          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                 Staff Sergeant DANIEL W. HILL
                                       United States Air Force

                                               ACM 38648

                                               29 July 2015

         Sentence adjudged 10 June 2014 by GCM convened at Eglin Air Force
         Base, Florida. Military Judge: Ira Perkins (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 15 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Johnathan D. Legg.

         Appellate Counsel for the United States:               Major Roberto Ramirez and
         Gerald R. Bruce, Esquire.

                                                  Before

                                  ALLRED, HECKER, MITCHELL

                                       Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



MITCHELL, Senior Judge:

       A military judge at a general court-martial convicted the appellant, pursuant to his
plea, of one specification of possessing child pornography in violation of
Article 134, UCMJ, 10 U.S.C. § 934. A specification of distribution of child
pornography was withdrawn and dismissed pursuant to a pretrial agreement. The
adjudged and approved sentence consisted of a dishonorable discharge, 15 months
confinement, reduction to E-1, and forfeiture of all pay and allowances.
        The appellant raises one issue on appeal, that the military judge erred when he
determined the maximum sentence. We disagree. After also addressing the effect of our
inability to review all the images included with the stipulation of fact, we affirm the
findings and sentence.

                                      Background

       In November 2012, a Pensacola Police Department detective was monitoring a
peer-to-peer file sharing network and downloaded three files containing child
pornography from an Internet protocol address later identified as belonging to the
appellant. Pursuant to a search warrant, law enforcement agents seized the appellant’s
computer in March 2013.

       A forensic examination determined the appellant searched the Internet using terms
associated with child pornography. One image of child pornography was located in the
recycle bin folder on his computer where the appellant was still able to access it.
Additionally, investigators found evidence that the 3 files downloaded by the detective
had been on the appellant’s computer at some point, as had 16 additional files of child
pornography. Under rights advisement, the appellant admitted to law enforcement that he
found child pornography interesting and he had downloaded and viewed child
pornography to include images of children who were one to two years old.

       The appellant entered into a pretrial agreement in which he “waived all waivable
motions” and offered to plead guilty to one specification of possessing child pornography
between on or about 1 June 2012 and 21 March 2013. The convening authority agreed to
withdraw and dismiss with prejudice a specification of distributing child pornography
and limited confinement to no more than 36 months.

                                  Maximum Sentence

       The government argues that the appellant’s “waive all waivable motions”
provision in his pretrial agreement forecloses our review of the maximum sentence. We
also consider whether the appellant expressly waived this issue during the military
judge’s inquiry about the maximum authorized sentence.

       The military judge inquired as to the maximum authorized punishment and the
following discussion ensued:

             [Trial Counsel]: Your Honor, the maximum punishment is a
             dishonorable discharge, total forfeitures, 10 years
             confinement, reduction to E-1 and a fine.

             [Military Judge]: Defense Counsel, do you agree?


                                            2                                 ACM 38648
             [Defense Counsel]: Yes, Your Honor I agree. As you are
             aware Sergeant Hill pled guilty to this specification as
             possession of actual minors; and so I agree with the
             maximum punishment as detailed by [trial counsel].

             [Military Judge]: Staff Sergeant Hill, the maximum
             punishment in this case based solely on your guilty plea is, in
             fact, a dishonorable discharge, total forfeitures, 10 years
             confinement, and reduction to E-1. On your plea of guilty
             alone this court could sentence you to the maximum
             punishment which I just stated. Do you understand that?

             [Appellant]: Yes, sir

             [Military Judge]: Do you have any questions as to the
             sentence that could be imposed as a result of your guilty plea?

             [Appellant]: No, sir.

        The issue of whether a specification fails to state an offense is nonwaivable. Rule
for Courts-Martial (R.C.M.) 907(b)(1)(B). An appellant may only be convicted of a
charged offense. United States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009). The
authorized maximum punishment at a court-martial is determined on the basis of the
language of the specification. See United States v. Hemingway, 36 M.J. 349, 352
(C.M.A. 1993). We determine de novo the maximum punishment authorized for an
offense. United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011). Because the issue of the
maximum sentence is inextricably intertwined with whether an offense, or which offense,
is stated in a specification, we determine that the issue of a maximum authorized sentence
determination is nonwaivable.

       Our superior court examined the issue of the maximum punishment in a child
pornography offense prior to the Manual for Courts-Martial (MCM), United States
(2012 ed.), amendments. A specification that alleged an appellant “wrongfully and
knowingly possess[ed] one or more visual depictions of what appears to be a minor
engaging in sexually explicit conduct” was not directly analogous to federal criminal
statutes. Beaty, 70 M.J. at 40. At that time, because the offense was not otherwise listed
in the MCM and was not included in or closely related to any other offense in Part IV of
the MCM, the specification established only a simple disorder with a maximum sentence
of 4 months confinement and forfeiture of two-thirds pay per month for 4 months. Id. at
45. Beaty was decided on 26 April 2011 and the offense in that court-martial occurred in
2008.



                                             3                                  ACM 38648
       The President issued Executive Order 13593 on 13 December 2011 with its
amendments taking effect 30 days later. Part IV of the MCM was amended to add
Paragraph 68b (Child Pornography) as a listed offense under Article 134, UCMJ, for
conduct occurring on or after 12 January 2012. See MCM, A23-22. The elements of the
offense of possessing child pornography are (1) that the accused knowingly and
wrongfully possessed child pornography and (2) that under the circumstances, the
conduct of the accused was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit to the armed forces. See MCM, Part IV,
¶ 68b.b.(1).

       The text includes the following definitions or “explanations”:

              (1) “Child Pornography” means material that contains either
              an obscene visual depiction of a minor engaging in sexually
              explicit conduct or a visual depiction of an actual minor
              engaging in sexually explicit conduct.

              (2) An accused may not be convicted of possessing,
              receiving, viewing, distributing, or producing child
              pornography if he was not aware that the images were of
              minors, or what appeared to be minors, engaged in sexually
              explicit conduct. Awareness may be inferred from
              circumstantial evidence such as the name of a computer file
              or folder, the name of the host website from which a visual
              depiction was viewed or received, search terms used, and the
              number of images possessed.

Id. at ¶ 68b.c.(1) and (2) (emphasis added.)

      The model specification for a Paragraph 68b child pornography offense is as
follows:

              In that          (personal jurisdiction data), did (at/on board-
              location), on or about 20            knowingly and wrongfully
              (possess) (receive) (view) (distribute) (produce) child
              pornography, to wit: a (photograph) (picture) (film) (video)
              (digital image) (computer image) of a minor, or what
              appears to be a minor, engaging in sexually explicit conduct
              (, with intent to distribute the said child pornography), and
              that said conduct was (to the prejudice of good order and
              discipline in the armed forces) (or) (and was) (of a nature to
              bring discredit upon the armed forces).



                                               4                                 ACM 38648
Id. at ¶ 68b.f (emphasis added.)

       The appellant argues that these references to “what appears to be a minor” are not
sufficient to establish the offense in Part IV of the MCM. We disagree. The offense of
child pornography as listed in Part IV includes both images of minors and what appear to
be minors engaged in sexually explicit conduct. See United States v. Finch,
73 M.J. 144, 153 (C.A.A.F. 2014) (noting this provision of the MCM now covers both
categories of images and both are treated the same for punishment purposes). Part IV of
the MCM establishes the maximum authorized punishments for each offense; in this case
a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10
years. We find no error in the military judge using the maximum sentence set forth in
Part IV for this listed offense.

                                       Defective Prosecution Exhibit

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and review questions of law arising from the guilty plea de novo.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we apply
the substantial basis test, looking at whether there is something in the record of trial, with
regard to the factual basis or the law, that would raise a substantial question regarding the
appellant’s guilty plea.” Id.; see also United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991) (stating that a plea of guilty should not be overturned as improvident
unless the record reveals a substantial basis in law or fact to question the plea). The
military judge may consider both the stipulation of fact and his inquiry with the appellant
when determining if the guilty plea is provident. United States v. Hines, 73 M.J. 119, 124
(C.A.A.F. 2014).

       When conducting our review pursuant to Article 66, UCMJ, 10 U.S.C. §866, we
were able to view 19 of the 20 electronic images referenced in the stipulation of fact.1
The 19 images do not raise any substantial basis in law or fact to question the appellant’s
plea to possessing child pornography. There is no indication in the record of trial that, at
the time of the court-martial, either counsel or the military judge were unable to open the
one file we cannot view on appeal, file $RBXZLN8.avi. The military judge did not say
that the one image was not child pornography or that it caused him to question the plea.
Cf. United States v. Blouin, __ M.J. __ (C.A.A.F. 2015) (holding a military judge’s
finding that only 9 of 12 admitted images met the definition of child pornography after
appellant entered plea to all 12 images created a substantial basis to question the
providence of the guilty plea). In light of our review of the nineteen other images, we


1
  The appellant has not challenged the providence of his plea. In a footnote to his assignment of errors, the
appellant’s counsel states he was unable to view seven files and that, of the thirteen files viewed, three do not
constitute child pornography; however, the appellate defense counsel did not find a substantial basis to question the
plea. We did not order additional briefs on this issue.


                                                         5                                             ACM 38648
conclude that the one corrupted, or otherwise unviewable, file does not raise any
substantial basis in law or fact to question the appellant’s guilty plea.

        A substantial omission from the record of trial renders it incomplete. 2 See
United States v. Donati, 34 C.M.R. 15 (C.M.A. 1963). “Whether an omission from a
record of trial is ‘substantial’ is a question of law which we review de novo.”
United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000). A record of trial may be
complete and verbatim if the omissions are insubstantial. United States v. Henry,
53 M.J. 108, 111 (C.A.A.F. 2000) (finding the record was complete even though five
prosecution exhibits were omitted from the record because the omission was not
substantial as the rest of the record of trial incorporated the information contained
therein); United States v. Barnes, 12 M.J. 614, 625 (N.M.C.M.R. 1981) (finding omission
of questionnaires completed by members prior to voir dire from the record did not make
record incomplete as omission was insubstantial), aff’d on other grounds, 15 M.J. 121
(C.M.A. 1983). Cf. United States v. McCullah, 11 M.J. 234, 237 (C.M.A. 1981) (finding
prosecution exhibit that was prima facie evidence omitted from record was substantial
omission and left the record incomplete); United States v. Abrams, 50 M.J. 361, 364
(C.A.A.F. 1999) (finding failure to attach personnel records of witness to record, which
trial judge reviewed, but did not release to the defense, was substantial). We analyze
whether an omission is substantial on a case-by-case basis. Id. at 363. The omission of
rulings or evidence which affect an appellant’s rights at trial render appellate review
impossible and are substantial omissions. Id.; see also United States v. Gray,
7 M.J. 296, 298 (C.M.A. 1979) (finding omission of sidebar conference involving a
ruling by the trial judge that affected the appellant’s rights was substantial).

        “[A] substantial omission renders a record of trial incomplete and raises a
presumption of prejudice that the government must rebut.” United States v. Harrow,
62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006). The government may rebut the
presumption by reconstituting the omitted portion of the record. United States v.
Harmon, 29 M.J. 732, 732 (A.F.C.M.R. 1989). “The main reason for a verbatim record
is to ensure an accurate transcript for the purposes of appellate review.” Id. at 733.

       In this case, based on all the other evidence in the record, to include the
appellant’s statements during the providence inquiry and the stipulation of fact, we
determine that our inability to open and view 1 of the 20 files of child pornography does
not create a substantial omission. The appellant admitted he learned certain Internet
search terms were associated with child pornography; and he then intentionally used
these terms to find child pornography videos. He admitted that he downloaded videos of
minors engaging in sexually explicit acts to his laptop computer. He admitted the minors
were actual children, as young as one to two years old, who were subject to sexual abuse
to include intercourse, sodomy, and masturbation. In this guilty plea, military judge

2
    The appellant has not raised the issue of whether the record of trial is substantially complete.


                                                              6                                        ACM 38648
alone case with a pretrial agreement that required the appellant to enter into a stipulation
of fact, the government decided to reference and include as attachments the 20 videos of
child pornography. If the government had instead decided not to attach the files to the
stipulation of fact, the appellant’s plea would still have been provident in their absence.
Based on the detailed information provided during his plea, the additional information in
the stipulation of fact, and that we can view 19 of the 20 images, we determine that the
failure of the government to include one image in a viewable format is not a substantial
omission.

                                        Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                             7                                   ACM 38648
