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

                              UNITED STATES, Appellee
                                           v.
                           Private First Class JOE SOTELO
                            United States Army, Appellant

                                     ARMY 20110267

                    Headquarters, Combined Joint Task Force -101
                          Michael J. Hargis, Military Judge
                    Colonel William R. Kern, Staff Judge Advocate


For Appellant: Captain Jack D. Einhorn, JA (argued); Colonel Patricia A. Ham, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain
Jack D. Einhorn, JA (on brief).

For Appellee: Captain Bradley M. Endicott, JA (argued); Lieutenant Colonel Amber
J. Roach, JA; Major Catherine L. Brantley, JA; Captain Bradley M. Endicott, JA (on
brief).


                                    28 November 2012
                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

YOB, Senior Judge:

       A military judge sitting as a general court–martial convicted appellant,
pursuant to his pleas, of wrongfully and knowingly possessing over 250 images and
over 40 videos of child pornography, which conduct was prejudicial to good order
and discipline or of a nature to bring discredit upon the Armed Forces, and of
wrongfully and knowingly possessing over 60 images of drawings depicting children
performing sexual acts on adults, which conduct was prejudicial to good order and
discipline or of a nature to bring discredit upon the Armed Forces, 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 twelve months, and reduction to the grade of E–1.
SOTELO—ARMY 20110267

       Appellant’s case is now before this court for review under Article 66, UCMJ.
We have considered the record of trial, appellant’s assignments of error, the
government’s response, and the matters discussed during oral argument. Appellant
essentially argues that there is a substantial basis in law and fact to question his
guilty plea to Specification 2 of The Charge. We agree and order relief in our
decretal paragraph.

                                       FACTS

      As initially drafted, Specification 2 of The Charge alleged the following
offense:

             In that Private First Class (E-3) Joe Sotelo, U.S. Army,
             did, between on or about 1 March 2010 and on or about 9
             April 2010, at or near Fort Campbell, Kentucky,
             wrongfully and knowingly possess over 60 images of
             drawings depicting children performing sexual acts on
             adults, over 70 images of partially nude children, and an
             image that states ‘Pedophile: You’d be crazy not to,’ or
             words to that effect, which conduct was prejudicial to
             good order and discipline or of a nature to bring discredit
             upon the Armed Forces.

       Prior to appellant’s guilty plea, the military judge expressed reservations
about two clauses contained within Specification 2 of The Charge: the first clause
involved 70 images of partially nude children and the second clause concerned the
image stating “Pedophile: You’d be crazy not to.” Specifically, the military judge
believed these two clauses within Specification 2 of The Charge raised “significant
due process notice and First Amendment issues.” The military judge informed the
government that he would not accept appellant’s guilty plea to these two clauses of
Specification 2 of The Charge. Consequently, the government dismissed “over 70
images of partially nude children, and an image that states ‘Pedophile: You’d be
crazy not to,’ or words to that effect,” from Specification 2 of The Charge.

      As a result, Specification 2 of The Charge, as modified, simply alleged that
appellant possessed “drawings depicting children performing sexual acts on adults.”
The military judge had the following exchange with the trial counsel regarding the
remainder of Specification 2 of The Charge:

             MJ: And I understand that you also indicated in the [Rule
             for Courts-Martial] 802 session that it was your intent to,
             in the first clause, ‘posses[s] over 60 images of drawings
             depicting children performing sexual acts on adults’ to
             charge, essentially, a violation of 18 U.S.C. § 1466 A?



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             TC: Yes, sir.

       During the providence inquiry into Specification 2 of The Charge, the military
judge informed appellant that the offense consisted of the following elements:

             First, that at or near Fort Campbell, Kentucky, between on
             or about 1 March 2010 and 9 April 2010, . . . you
             knowingly possessed over 60 images of drawings
             depicting children performing sexual acts on adults;

             Second, that at the time you knew you possessed the
             alleged images;

             Third, that your acts were wrongful; and

             Fourth, that, under the circumstances, your conduct was to
             the prejudice of good order and discipline in the armed
             forces or was of a nature to bring discredit upon the armed
             forces.

       Appellant described to the military judge that he obtained these drawings by
using the peer-to-peer file-sharing program Limewire. Appellant estimated that he
possessed between 70 and 90 drawings, and that these drawings depicted “children
either exposing themselves in a lewd way and/or performing oral and/or sexual acts
on other adults and/or children.” Appellant clarified that sexual acts included oral
and vaginal sex. After confirming that children meant somebody under the age of
sixteen, the military judge confirmed that sexual acts included “sexual intercourse,
genital to genital sexual intercourse, or oral to genital sexual intercourse.”

      The military judge next introduced into the discussion that the children
depicted in the drawings exposed their genitalia in a lascivious fashion:

             MJ: In other words, in these cartoons, when these
             children were exhibiting their genitalia, were they doing
             that in a manner that would be staged or posed?

             Acc: Yes, sir.

             MJ: Would they be in an unnatural position for a child of
             that age?

             Acc: Yes, sir.




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             MJ: Did it appear that the person doing the drawing
             wanted the viewer’s focus to be on the genitalia of that
             child?

             Acc: Yes, sir.

             MJ: Did it look like the child was . . . indicating a
             willingness to engage in sexual activity?

             Acc: Yes, sir.

             MJ: Do you believe that those images, those drawings,
             elicited a sexual response in the viewer?

             Acc: Yes, sir.

             MJ: That was the intent of the person that drew them?

             Acc: Yes, it was, sir.

       Thus, appellant concluded that the drawings depicted children under the age
of sixteen engaging in sexually explicit conduct either with other children or with
adults. The military judge then asked appellant if he thought the drawings were
obscene. Appellant agreed that the drawings were obscene “[d]ue to the fact of the
exposure and the acts [the children] were engaged in . . . .” Appellant also agreed
that the drawings lacked literary, artistic, political, or scientific value. Instead of
being artistic renditions, appellant stated that “[t]he sole purpose of these images
was to excite a sexual response from the viewer to excite them and have them view
these images even more.”

      At this point in the providence inquiry, the military judge went back to the
elements of Specification 2 of The Charge. The military judge did so because he
wanted “to be a little more explicit now.” The military judge then re-explained the
elements of Specification 2 of The Charge as the following:

             That, at or near Fort Campbell, Kentucky, between on or
             about 1 March 2010 and 9 April 2010, you knowingly
             possessed over 60 images of drawings of children engaged
             in sexually explicit conduct;

             That those drawings were obscene;

             That those drawings lacked serious literary, artistic,
             political, or scientific value; and



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SOTELO—ARMY 20110267

             That, at the time, you knew you possessed the images;

             That your acts were wrongful; and

             That, under the circumstances, your conduct was
             prejudicial to good order and discipline in the armed
             forces or was of a nature to bring discredit upon the armed
             forces.

       After being advised of these elements, appellant confirmed that he possessed
the drawings at issue on a laptop computer and hard drive, and that he possessed
these drawings at Fort Campbell, Kentucky, between 1 March 2010 and 9 April
2010. Appellant also verified that he knew he was getting these particular drawings
because he intentionally sought them out and downloaded them from Limewire.
Appellant agreed with the military judge that if the drawings were of real children,
they would constitute child pornography. Finally, appellant admitted that his
conduct was wrongful, prejudicial to good order and discipline, and service-
discrediting.

      As part of his pretrial agreement with the convening authority, appellant
entered into a stipulation of fact with the government. The following paragraph
from the stipulation of fact is pertinent to Specification 2 of The Charge:

             The Accused specifically admits that he did, at or near
             Fort Campbell, Kentucky, between on or about 1 March
             2010 and on or about 9 April 2010, wrongfully and
             knowingly possess over 60 images of drawings depicting
             children performing sexual acts on adults . . . . This
             conduct was prejudicial to good order and discipline or of
             a nature to bring discredit upon the Armed Forces. These
             images of drawings included images of children cartoon
             characters such as ‘Dennis the Menace’ performing sexual
             acts with adults. The images also included Japanese
             anime drawings of naked children and children engaging
             in explicit sexual conduct. The images graphically depict
             prepubescent male and female genitalia and conduct that is
             degrading towards women and children. In addition, many
             of these cartoons are explicit, sensationalized portrayals of
             pedophilia. Possessing these images . . . depicting and
             promoting sexually explicit conduct with children is
             prejudicial to good order and discipline in that it is
             conduct which other [s]oldiers view with such disdain that
             it degrades unit morale when they discover a fellow
             [s]oldier is viewing it. It is also conduct which brings



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             discredit upon the Armed Forces because if the general
             public were to discover that a [s]oldier possessed and
             viewed such images, they would think less of [s]oldiers
             and the military.

                                         LAW

       “A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996) (citing
United States v. Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). An appellate court will
not set aside a guilty plea unless there is “a ‘substantial basis’ in law and fact for
questioning the guilty plea.” Id. (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)).

       A military judge can abuse his discretion if he accepts appellant’s guilty plea
based upon “an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46
(C.A.A.F. 2012) (citing United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008)). A knowing and voluntary plea requires the military judge to explain the
elements of an offense to the accused and to elicit the factual basis of the offense.
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003) (citations omitted).
Failure to do so constitutes reversible error unless “it is clear from the entire record
that the accused knew the elements, admitted them freely, and pleaded guilty
because he was guilty.” Id. (quoting United States v. Jones, 34 M.J. 270, 272
(C.M.A. 1992)).

       Moreover, “[t]he providence of a plea is based not only on the accused’s
understanding and recitation of the factual history of the crime, but also on an
understanding of how the law relates to those facts.” United States v. Medina, 66
M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care, 18 U.S.C.M.A. 535, 538–
39, 40 C.M.R. 247, 250–51 (1969)). An accused must understand “the nature of the
charges brought against him . . . .” Id. (citations omitted). This is due to the fact
that “an accused has a right to know to what offense and under what legal theory he
or she is pleading guilty.” Id. An essential aspect of accurately informing appellant
of the nature of the offenses “is a correct definition of legal concepts.” United
States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004).

                                     DISCUSSION

       The providence inquiry into Specification 2 of The Charge was deficient
because the military judge failed to define the term “obscene” for appellant and
failed to elicit facts to demonstrate how the drawings at issue depicted “obscene”
material under the appropriate legal standard.




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SOTELO—ARMY 20110267

       Even though the government did not charge appellant with possessing
“obscene” material, the military judge gratuitously advised appellant during the
providence inquiry that one of the elements of Specification 2 of The Charge
required the drawings to be “obscene.” 1 However, the military judge then failed to
define the term “obscene” for appellant. In fact, the only discussion of obscenity
occurred when the military judge asked appellant if he thought the drawings at issue
were obscene. But even this cursory discussion occurred prior to the military judge
informing appellant that the material must be obscene as a required element.

       More importantly, appellant’s response as to how the drawings were obscene
did not address the guidelines for determining whether material is obscene as set
forth in Miller v. California, 413 U.S. 15 (1973). In Miller, the Supreme Court
established the following test to determine whether material is obscene:

             (a) whether the average person, applying contemporary
             community standards would find that the work, taken as a
             whole, appeals to the prurient interest [citations omitted];
             (b) whether the work depicts or describes, in a patently
             offensive way, sexual conduct specifically defined by the
             applicable state law; and (c) whether the work, taken as a
             whole, lacks serious literary, artistic, political, or
             scientific value.

Id. at 24 (internal quotation marks omitted).

       While the military judge separately advised appellant of the third prong of the
Miller test, he failed to advise appellant of the first two prongs of the Miller test.
Further, the military judge conducted an insufficient inquiry into whether appellant
believed the drawings met the first two prongs of the Miller test. Nonetheless,
appellant’s conduct could result in a criminal conviction only if all of the Miller
requirements are met, which would then remove it from the protections offered by

1
  The military judge probably gratuitously added this element because he believed
the government “essentially” charged appellant with a violation of 18 U.S.C. §
1466A (2006). In turn, § 1466A(b)(1) criminalizes the possession of obscene
drawings depicting minors engaged in sexually explicit conduct. The military
judge’s view that the government “essentially” charged appellant with violating §
1466A also probably compelled the judge to review the so-called Dost factors during
the providence inquiry to determine if the drawings at issue depicted the “lascivious
exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2) (2006).
See also United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986).




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the First Amendment. See United States v. Rudzavice, 586 F.3d 310, 315 (5th Cir.
2009) (acknowledging that federal courts incorporate the Miller test “into federal
obscenity statutes in order to construe them in a manner consistent with the
Constitution.”). Thus, we conclude that appellant’s cursory and unexplored
statement that the drawings were obscene constituted an insufficient factual basis for
his guilty plea to Specification 2 of The Charge. See United States v. Outhier, 45
M.J. 326, 331 (C.A.A.F. 1996) (stating that “[m]ere conclusions of law recited by an
accused are insufficient to provide a factual basis for a guilty plea.”) (citation
omitted).

       In sum, the military judge advised appellant that the drawings at issue had to
be “obscene” in order for them to serve as the basis for a criminal conviction despite
the fact that the specification did not allege the drawings to be obscene. As a result,
the military judge had an obligation to correctly and completely define the term
“obscene” for appellant. The military judge failed to do so; therefore, there are
insufficient facts in the record to satisfy the Miller guidelines for a showing of
obscenity. 2 See United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)
(finding appellant’s plea improvident because “the military judge utilized the pre-
[Ashcroft v. ] Free Speech Coalition[, 535 U.S. 234 (2002)] provisions of 18 U.S.C.
§ 2256(8) to explain the definition of ‘child pornography’ to [a]ppellant.”); United
States v. Pretlow, 13 M.J. 85, 88–89 (C.M.A. 1982) (finding appellant’s plea
improvident because the military judge did not explain “the elements of the
substantive offense which was the object of the conspiracy.”). Consequently, we
will set aside Specification 2 of The Charge in our decretal paragraph.

       After setting aside Specification 2 of The Charge, we are convinced that we
can perform a sentence reassessment in this case and need not return the case to the
convening authority for a sentence rehearing. In making our decision, we consider
the principles defined in United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986);
and United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006), including those
specifically discussed in Judge Baker’s concurring opinion, Moffeit, 63 M.J. at 43

2
  We also note that the military judge misadvised appellant with respect to a separate
element when he went back and re-explained the elements of Specification 2 of The
Charge to him. The military judge informed appellant that a required element
consisted of appellant admitting that he knowingly possessed “over 60 images of
drawings of children engaged in sexually explicit conduct.” However, the
government merely charged appellant with possessing drawings “depicting children
performing sexual acts on adults.” This discrepancy also supports our conclusion
that there is a substantial basis in law and fact to question appellant’s guilty plea to
Specification 2 of The Charge. Again, this confusion probably existed due to the
parties’ belief that the government “essentially” charged a § 1466A offense.




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(Baker, J., concurring in the result). This non-exhaustive list includes the following:
(1) whether there are changes in the penalty landscape, including whether charges
with significant exposure or aggravating circumstances are taken off the table; (2)
whether appellant chose sentencing by members or by military judge alone; (3) the
nature of the remaining offense(s); and (4) our identification on the record of the
factors that informed our reassessment decision. Id.

       First, the gravamen of appellant’s conduct and the offense with the most
aggravating circumstances remains appellant’s possession of child pornography.
Appellant downloaded child pornography beginning in January 2008 and frequently
masturbated to it. Moreover, some of the videos and images containing child
pornography involved girls appearing as young as four years old engaging in
sexually explicit conduct. Appellant also admitted that “[i]n some of the videos, you
can see the children in obvious discomfort and in one you can observe a girl crying
after a man is done having intercourse with her.” The government almost
exclusively focused on appellant’s possession of child pornography in fashioning
their requested sentence during sentencing arguments. Thus, while the maximum
period of confinement has dropped from twenty years to ten years, the sentencing
landscape has not significantly changed because the gravamen of appellant’s
misconduct remains his possession of child pornography, much of which involved
prepubescent children. In addition, appellant’s sentence of twelve months’
confinement was well short of the nineteen-month cap for which he negotiated as
part of his pretrial agreement.

      Second, appellant chose to be tried and sentenced by a military judge alone.
A service court of criminal appeals is “more likely to be certain of what a military
judge alone would have done than what a panel of members would have done.”
Moffeit, 63 M.J. at 43 (Baker, J., concurring in the result).

       Third, the nature of appellant’s remaining offense more readily lends itself to
sentence reassessment. Id. at 41 (recognizing that the Courts of Criminal Appeals
have “reviewed the records of a substantial number of courts-martial involving
convictions for child pornography activities . . . and [have] extensive experience
with the level of sentences imposed for such offenses under various
circumstances.”). Indeed, this court routinely reviews findings and sentences related
to the possession of graphic child pornography.

       Therefore, after applying the Sales and Moffeit analyses, and after careful
consideration of the entire record, we remain confident that the military judge would
have adjudged a sentence no less than that approved by the convening authority in
this case even absent Specification 2 of The Charge. Sales, 22 M.J. at 308.




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                                   CONCLUSION

       The finding of guilty of Specification 2 of The Charge is set aside and that
specification is dismissed. 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 sentencing principles outlined above, the court affirms the
sentence as approved by the convening authority.

      Judge KRAUSS and Judge BURTON concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




                                         MALCOLMH.
                                        MALCOLM      H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                         Clerkof
                                        Clerk  ofCourt
                                                  Court




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