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

                           UNITED STATES, Appellee
                                        v.
                           Specialist JACOB D. MOON
                          United States Army, Appellant

                                   ARMY 20120112

         Headquarters, Joint Readiness Training Center and Fort Polk
                         James L. Varley, Military Judge
                  Colonel Keith C. Well, Staff Judge Advocate


For Appellant: Captain John L. Schriver, JA; Captain Brian J. Sullivan, JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach (on brief).

                                     29 March 2013
                              -----------------------------------
                               SUMMARY DISPOSITION
                              -----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of wrongful possession of child
pornography and one specification of wrongful possession of images of nude minors
and persons appearing to be nude minors, each in violation of Article 134, Uniform
Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for six months, forfeiture of all pay and allowances, and reduction to
the grade of E-1.

      In this case, the military judge made special findings as to the specific images
involved in this case. Those special findings are set forth in Appellate Exhibit XII
and are attached to this summary disposition at the Appendix.

       After conducting our Article 66, UCMJ, review, we are not convinced beyond
a reasonable doubt that all of the depictions underlying one of appellant’s
convictions of possession of child pornography are, in fact, child pornography as
MOON—ARMY 20120112

defined by 18 U.S.C. § 2256(8). Specifically, we find eleven of the forty-six
depictions of which appellant was convicted of in the Specification of The Charge
are not child pornography as applicably defined. * However, we find that the
remaining depictions identified in the military judge’s special findings, which form
the basis of appellant’s convictions, are both legally and factually sufficient.

                                                               CONCLUSION

       On consideration of the entire record and the allegations raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the findings of
guilty are correct in law and fact and are affirmed. Reassessing the sentence on the
basis of the factual insufficiencies noted, 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 is AFFIRMED.

                                                                     FOR THE COURT:
                                                                  



                                                                  KENNETH
                                                                 KENNETH          J. TOZZI
                                                                             J. TOZZI
                                                                  COL,
                                                                 COL, JA   JA
                                                                  Acting
                                                                 Acting ClerkClerk  of Court
                                                                              of Court




                                                            
*
 Contrary to the military judge’s special findings of the Specification of The
Charge, we are not convinced beyond a reasonable doubt the following depictions
are child pornography:

                      (1) Under Exhibit 7/8: Evidence #196, Evidence #200, Evidence #213,
                      Evidence #217, Evidence #221, Evidence #238;

                      (2) Under Exhibit 12: Evidence #28, Evidence #32, Evidence #49,
                      Evidence #53, Evidence #72.  


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