UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            JOHNSON, KRAUSS, and BURTON
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                           Sergeant DENNIS Q. GIEBLER
                           United States Army, Appellant

                                    ARMY 20100842

                  Headquarters, 21st Theater Sustainment Command
                     Christopher T. Fredrikson, Military Judge
                 Colonel Claes H. Lewenhaupt, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain Jennifer A. Parker, JA; Captain Meghan M. Poirier, JA (on
brief).

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Bradley Endicott, JA (on brief).


                                   21 December 2011
                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

Per Curiam:

      A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification each of possessing and receiving child
pornography, in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to
a bad-conduct discharge and confinement for eighteen months. Pursuant to a pretrial
agreement, the convening authority reduced the sentence to confinement to fifteen
months and approved the remainder of the sentence. 

       Upon review of the case before us under Article 66, UCMJ, we hold that the
military judge failed to elicit a sufficient factual basis for appellant’s use of foreign
commerce in receiving child pornography. However, it is unnecessary in the first


 At action, the convening authority waived appellant’s automatic forfeitures for six
months for the benefit of appellant’s dependents. See UCMJ art. 58b.
GIEBLER—ARMY 20100842

instance to establish such a factual basis where the offense is charged as a violation
of Clauses 1 and 2 of Article 134, UCMJ. See United States v. Leonard, 64 M.J.
381, 383 (C.A.A.F. 2007). We will therefore amend the receiving child pornography
specification by deleting the words “that had been in foreign commerce.”

       Accordingly, the court affirms only so much of the finding of guilty of
Specification 2 of the Charge as finds that appellant “U.S. Army, did at or near
Rustamyu, Iraq, Columbus, Georgia, and Kaiserslautern, Germany, between on or
about 1 March 2007 and 28 February 2009, knowingly and wrongfully receive child
pornography as defined in 18 U.S.C. § 2256(8), including: 1017.JPG, $$ (171).jpg, -
0 0!!!!!!~3a.jpg, MELODY1(1)(1)(1).jpg, 036ACDB.JPG, giving head.jpg, 7 girl and
dad.jpg, 211.JPG, (Ptsc) 11yo Blonde Girl And Cat On Sofa.mpg, 13yo brother fucks
11yo sisterucks 11yo sister Gets Cum In Face…kiddy.mpg, Kimmy – O New.mpg,
Pthc – Reel Kiddie mother and 2 daughter 9yo+ 14yo threesome – Tvg 13 r ygold
hussyfan pthc fet.mpg, by downloading to a computer one or more images and video
files of child pornography, which conduct was prejudicial to good order and
discipline and likely to bring discredit upon the armed forces.” The remaining
findings of guilty are affirmed. Reassessing the sentence on the basis of the error
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 in Moffeit, the court affirms the sentence as approved by the convening
authority.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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