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

                                Before
           F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       ANDREW J. SHIFFLETT
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201400311
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 9 April 2014.
Military Judge: LtCol E.A. Harvey, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: Capt Michael Magee, USMC; LT Carrie E.
Theis, JAGC, USN.
For Appellee: Maj Susan M. Dempsey, USMC; Capt Matthew M.
Harris, USMC.

                              11 June 2015

     ---------------------------------------------------
                     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 military judge sitting as a general court-martial
convicted the appellant, contrary to his pleas, of one
specification each of violating a lawful general order and of
possessing child pornography, in violation of Articles 92 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934. 1
The military judge sentenced the appellant to three years’
confinement, forfeiture of all pay and allowances, reduction to
pay grade E-1, and a dishonorable discharge (DD). The convening
authority (CA) approved the sentence as adjudged, and, except
for the DD, ordered it executed.

     The appellant raises three assignments of error (AOEs):
(1) That the military judge erred in applying the maximum
sentence applicable to possession of child pornography under the
current version of Article 134, UCMJ, when that provision was
not in effect at the time of the charged misconduct; (2) that
the sentence is inappropriately severe; and (3) that trial
defense counsel rendered ineffective assistance by failing to
request a bill of particulars identifying what files the
Government alleged to be child pornography. 2

     After carefully considering the record of trial and the
submissions of the parties, we conclude the findings and
sentence are correct in law and fact and that there was no error
materially prejudicial to the substantial rights of the
appellant. Arts 59(a) and 66(c), UCMJ.

                                 Background

     Using an internet search tool, agents of the Naval Criminal
Investigative Service (NCIS) identified the appellant’s computer
as advertising the ability to transmit child pornography via a
peer-to-peer sharing program. Learning the appellant had
subsequently deployed, the agents arranged for the seizure in
Afghanistan of the appellant’s electronic media, including a
laptop computer and an external hard drive. A forensic analysis
of these items revealed the presence of both video and still
images of child pornography. The hard drive also contained



1
  At arraignment the charge sheet contained two separate charges, the Charge
and Additional Charge II, with a single specification under each, of
possessing child pornography in violation of Article 134, UCMJ, along with
the order violation charge. Prior to announcement of findings, the military
judge found that the two possession of child pornography specifications
constituted an unreasonable multiplication of charges. Accordingly, the
military judge merged the specifications under the Second Additional Charge
and dismissed the Charge. Record at 476.
2
  AOEs II and III are raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).


                                      2
images of adult pornography; possession of such material by
Marines in Afghanistan was proscribed by a general order. 3

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

                                Maximum Sentence

     After announcing the findings, the military judge stated
that the maximum period of confinement faced by the appellant
was 12 years: ten for possessing child pornography and two for
violating a lawful general order. There was no discussion of
the basis for the maximum confinement calculation for either
offense, yet the civilian defense counsel agreed with the
military judge, stating, “it’s a total of 12.” 4

     On appeal, the appellant argues that the maximum punishment
applicable to the Second Additional Charge is only that
permitted for a simple disorder under Article 134, that is, 4
months’ confinement and forfeiture of two-thirds pay per month
for four months. We disagree:

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.). 5 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) (citation omitted), rev. denied sub
nom. United States v. Schaleger, 73 M.J. 92, (C.A.A.F. 2013)
(summary disposition). The maximum limits for authorized
punishments are set forth for each offense listed in Part IV of
the MANUAL FOR COURTS-MARTIAL, UNITED STATES (MCM). For offenses not
listed in Part IV of the MCM, we turn to the President’s
guidance in R.C.M. 1003(c)(1)(B)(i)-(ii). There we find the

3
    General Order 1B, I Marine Expeditionary Force (Forward), dated 1 Mar 2011.
4
    Record at 494.   See also id. at 105-06, 484 and Appellate Exhibit XXII.
5
  Pursuant to authority delegated from Congress under Article 56, UCMJ, the
President has specified offense-based limits on punishment in R.C.M. 1003.


                                         3
inquiry    is “dependent 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).

     In this case, the Government charged the appellant with
possession of child pornography on or between 1 June 2010 and 13
August 2011. Child pornography was not “listed” as an offense
in Part IV of the MCM until the President issued Executive Order
(EO) 13593 on December 13, 2011. 6 See Booker, 72 M.J. at 800-02
and MCM (2012 ed.), Part IV, ¶68b. Since there was no closely
related or necessarily included offenses listed in Part IV of
the MCM at the time of the offense, we look to whether the
charged offense is punishable as authorized by the United States
Code or as authorized by custom of the service.

2.     The maximum punishment applicable in the present case

     At the time of the charged misconduct, possession of child
pornography was punishable under the United States Code by up to
ten years in prison. 7 Child Pornography Prevention Act of 1996
(CPPA), 18 U.S.C. § 2552A (2006). The language of the CPPA,
however, does not extend to “what appears to be” child
pornography. 8 The appellant argues that the offense of which the
appellant stands convicted either expressly or implicitly
included possession of “what appears to be” child pornography
and that the military judge applied this broader definition of
child pornography in finding the appellant guilty of the Article
134, UCMJ offense. The appellant concludes that at the time of
the charged offenses, there was no closely related listed
offense or analogous Federal statute that specifically addressed
possession of “what appears to be” child pornography and that
possession of “what appears to be” child pornography is
punishable under Article 134 only as a simple disorder. Beaty,
70 M.J. at 40, 45.

6
  Amendments contained in EO 13593 took effect 30 days following its issuance.
Under the now “listed” offense, possessing child pornography carries a
maximum punishment of 10 years’ confinement.
7
    Certain aggravating factors could increase the maximum above ten years.
8
  In the wake of the Supreme Court’s decision in Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002), the statute was amended to remove any such
language. See PROTECT Act, Pub.L. No. 108-21, § 502(a)(1), 117 Stat. 650.
See also Beaty, 70 M.J. at 43.


                                        4
     We find no evidence in the record to support this
conclusion. First, both specifications under the original
Charge and Second Additional Charge alleged possession of “child
pornography, to wit: a hard drive containing images and video of
minors engaging in sexually explicit conduct” – there is no
mention of “what appears to be” minors. 9 When the military judge
merged these specifications, this description of the child
pornography was unchanged. 10

     Second, there is no evidence indicating the military judge
applied a definition of “child pornography” that differed from
the language of the specifications. Although the appellant
would ascribe several of trial counsel’s comments to the
military judge, this attempt crumbles under examination. While
trial counsel opined that EO 13593 and it’s “across the board
adoption of 10 years” 11 somehow supported a ten-year maximum for
conduct that preceded the EO’s effective date, there is nothing
to indicate the military judge concurred. Likewise, when trial
counsel incorrectly argued that child pornography “need not
involve an actual minor,” 12 there is nothing in the record to
show the military judge agreed. And the trial counsel’s urging
the use of a findings instruction that includes optional
definitional language regarding virtual child pornography 13 does
not prove that the military judge ignored the plain language of
the specifications to apply the optional, inapplicable
definition.

     “Military judges are presumed to know the law and to follow
it absent clear evidence to the contrary.” United States v.
Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States
v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). Absent any

9
  Charge Sheet. We note that appellate defense counsel, in her brief dated 22
January 2015, clearly misquotes both the language from the original
specifications and the new specification as merged by the military judge. In
two instances she specifically quotes the language as including “or what
appears to be minors.” Appellant’s Brief at 3-4. A plain reading of the
record shows these purported quotations to be inaccurate. We find this
conduct by the appellate defense counsel most troubling. The fact these
misrepresentations go directly to the crux of the appellant’s assigned error
only increases our concern.
10
     Record at 476.
11
     Id. at 106.
12
     Id. at 452.
13
  Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9, ¶ 3-68b-1 (1
Jan 2010).
                                      5
indication the military judge here agreed with the trial
counsel’s statements or applied an incorrect definition of
“child pornography,” we find no reason to presume otherwise.
That the evidence contains images and videos clearly portraying
very young children engaged in sexual activity only further
supports our conclusion that the military judge applied the
correct law.

     Accordingly, we find no evidence indicating the military
judge applied a definition of “child pornography” encompassing
anything broader than actual children engaged in sexual conduct.
The appellant is asking this court to find a Beatty issue where
none exists.

                    Sentence Appropriateness

     This court reviews sentence appropriateness de novo. United
States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Sentence
appropriateness involves the judicial function of assuring that
justice is done and that the appellant gets the punishment he
deserves. United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). As part of that review, we give “‘individualized
consideration’ of the particular appellant ‘on the basis of the
nature and seriousness of the offense and the character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).

     Here, the appellant was convicted of possessing images and
videos of children engaged in sexual conduct, including at least
one lengthy video depicting a young girl crying as she is raped
by an adult male. While the appellant may otherwise be a good
Marine with a strong work ethic, we conclude that, based on the
entire record, justice was served and the appellant received the
punishment he deserved.

                     Ineffective Assistance

     Where ineffective assistance of counsel is claimed,
“questions of deficient performance and prejudice” are reviewed
de novo. United States v. Gutierrez, 66 M.J. 329, 330-31
(C.A.A.F. 2008) (citations omitted). This court analyzes such
claims using the two-part test outlined in Strickland v.
Washington, 466 U.S. 668 (1984): (1) Whether counsel’s
performance fell below an objective standard of reasonableness,
and (2) if so, whether, but for the deficiency, the result would


                                6
have been different.   United States v. Paxton, 64 M.J. 484, 488
(C.A.A.F. 2007).

     Counsel is presumed to have performed in a competent,
professional manner. To overcome this presumption, an appellant
must show specific defects in counsel's performance that were
“‘unreasonable under prevailing professional norms.’” United
States v. Quick, 59 M. J. 383, 386 (C.A.A.F. 2004) (quoting
United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001)).
However, “[w]hen reviewing ineffectiveness claims ‘a court need
not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant. United
States v. Datavs, 71 M.J. 420, 424-25 (C.A.A.F. 2012) (quoting
Strickland, 466 U.S. at 697). “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should
be followed.’” Id. (quoting Strickland, 466 U.S. at 697).
Accordingly, we turn first to the issue of prejudice.

     The appellant alleges his trial defense counsel were
ineffective for failing to request a bill of particulars
outlining what files the Government believed to be “actual child
pornography.” Appellant’s Brief, at 2. He further claims such
a bill would have allowed his expert to “examine those files
specifically for possible exculpatory evidence.” Id. However,
the appellant provides no explanation as to why the expert was
unable to examine each of the files identified and provided by
the Government in discovery. This was not a trial involving
virtual mountains of electronic files. In all, NCIS sent only
24 items for analysis by the Government’s forensic expert, who
examined only 12. (The Government offered ten of these files as
prosecution exhibits at trial.) The simple fact such a bill of
particulars may have made the expert’s clearly manageable job a
bit easier hardly creates “a reasonable probability that . . .
the factfinder would have had a reasonable doubt respecting
guilt.” Strickland, 466 U.S. at 695. We, therefore, find no
prejudice.




                                 7
                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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