possible sentence was based on the analogous portions of 18 USC § 2252A, which address essentially the same offenses as charged herein

Trial Stages: Merits: Guilty Pleas

1. during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it
2. in order to ensure a provident plea, the military judge must accurately inform appellant of the nature of his offense and elicit from him a factual basis to support his plea; an essential aspect of informing appellant of the nature of the offense is a correct definition of legal concepts; the judge’s failure to do so may render the plea improvident
3. an error by the military judge in failing to advise an accused of the nature of the offense and the correct definition of its legal concepts does not always render a guilty plea improvident; where the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted
4. in the providence inquiry with respect to appellant’s guilty pleas to distribution of child pornography and receipt and possession of child pornography, the military judge’s statement that the images could display either actual or virtual minors did not render appellant’s pleas improvident due to any confusion as to whether appellant was pleading to offenses involving actual minors with a maximum sentence of thirty years or offenses involving virtual minors with a maximum sentence of eight months; appellant’s trial defense counsel explicitly agreed with the government’s calculation of a maximum sentence to confinement of thirty years, under a statute limited to actual minors; the providence inquiry reflects that the parties proceeded with the understanding that the specifications involved actual minors with the corresponding thirty-year maximum sentence despite the military judge’s inconsistent reference to virtual minors; at no point during the providence inquiry or sentencing portion of the trial was there any expression of surprise or confusion as to the maximum sentence; following the military judge’s inconsistent statement, he defined the term minor as used in the specification as a person under the age of 18 years, and the plain meaning of the term person references an actual person rather than a virtual person; that definition is identical to the definition of minor as the term is used in 18 USC § 2252A(a)(2) and (5), which are limited to actual minors; furthermore, in discussing sexually explicit conduct, the military judge informed appellant of the factors to consider in determining whether the depictions included lascivious exhibition of the genitals or pubic area of any person; despite the single inconsistent reference to images of virtual minors, the parties proceeded as though the allegations involved actual persons and the military judge elicited adequate information from appellant to support the plea

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. the specifications in this case alleging that appellant distributed child pornography and received and possessed child pornography, both in violation of Article 134, UCMJ (conduct prejudicial to good order and discipline and service-discrediting conduct), were directly analogous to the federal offenses of distribution of child pornography (18 USC § 2252A(a)(2)) and possession of child pornography (18 USC § 2252A(a)(5)) in calculating the maximum punishment for those offenses; because the offenses were directly analogous to 18 USC § 2252A(a)(2) and (5), they were punishable by sentences of twenty years and ten years respectively; all the elements of the federal offenses, except the jurisdictional element, were included in the specifications; the offenses alleged images of minors, not images of virtual minors, and thus were not charged as simple disorders punishable by four months of confinement; the term child pornography is defined in § 2256(8)(B) to include any visual depiction of a minor engaging in sexually explicit conduct; the definition does not distinguish between minors and actual minors; as such, the CCA did not err in holding that the maximum possible sentence was based on the analogous portions of 18 USC § 2252A, which address essentially the same offenses as charged herein
2. where an offense is listed in Part IV of the MCM, the maximum punishment is set forth therein; for offenses not listed in Part IV, the maximum punishment depends on whether the offense is included in or closely related to a listed offense in the MCM; where the offenses at issue were neither listed in Part IV nor included in or closely related to any offense listed in the MCM, RCM 1003(c)(1)(B)(ii) provides that such an offense not listed in Part IV and not included in or closely related to any offense is punishable as authorized by the United States Code, or as authorized by the custom of service

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

1. a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion
2. an error by the military judge in failing to advise an accused of the nature of the offense and the correct definition of its legal concepts does not always render a guilty plea improvident; where the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted
3. to prevail on a claim that a guilty plea was improvident, an appellant has the burden to demonstrate a substantial basis in law and fact for questioning the plea; the mere possibility of a conflict between an appellant’s plea and statements or other evidence in the record is not a sufficient basis to overturn the trial results

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. where an offense is listed in Part IV of the MCM, the maximum punishment is set forth therein; for offenses not listed in Part IV, the maximum punishment depends on whether the offense is included in or closely related to a listed offense in the MCM; where the offenses at issue were neither listed in Part IV nor included in or closely related to any offense listed in the MCM, RCM 1003(c)(1)(B)(ii) provides that such an offense not listed in Part IV and not included in or closely related to any offense is punishable as authorized by the United States Code, or as authorized by the custom of service

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. unless the text of a statute is ambiguous, the plain language of a statute will control unless it leads to an absurd result