This opinion is subject to administrative correction before final disposition.




                              Before
                STEPHENS, LAWRENCE, and GERRITY
                     Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                   Yobany E. FLORES-RIVAS
                Staff Sergeant (E-6), U.S. Marine Corps
                               Appellant

                             No. 201900059

                           Decided: 30 June 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                              Military Judge:
                              Ryan J. Stormer

 Sentence adjudged 5 October 2018 by a general court-martial con-
 vened at Marine Corps Base Quantico, Virginia, consisting of a mili-
 tary judge sitting alone. Sentence approved by the convening authori-
 ty: reduction to E-1, confinement for 27 months, and a bad-conduct
 discharge.

                              For Appellant:
                      Catherine M. Cherkasky, Esq.
               Lieutenant Clifton E. Morgan III, JAGC USN

                             For Appellee:
                   Major Kerry E. Friedewald, USMC
          Lieutenant Commander Timothy C. Ceder, JAGC, USN

 Judge GERRITY delivered the opinion of the Court, in which Senior
 Judge STEPHENS and Judge LAWRENCE joined.
            United States v. Flores-Rivas, NMCCA No. 201900059
                             Opinion of the Court

                           _________________________

                  PUBLISHED OPINION OF THE COURT

                           _________________________

GERRITY, Judge:
    Appellant was convicted, in accordance with his pleas, of one specification
of unauthorized absence and one specification each of possessing, viewing,
and distributing child pornography, in violation of Articles 86 and 134,
Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 886, 934 (2016). 1
   Appellant raises one assignment of error on appeal:
       Whether the Military Judge abused his discretion in accepting
       Appellant’s plea to distribution of child pornography, as it was
       improvident because he did not possess the required mens rea to
       commit the offense?
   We find no substantial basis in law or fact to question the providence of
Appellant’s guilty plea and we affirm the findings and sentence.

                               I. BACKGROUND

    Appellant downloaded and possessed images and videos of child pornog-
raphy on his personal tablet. He used a peer-to-peer file-sharing software
that enables file sharing among users of that software. Appellant kept the
child pornography on his tablet in a file location from which other users of
that same software could search for and download the child pornography.
During June and July 2017, two special agents from the Federal Bureau of
Investigation [FBI] downloaded child pornography files directly from Appel-
lant’s tablet.
    In August 2017, the FBI agents executed a search warrant at Appellant’s
residence, but Appellant was away. That same day, special agents of the
Naval Criminal Investigative Service [NCIS] called Appellant, who initially
agreed to meet with them. Appellant’s mother-in-law called Appellant and
told him the police were going to arrest him. Instead of meeting with NCIS
special agents as promised, Appellant withdrew a large sum of cash and left



   1  The military judge sua sponte merged specifications 1 (possession) and 2 (view-
ing) of the Article 134, UCMJ, charge for sentencing.



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              United States v. Flores-Rivas, NMCCA No. 201900059
                               Opinion of the Court

the state, commencing a period of absence without authority. Appellant
voluntarily returned to Quantico two days later, met with federal agents and
partially confessed. Pursuant to a pretrial agreement, Appellant entered into
a stipulation of fact and pleaded guilty to all charges. Specifically, Appellant
admitted that he “knew at the time the child pornography was on his comput-
er that it was being shared with others on [the file-sharing software].” 2
    Despite the clear language of his stipulation, Appellant now claims he did
not knowingly make the child pornography available for others to download
when he stored the files in the file-sharing software folder, and that he only
came to this knowledge by reviewing the investigative materials after the
distribution had already occurred.

                                  II. DISCUSSION

A. Providence of an Appellant’s Guilty Plea
    When pleading guilty, “an accused does more than admit that he [commit-
ted] the various acts alleged in a specification; ‘he is admitting guilt of a
substantive crime.’ ” United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F.
2009) (quoting United States v. Broce, 488 U.S. 563, 570 (1989)). Before
accepting a guilty plea, the military judge must ensure there is a factual
basis for the plea; that the accused is pleading guilty voluntarily and with a
full understanding of that factual basis; that the accused understands the
effect of his plea; and that the accused understands he is waiving certain
rights he would have at trial. Article 45(a), UCMJ; United States v. Care, 40
C.M.R. 247 (C.M.A. 1969); Rule for Courts-Martial [R.C.M.] 910(e). The
military judge’s inquiry is required to ensure an accused’s pleas of guilty are
voluntary and provident, that they comport with public policy, and that a
thorough appellate record is created for review so that public confidence in
the military plea process will be enhanced. United States v. King, 3 M.J. 458,
459 (C.M.A. 1977).
    “A military judge may not accept a guilty plea if it is ‘irregular,’ the ac-
cused ‘sets up matter inconsistent with the plea, or if it appears that he has
entered the plea of guilty improvidently or through lack of understanding of
its meaning and effect.’ ” United States v. Ferguson, 68 M.J. 431, 433
(C.A.A.F. 2010) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2006)). We
review the military judge’s decision to accept a guilty plea for an abuse of




   2   Pros. Ex. 1 at 6 (emphasis added).



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                             Opinion of the Court

discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). We
review questions of law arising from the guilty plea de novo. Id.
    In accepting a guilty plea, a military judge abuses his discretion if a rul-
ing is based on an erroneous view of the law or if the military judge fails to
obtain an adequate factual basis for the plea—but this factual basis is an
area in which the military judge is afforded significant deference. United
States v. Simpson, 77 M.J. 279, 282 (C.A.A.F. 2018) (quoting United States v.
Nance, 67 M.J. 362, 365 (C.A.A.F. 2009)). The military judge must elicit
sufficient facts to satisfy every element of the offense in question. Inabinette,
66 M.J. at 322. “The factual predicate [of a plea] is sufficiently established if
the factual circumstances as revealed by the accused himself objectively
support that plea.” Ferguson, 68 M.J. at 434 (citation and internal quotation
marks omitted).
    We apply the “substantial basis” test to determine whether a military
judge abused their discretion: “whether there is something in the record of
trial, with regard to the factual basis or the law, that would raise a substan-
tial question regarding the appellant’s guilty plea.” Id. (quoting Inabinette, 66
M.J. at 322). We view the record through a lens most favorable to the
Government, and any question of fact must “overcome the generally applied
waiver of the factual issue of guilt inherent in voluntary pleas of guilty.”
United States v. Dawson, 50 M.J. 599, 601 (N-M. Ct. Crim. App. 1999).
    As the Discussion in R.C.M. 910(e) states, an accused “must be convinced
of, and able to describe all the facts necessary to establish guilt.” When an
accused is personally convinced of his guilt based upon an assessment of the
evidence, his inability to recall the specific facts underlying his offense
without assistance of the government’s evidence or reports does not preclude
his guilty plea from being provident. United States v. Moglia, 3 M.J. 216, 218
(C.M.A. 1977).
    Although the military judge must elicit sufficient facts to ensure every
element of the offense is met, like the military judge, we can also look to the
stipulation of fact as context to determine whether the military judge abused
his discretion in accepting a plea. See United States v. Watson, 71 M.J. 54, 58
(C.A.A.F. 2012). Unless withdrawn or stricken, a knowing and voluntary
stipulation of fact that is accepted by the military judge is binding on a court-
martial and cannot be contradicted by the parties. R.C.M. 811(e); Nance, 67
M.J. at 363. In a pretrial agreement, “absent government overreaching,” the
Court may presume that the accused and counsel knew what was fair and in
the best interest of the accused, such as agreeing to enter into a stipulation.
United States v. Gibson, 29 M.J. 379, 382 (C.M.A. 1990). Once entered into
evidence, the parties “usually will be firmly bound” to a stipulation as part of
a plea agreement, because “the defendant knows what [ ]he has done, and has

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            United States v. Flores-Rivas, NMCCA No. 201900059
                             Opinion of the Court

little cause for complaint if the . . . court takes h[im] at h[is] word.” United
States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001). In plea agreements “factual
stipulations are bargaining chips in the hands of the defendant.” United
States v. Granik, 386 F.3d 404, 412 (2d Cir. 2004). “Such bargaining chips can
be exchanged for concessions from the other party only if they are enforcea-
ble.” Id. “If defendants are not held to their factual stipulations, . . . the
government has no reason to make concessions in exchange for them . . . .” Id.
at 412-13. There is no substantial basis in law or fact to question a guilty plea
on appeal when a military judge relies on a properly entered stipulation.
United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011).

B. Mens Rea for Distribution of Child Pornography
   To sustain a guilty plea to distribution of child pornography, the military
judge had to find that Appellant knowingly and wrongfully distributed child
pornography to another. Manual for Courts-Martial, United States (2016 ed.)
[MCM], pt. IV, ¶ 68b. “Distributing” is defined as “delivering to the actual or
constructive possession of another.” Id. at ¶ 68b.c.(3).
    In the context of child pornography distribution cases involving peer-to-
peer file-sharing networks, several courts have affirmed that an appellant
knowingly distributes child pornography when he maintains the pornography
in a shared folder with knowledge of the software’s capabilities and functions.
   In United States v. Christy, one of our sister courts of criminal appeals
summarized the mens rea of “knowing” for distribution of child pornography:
           Criminal law distinguishes between knowledge and intent.
       An accused knowingly distributes child pornography when “he
       is aware that it is practically certain that his conduct will cause
       such a result,” despite what his desire might be as to the result.
       An accused, however, intentionally distributes child pornogra-
       phy when “it is his conscious object[ive or desire, whatever the
       likelihood,] to cause such a result.” The two states of mind are
       not interchangeable. A “knowing” distribution imports a state
       of mind that accommodates a lesser certainty of result than
       does an “intentional” distribution. Both are culpable, but de-
       scribe differing states of criminal awareness. “Knowing,” in this
       sense, connotes something less than the “absolute certainty”
       implied by “intentional.” However the difference between these
       two mens rea may be characterized, the fact remains that for
       determining the providence of this appellant's guilty plea, only
       the lesser mens rea of a “knowing” distribution is required.




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             United States v. Flores-Rivas, NMCCA No. 201900059
                              Opinion of the Court

United States v. Christy, 65 M.J. 657, 662 (A.C.C.A. 2007) (quoting Wayne R.
LaFave, Criminal Law 231-32 (3d ed. 2000) (alterations and emphasis in
original) (citations omitted).
    Several other military cases have affirmed this theory of liability for dis-
tribution. 3 Many federal and state courts have also applied the same ra-
tionale. 4 In United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007), a federal
agent downloaded child pornography from the defendant’s computer using a
peer-to-peer file-sharing network. Following his conviction for distribution of
child pornography, the defendant appealed, arguing his conduct of download-
ing images from a peer-to-peer network and storing them in his shared folder
only met the elements of possession. The Court of Appeals for the Tenth
Circuit disagreed, reasoning as follows:
           We have little difficulty in concluding that [the appellant]
       distributed child pornography in the sense of having “deliv-
       ered,” “transferred,” “dispersed,” or “dispensed” it to others. He
       may not have actively pushed pornography on [the file-sharing
       software program’s] users, but he freely allowed them access to
       his computerized stash of images and videos and openly invited
       them to take, or download, those items. It is something akin to
       the owner of a self-serve gas station. The owner may not be
       present at the station, and there may be no attendant present
       at all. And neither the owner nor his agents may ever pump
       gas. But the owner has a roadside sign letting all passersby
       know that, if they choose, they can stop and fill their cars for
       themselves, paying at the pump by credit card. Just because
       the operation is self-serve, or in [the appellant’s] parlance, pas-
       sive, we do not doubt for a moment that the gas station owner
       is in the business of “distributing,” “delivering,” “transferring,”
       or “dispersing” gasoline; the raison d’etre of owning a gas sta-



   3 See e.g., United States v. Kuemmerle, 67 M.J. 141, 144 (C.A.A.F. 2009); United
States v. Craig, 67 M.J. 742, 743 (N-M. Ct. Crim. App. 2009); United States v.
Williams, 74 M.J. 572, (A.F. Ct Crim App 2014); United States v. Gorski, 71 M.J. 729,
734 (A. Ct. Crim. App. 2012); United States v. Christy, 65 M.J. 657, 663 (A. Ct. Crim.
App. 2007).
   4  See, e.g., United States v. Budziak, 697 F.3d 1105, 1109 (9th Cir. 2012); United
States v. Chiaradio, 684 F.3d 265, 281-82 (1st Cir. 2012); United States v. Richard-
son, 713 F.3d 232, 236 (5th Cir. 2013); United States v. Husmann, 765 F.3d 169, 175
(3d Cir. 2014); United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007); Kelley v.
Commonwealth, 771 S.E.2d 672, 675 (Va. 2015).



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               United States v. Flores-Rivas, NMCCA No. 201900059
                                Opinion of the Court

         tion is to do just that. So, too, a reasonable jury could find that
         [the appellant] welcomed people to his computer and was quite
         happy to let them take child pornography from it.
Shaffer, 472 F.3d at 1223-24. We find these cases accurately describe the
“knowing” mens rea, and we apply this standard to Appellant’s case.

C. Factual Basis for Appellant’s Knowing Distribution
   The military judge conducted an extensive inquiry in accordance with
R.C.M. 910 and United States v. Care, 40 C.M.R. 247 (C.M.A. 1969). His
inquiry was guided by a stipulation of fact. The military judge ensured
Appellant’s entrance into the stipulation of fact was knowing and voluntary,
and Appellant affirmed its contents were true.
   In the relevant portions of the stipulation of fact, 5 Appellant agreed,
among other facts, that he knew the child pornography videos and images he
possessed during this time were “being shared with others on [the file-
sharing software]” and that during that time, FBI agents downloaded
multiple child pornography videos and images from him using the software.
    The military judge did not just accept the stipulation on its face. After
reviewing the evidence, the military judge astutely determined that two of
the files were of insufficient quality to determine whether they constituted
child pornography. Even though Appellant stipulated and testified that the
images contained child pornography, the military judge did not consider
those files for findings or sentencing. Further, the military judge questioned
Appellant about each file contained in the stipulation during providency and
when there was one ambiguity between Appellant’s statements during
providency and the evidence, the military judge re-opened providency to
resolve the discrepancy. 6
   After accepting Appellant’s stipulation of fact, the military judge asked
several questions to elicit the factual basis for Appellant’s guilt. Appellant
admitted, consistent with his stipulation of fact, that: (1) he knew the files
were child pornography; (2) he knew the files were available for others to
download when they were placed in the file-sharing software’s folder; (3) and
the files were actually downloaded and therefore distributed to the actual
possession of another.




   5   Pros. Ex. 1, pp. 1-6.
   6   This discrepancy does not relate to this AOE.



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               United States v. Flores-Rivas, NMCCA No. 201900059
                                Opinion of the Court

   The military judge properly defined “knowingly” as follows:
             An act is done knowingly if done voluntarily and intention-
         ally. An act done because of a mistake or accident or other in-
         nocent means is not done knowingly.
             Knowledge may be inferred from circumstantial evidence,
         such as the name of a computer file or folder, the name of host
         websites from which the visual depiction was viewed or re-
         ceived, such terms used, and the number of images possessed.
             Thus in order to be convicted beyond a reasonable doubt,
         you must know that you possessed, viewed, and distributed the
         child pornography. 7
    Appellant stated he understood the definitions and elements for distribu-
tion. He admitted he knowingly and wrongfully distributed child pornogra-
phy. The trial defense counsel neither objected to the providency inquiry, nor,
when asked, desired any further inquiry about the distribution specification.
Appellant later told the military judge that he did not have any questions
about the meaning and effect of his pleas of guilty; agreed that he still
wanted to plead guilty; and that he was in fact guilty of the offenses.
    The military judge asked Appellant to describe his specific knowledge of
the file-sharing software, including Appellant’s personal use to download and
share files with others. Multiple times, Appellant described his personal use
of the file-sharing software to search for, download, and distribute child
pornography. He described the software as a peer-to-peer computer applica-
tion people can use to share and download images from one another. Appel-
lant used search terms in the software to find images and videos of child
pornography and then downloaded the files from others to his tablet. Appel-
lant knew the files he downloaded were then available for others to download
from him through the file-sharing software.
    To ensure Appellant had every opportunity to explain the facts in his own
words, the military judge advised, “If there is something you don’t remember,
take an opportunity to discuss with your counsel . . . if you have any ques-
tions. I don’t want you just agreeing with the court. I need to make sure I
hear it from you what you actually remember . . . .”8




   7   Record at 27.
   8   Id. at 43.



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               United States v. Flores-Rivas, NMCCA No. 201900059
                                Opinion of the Court

    Appellant admitted that he knowingly and wrongfully distributed child
pornography because he downloaded the images using that same file-sharing
software, and others could, and did download the images from his computer.
The military judge discussed the distribution with Appellant multiple times,
and Appellant agreed that he knew the files would be available for others at
the time of the actual distribution and that he was aware that law enforce-
ment did, in fact, download the files from him.
    The military judge asked multiple times whether Appellant’s distribution
of child pornography was wrongful, and each time Appellant agreed.
    Appellant’s case continued into a second day when the military judge re-
opened providency and again asked Appellant whether he wanted to plead
guilty and whether he was in fact guilty, and Appellant agreed. The military
judge asked several questions about Appellant’s knowledge of the file-sharing
software, how he used it, how it worked, and how he knew it specifically
enabled the files to be shared with other users.
             MJ:        And did you know, at the time that you possessed
                        this image and other images on [the file-sharing
                        software], that it would be available to other [file-
                        sharing software] users? Did you know that?
           ACC:         Yes, Your Honor.
             MJ:        And you know that from the reasons we’ve already
                        discussed in relation to the other file names?
           ACC:         Yes, Your Honor. 9
    By consciously using a file-sharing program, Appellant knew it was rea-
sonably certain he would distribute the child pornography files he main-
tained in the program. This was because of the nature of the program and the
manner in which Appellant set it up. Appellant knew, by the way he person-
ally configured the software, that he made his files available for distribution
by download in the very same way that he downloaded his files from others.
Appellant admitted that he actually did distribute the files to law enforce-
ment officers. Just like the gas station owner described in Shaffer, the fact
that Appellant was not aware of the exact time and place of the download
does not render his action of distribution unknowing.
    Appellant could have contested the case based on the knowledge element,
just as the defendant in Schaffer did, but Appellant–with competent counsel



   9   Id. at 286-87.



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            United States v. Flores-Rivas, NMCCA No. 201900059
                             Opinion of the Court

advising him—did not and instead knowingly, intelligently and consciously
waived that right. Here, Appellant stipulated to and admitted to the military
judge that he knew the files were available for distribution to others at the
time of the distribution, and that they were actually distributed to others.
    In sum, Appellant’s statements during the providence inquiry were con-
sistent with the stipulation of fact and his guilty pleas, demonstrated that he
was convinced of his guilt, and established all the facts necessary to establish
his guilt. The military judge did not abuse his discretion in accepting the
plea.

                              III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. Arts. 59, 66, UCMJ. The findings and sentence as
approved by the convening authority are AFFIRMED.
   Senior Judge STEPHENS and Judge LAWRENCE concur.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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