          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                           Senior Airman EDUARDO H. APODACA
                                    United States Air Force

                                               ACM 38871

                                              19 April 2016

         Sentence adjudged 9 June 2015 by GCM convened at Spangdahlem Air Base,
         Germany. Military Judge: Donald R. Eller Jr.

         Approved Sentence: Dishonorable discharge, confinement for 20 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for Appellant: Captain Annie W. Morgan.

         Appellate Counsel for the United States: Lieutenant Colonel Christopher C.
         Vannatta and Gerald R. Bruce, Esquire.

                                                  Before

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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



TELLER, Senior Judge:

       Appellant was convicted by a military judge sitting alone, in accordance with his
pleas, of attempted indecent viewing, viewing child pornography, and possession of child
pornography, in violation of Articles 80 and 134, UCMJ, 10 U.S.C. §§ 880, 934. The court
sentenced him to a dishonorable discharge, 20 months of confinement, forfeiture of all pay
and allowances, and reduction to E-1. The sentence was approved, as adjudged, on 6
August 2015.
       Appellant argues that the military judge incorrectly calculated the maximum
punishment and that the sentence was inappropriately severe.* Finding no error that
materially prejudices a substantial right of Appellant, we affirm the findings and sentence.

                                                    Background

        The investigation of Appellant began after he was discovered attempting to use the
camera on his mobile phone to view a minor in the bathroom stall of a public restroom. In
the course of the investigation, investigators searched Appellant’s laptop computer and
identified digital images of child pornography. Appellant pled guilty to the attempted
indecent viewing of the minor in the bathroom, two specifications of viewing child
pornography, and one specification of possessing child pornography. Appellant’s
misconduct occurred both before and after the President enumerated a specific offense
relating to child pornography under Article 134, UCMJ. Accordingly, the Government
charged conduct prior to 12 January 2012, the effective date of the new offense, separately
from the conduct after the effective date.

                                    Calculation of Maximum Punishment

      Appellant asserts that the military judge erred in concluding that the maximum
punishment for the conduct alleged in Charge II, Specification 2, included 10 years of
confinement. We review a military judge’s calculation of the maximum punishment de
novo. United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011).

       Appellant argues that the maximum punishment for Charge II, Specification 2,
should have been limited to four months of confinement because the specification did not
explicitly allege the images depicted “actual” minors. We disagree. The specification
alleged, in relevant part, that Appellant wrongfully viewed “child pornography, to wit:
visual depictions of minors engaging in sexually explicit conduct.” Our analysis of the
specification involves a straightforward application of United States v. Leonard, 64 M.J.
381 (C.A.A.F. 2007), and United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014). In Finch,
our superior court addressed this issue in the context of receipt and possession of child
pornography.

                           As in Leonard, here all elements of the federal crimes,
                    except the jurisdictional element, were included in the
                    specifications.    Appellant was charged with receipt,
                    possession, and distribution of “visual depictions of a minor
                    engaged in sexually explicit conduct.” We agree with the
                    [Court of Criminal Appeals’] determination that the analogous
                    federal provisions are 18 U.S.C. § 2252A(a)(2), which
                    criminalizes receipt and distribution of child pornography, and

*
    The second issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                           2                                        ACM 38871
              § 2252A(a)(5), which criminalizes possession. The term
              “child pornography” is defined in § 2256(8)(B) to include “any
              visual depiction . . . of a minor engaging in sexually explicit
              conduct.” These sections are directly analogous to the
              specifications in this case. The definition does not distinguish
              between minors and actual minors. Neither do the sections of
              the statute directly criminalizing receipt and distribution and
              possession of child pornography. Accordingly, we hold that
              the CCA did not err in holding that the maximum possible
              sentence was based on the analogous portions of 18 U.S.C. §
              2252A, which address essentially the same offenses as charged
              in Finch’s case, and affirm that portion of the [Court of
              Criminal Appeals’] decision.

Finch, 73 M.J. at 148 (ellipses in original). Although the specification at issue in this case
alleges wrongful viewing of child pornography rather than receipt or possession, the
analysis is the same. The military judge correctly determined that the specification in this
case was analogous to 18 U.S.C. § 2252A(a)(5)(A), in that all the elements of the federal
crime of knowingly accessing child pornography with the intent to view, except the
jurisdictional element, were included in Specification 2 of Charge II. See id. The
Government alleged Appellant viewed “visual depictions of minors engaging in sexually
explicit conduct,” which is sufficient to allege all the elements of the federal crime. It is
the language of the specification that governs, and not the existence or non-existence of
any potential alternate theory of liability.

       Appellant further argues that the military judge introduced ambiguity with regard to
whether the images at issue in Charge II, Specification 2, were required to depict actual
minors. We disagree. As the specifications in this case covered misconduct under two
different theories of liability, the military judge was required to discuss the law applicable
to both. We find that the military judge adequately alerted Appellant to this aspect of the
charges. In discussing the elements of Charge II, Specification 3, under which the
Government was not required to show that any depiction was of an actual minor, he advised
Appellant, “[T]his is different, because again, the charged timeframe starts 12 January
2012, because the law changed, so I am going to give you some definitions that are slightly
different than what I described to you before, so just listen up and if you have any questions
we will talk about it, all right?”

       We find that the military judge properly determined the maximum sentence and that
neither the language of the specification nor the military judge’s colloquy with Appellant
created any ambiguity as to whether the offense alleged in Charge II, Specification 2,
related to actual minors.




                                              3                                    ACM 38871
                                    Sentence Severity

       Appellant also argues, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), that his sentence was too severe. We review sentence appropriateness de novo,
employing “a sweeping Congressional mandate to ensure ‘a fair and just punishment for
every accused.’” United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005) (quoting
United States v. Bauerbach, 55 M.J. 501, 504 (Army Ct. Crim. App. 2001)). The
appropriateness of a sentence generally should be determined without reference or
comparison to sentences in other cases. United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985).

        Appellant argues that the confinement imposed is disproportionate to the charged
offenses, yet asks only that we disapprove the dishonorable discharge in favor of a bad-
conduct discharge. We note that the confinement adjudged and approved was less than the
maximum agreed to in Appellant’s pretrial agreement and that Appellant did not request
relief from the adjudged confinement in his clemency request. Although Appellant draws
our attention to his “four years of otherwise honorable service” and his “stellar enlisted
performance reports,” we weigh his assertions against his admission that, for much of that
time, he was engaged in the wrongful viewing or possession of child pornography. We
have given individualized consideration to this particular appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other matters contained
in the record of trial. We find the sentence was appropriate in this case and was not
inappropriately severe.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of 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


             LEAH M. CALAHAN
             Clerk of the Court




                                            4                                    ACM 38871
