              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                               UNITED STATES

                                                           v.

                            Airman First Class THOMAS N. PATTERSON
                                       United States Air Force

                                               ACM 38031 (recon)

                                                  13 August 2014

            Sentence adjudged 22 September 2011 by GCM convened at McConnell
            Air Force Base, Kansas. Military Judge: J. Wesley Moore (sitting alone).

            Approved sentence: Bad-conduct discharge, confinement for 20 months,
            and reduction to E-1.

            Appellate Counsel for the appellant: Lieutenant Colonel Maria A. Fried;
            Major Matthew T. King; and Major Daniel E. Schoeni.

            Appellate Counsel for the United States: Colonel Don M. Christensen;
            Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen;
            Major Erika L. Sleger; and Gerald R. Bruce, Esquire.

                                                        Before

                                    ALLRED, MITCHELL, and WEBER
                                        Appellate Military Judges

                                         OPINION OF THE COURT
                                        UPON RECONSIDERATION

                          This opinion is subject to editorial correction before final release.

PER CURIAM:

       Before a general court-martial composed of a military judge alone, the appellant
pled guilty to knowingly and wrongfully possessing on divers occasions video and
photographic “visual depictions of minor children” engaged in sexually explicit conduct,
in violation of Article 134, UCMJ, 10 U.S.C. § 934.1 The military judge determined the

1
  The single Charge and its Specification alleged, in the disjunctive, a violation of either clause 1 or clause 2 of the
terminal element of Article 134, UCMJ, 10 U.S.C. § 934.
maximum punishment by reference to 18 U.S.C. § 2252A(b)(2), which sets maximum
confinement at 10 years for possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5). The court adjudged a bad-conduct discharge, confinement for 20 months,
and reduction to E-1. The convening authority approved the sentence as adjudged.

                                           Procedural History

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority
under title 5, United States Code, section 3101 et seq.,” issued a memorandum that
“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the
Air Force, to serve as appellate military judge on the Air Force Court of Criminal
Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force
Eric Fanning (25 June 2013).

       When the appellant’s case was initially before us, he raised five issues for our
consideration, averring: (1) the adjudged punishment was illegal; (2) the record of trial
was incomplete due to its omission of an audible version of the appellant’s interview with
Air Force Office of Special Investigations (AFOSI) agents; (3) the military judge abused
his discretion in denying the appellant’s motion to compel discovery concerning whether
the confidential source that first reported the appellant’s misconduct lied about the
unsecured nature of the appellant’s computer network; (4) trial counsel engaged in
improper sentencing argument; and (5) trial counsel improperly questioned a defense
sentencing witness about uncharged misconduct.2

       On 14 May 2013, we issued a decision affirming the findings and sentence.
United States v. Patterson, ACM 38031 (A.F. Ct. Crim. App. 14 May 2013) (unpub. op.).
Mr. Soybel was a member of the panel that decided the case. Following Mr. Soybel’s
appointment by the Secretary of Defense on 25 June 2013, we reconsidered the decision
sua sponte and on 18 July 2013 issued a new opinion upon reconsideration. United States
v. Patterson, ACM 38031 (recon) (A.F. Ct. Crim. App. 18 July 2013). Mr. Soybel was
again a member of the panel. On 19 September 2013, the appellant filed a petition for
grant of review with our superior court. See United States v. Patterson, 73 M.J. 51
No. 14-0050/AF (Daily Journal 19 September 2013). On 31 October 2013, our superior
court dismissed the appellant’s petition for review without prejudice and converted the
appellant’s motion to vacate, then pending before this Court, into a motion for

2
 The appellant raised the last three of these issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).


                                                       2                                    ACM 38031 (recon)
reconsideration. United States v. Patterson, 73 M.J. 91 (C.A.A.F. 2013) (mem.). On
15 April 2014, our superior court issued its decision in United States v. Janssen,
73 M.J. 221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not have the
legislative authority to appoint civilian employees as appellate military judges and that
his appointment of Mr. Soybel to this Court was “invalid and of no effect.”

       In light of Janssen, we granted the appellant’s motion for reconsideration on
29 April 2014 and permitted the appellant to file a supplemental assignment of errors. In
a supplemental assignment of error, the appellant asserts he is entitled to relief due to
unreasonable appellate delay. With a properly constituted panel, we have reviewed the
appellant’s case, to include the appellant’s previous and current filings and the previous
opinions issued by this Court. We affirm the findings and sentence.

                                       Background

       In early 2011, AFOSI agents received information that the appellant possessed
computer files of child pornography. The agents received authorization to seize and
search his computer media devices, and the resulting search revealed several images and
videos of child pornography. Soon after the seizure of the computer media devices,
AFOSI agents questioned the appellant pursuant to a rights advisement. The appellant
readily confessed to knowingly possessing several files of child pornography.

                                  Maximum Punishment

       The appellant relies on United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011), to
argue that the maximum punishment provided for in 18 U.S.C. § 2252A does not apply
because the Specification fails to allege the aggravating circumstance that the children in
the images were actual minors. We disagree. Unlike the specification in Beaty, the
Specification here did not allege that the images were of only “what appears to be”
minors. Moreover, Beaty expressly found no abuse of discretion in using the analogous
United States Code maximum for a specification alleging possession of “visual
depictions of minors engaging in sexually explicit activity.” Beaty, 79 M.J. at 42.

       Consistent with Beaty and United States v. Finch, 73 M.J. 144, 148 (C.A.A.F.
2014), when all the elements of a federal crime, except the jurisdictional element, are
included in a clause 1 or 2 Article 134, UCMJ, specification, the analogous federal statute
provides the maximum punishment. The charged crime here is punishable as authorized
by the United States Code section, referenced by the military judge, criminalizing
possession of “child pornography.” The term “child pornography” includes any visual
depiction of sexually explicit conduct where (1) the visual depiction involves “the use of
a minor engaging in sexually explicit conduct” or (2) the “visual depiction is a digital
image, computer image, or computer-generated image that is, or is indistinguishable
from,    that    of     a    minor     engaging    in    sexually     explicit  conduct.”


                                             3                             ACM 38031 (recon)
18 U.S.C. § 2256(8)(A), (B) (emphasis added). Consistent with this definition of child
pornography, the Specification alleges the wrongful and knowing possession of video and
photographic visual depictions of “minor children” engaging in sexually explicit conduct.
Therefore, the military judge correctly used the punishment authorized for possession of
child pornography under 18 U.S.C. § 2252A(a)(5) for purposes of determining the
maximum punishment. See Rule for Courts-Martial 1003(c)(1)(B)(ii) (providing that an
offense not listed in or closely related to one listed in the Manual for Courts-Martial is
punishable as authorized by the United States Code).

       Alternatively, the appellant argues the plea inquiry was improvident as to “actual
minors” because the military judge failed to establish the appellant possessed images of
actual minors. We review the military judge’s acceptance of the plea for an abuse of
discretion, while any question of law created by that plea is reviewed de novo.
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 [and
look for] 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; United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). “An accused
must know to what offenses he is pleading guilty,” United States v. Medina, 66 M.J. 21,
28 (C.A.A.F. 2008), and a military judge’s failure to explain the elements of the charged
offense is error. United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969).
Accordingly, “a military judge must explain the elements of the offense and ensure that a
factual basis for each element exists.” United States v. Barton, 60 M.J. 62, 64 (C.A.A.F.
2004) (citing United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)).

       Here, we find nothing that would raise a substantial question regarding the
appellant’s guilty plea. The military judge correctly defined minor as “any person under
the age of 18 years” and told the appellant that to be guilty of the charged offense he must
have knowingly possessed “sexually explicit images of minor children.” After
acknowledging his understanding of the elements and definitions, the appellant told the
judge that he found the images by searching the internet for files that contained images of
“minors engaged in some sort of sexual activity.” Specifically as to the age, he told the
judge that the persons in the images were “[a]nywhere from 17, all the way down to—I
think there may have been two infants.” The judge asked the appellant if he had any
doubt that he knowingly possessed images of children engaged in sexually explicit
conduct. The appellant replied, “No, sir, no doubt.” In consideration of the entire inquiry
we find no substantial basis to question the appellant’s guilty plea.

                             Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).


                                             4                              ACM 38031 (recon)
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards
continue to apply as a case remains in the appellate process. United States v. Mackie,
72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is not violated when each
period of time used for the resolution of legal issues between this Court and our superior
court is within the 18-month standard. Id. at 136; see also United States v. Roach,
69 M.J. 17, 22 (C.A.A.F. 2010). However, when a case is not completed within
18 months, such a delay is presumptively unreasonable and triggers an analysis of the
four factors elucidated in Barker v. Wingo, 407 U.S. 514 (1972), and Moreno. See
United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are “(1) the
length of the delay; (2) the reasons for the delay; (3) whether the appellant made a
demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Mizgala,
61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.

       This case was originally docketed for appellate review on 27 October 2011, and
this Court rendered a decision upon reconsideration on 18 July 2013. Presuming without
deciding that this entire period is considered together, this exceeded the 18-month
standard established in Moreno and is therefore facially unreasonable. We have
examined the Barker factors to determine whether the appellant suffered from a due
process violation as a result of the delay. We find that no such due process violation
occurred in the delay leading up to this Court’s 18 July 2013 decision. In particular, the
appellant has made no showing of prejudice under the fourth Barker factor. When there
is no showing of prejudice under the fourth factor, “we will find a due process violation
only when, in balancing the other three factors, the delay is so egregious that tolerating it
would adversely affect the public’s perception of the fairness and integrity of the military
justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Having
considered the totality of the circumstances and the entire record, when we balance the
other three factors, we find the post-trial delay in this case to not be so egregious as to
adversely affect the public’s perception of the fairness and integrity of the military justice
system. We are convinced the error is harmless beyond a reasonable doubt.

       As for the time that has elapsed since this Court’s 18 July 2013 decision, we find
no due process violation. The time between our superior court’s action to return the
record to our Court for our action and this decision did not exceed 18 months; therefore,
the Moreno presumption of unreasonable delay is not triggered. See Mackie,
72 M.J. at 136. Assuming the total appellate processing of this case raises a presumption
of unreasonable delay, we again conclude the delay was harmless under the Barker
analysis.

        Additionally, Article 66(c), UCMJ, empowers appellate courts to grant sentence
relief for excessive post-trial delay without the showing of actual prejudice required by
Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224


                                              5                              ACM 38031 (recon)
(C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In
United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and
Marine Court colleagues identified a “non-exhaustive” list of factors to consider in
evaluating whether Article 66(c), UCMJ, relief should be granted for post-trial delay.
Among the non-prejudicial factors are the length and reasons for the delay; the length and
complexity of the record; the offenses involved; and the evidence of bad faith or gross
negligence in the post-trial process. Id. at 607. We find there was no bad faith or gross
negligence in the post-trial processing in any stage of the appellate review of this matter.
The reason for the delay between 18 July 2013 and our opinion today was to allow this
Court and our superior court to fully consider a constitutional issue of first impression:
whether the Secretary of Defense has the authority under the Appointments Clause 3 to
appoint civilian employees to the service courts of criminal appeals. We conclude that
sentence relief under Article 66, UCMJ, is not warranted.

                                    Remainder of Originally Raised Issues

        We summarily reject the remaining issues as lacking merit. See United States v.
Matias, 25 M.J. 356, 363 (C.M.A. 1987). Concerning the allegation that the record of
trial is incomplete, the Court was able to hear the audio of the interview without
difficulty. Concerning the military judge’s refusal to compel discovery, the military
judge ordered the Government to produce the requested information for an in camera
review. The military judge reviewed the material concerning the confidential source and
determined no responsive information existed. This Court’s review of this material
convinces us likewise. The last two issues raised by the appellant similarly lack merit, as
we see nothing improper about trial counsel’s sentencing argument (with limitations
appropriately noted by the military judge) or his questioning of the defense sentencing
witness. We see no reason to analyze these issues further.

                                                 Conclusion

       The approved findings and 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. Accordingly, the approved findings and sentence are AFFIRMED.



                     FOR THE COURT


                     STEVEN LUCAS
                     Clerk of the Court

3
    U.S. CONST. art II § 2, cl 2.


                                                      6                     ACM 38031 (recon)
