UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             COOK, GALLAGHER, and HAIGHT
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                         Specialist GREGORY R. MIEDEMA
                           United States Army, Appellant

                                      ARMY 20110496

      Headquarters, 25th Infantry Division and United States Division - Center
                          Kwasi L. Hawks, Military Judge
                Colonel George R. Smawley, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief and
reply brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA
(on brief).


                                         2 May 2013

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

GALLAGHER, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of willfully disobeying a superior commissioned officer,
aggravated sexual assault of a child, adultery, obstruction of justice, and possession
of child pornography in violation of Articles 90, 120, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 890, 920, 934 (2006 & Supp. III 2009) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for seventy-eight months, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved only so much of
the sentence as provided for a bad-conduct discharge, confinement for seventy-seven
MIEDEMA—ARMY 20110496

months, forfeiture of all pay and allowances, and reduction to the grade of E-1. 1 The
accused was credited with 343 days of confinement against the sentence to
confinement. 2

       This case is before us for review under Article 66, UCMJ. Appellant raises
four assignments of error to this court. 3 Three of appellant’s assignments of error

1
  The convening authority disapproved the finding of guilty to adultery and approved
the remaining findings of guilty.
2
  The automatic and adjudged forfeitures were deferred effective 4 July 2011 and
the deferment was terminated at action.
3
                                           I.

             WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW
             OR FACT TO QUESTION SPECIALIST MIEDEMA’S
             PLEA OF GUILTY TO SPECIFICATION 1 OF
             ADDITIONAL CHARGE I WHERE THE MILITARY
             JUDGE FAILED TO PROPERLY ADVISE SPECIALIST
             MIEDEMA OF THE DEFINITION OF CHILD
             PORNOGRAPHY.

                                          II.

             WHETHER SPECIALIST MIEDEMA WAS PROVIDENT
             TO POSSESSING TEN OF THE IMAGES OF CHILD
             PORNOGRAPHY WHEN THE IMAGES DO NOT
             DEPICT SEXUALLY EXPLICIT CONDUCT.

                                          III.

             WHETHER IT WAS A VIOLATION OF DUE PROCESS
             WHEN THE CONVENING AUTHORITY FAILED TO
             REASSESS SPECIALIST MIEDEMA’S SENTENCE, OR
             ORDER A SENTENCE REHEARING, AFTER
             DISAPROVING THE FINDING OF GUILT FOR A
             SPECIFICATION OF ADULTERY AND DISMISSING
             THAT SPECIFICATION.




                                                                       (continued . . .)


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MIEDEMA—ARMY 20110496

merit discussion but only one merits relief. Appellant’s remaining assignment of
error and those matters appellant personally raises pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit.

                                   BACKGROUND

        In Specification 1 of Additional Charge I, appellant was charged with
wrongfully possessing child pornography in violation of clause 1 or clause 2 of
Article 134, UCMJ. 4 During the providence inquiry, the military judge defined child
pornography very broadly as “a depiction of a person under the age of 18 engage
[sic] in sexual behavior.” The military judge also referred to the depicted conduct as
“somebody who is under the age of 18 engaged in some sexual act [.]” However,
after a request by trial counsel, the military judge clarified his definition of “child
pornography” in the following colloquy with appellant:

               MJ: [W]hen I used the word “sex act,” with regard to child
               pornography, the definitions are a little bit different.
               When we were talking about it earlier a ‘sex act’ is when a
               penis goes in the vagina.



(. . . continued)

                                           IV.

               WHETHER APPELLANT WAS DENIED EFFECTIVE
               ASSISTANCE OF COUNSEL WHEN HIS TRIAL
               DEFENSE COUNSEL FAILED TO MAKE A REQUEST
               TO THE CONVENING AUTHORITY TO DISAPROVE
               THE ADJUDGED FORFEITURES AND
               SUBSEQUENTLY SEEK WAIVER OF THE
               AUTOMATIC FORFEITURES.
4
    Specification 1 of Additional Charge I alleged:

               In that [appellant], U.S. Army, did, between on or about
               February 1, 2010 and 13 July 2010, at or near Schofield
               Barracks, Hawaii, knowingly possess 13 videos and 259
               images of child pornography, which conduct was to the
               prejudice of good order and discipline in the armed forces
               or was of a nature to bring discredit upon the armed
               forces.




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MIEDEMA—ARMY 20110496

                   With child pornography it’s any sexual behavior to
             include what is called “lascivious exhibition,” which
             means basically a person is posed in a way that makes
             people think of sex, even though there could be just one
             person in the picture. So, are you familiar with the
             magazine Playboy?

             ACC: Yes, Sir

             MJ: Okay, that depicts generally lascivious exhibition of
             adult women. So, a picture that you might see in Playboy
             but involving someone under the age of 18 is child
             pornography, because it’s a picture that’s designed to
             make somebody look at it and think “Oh, now I have
             sexual feeling [sic] because of the way that person is
             posed . . . .”

             ....

             So that includes, it could be as little as lascivious behavior
             as much as someone is actually having sex with a younger
             person.

       In the stipulation of fact appellant admitted possessing specifically listed
images of child pornography defined as the sexual exploitation of children and
images which “depicted persons under the age of eighteen (18) years engaged in
sexually explicit conduct namely: graphic sexual intercourse . . . or lascivious
simulated sexual intercourse where the genitals, breast, or pubic area of any person
is exhibited.”

      Appellant did not object to the definition of child pornography provided by
the military judge and subsequently admitted he possessed child pornography as it
was defined by the military judge.

                               LAW AND DISCUSSION

       In his first assignment of error, appellant alleges there is a substantial basis in
law and fact to question the providency of his plea of guilty to possession of child
pornography under clauses 1 or 2 of Article 134, UCMJ. Specifically, appellant
argues the military judge provided an erroneous definition of “child pornography”
when he failed to provide a definition mirroring that set forth in the Child
Pornography Prevention Act, 18 U.S.C. §§ 2252 et seq. (2006) [hereinafter CPPA],
and, as a result, appellant did not understand the offense to which he pleaded guilty.




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MIEDEMA—ARMY 20110496

       A military judge, faced with an Article 134, UCMJ, clause 1 or 2 charge that
on its face does not incorporate a federal child pornography statute, is not bound by
the definitions provided in the federal statute. See United States v. Barberi, 71 M.J.
127, 129-30 (C.A.A.F. 2012) (finding that the military judge was not required to
define child pornography in accordance with the CPPA in an Article 134, UCMJ,
clause (1) or (2) charge). At the time of appellant’s offense, child pornography was
not a specified Article 134, UCMJ, offense. 5 Thus, in pleading guilty to a
specification of possessing child pornography in violation of clause 1 or clause 2 of
Article 134, UCMJ, appellant’s providence inquiry must establish facts sufficient to
support only two elements: (1) that appellant 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
upon the armed forces. Manual for Courts-Martial, United States (2008 ed.)
[hereinafter MCM, 2008], pt. IV, ¶ 60.b.

       “Conduct prejudicial to good order and discipline is conduct that causes a
reasonably direct and palpable injury to good order and discipline.” United States v.
Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006). To be service discrediting, appellant’s
conduct must “tend to bring the service into disrepute if it were known.” United
States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011).

       We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “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.” Inabinette, 66 M.J. at 322.

       We find there is not a substantial basis in law or fact to question appellant’s
plea of guilty to possession of child pornography. The record reflects appellant
understood the offense and provided an adequate factual predicate to support each
element of the offense.

       The military judge defined for appellant what child pornography meant in the
context of this charge, establishing a spectrum of sexual behavior ranging from
lascivious exhibition of a child to actual sexual intercourse with a child. After the
military judge explained and discussed the provided definition of child pornography,
appellant did not object to the definition nor did he seek to withdraw his plea of

5
  The possession of child pornography has since been specified as an offense under
Article 134, UCMJ. See Manual for Courts-Martial, United States (2012 ed.)
[hereinafter MCM, 2012], pt. IV, ¶ 68.b.




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MIEDEMA—ARMY 20110496

guilty based on that definition. Rather, he readily admitted each depiction met the
definition provided by the military judge.

       The military judge seems to have utilized a combination of the Dost factors
and the “totality of the circumstances” approach in his definition of a lascivious
exhibition which would constitute child pornography. See United States v. Dost, 636
F. Supp. 828, 832 (S.D. Cal. 1986); United States v. Roderick, 62 M.J. 425, 428-429
(C.A.A.F. 2006) (a combination of the “totality of the circumstances” and the Dost
factors was adopted to determine whether a particular photograph depicted a
lascivious exhibition of the genitals in a CPPA case). The definition includes all of
the factors set forth in Dost, except for the one stating “the focal point of the visual
depiction [be] on the child’s genitalia or pubic area.” 6 Dost, F. Supp. at 832. We
disagree with appellant’s argument that in a case involving clause 1 or clause 2, of
Article 134, UCMJ, a lascivious exhibition must be of the genitals or pubic area to
constitute child pornography. 7 Certainly, cases which apply the CPPA definition
require the lascivious exhibition be of the genitals or pubic area. However, such is
not necessarily the case for clause 1 or clause 2 of Article 134, UCMJ. See Barberi,
71 M.J. at 130 (an exhibition of the genitals or pubic area is required based on the
definitions provided by the military judge). Accordingly, in this clause 1 or clause
2, Article 134, UCMJ, case, application of the Dost factors is not required but those
factors are generally instructive in understanding what could constitute a lascivious



6
    The Dost factors are:

               (1) whether the focal point of the visual depiction is on
               the child's genitalia or pubic area; (2) whether the setting
               of the visual depiction is sexually suggestive, i.e.[,] in a
               place or pose generally associated with sexual activity; (3)
               whether the child is depicted in an unnatural pose, or in
               inappropriate attire, considering the age of the child; (4)
               whether the child is fully or partially clothed, or nude; (5)
               whether the visual depiction suggests sexually coyness or
               a willingness to engage in sexual activity; (6) whether the
               visual depiction is intended or designed to elicit a sexual
               response in the viewer.

Dost, F. Supp. at 832
7
 We note, however, all of the images we affirm fully comport with all six of the
Dost factors, including “the focal point of the visual depiction [being on] the child’s
genitalia or pubic area. Dost, 636 F. Supp. at 832.




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MIEDEMA—ARMY 20110496

exhibition. In this case, the specification did not require, and all parties were in
agreement to use a definition other than the one found in the CPPA.

       Contrary to appellant’s current argument, appellant was sufficiently instructed
on the elements and understood the offense to which he pleaded guilty. Appellant
was on notice by virtue of both the specification and the providence inquiry that he
was charged with a military offense under clause 1 or clause 2 of Article 134,
UCMJ, and not a violation of a federal statute. See Id.; Roderick, 62 M.J. at 428-
429; United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004). Although the stipulation
of fact does reference a violation of both the CPPA and Article 134, UCMJ, the
specification at issue does not reference the CPPA and the military judge, on the
record, ensured appellant understood he was not being charged with violating the
federal statute and that the CPPA was not dispositive, or even at issue, in his case.
Accordingly, the military judge did not use definitions wholly consistent with the
language set forth in the CPPA.

       The military judge’s definition of child pornography was not confusing and
appellant knowingly and voluntarily agreed the depictions he possessed fell within
the provided definition. This is evidenced by the following dialogue wherein
appellant admits the images fell within the boundary of the spectrum provided by the
military judge:

             MJ : So, every single photo and every single video that we
             have been discussing that is described in Prosecution
             Exhibit 1, did all of them have some kind of sexual
             behavior involving someone under the age of 18?

             ACC: Yes

             MJ: So that includes, it could be as little as lascivious
             behavior as much as someone is actually having sex with a
             younger person.

             ACC: Yes, sir.

       The military judge did not abuse his discretion in accepting appellant’s plea.
In light of the elements and definitions provided by the military judge and the facts
provided by appellant through the stipulation of fact and the providence inquiry,
appellant understood and admitted the images constituted child pornography.
Further, appellant admitted his possession of the images were, as appellant insisted,
prejudicial to good order and discipline or likely to bring discredit upon the armed
forces.

      Appellant informed the military judge that:



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MIEDEMA—ARMY 20110496


             [c]hild pornography is sickening and I believe that my
             possession of child pornography was to the prejudice of
             good order and discipline and discredit to the armed
             forces. If members of my unit knew I possessed child
             pornography I believe they would not serve with me. I
             also believe that if the members of the public thought
             [s]oldiers possessed child pornography it would harm the
             Army’s reputation and the public would think less of its
             Army.

Additionally, appellant admitted that he possessed child pornography in his
residence in military family housing on Schofield Barracks, Hawaii, where he
resided with his civilian wife and two step-daughters. Appellant’s mother, a
civilian, removed “everything to do with computers” from appellant’s home in
Hawaii and brought them to her home in Chicago, Illinois. Then, appellant
instructed his mother not to look at one of the hard drives, and his mother said she
would keep that hard drive containing contraband material hidden. Pursuant to a
warrant obtained from the United States District Court Northern District of Illinois
Eastern Division, the mother’s home was searched and appellant’s computer’s seized
and analyzed by U.S. Immigrations and Customs Enforcement. Appellant informed
his civilian spouse that he viewed child pornography and that it was found in his
mother’s home. Finally, as the stipulation of fact acknowledges, the known children
depicted in the images continue to be victimized by individuals such as appellant
who possess images of their sexual exploitation.

       Accordingly, we find that appellant’s plea establishes the terminal element.
We find there is not a substantial basis in law or fact to question appellant’s plea of
guilty to possession of child pornography in violation of Article 134, UCMJ.

       However, while we find the military judge was not required to utilize the
definition of child pornography set forth in the federal statute in this case, we find it
was error for the military judge to apply the maximum punishment set forth in the
CPPA. In United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011), the Court of Appeals
for the Armed Forces (CAAF) noted that:

             [w]hen 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 United States 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 . . . .



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MIEDEMA—ARMY 20110496


Id. at 45.

        At the time of appellant’s court-martial, child pornography was not a listed
offense under Part IV of the MCM, and the military judge defined child pornography
in a manner which was more expansive than the definitions provided in the CPPA.
Id. at 42; MCM, 2008, pt. IV; 18 U.S.C. §§ 2252-2256. Therefore, because the
offense amounts to merely a general disorder under Article 134, UCMJ, the
maximum punishment includes only four months of confinement and forfeiture of
two-thirds pay per month for four months. In determining the effect of this error on
the sentence, we note the sentencing landscape remains unchanged due to the
aggravating nature of the child pornography combined with the remaining offenses
for which appellant stands convicted, which include having sexual intercourse with
his fifteen year old step-daughter on divers occasions and continuing the sexual
relationship in violation of a no contact order.

       In his second assignment of error, appellant argues 10 of the 259 images
appellant was convicted of possessing do not depict child pornography as it was
defined by the military judge. The government concedes 3 of the 10 images set forth
by appellant do not depict child pornography, but argues the remaining 256 images
adequately meet the definition provided by the military judge. After reviewing the
evidence in this case, we find 11 of the 259 images (although they do not include the
exact same 10 listed by appellant) listed in the stipulation of fact do not depict
children posed in a “lascivious” manner or engaged in “sexual behavior” and,
therefore, do not depict child pornography as it was explained to appellant by the
military judge. 8 We further find the remaining 248 images and 13 videos appellant
was convicted of possessing are, in fact, child pornography as defined by the
military judge. Accordingly, we will take appropriate action in our decretal
paragraph.

       In his third assignment of error, appellant argues the convening authority
committed prejudicial error when he failed to reassess appellant’s sentence or order
a sentence rehearing after dismissing the adultery specification at action. We find
the convening authority dismissed the adultery specification and reduced appellant’s

8
   Contrary to appellant’s admission of guilt, we find the following images, listed in
the stipulation of fact, do not constitute “child pornography” as it was defined by the
military judge: (1) Page 6, para. g.3, file #76; (2) page 6, para. g.3, file #86; (3)
page 7, para. g.3, file #109; (4) page 7, para. g.3, file #119; (5) page 7, para. g.3,
file #125; (6) page 8, para. g.3, file #264; (7) page 9, para. g.4, file #7; (8) page 9,
para. g.5, file #35; (9) page 11, para. g.5, file #212; (10) page 9, para. g.4, file #8;
(11) page 6, para. g.3, file #84.




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MIEDEMA—ARMY 20110496

sentence to confinement by one month as a matter of clemency and not as a result of
harmful legal error. See United States v. Bonner, 64 M.J. 638, 640 (Army Ct. Crim.
App. 2007) (“An important distinction exists between sentence relief based on legal
error and sentence relief as an act of clemency.”); See also United States v. Ballan,
71 M.J. 28 (C.A.A.F. 2012). Therefore, we find the convening authority did not
commit error when he did not order a sentence rehearing or explicitly reassess the
sentence in appellant’s case.

                                  CONCLUSION

       The court amends and affirms only so much of the finding of guilty of
Specification 1 of Additional Charge I as finds that the appellant “did, between on or
about February 1, 2010 and 13 July 2010, at or near Schofield Barracks, Hawaii,
knowingly possess 13 videos and 248 images of child pornography, which conduct
was to the prejudice of good order and discipline in the armed forces or was of a
nature to bring discredit upon the armed forces.” The remaining findings of guilty
are AFFIRMED. Reassessing the sentence on the basis of the modified finding, the
entire record, 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
sentence as approved by the convening authority is AFFIRMED.

      Senior Judge COOK and Judge HAIGHT concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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