UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                               KERN, BERG, and YOB
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Specialist KEVIN S. GALLAWAY
                         United States Army, Appellant

                                  ARMY 20100248

                           Headquarters, Fort Carson
                        Mark A. Bridges, Military Judge
 Colonel Randy T. Kirkvold, Staff Judge Advocate (pretrial advice and addendum)
        Lieutenant Colonel Steven P. Haight, Acting Staff Judge Advocate
                               (recommendation)


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kessler, JA; Captain Richard M. Gallagher, JA (on
brief and reply brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA;
Major Adam S. Kazin, JA; Captain Chad M. Fisher, JA (on brief).


                                   28 October 2011

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of absence without leave, violating a lawful general order,
making a false official statement, and transporting or shipping child pornography in
interstate or foreign commerce, in violation of Articles 86, 92, 107, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 907, and 934 (2008)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for twenty-two months and reduction to E1. The convening
authority approved the sentence as adjudged.
GALLAWAY—ARMY 20100248

       On appeal, appellant raised four assignments of error. We find only one of
these assignments of error has merit and warrants discussion. * This assignment of
error concerns the number of images of child pornography included in the
specification alleging appellant violated Title 18 U.S.C. § 2252(a)(1) by knowingly
transporting or shipping in interstate or foreign commerce a digital external hard
drive that contained eighty-one (81) videos and fifty-two (52) images of child
pornography.

       The stipulation of fact, admitted into evidence pursuant to appellant’s guilty
plea, indicates that there were fifty-two images of child pornography on the hard
drive that appellant transported. The providence inquiry sets out that those images
were thumbnails, or still images, produced as a result of saving video files to the
hard drive. Appellant now takes issue with the sufficiency of the providence inquiry
and the evidence in the record to support whether twenty-seven of those fifty-two
images constitute child pornography.

       We review a military judge’s decision to accept a plea of guilty “for an abuse
of discretion and questions of law arising from the guilty plea de novo.” United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty plea will be set
aside on appeal only if an appellant can show a substantial basis in law or fact to
question the plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991)). The Court applies this “substantial basis” test by determining whether the
record raises a substantial question about the factual basis of appellant’s guilty plea
or the law underpinning the plea. Id. See Article 45, UCMJ; Rule for Court-Martial
910(e).

        During the providence inquiry, the military judge defined child pornography
pursuant to 18 U.S.C. § 2252A, and appellant admitted to possessing images meeting
that definition. From our review of the record, including the enclosure to the
stipulation of fact containing images appellant acknowledged as child pornography,
it is clear that while many of the images meet the definition of child pornography
under 18 U.S.C. § 2252A, it is also clear that many do not. Therefore, we determine
that the finding was factually deficient with regards to the number of images and
thus, we amend the number of images in the specification from fifty-two (52) to
“more than three images.”

       The court affirms only so much of the finding of Specification 1 of Charge III
as finds the appellant did, at or near Colorado Springs, Colorado, between on or
about 3 March 2008 and on or about 28 April 2008, violate Title 18 United States
Code section 2252A(a)(1), to wit: knowingly transported or shipped in interstate or


*
 Assignment of Error IV: APPELLANT WAS NOT PROVIDENT TO
TRANSPORTING TWENTY-SEVEN (27) IMAGES OF CHILD PORNOGRAPHY
BECAUSE THE IMAGES DO NOT DEPICT SEXUALLY EXPLICIT CONDUCT.


                                           2
GALLAWAY—ARMY 20100248

foreign commerce, by shipping or carrying on his person a Western Digital External
Hard Drive with a serial number WXH108057504 containing eighty-one (81) videos
and more than three images of child pornography including:

OKB NEW!! PTHC -- Kids and Sex Toys (Preteen Toy Story) -- ptsc pthc kingpass
hussyfan babj jenny babyshivid vickyr@ygold 13yo 12yo 11yo 10yo 9yo 8yo 7yo
6yo 5yo 4yo 3yoavi

(Hussyfan) (pthc) (r@ygold) (babyshivid) Little and dad (Daddy’s in love with my
6yo pussy AND SO AM I!!) (Reality kiddy no Ritalin needed_GUESS!! New age
proud family-germ.mpg

Inna Private 4yo close-up anal] pedo pthc young girl child 5yo 6yo 7yo 8yo daddy
incest fuck.avi

Pedo - Vicky Compilation (Pthc) 10yo Kiddy Reality Child Get’s What She Wants –
All Kinds Of Fuck Fun With No Delusions)(14m58s).mpg

from his residence in Colorado Springs, Colorado to Combat Outpost Ford, Iraq,
which conduct was of a nature to bring discredit upon the armed forces.

       On consideration of the entire record, including consideration of the issues
personally specified by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), we hold that the remaining findings of guilty are affirmed.
Reassessing the sentence on the basis of the error noted, the entire record, including
consideration of the issues personally specified by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and in accordance with the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Moffeit, 63 M.J 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker
in his concurring opinion, the court affirms the sentence as approved by the
convening authority.


                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




                                      MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                      Clerk of Court
                                       Clerk of Court




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