              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        RICHARD L. LESLEY
               AVIONICS TECHNICIAN FIRST CLASS (E-6),

                           NMCCA 201400271
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 11 March 2014.
Military Judge: CDR Michael J. Luken, JAGC, USN.
Convening Authority: Commander, Naval Air Force Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CAPT T.J. Welsh,
JAGC, USN.
For Appellant: Capt David A. Peters, USMC.
For Appellee: LCDR Keith B. Lofland, JAGC; USN LT Ann E.
Dingle, JAGC, USN.

                           26 February 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A panel of officer and enlisted members sitting as a
general court-martial convicted the appellant, contrary to his
pleas, of a single specification of possessing child pornography
in violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934. The members sentenced the appellant to 18
months’ confinement and a bad-conduct discharge (BCD). The
convening authority (CA) approved the sentence as adjudged, and,
except for the BCD, ordered it executed.

     The appellant raises two assignments of error: First that
the military judge erred in applying the maximum sentence
applicable to 18 U.S.C. § 2252A when that statute’s elements
were not directly analogous to the offense of which the
appellant was convicted. Second, that the CA’s instruction
restricting eligibility for court-martial membership frustrated
the appellant’s right to a properly convened court-martial.

     After carefully considering the record of trial and the
submissions of the parties, we agree with the appellant’s first
assignment of error, but find no merit in the second. We
conclude that the military judge erred both in ruling the
members’ initial announcement of findings to be ambiguous and in
applying the incorrect maximum punishment. After taking
corrective action in our decretal paragraph and reassessing the
sentence, we conclude the remaining findings and reassessed
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant remains. Arts 59(a) and 66(c), UCMJ.

                                     Background

     In July of 2008, Commander, Naval Air Force Atlantic
(COMNAVAIRLANT), the CA in this case, issued an instruction to
subordinate commands establishing the procedure for nomination
of prospective court-martial members. 1 That instruction directed
each subordinate command to provide a certain number of nominees
in the pay grades of E-7 through O-5. The instruction did not
call for nominees below E-7, regardless of how junior a
particular accused may be, and did not call for anyone O-6 or
above. This instruction was in effect when the CA selected and
detailed the members of the appellant’s court-martial.

      The appellant was charged with “knowingly and wrongfully
possess[ing] child pornography, to wit: digital videos of a
minor, or what appears to be a minor, engaging in sexually
explicit conduct, and that said conduct was to the prejudice of
good order and discipline in the armed forces and was of a
nature to bring discredit upon the armed forces.” 2 After a trial
on the merits, during which both parties stipulated that the

1
    COMNAVAIRLANT Instruction 5813.1H, dated 29 July 2008.
2
    Charge Sheet (emphasis added).


                                         2
videos “are actual child pornography within the meaning of
Article 134, UCMJ,” 3 the members found the appellant guilty of
the Charge and specification, without exception to the language
charged.

     Upon announcement of the findings, the appellant’s defense
counsel argued that the maximum sentence applicable was that for
a general, or simple, disorder under Article 134 (four month’s
confinement and forfeiture of two-thirds’ pay per month for four
months), not for a conviction under 18 U.S.C. § 2252A (10 years’
confinement, forfeiture of all pay and allowances, and a
dishonorable discharge). The Government disagreed. The
military judge then sought to have the members clarify this
“ambiguity” 4 by issuing “special findings.” 5 The military judge
provided the members a new “special findings worksheet” 6
presenting them with four options:

        [W]hat you could have is an acquittal, conviction of
        the charge as is, or you could have a finding of
        guilty for knowing and wrongfully possessing child
        pornography to wit: digital videos of a minor
        engaging in explicit sexual conduct or you could find,
        knowing and wrongfully possessing child pornography to
        wit: what appears to be a minor engaging [in explicit
        sexual conduct]. 7

The military judge then allowed both counsel to present
additional argument on the specific issue of whether the images
in question involved actual minors or merely the appearance
thereof. In his argument, the appellant’s defense counsel
conceded that the images were of “real children.” 8 After

3
    Prosecution Exhibit 7.
4
    Record at 738.
5
    Id. at 739.
6
    Appellate Exhibit LXXIV.
7
  Record at 739. We find it puzzling why a procedure purportedly aimed at
clarifying an ambiguity would keep as an option the very finding that was
deemed to be ambiguous, that is, conviction of the charge as-is. We also
note that providing the members with the option of acquittal goes beyond
merely asking them to clarify their announced findings and invites them to
reopen deliberations – something they clearly could not do. Fortunately, for
reasons provided below, we need not reach and address these concerns here.]
8
    Id. at 743.


                                     3
approximately 15 minutes in the deliberation room, the members
returned and announced new findings:

         Excepting out the words: “or what appears to be a
         minor,” Of the excepted words: Not Guilty;
         Of the specification as excepted: Guilty;
         Of the Charge: Guilty. 9

Based on these revised findings, the military judge found that
the offense of which the appellant was convicted was “analogous
or basically equal” to 18 U.S.C. § 2252A, and instructed the
members that the maximum punishment was confinement for 10
years, a dishonorable discharge, reduction to pay grade E-1, and
total forfeitures. 10 The defense maintained its position that
the original findings were valid, and that the maximum sentence
was only that applicable to a simple disorder under Article 134,
UCMJ.

     Other facts necessary to address the assigned errors will
be provided below.
                         Maximum Sentence

1. Determining the applicable maximum sentence for offenses
charged under clause 1 and 2 of Article 134, UCMJ

      The maximum punishment authorized for an offense is a
question of law, which we review de novo. United States v.
Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011). For limits on authorized
punishments under the UCMJ, we turn to RULE FOR COURTS-MARTIAL 1003,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). 11 This Rule
“employs mutually exclusive criteria, dependent upon whether the
offenses are ‘listed’ or ‘not listed’ ‘in Part IV [of the Manual
for Courts-Martial].’” United States v. Booker, 72 M.J. 787,
799 (N.M.Ct.Crim.App. 2013), appeal denied sub nom. United
States v. Schaleger, 73 M.J. 92, (C.A.A.F. 2013) (summary
disposition) (citation omitted). The maximum limits for
authorized punishments are set forth for each offense listed in
Part IV of the Manual. For offenses not listed in Part IV of
the Manual, we turn to the President’s guidance in R.C.M.
1003(c)(1)(B)(i)-(ii). There we find the inquiry is “dependent

9
     Id. at 753.
10
     Id. at 766.
11
  Pursuant to authority delegated from Congress under Article 56, UCMJ, the
President has specified offense-based limits on punishment in R.C.M. 1003.


                                      4
upon whether the charged offense: (1) is closely related to or
necessarily included in an offense listed in Part IV of the
Manual, and, if neither, then (2) whether the charged offense is
punishable as authorized by the United States Code or as
authorized by custom of the service.” Booker, 72 M.J. at 802
(footnote omitted).

     The President issued Executive Order (EO) 13593 on December
13, 2011, 12 amending Part IV of the Manual for Courts-Martial to
include Child Pornography as an enumerated Article 134 offense. 13
This Presidential action effectually “listed” Child Pornography
as an offense in Part IV of the Manual. See Booker, 72 M.J. at
800-02. Under this offense, possessing child pornography
carries a maximum punishment of 10 years’ confinement. The
elements and legal definitions in the new Article 134 offense
for wrongfully possessing child pornography are virtually
identical to those the military judge used to instruct the
members. 14 Thus, the charged offense is now either “listed” in
Part IV of the Manual or “closely related” to the offense of
wrongfully possessing child pornography as proscribed by MCM
(2012 ed.), Part IV, ¶ 68b. Additionally, there is no doubt
that the Article 134 offense of possessing child pornography
existed in Part IV of the Manual at all relevant stages of the
appellant’s trial. 15 However, the appellant’s charged offense
occurred on or about June 2011, well before the effective date
of EO 13593.

     R.C.M. 1003(c) is silent on the question of whether, for
its punishment limitations to apply, a “listed” offense must be
in Part IV of the Manual at both the time of the alleged offense
and at the time of trial, or simply at the time of trial.
Ultimately, we need not answer this question here, as to read
R.C.M. 1003(c) to permit in this case the application of the
maximum punishment now applicable to MCM (2012 ed.), Part IV, ¶
68b, would constitute an impermissible ex post facto increase in
the allowable punishment. 16 The Court of Appeals for the Armed

12
  Amendments contained in EO 13593 took effect 30 days following its
issuance.
13
     See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 68b.
14
     Record at 693-96.
15
  Charges were preferred on 9 July 2013, referred on 27 September 2013, and
the appellant was arraigned on 7 October 2013.
16
  EO 13593 states, in part: “Nothing in these amendments shall be construed
to make punishable any act done or omitted prior to the effective date of
                                            5
Forces held, prior to EO 13593’s effective date, that possession
of “what appears to be” child pornography was punishable under
Article 134 only as a simple disorder. Beaty, 70 M.J. at 40,
45. Thus, at the time the appellant committed the charged
misconduct - post-Beaty, but pre-EO 13593 – the maximum
punishment applicable was four months’ confinement and
forfeiture of two-thirds’ pay per month for four months.
Increasing the possible confinement thirty-fold and adding a
punitive discharge after the appellant committed the offense
would violate the appellant’s constitutional protections.

2.   Choosing between Findings and “Special Findings”

     The critical question, then, is whether the appellant was
convicted of the specification as written on the charge sheet
(as was announced by the members in their initial findings) or
of the specification as excepted by the members (as was
announced in their second, “special” findings). We conclude it
was the former.

     “A finding on the guilt or innocence of the accused is not
final until it is formally and correctly announced in open
court.” United States v. Trew, 68 M.J. 364, 367 (C.A.A.F. 2010)
(citation omitted). Findings, once “announced in open session,”
are not subject to reconsideration. R.C.M. 924(a). Where an
error is made in the announcement of findings, however, the
military judge may instruct the members to correct the error via
a new announcement. R.C.M. 922(d). In cases where announced
findings are ambiguous, the military judge should instruct the
members to clarify their findings. R.C.M. 922(b), Discussion.
An ambiguous finding that prevents a Court of Criminal Appeals
from performing the review required under Article 66(c), UCMJ,
affects an appellant’s “substantial right to a full and fair
review of his conviction.” United States v. Walters, 58 M.J.
391, 397 (C.A.A.F. 2003). This court “may not conduct a factual
sufficiency review when the findings are ambiguous because such
action creates the possibility that the court would affirm a
finding of guilt based on an incident of which the appellant had
been acquitted by the factfinder at trial.” United States v.
Wilson, 67 M.J. 423, 428 (C.A.A.F. 2009) (citing Walters, 58
M.J. at 395).


this order that was not punishable when done or omitted.” There is no
similar language regarding maximum punishments. However, “[t]he Constitution
forbids the application of any new punitive measure to a crime already
consummated, to the detriment or material disadvantage of the wrongdoer.”
Lindsey v. Washington, 301 U.S. 397, 401 (1937) (citations omitted).
                                     6
     Such was not the case here. There is nothing in the
original findings that prevents this court from determining
whether the findings or sentence were “correct in law and in
fact” and should be approved. Art. 66(c), UCMJ. Nor is there
anything in the findings that indicates the appellant was
acquitted of any part of the offense charged. Had the military
judge not found the initially announced findings to be
ambiguous, this court would have had no problem performing the
required review of those findings, and would have arrived at the
same conclusion it does today.

     The Government chose to charge the appellant with
possessing child pornography using a broad definition that
allowed the members to convict if they found, inter alia, the
digital videos to be “of a minor, or what appears to be a minor,
engaging in sexually explicit conduct.” 17 The military judge
instructed the members that “child pornography” includes both
depictions of an actual minor child engaging in “sexually
explicit conduct” and “obscene visual depiction[s] of a minor
engaged in sexually explicit conduct.” 18 He further instructed
them that “[s]uch a depiction need not involve an actual minor,
but instead only what appears to be a minor.” 19 This is exactly
what the members found the appellant possessed: digital videos
of a minor, or what appears to be a minor, engaging in sexually
explicit conduct.

     It is not for us to second guess the Government’s choice of
charging language, so long as the language states an offense and
is sufficiently supported by the evidence presented. In this
case the Government elected to prosecute the appellant using a
broad definition of “child pornography.” This broad definition
lowered the Government’s burden in that it did not necessarily
need to prove that the images in the videos were of real
children. In doing so, it bound itself (consciously or not) to
a lower maximum punishment: that applicable to a simple
disorder.


17
     Charge Sheet.
18
     Record at 694.
19
  Id. The military judge did not instruct the members regarding findings by
exceptions. We presume that, if the Government’s goal was to have the
members except the language “or what appears to be a minor,” it would have
requested this instruction. Likewise, the original findings worksheet
provided no option for findings by exception. AE XXVI. The Government
indicated it had no objections to the original findings instructions or
worksheet. Record at 654.
                                      7
     The Government invites us to see the revised findings as
evidence that the initial findings were ambiguous. We decline
to do so. What occurred after the initial announcement of
findings is irrelevant. Once findings were announced, absent
any error or real ambiguity, they were final. That the members
subsequently excepted out “or what appears to be a minor” from
the specification’s language, thus clarifying that they believed
the images were of actual children, does not affect the validity
or finality of their initial findings. Nor does it matter that
the defense stipulated that the images were of actual minors.
Assuming the members found the stipulated matters to be true,
the fact the images contained actual minors does not contradict
their finding that the images were child pornography that
contained either actual minors or a depiction thereof.

     Accordingly, we find the initial findings announced by the
members in open session were not ambiguous, and that the
military judge erred both in directing the members to provide
revised findings and in applying the maximum punishment
applicable to 18 U.S.C. § 2252A. Under Beaty, it should have
been clear to the military judge what the applicable maximum
punishment was given the member’s initial findings. 20 Because
the appellant’s sentence of 18 months’ confinement and a BCD
exceeded the maximum lawful sentence, it materially prejudiced
the appellant’s substantial rights. See Beaty, 70 M.J. at 45.

                            Members Selection

     The standard of review for the proper selection of a court-
martial panel is de novo. United States v. Kirkland 53 M.J. 22,
24 (C.A.A.F. 2000). We look at three primary factors to
determine whether an impermissible member selection has taken
place:




20
  The Government argues that this court’s decision in United States v.
Barbier, 2012 CCA LEXIS 128 (N.M.Ct.Crim.App. 12 Apr 2012), dictates a
different result. We disagree. Barbier involved a guilty plea; the
providence inquiry in that case left no doubt that the accused understood his
plea and the maximum sentence applicable. There was a clear meeting of the
minds that Barbier was, in effect, pleading guilty by excepting out the “or
what appears to be” language. At trial, all parties in Barbier agreed on the
maximum punishment; the appellant in that case did not voice a contrary
argument until the case was reviewed on appeal. In the case at bar, the
appellant raised the issue immediately following announcement of findings,
thus indicating there was no such agreement on the applicable maximum
punishment.
                                      8
     1. Improper motive in packing a member pool;
     2. Systematic exclusion of potential members based on
     rank or other impermissible variable; and,
     3. Good faith attempts to be inclusive and open the
     court-martial process to the entirety of the military
     community.

United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 50
M.J. 66, 69 (C.A.A.F. 1999).

     In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
exclusion. Kirkland, 53 M.J.at 24. Once improper exclusion has
been established, the burden is placed on the Government “to
demonstrate that the error did not ‘materially prejudice the
substantial rights of the accused.’” Dowty, 60 M.J. at 173
(quoting Art. 59(a), UCMJ).

     Although the record is clear that service members were
impermissibly excluded from the selection process by virtue of
their rank, 21 the question remains whether that improper
nomination process materially prejudiced the appellant. In
reviewing this case we find: (1) no evidence that the errant
instruction was issued with an improper motive; (2) no evidence
that the CA had an improper motive when detailing the members
assigned to the appellant's court-martial; (3) the CA was a
person authorized to convene a general court-martial; (4) the CA
was properly advised of his Article 25 responsibilities, and
that he could pick any member of his command, not just those who
had been nominated; (5) the court members were personally chosen
by the CA from a pool of eligible candidates; and, (6) the court
members all met the criteria in Article 25, UCMJ. Additionally,
given the appellant’s status as an E-6 past high-year tenure, it
is unlikely any members below the pay grade of E-7 would have
been senior to the appellant, and thus eligible to serve as a
member of his court-martial. Under these circumstances, we are
convinced that the appellant’s case was heard by a fair and
impartial panel, and that the error in this case was harmless.
See United States v. Bartlett, 66 M.J. 426, 431 (C.A.A.F. 2008).

21
  While the CA indicates   he understood it was within his discretion “to
detail anyone throughout   the COMNAVAIRLANT claimancy, including members of
[his] staff” and that he   “could detail officers in the pay grade of O-6,” AE
XCII at 2, this does not   cure the defect in the nomination process.
                                        9
                Failure to Comment on Legal Error

     Although not raised as error, we note that the staff judge
advocate (SJA) failed to comment on the allegations of legal
error contained in the appellant’s request for clemency
submitted pursuant to R.C.M. 1105. The SJA “is not required to
examine the record for legal errors,” but must “state whether,
in the [SJA’s] opinion, corrective action on the findings or
sentence should be taken when an allegation of legal error is
raised in matters submitted under R.C.M. 1105.” R.C.M.
1106(c)(4). “This applies even if the errors are submitted
after service of the [SJA] recommendation, as long as that is
done within the time prescribed by RCM 1105(c)(1).” United
States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996) (citing United
States v. Hill, 27 M.J. 293, 295-96 (C.M.A. 1988)). The
appellant’s trial defense counsel submitted the clemency request
alleging legal error four days after receiving the SJA’s
recommendation, yet the SJA did not prepare an addendum to his
recommendation addressing the alleged error. This failure,
however, does not require an automatic return of the case to the
CA. “[A]n appellate court may determine if the accused has been
prejudiced by testing whether the alleged error has any merit
and would have led to a favorable recommendation by the SJA or
corrective action by the [CA].” Green, 44 M.J. at 95 (citations
omitted).

     In his clemency request, the trial defense counsel alleged
two errors: First, that an investigator’s testimony that she
thought the appellant was lying and evasive during his
interrogation constituted improper “human lie detector”
testimony; and, second, that there was insufficient evidence in
the record to prove the appellant possessed the child
pornography during the period alleged in the specification.

     We find both allegations to be without merit. While the
investigator’s comments on the appellant’s veracity may have
been improper, we are satisfied that the military judge’s
curative instruction was sufficient to address the issue. Also,
the testimony of numerous witnesses that the laptop computer and
hard drive in question belonged to the appellant was confirmed
by the appellant himself during his videotaped interrogation.
Although there was no evidence presented to place either item in
the appellant’s hands during the period alleged, there was more
than sufficient evidence to prove that he constructively
possessed the computer and hard drive, as well as the child
pornography found thereon.


                               10
     Accordingly, we find that the alleged errors would not have
led to a favorable SJA recommendation or corrective action by
the CA. There being no prejudice, no remedy is required.

                          Sentence Reassessment

     As we hold that the maximum punishment applicable in this
case was four months’ confinement and forfeiture of two-thirds’
pay per month for four months, we will reassess the sentence in
accordance with the principles set forth in United States v.
Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006), United States v. Cook,
48 M.J. 434, 438, (C.A.A.F. 1998), and United States v. Sales,
22 M.J. 305, 307-09 (C.M.A. 1986). Applying the incorrect
maximum punishment of ten years’ confinement, total forfeiture
of pay and allowances, and a dishonorable discharge, the members
sentenced the appellant to confinement for 18 months and a BCD.
While our holding certainly presents a “dramatic change in the
penalty landscape,” United States v. Buber, 62 M.J. 476, 479
(C.A.A.F. 2006) (quoting United States v. Riley, 58 M.J. 305,
312 (C.A.A.F. 2003)), this change does not preclude our ability
to reassess the sentence in this case.

     The correct applicable maximum sentence is far below what
the members imposed. However, the evidence considered by the
members has not changed; the graphic and disturbing images
involved have not changed; the impact on good order and
discipline has not changed; and the evidence ultimately provided
to the members during the sentencing proceedings almost
certainly would not have changed. In his argument on
sentencing, the trial defense counsel asked the members to
“consider something slightly more serious than NJP. . . .
something in the 60 to 75-day range and a reduction of one or
two rates.” 22 The members far exceeded this in their sentence,
obviously viewing the appellant’s misconduct as something
meriting punishment much “more serious than NJP.” Maximum
sentences serve as an upper limit on the permissible range of
punishments for a given offense, and we believe the members
would have found the appellant’s conduct to fall within the most
egregious of simple disorders. Finally, and unfortunately, this
court is all too familiar with cases involving the possession of
child pornography and the sentences that accompany them.
Accordingly, we conclude that the members would have imposed the
maximum sentence permitted for a general disorder involving the


22
  Record at 806.   Nonjudicial punishment (NJP) is authorized to address
“minor offenses” and does not (except in a very limited circumstance) include
confinement. Art. 15, UCMJ.
                                     11
possession of this child pornography under these circumstances.
We further conclude such a sentence is appropriate in this case.

                           Conclusion

     The revised findings announced by the court-martial are a
nullity. The original findings announced by the court-martial
and only so much of the sentence as includes four months’
confinement and forfeiture of two-thirds’ pay per month for four
months are approved.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               12
