                        UNITED STATES, Appellee

                                      v.

           Christopher P. MOFFEIT, Airman First Class
                    U.S. Air Force, Appellant

                                No. 04-0442

                          Crim. App. No. 35159

       United States Court of Appeals for the Armed Forces

                        Argued January 11, 2006

                         Decided April 3, 2006

CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and ERDMANN, JJ., joined. BAKER, J.,
filed a separate opinion concurring in the result.




                                  Counsel

For Appellant: John S. Keffer, Esq. (argued); Colonel Carlos L.
McDade, Colonel Beverly B. Knott, Lieutenant Colonel Mark R.
Strickland, Major Terry L. McElyea, Captain Christopher S.
Morgan, and Captain Jennifer K. Martwick (on brief).

For Appellee: Major Steven R. Kaufman (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Robert V. Combs, Lieutenant Colonel
Gary F. Spencer, and Major Michelle M. Lindo McCluer (on brief).

Military Judges:    Thomas G. Crossan, Rodger A. Drew Jr., and Ann
D. Shane.




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moffeit, No. 04-0442/AF


        Judge CRAWFORD delivered the opinion of the Court.

        Contrary to his pleas, Appellant was convicted of receiving

and possessing child pornography, and misusing the Internet in

an attempt to entice minors in violation of Article 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).      The

convening authority approved the sentence of a dishonorable

discharge, forty-five months of confinement, forfeiture of all

pay and allowances, and reduction to the lowest enlisted grade.

                                 FACTS

        In light of United States v. O’Connor, 58 M.J. 450

(C.A.A.F. 2003), we set aside the findings of guilty to

possessing and receiving child pornography and remanded the

case.    United States v. Moffeit, 60 M.J. 348 (C.A.A.F. 2004).

The lower court was given the option of either dismissing those

specifications and reassessing the sentence based on the

remaining internet offense, or order a rehearing.    Id.     The

lower court reassessed the sentence reducing the confinement to

thirty-three months.    The lower court, citing United States v.

Sales, 22 M.J. 305 (C.M.A. 1988), said:

        Applying this [Sales] analysis, and after careful
        consideration of the entire record, we are satisfied
        beyond a reasonable doubt that, in the absence of
        Specifications 1 and 2 of the Charge, the military
        judge would have adjudged a sentence of no less than a
        dishonorable discharge, confinement for [thirty-three]
        months, forfeiture of all pay and allowances, and
        reduction to E-1.



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United States v. Moffeit, No. ACM 35159, 2004 CCA LEXIS 297, at

3, 2005 WL 11588, at 1 (A.F. Ct. Crim. App. Dec. 8, 2004).

Judge Johnson, concurring in part and dissenting in part,

indicated she would have returned this case for a new sentence

rehearing.   Id. at 2004 CCA LEXIS 297, at 4, 2005 WL 11588, at

1.    After reassessment, we granted the following issue:

       WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED
       ITS DISCRETION BY REASSESSING APPELLANT’S SENTENCE TO
       INCLUDE A DISHONORABLE DISCHARGE AND 33 MONTHS OF
       CONFINEMENT RATHER THAN ORDERING A REHEARING ON THE
       SENTENCE.

       In Sales, we held that a Court of Criminal Appeals (CCA),

in dismissing a charge, may reassess the sentence and that

sentence must be equal to or no greater than a sentence that

would have been imposed if there had been no error.   22 M.J. at

308.   “Thus, if the court can determine to its satisfaction

that, absent any error, the sentence adjudged would have been of

at least a certain severity, then a sentence of that severity or

less will be free of the prejudicial effects of error . . . .”

Id.    However, “[i]f the error at trial was of constitutional

magnitude, then the court must be satisfied beyond a reasonable

doubt that its reassessment cured the error.”   United States v.

Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) (citing Sales, 22 M.J. at

307); see also United States v. Buber, 62 M.J. 476 (C.A.A.F.

2006); United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005).




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Further, it is error for a lower court to use an incorrect

standard.   United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).

     We hold that the CCA correctly applied Sales.   We note that

the lower court has reviewed the records of a substantial number

of courts-martial involving convictions for child pornography

activities and offenses involving sexual misconduct with

children and has extensive experience with the level of

sentences imposed for such offenses under various circumstances.

In this case, a substantial maximum was available based on the

remaining charge and specification.   The reassessed sentence was

well below that maximum.   The remaining charge, involving an

effort to solicit children for sexual activity via a website

posted on the Internet, was the most serious offense and had a

negative impact in the community around Shaw Air Force Base.

The website generated a number of hostile e-mail responses and

several complaints to law enforcement officials.   The Chief of

Police for Sumter, South Carolina, was “appalled” when she

learned that a member of the United States Air Force had created

the site.   Thus, we hold that the CCA did not abuse its

discretion in concluding that it could determine to its

satisfaction that, absent any error, the adjudged sentence for

the remaining offense would have been at least the severity of

the sentence that the court approved on reassessment.




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United States v. Moffeit, No. 04-0442/AF


     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Moffeit, No. 04-0442/AF


     BAKER, Judge (concurring in the result):

     I agree with the majority’s conclusion that the Air Force

Court of Criminal Appeals did not abuse its discretion in

reassessing Appellant’s sentence.   Therefore, I also agree with

the result.   However, I believe we are nearing a crossroads on

sentence reassessment under United States v. Sales, 22 M.J. 305

(C.M.A. 1986), if we have not already reached it.    In my view,

we should either reassess the continued viability of the Sales

presumption or offer further guidance on its application.    This

case offers an opportunity to do so.

     The law invokes and accepts a number of presumptions.      For

example, “military judges are presumed to know the law and to

follow it, absent clear evidence to the contrary. . . .

[A]ppellate judges of the Courts of Criminal Appeals are

deserving of no less a presumption.”   United States v. Mason, 45

M.J. 483, 484 (C.A.A.F. 1997) (citations omitted).   In addition,

“in the absence of evidence to the contrary, court members are

presumed to have followed the military judge’s instructions.”

United States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)

(quotation marks omitted).   And, of course, the law presumes the

innocence of an accused, notwithstanding anything that may be

known before trial, until the government proves each element of

the crime beyond a reasonable doubt.   “In the courtroom, the

presumption of innocence means not only that the Government
United States v. Moffeit, No. 04-0442/AF


bears the burden of proving every element of crime beyond a

reasonable doubt, but that the trier of fact -- panel, jury, or

judge -- approaches the case without negative predisposition

drawn from the accused’s presence in the courtroom.”   United

States v. Washington, 57 M.J. 394, 402 (C.A.A.F. 2002) (Baker,

J., concurring).    Indeed, law would operate with great

difficulty were it not for the use of presumptions.

Presumptions are pragmatic creations, “rooted less in the

absolute certitude that the presumption is true than in the

belief that it represents a reasonable practical accommodation

of the interests of the state and the defendant in the criminal

justice process.”   Richardson v. Marsh, 481 U.S. 200, 211

(1987).

     In Sales and its antecedents, we adopted a further

presumption of law that a Court of Criminal Appeal could, in

certain contexts, “determine to its satisfaction that, absent

any error, the sentence adjudged would have been of at least a

certain severity. . . .”   Sales, 22 M.J. at 308.   Of course, as

Appellant points out, there is a certain leap of logical faith

involved in such an assumption.   Absent clairvoyance, we cannot

actually know how a military judge or a panel of members would

have sentenced an appellant following a change in factual

circumstances.   This is especially true within a sentencing

construct not based on guidelines or bands, but on discretionary


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United States v. Moffeit, No. 04-0442/AF


sentence maximums and individualized adjudication.   However,

this Court nonetheless concluded in Sales that the lower court

may reassess an appropriate sentence for an offense so long as

the reassessed sentence “is no greater than that which would

have been imposed if the prejudicial error had not been

committed.”   Id.    Our holding in Sales was based on an

understanding that given the substantial experience of the lower

court, it could act in accordance with the above-noted

presumption and accurately reassess an appropriate sentence.

See United States v. Hawes, 51 M.J. 258, 260 (C.A.A.F. 1999).

     Heretofore, this Court’s review for abuse of discretion has

been case specific, conveying something of a “knowing it when we

see it” feel.   This approach reflects reasonable and principled

views regarding what Sales means and how it should apply.

However, there are important public policy and legal policy

reasons to enjoin a more predictable framework for reviewing

sentence reassessments.   Among other things, there is

considerable societal cost in time, money, and emotional

investment when a sentence is reassessed by a Court of Criminal

Appeals and then overturned by this Court -- sending it back

years later for a sentence rehearing.   Finality is lost.

Sentencing witnesses must be recalled to testify about events

long since past.    Military members must also be pulled from the

line of duty.   As a result, I believe we should identify, in a


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United States v. Moffeit, No. 04-0442/AF


nonexhaustive fashion, factors we will use to review

reassessments of the Courts of Criminal Appeals.

     In other words, we should identify those factors that

buttress the presumption that appellate judges can indeed

reassess a sentence for the offense involved.   Otherwise, we

should consider whether to abandon the presumption altogether.

I believe the following nonexhaustive list of factors is

relevant:

     (1)    whether there are changes in the penalty landscape,

     including instances where charges with significant exposure

     or aggravating circumstances are taken off the table.

     United States v. Buber, 62 M.J __ (8) (C.A.A.F. 2006);

     (2)    whether an appellant chose sentencing by members,

     instead of by military judge alone.   As a matter of logic,

     judges of the Courts of Criminal Appeals are more likely to

     be certain of what a military judge alone would have done

     than what a panel of members would have done.     Moreover,

     where an appellant selected sentencing by members, there

     may be due process considerations if sentence reassessment

     is conducted by appellate judges;

     (3)    the nature of the remaining offenses.   Are the

     remaining offenses of the sort that a Court of Criminal

     Appeals should have the experience and familiarity with to

     reliably determine what sentence would have been imposed at


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United States v. Moffeit, No. 04-0442/AF


     trial by the military judges or members?    Do the remaining

     offenses fit within a particular normative range based on

     repetition and scale within a construct of individualized

     sentencing based on individual offenses?    Use or possession

     of certain drugs and unauthorized absence offenses might

     fit this category;

     (4)   whether the Court of Criminal Appeals identified and

     evaluated the factors that informed its reassessment

     decision on the record.    We should afford greater deference

     to a clear and logical reassessment on the record.

     Although there will always remain room for debate about the

application of law to fact when dealing with a presumption

rather than the reality of knowing what the factfinder would

have actually done, if this Court cannot identify a list of

factors that underscore this presumption, I wonder if we

shouldn’t conclude that Sales is unworkable as a uniform,

predictable, and fair mechanism to reassess sentences.

     At this time, my view is that Sales is a viable and

valuable mechanism.   It promotes judicial economy, economy of

military force, and the government’s and the appellants’

interests in finality.    And it is fair in situations where Court

of Criminal Appeals judges can indeed reliably determine what

the factfinder would have done.




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United States v. Moffeit, No. 04-0442/AF


     Applying these factors to the circumstances of this case, I

would affirm.   First, the original sentencing action was before

a military judge alone, increasing the probability that

experienced judges sitting on the Court of Criminal Appeals

could determine what a military judge would have done on

sentencing, although it is noteworthy that one appellate judge

dissented.

     Second, the Court of Criminal Appeals identified the

correct framework for addressing sentence reassessment and

applied it to the facts of this case.   However, the Court of

Criminal Appeals did not develop its analysis with respect to

the possibility that Appellant might have received a bad-conduct

discharge rather than a dishonorable discharge at trial, so its

determination on this point merits less deference.

     Third, the relative change in sentencing landscape was

significant.    Appellant’s original exposure was to forty-five

years.   Following the dismissal of Specifications 1 and 2,

Appellant was exposed to fifteen years of confinement.    This

fact weighs most heavily in the direction of a rehearing.     On

the other hand, the prosecution had asked for four years of

confinement at Appellant’s original trial.   In addition, the

dismissed specifications were for offenses regularly reviewed by

the Court of Criminal Appeals and therefore the experienced

judges on the court would have a well-founded appreciation for


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United States v. Moffeit, No. 04-0442/AF


the range of sentence imposed by military judges.   Most

importantly, the remaining offense considered by the Court of

Criminal Appeals on reassessment was a serious offense, at least

as serious as the dismissed offenses, with significant

aggravating factors.

     In summary, while the change in sentencing landscape weighs

in favor of a sentence rehearing, the remaining factors place

this case within the zone of Sales reassessment.    The original

sentence was determined by a military judge, the Court of

Criminal Appeals applied the correct Sales framework, and the

dismissed charges were of a nature generally reviewed by Court

of Criminal Appeals.   Finally, the reassessed offense was

serious, bore aggravating circumstances, and was also of a

nature that a Court of Criminal Appeals would have experience

with and practical knowledge of what military judges normally

award.

     On reassessment, Appellant stood convicted of trying to

entice multiple young children into engaging in sexual relations

under the guise of an Internet invitation to participate in a

pagan ritual.   Among other things, Appellant’s advertisement

cautioned that participants must be ages thirteen to twenty

years old, must not have any sexually transmitted diseases, and

“must go through no matter what intales [sic].”    For this

offense, the Court of Criminal Appeals sentenced Appellant to


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thirty-three months and a dishonorable discharge, in lieu of the

original sentence of forty-five months, and a dishonorable

discharge.   On such facts, it is within the reasonable

discretion of the Court of Criminal Appeals to conclude that a

military judge sitting alone would have awarded a dishonorable

discharge as opposed to a bad-conduct discharge to a

servicemember convicted of enticing underage children to have

sex through an Internet advertisement.




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