UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                        Private First Class JUSTIN H. ADAIR
                            United States Army, Appellant

                                      ARMY 20100933

               Headquarters, 3d Infantry Division and Fort Stewart
                        Tiernan P. Dolan, Military Judge
        Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate (pretrial)
           Colonel Jonathan C. Guden, Staff Judge Advocate (post-trial)

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

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).


                                       28 August 2013

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

      A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of knowingly and wrongfully possessing
two (2) images of child pornography and one specification of knowingly and
wrongfully possessing forty-one (41) images of obscene virtual child pornography,
both specifications alleging conduct 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 court sentenced appellant to a bad -conduct
discharge, confinement for fifteen months, and reduction to the grade of E -1.
Pursuant to a pretrial agreement, the convening authority approved the sentence as
adjudged with exception of the confinement, a pproving only six months of
confinement. The convening authority also credited appellant with two days of
confinement against the sentence to confinement.
ADAIR—ARMY 20100933

       Appellant's case is now before this court for review under Article 66, UCMJ.
On appeal appellant raises two assignments of error. First, appellant argues that the
sentence must be set aside “because the military judge determined the sentence
based on the incorrect maximum punishment in light of United States v. Beaty, 70
M.J. 39 (C.A.A.F. 2011).” Second, appellant argues that his guilty plea for
Specification 2 is improvident because the military judge “never elicited facts
establishing a direct and palpable connection between the military mission and
possession of virtual images.” As discussed below, the military judge erred in
accepting appellant’s plea to knowingly and wrongfully possessing forty-one (41)
images of “obscene virtual images.” Our resolution of appellant’s second
assignment of error moots appellant’s first assignment of error. Appropriate relief is
provided in our decretal paragraph.

                                    BACKGROUND

       In December 2009, appellant’s spouse, while looking for a picture on
appellant’s personal computer, discovered child pornography. After confronting
appellant about her discovery, she notified appellant’s chain of command who in
turn notified members of the Army’s Criminal Investigation Command. A criminal
investigation was opened, which included the seizure and forensic examination of
appellant’s computer. Upon examination, two (2) images of actual child
pornography and forty-one (41) images of virtual child pornography were
discovered, images forming the basis of Specifications 1 and 2 of The Charge
respectively.

      The issue before this court is the providence 1 of appellant’s plea to knowing
and wrongful possession of “obscene virtual images” of child pornography
(Specification 2 of The Charge). The specification at issue reads:




1
    The specific error assigned by appellant on appeal reads:

               WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW
               AND FACT TO QUESTION APPELLANT’S PLEA TO
               SPECIFICATION 2 OF THE CHARGE WHERE DURING
               APPELLANT’S GUILTY PLEA THE MILITARY JUDGE
               NEVER ELICITED FACTS ESTABLISHING A DIRECT
               AND PALPABLE CONNECTION BETWEEN THE
               MILITARY MISSION AND POSSESSION OF VIRTUAL
               IMAGES.

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ADAIR—ARMY 20100933

             SPECIFICATION 2: In that Private First Class (E-3)
             Justin Adair, US Army, did, between on or about 15
             January 2009 and on or about 8 December 2009, at or near
             Fort Stewart, Georgia, knowingly and wrongfully possess
             forty one (41) obscene virtual images, including hand
             drawn and computer generated images, of minors engaging
             in sexually explicit conduct, which conduct was
             prejudicial to good order and discipline of the Armed
             Forces or of a nature to bring discredit upon the Armed
             Forces.

       Appellant’s conviction for Specification 1 of The Charge, knowingly and
wrongfully possessing two (2) images of child pornography [hereinafter actual child
pornography], is correct in law and fact. Resolution of the providence of appellant’s
plea to knowingly and wrongfully possessing forty-one (41) “obscene virtual
images” [hereinafter virtual child pornography] , however, necessarily requires
review of the providence inquiry into appellant’s plea to the former as the military
judge used definitions associated with the actual child pornography offense to advise
appellant on and establish his providence for the virtual child pornography offense.
Similarly, when discussing whether appellant’s possession of virtual child
pornography was conduct of a nature to bring discredit upon the Armed Forces,
appellant bootstrapped statements he made during his plea colloquy for possession
of actual child pornography to explain why his possession of virtual child
pornography was service discrediting.

                 A. Actual Child Pornography Providence Inquiry

       After providing appellant with the elements associated with Specification 1 of
The Charge, possession of actual child pornography, the military judge advised
appellant of the relevant legal definitions. The military judge defined, inter alia,
“child pornography” and “sexually explicit conduct” in accordance with 18 U.S.C. §
2256 (2006), advising appellant as follows:

             “Child pornography” means any visual depiction including
             any photograph, film, video, picture, or computer or
             computer-generated image or picture, whether made or
             produced by electronic, mechanical, or other means of
             sexually explicit conduct, where: a) the production of such
             visual depiction involves the use of a minor engaging in
             sexually explicit conduct; b) such visual depiction is a
             digital image, computer image, or computer-generated
             image that is, or is indistinguishable from, that of a minor
             engaging in sexually explicit conduct; c) such visual
             depiction has been created, adapted, or modified to appear

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ADAIR—ARMY 20100933

             that an identifiable minor is engaging in sexually explicit
             conduct.

             ...

             “Sexually explicit conduct” means graphic sexual
             intercourse including genital-genital, oral-genital, anal-
             genital, or oral-anal, whether between persons of the same
             or opposite sex or lascivious simulated sexu al intercourse
             where the genitals, breasts, or pubic area of any person is
             exhibited; graphic or lascivious simulated; (sic) bestiality;
             (sic) masturbation; (sic) or sadistic or masochistic abuse;
             or graphic or simulated lascivious exhibition of the
             genitals or pubic area of any person.

18 U.S.C. §§ 2256(8) and 2256(2)(B) (2006) respectively.

      In defining “lascivious,” an undefined term in 18 U.S.C. § 2256, the military
judge provided a definition virtually identical to that provided in United States v.
Mauldin:

             “Lascivious” means exciting sexual desires or marked by
             lust. Not every exposure of genitals or pubic area
             constitutes a lascivious exhibition. Consideration of the
             overall content of the visual depiction should be made to
             determine if it constitutes a lascivious exhibition. In
             making this determination, considered are such factors as
             whether the focal point of the depictions is on the genitals
             or pubic area, whether the setting is sexually suggestive,
             whether the child is depicted in an unnatural pose or in
             inappropriate attire considering the child’s age, whether
             the child is partially clothed or nude, whether the
             depiction suggests sexual coyness or willingn ess to engage
             in sexual activity, whether the depiction is intended to
             elicit a sexual response in the viewer, whether the
             depiction portrays the child as a sexual object, and any
             captions that may appear on the depiction or the materials
             accompanying the depiction. A visual depiction, however,
             need not involve all of these factors to be a lascivious
             exhibition.

United States v. Mauldin, ARMY 2010647, 2011 WL 4905724, at *2 (Army Ct.
Crim. App. 2011) (summ. disp.) (finding lascivious definition provided proper
according the factors adopted by United States v. Roderick, 62 M.J. 425, 429-430

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ADAIR—ARMY 20100933

(C.A.A.F. 2006) and derived from United States v. Dost, 636 F. Supp. 828, 832
(S.D.Cal. 1986)).

      Although not required for a finding of guilt to Specification 1 of The Charge,
possession of actual child pornography, the military judge defined “Obscene virtual
images of minors engaging in sexually explicit conduct” as follows:

             “Obscene virtual images of minors engaging in sexually
             explicit conduct” means images that are distinguishable
             from an actual minor engaging in sexually explicit
             activity, but nonetheless, are depictions of minors or of
             what appears to be minors engaged in sexually explicit
             conduct.

       Finally, the military judge defined service discrediting conduct as “conduct
which tends to harm the reputation of the service or lower it in public esteem,” the
standard definition found in the Military Judges’ Benchbook. See Dep’t of Army,
Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3 -60-2A.d. (1 Jan
2010).

      When asked by the military judge why his possession of actual child
pornography was service discrediting, the following colloquy occurred:

             ACC: Viewing child pornography is basically viewing
             child abuse – child sexual abuse, and if a civilian were to
             know that me being a service member were (sic) viewing
             said materials, it would bring the armed services into a
             lower esteem in the public eye.

             MJ: You mentioned earlier that your wife had
             discovered these images. Do you believe that in her eyes
             the military was somehow discredited by your actions?

             ACC: I wouldn’t know, Your Honor.

             MJ: Nonetheless, you believe that were word to get out,
             and this is a public forum, your actions would lower the
             esteem in which the armed forces are held in the public?

             ACC: I believe so, Your Honor.




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ADAIR—ARMY 20100933

                 B. Virtual Child Pornography Providence Inquiry

      In advising appellant on the elements and definitions for Specification 2 of
The Charge, possession of virtual child pornography, the following colloquy
occurred:

             [MJ]: In Specification 2 of The Charge, you are charged
             with possession of virtual child pornography, in violation
             of Article 134, UCMJ. In order for me to find you guilty
             of this offense, you must admit and I must find that:

                    One, that on or about 27 July 2009 2 and 8 December
             2009, at or near Fort Stewart, Georgia, you possessed 41
             obscene virtual images of minors engaging in sexually
             explicit conduct; and

                    Two, that such possession of obscene virtual images
             of minors engaging in sexually explicit conduct was
             prejudicial to the good order and discipline of the armed
             forces or was of a nature to bring discredit upon the armed
             forces.

                   The Phrase “minors engaging in sexually explicit
             conduct” is a phrase that has a meaning equivalent to child
             pornography.” I defined child pornography, to include the
             phrase “obscene virtual images of minors engaging in
             sexually explicit conduct” earlier.

                   Would you like me to read those definiti ons again?

             ACC: No, Your Honor.

             MJ: All the other definitions that I provided for
             Specification 1 of The Charge are the same and apply
             equally to Specification 2 of The Charge.

                    Would you like me to reread or reinstruct on any of
             those definitions?

             ACC: No, Your Honor.

2
 The pleadings allege misconduct between on or about 15 January 2009 and 8
December 2009, a fact later corrected by the military judge.

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ADAIR—ARMY 20100933

      After noting the elements and definitions associated with Specification 2 of
The Charge, the military judge engaged in a colloquy with appellant regarding why
he was guilty of the offense as charged. At one point, the military judge asked
appellant whether he believed the forty-one images in question “were of a minor
engaged in sexually explicit conduct or images depicting art or the beauty of the
human body?” 3 Appellant responded that they were images of “sexually explicit
conduct.” Neither the reason for the military judge’s question nor its significance
was discussed with or explained to appellant.

      When the discussion shifted to whether appellant’s cond uct was service
discrediting, the following colloquy occurred:

             MJ: Were your actions in possessing these 41 images the
             type of conduct which is service discrediting?

             ACC: Yes, Your Honor.

             MJ:   How so?

             ACC: Same as Specification 1, whereas I believe a n
             average everyday citizen wouldn’t distinguish the two
             virtual -- actual being a difference.

             MJ:   I’m sorry?

             ACC: I wouldn’t assume that an everyday citizen would
             distinguish the difference between virtual child
             pornography and actual child pornography.

             MJ: So what effect on that citizen would your
             possession of these images have?

             ACC: That to them it would still depict child sexual abuse
             and to know that a service member was viewing these
             materials would bring discredit or lower the esteem of the
             armed services in the eye of the public.


3
 The military judge asked the same question during the providence inquiry into
appellant’s possession of actual child pornography, a question of no legal relevance
or significance when dealing with actual child pornography as defined by 18 U.S.C.
§ 2256(8) (2006) as opposed to “obscene virtual images” in violation of 18 U.S.C. §
1466A(b) (2006).

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ADAIR—ARMY 20100933

           C. Stipulation of Fact Definition of Virtual Child Pornography

       The stipulation of fact stated, in relevant part: “For the purposes of this
stipulation of fact, the term virtual child pornography is defined as: visual depictions
of any kind, including a drawing, cartoon, computer generated image, scul pture, or
painting that depicts a minor engaging in obscene sexually explicit conduct.”
Obscene is undefined in the stipulation.

                                  LAW AND DISCUSSION

       We conclude that the military judge abused his discretion by accepting
appellant’s guilty plea to possession of “obscene virtual images.” In particular, the
military judge failed to properly define the term “obscene” to appellant. The
military judge compounded this error by not reconciling his definition of virtual
child pornography with the definition in the stipulation of fact. Furthermore, we
conclude that we cannot merely except the term “obscene” from Specification 2 and
affirm a general disorder under Clause 2. We are not confident that appellant
understood the legal consequences of possessing non-obscene virtual child
pornography and whether possession of such images tends to bring discredit upon
the armed forces. Accordingly, we find a substantial basis in law and fact to
question to the providence of appellant’s guilty plea.
                  A. OBSCENE VIRTUAL CHILD PORNOGRAPHY

       “During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge’s decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts -Martial
[hereinafter R.C.M.] 910(e).

       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)). “The 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). “[A]n accused has a

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ADAIR—ARMY 20100933

right to know to what offense and under what legal theory he or she is pleading
guilty.” Id. “An essential aspect of informing Appellant of the nature of the offense
is a correct definition of legal concepts. The judge's failure to do so may render the
plea improvident. See United States v. O'Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)
(holding plea improvident due to erroneous definition of child pornography); United
States v. Pretlow, 13 M.J. 85, 88–89 (C.M.A. 1982) (holding plea improvident where
a military judge failed to define the substantive elements of conspiracy to commit
robbery, a complex offense).” United States v. Negron, 60 M.J. 136, 141 (C.A.A.F.
2004). “Where the record contains ‘factual circumstances’ that ‘objectively support’
the guilty plea to a more narrowly construed statute or legal principle, the guilty
plea may be accepted.” Id. (citations omitted).

       “When a charge against a servicemember may implicate both criminal and
constitutionally protected conduct, the distinction between what is permitted and
what is prohibited constitutes a matter of ‘critical significance.’” United States v.
Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011) (quoting O'Connor, 58 M.J. at 453).
“With respect to the requisite inquiry into the providence of a guilty plea, see United
States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969), and Rule for
Courts-Martial 910, the colloquy between the military judge and an accused must
contain an appropriate discussion and acknowledgment on the part of the accused of
the critical distinction between permissible and prohibited behavior. ” Id.

       Virtual child pornography that is not obscene, unlike actual child
pornography, implicates the First Amendment and the protections afforded speech.
See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (finding provisions of
the Child Pornography Prevention Act t hat criminalized possession of virtual child
pornography overbroad and in violation of the First Amendment). In addressing the
implications of Ashcroft, our higher court noted, with respect to virtual child
pornography, “[t]he Supreme Court has now extended a cloak of First Amendment
protection to certain depictions of minors engaging in sexually explicit conduct.”
O’Connor, 58 M.J. at 454. If obscene, however, the images are not protected. “We
have long held that obscene speech–sexually explicit materials that violate
fundamental notions of decency–is not protected by the First Amendment.” United
States v. Williams, 553 U.S. 285, 288 (2008).

       In appellant’s case, the government charged that the images were “obscene
virtual images,” obscene being a legal term with constitutional implications.
Whether material is obscene is subject to a three -part test:

             (a) whether “the average person, applying contemporary
             community standards” would find that the work, taken as a
             whole, appeals to the prurient interest; (b) whether the
             work depicts or describes, in a patently offensive way,
             sexual conduct specifically defined by the applicable state

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ADAIR—ARMY 20100933

             law; and (c) whether the work, taken as a whole, lacks
             serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24 (1973) (internal citations omitted). At no time
during the providence inquiry did the military judge define obscenity. The record is
devoid of any mention or discussion of “community standards” and although one
might argue that “prurient interest” and “artistic value” were covered when the
military judge asked appellant whether the images “were of a minor engaged in
sexually explicit conduct or images depicting art or the beauty of the human body,”
we specifically find otherwise. “The military judge did not explain to Appellant the
significance of the question[], nor did the military judge ask Appellant whether he
understood the relationship of the question[] and answer[] to the distinction []
between constitutionally protected behavior and criminal conduct.” Hartman, 69
M.J. at 469 (simply asking appellant, in an Article 125, UCMJ consensual sodomy
prosecution, to discuss the Marcum factors, United States v. Marcum, 60 M.J. 198
(C.A.A.F. 2004), factors that take consensual adult sodomy outside the
constitutionally protected liberty interests recognized in Lawrence v. Texas, 539
U.S. 558 (2003), is insufficient to establish appellant knew of or understood the
constitutional implications associated with the charged offense and that his actions
fell outside of Lawrence’s protected liberty interests).

       In Hartman, a consensual sodomy prosecution, the trial counsel and military
judge discussed Lawrence and Marcum prompting the military judge to ask Senior
Technician Hartman questions meant to establish the Marcum factors, ostensibly
removing his consensual sodomy from Lawrence’s sphere of protected activity.
Despite the responses provided, our superior court described Senior Technician
Hartman as “a mere bystander” to the “discussion about legal theory and practice”
that occurred between the military judge and trial counsel. Hartman, 69 M.J. at 469.
The court went on to note, “In the absence of a dialogue employing lay terminology
to establish an understanding by the accused as to the relationship between the
supplemental questions and the issue of criminality, we cannot view Appellant’s
plea as provident.” Id. Appellant in the case before us is no less a “mere bystander”
than was Senior Technician Hartman when evaluating the military judge’s “art or the
beauty of the human body” question. Unlike in Hartman, appellant’s record is silent
regarding the military judge’s purpose in asking his “art or the beauty of the human
body” question. To conclude that the military judge asked the question to establish
that the forty-one images in question were in fact obscene would be mere
speculation. The fact that the military judge asked the same question during the
providence inquiry into appellant’s possession of actual child pornography detract s
from, rather than supports, any obscenity-based purpose in positing the question, as
obscenity is irrelevant to appellant’s possession of actual child pornography. More
importantly, there is no evidence in the record from which to conclude that appellant
understood why the question was asked or the significance of his conclusory
response.

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ADAIR—ARMY 20100933


       Finally, the military judge never resolved the material inconsistency between
the definition he provided for “obscene virtual images” and that stipulated to by the
parties. The military judge told appellant that “‘[o]bscene virtual images of minors
engaging in sexually explicit conduct ’ means images that are distinguishable from an
actual minor engaging in sexually explicit activity, but nonetheless, are depictions of
minors or what appears to be minors engaged in sexually e xplicit conduct.” The
military judge’s definition has obscenity modifying the images generally, images
that need not be actual minors but are “depictions of minors or what appears to be
minors engaged in sexually explicit conduct.” However, the trial counsel, defense
counsel, and appellant all agreed “[f]or the purposes of this stipulation of fact, the
term virtual child pornography is defined as: visual depictions of any kind, including
a drawing, cartoon, computer generated image, sculpture, or painting that depicts a
minor engaging in obscene sexually explicit conduct.” The stipulation between the
parties has obscenity modifying or characterizing the sexually explicit conduct. The
stipulation of fact inextricably links virtual child pornography with obscenity. A
corollary to the parties’ stipulation is that if the sexually explicit conduct is not
obscene, then the images are arguably not virtual child pornography as charged.

       The military judge should have reconciled the different definitions in play and
obtained an understanding from appellant and the parties what obscene modified, the
images or the conduct. The military judge should then have properly defined
obscenity. Finally, the military judge should have obtained an acknowledgment
from appellant that the images in question were in fact obscene, taking them out of
the realm of potentially protected images. None of the above occurred in appellant’s
case.

               B. NON-OBSCENE VIRTUAL CHILD PORNOGRAPHY

       Having found appellant’s plea to Specification 2 of The Charge as written
improvident, the appellee (i.e., government) urges us, in its pleadings before this
court, to except the word “obscene” from the specification and affirm a n Article 134,
UCMJ, Clause 2 general disorder. The appellant, however, argues that the cursory
discussion regarding service discrediting conduct during the providence inquiry, in
light of United States v. Wilcox, falls short of the “direct and palpable connection
between [the constitutionall y protected behavior] and the military mission or
environment” required to affirm an Article 134, UCMJ, Clause 2 conviction. See
United States v. Wilcox, 66 M.J. 442, 448-449 (C.A.A.F. 2008).

       We need not decide whether Wilcox’s “direct and palpable” requirement is
limited to the facts of that case, that is, to traditional speech in the form of the
spoken or written word, or whether it’s requirements reach all potentially protected
speech to include images portraying virtual child pornography. On the facts of
appellant’s case and the providence inquiry before us , we find the providence
inquiry insufficient to affirm an Article 134, UCMJ, Clause 2 general disorder .
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ADAIR—ARMY 20100933


       As noted in the previous section, non-obscene virtual child pornography
implicates the First Amendment and the protections afforded speech. See generally
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403
(2002); see also, United States v. O’Connor, 58 M.J. 450, 454 (C.A.A.F. 2003).
Unlike civilians, however, servicemembers may be subject to limitations on speech ,
limitations that would otherwise be prohibited in the civilian community. “Parker v.
Levy [417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)] reiterated the point that
differences between the military community and civilian community result in
military law that ‘regulate[s] aspects of the conduct of members of the military
which in the civilian sphere are left unregulated.’” United States v. Wilcox, 66 M.J.
442, 447 (C.A.A.F. 2008) (quoting Parker, 417 U.S. at 749, 94 S.Ct. 2547).
Regarding possession of non-obscene virtual child pornography, our superior court
noted, “the question of whether or not the possession of such visual depictions can
be viewed as service discrediting now has a constitutional dimension.” United
States v. O’Connor, 58 M.J. 450, 454 (C.A.A.F. 2003). Notwithstanding the
constitutional dimension noted in O’Connor, prosecution for possessing non-obscene
virtual child pornography as an Article 134, Clause 1 or Clause 2 offense is
authorized. See United States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004); United
States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006); United States v. Beaty, 70
M.J. 39, 41 (C.A.A.F. 2011). Any analysis of whether the evidence is sufficient to
establish the Clause 1, prejudice to good order and discipline, or Clause 2, service
discrediting element is “undertaken on a case-by-case basis.” Mason, 60 M.J. at 19.
See also, United States v. Forney, 67 M.J. 271, 274-75 (C.A.A.F. 2009) (holding that
receipt and possession of virtual child pornography is also punishable as a violation
of Article 133, UCMJ, conduct unbecoming an officer and gentlem en).

       The focus of appellant’s providence inquiry regarding the virtual child
pornography was on the sexually explicit nature of the images. The providence
inquiry did not, as previously noted, distinguish between unprotected obscene virtual
images and potentially protected non-obscene virtual images. The only definitions
provided, either by the military judge or stipulated to, inexorably linked virtual child
pornography to obscenity. It is clear appellant knew he had images
indistinguishable from those of actual minors engaging in sexually explicit conduct .
What is unclear, however, is an understanding by appellant that possession of the
images in question was criminal regardless of their status as obscene or non -
obscene.

       The presence of obscenity in the pleadings, the definitions provided by the
military judge during the providence inquiry, the military judge ’s failure to
reconcile the obvious differences related to th e use of the word obscene, the military
judge’s failure to define obscene, and the absence of any discussion regarding non -
obscene virtual child pornography separate and apart from obscenity precludes us
from finding that appellant “clearly understood the nature of the prohibited conduct”

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ADAIR—ARMY 20100933

under a Clause 2 theory. Therefore, we decline the government’s suggestion to
affirm an Article 134, UCMJ, Clause 2 general disorder for possession of non-
obscene virtual child pornography by excepting “obscene” from Specification 2 of
The Charge.

     Having found appellant’s plea to Specification 2 of The Charge improvident,
we now turn to the impact, if any, on appellant’s sentence.

                          C. SENTENCE REASSESSMENT

       Appellant was sentenced using a maximum period of confinement of twenty
years (ten years for Specification 1 of The Charge and ten years for Specification 2
of The Charge). 4 If the military judge had properly defined obscenity and discussed
such with appellant, ten years would have been the proper maximum punishment for
Specification 2 of The Charge. Having failed to properly define obscenity,
appellant’s plea to Specification 2 of The Charge, was at best a plea to a general
disorder offense under Article 134, UCMJ, Clause 2, carrying with it a maximum
period of confinement of four months, United States v. Beaty, 70 M.J. 39, 45
(C.A.A.F. 2011), reducing his maximum exposure from twenty years to ten years and
four months. Our finding that appellant’s plea to Specification 2 of The Charge,
both as written and as a general disorder offense , is improvident, reduces appellant’s
maximum period of confinement from twenty years to ten years.

       If we “can determine that, absent the error, the sentence would have been at
least of a certain magnitude, then [we] may cure the error by reassessing the
sentence instead of ordering a sentencing rehearing.” United States v. Doss, 57 M.J.
182, 185 (C.A.A.F. 2002) (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986)). A sentence can be reassessed o nly if we “confidently can discern the extent
of the error’s effect on the sentencing authority’s decision.” United States v. Reed,
33 M.J. 98, 99 (C.M.A. 1991). A “dramatic change in the ‘penalty landscape’”


4
 The record is silent on how the parties arrived at twenty years confinement.
Looking at Rule for Courts-Martial 1003(c)(1)(B)(ii) and finding no closely related
offense in the Manual for Courts-Martial, the parties presumably looked to Title 18
of the United States Code as Specification 1 of The Charge alleges every element of
an 18 U.S.C. § 2252A(a)(5)(B) offense except for the jurisdictional nexus and
Specification 2 of The Charge alleges every element of an 18 U.S.C. § 1466A(b)(1)
offense except for the jurisdictional nexus. Absent exceptional circumstances
allowing for greater punishment than ten years, circumstances not present in
appellant’s case, violations of 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. §
1466A(b)(1) each carry with them a maximum period of confinement of 10 years.
See 18 U.S.C. § 1466A(b) and § 2252(b)(2) (2006).



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lessens our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312
(C.A.A.F. 2003).

       Appellant stands convicted of knowingly and wrongfully possessing two (2)
images of actual child pornography. The stipulation of fact documents that appellant
viewed child pornography for “about ten years” and that he “downloaded scores of
images of child pornography,” admissions made separate and apart from any
admissions related to virtual child pornography. Appellant acknowledged and
admitted that the actual child pornography he sought for nearly a decade is: “a form
of sexual abuse which can result in physical and psychological harm or both, to the
children involved;” permanent evidence of the victims’ abuse; and, a source of
“continuing harm” to its children victims.

       Although the maximum period of confinement is reduced from twenty years to
ten years, the sentencing landscape has not dramatically changed. Stated another
way, a near fifty percent reduction in appellant’s maximum confinement exposure, in
and of itself, does not constitute a dramatic change in sentencing landscape as
landscape encompasses more than just the period of authorized confinement. See
United States v. Pleasant, 71 M.J. 709, 717-18 (Army Ct. Crim. App. 2012). It
includes, among other things, the nature and extent of the aggravation evidence
properly before the sentencing authority on the remaining charges and by whom
appellant was sentenced (i.e., judge alone versus a panel). Appellant elected trial
before a judge alone and we are “more likely to be certain of what a military judge
alone would have done than what a panel of members would have done.” United
States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J., concurring in result).
Finally, we have significant experience and familiarity with the remaining offense,
possession of actual child pornography, and can reliably assess what sentence a
military judge would have imposed on the remaining finding of guilt. Id.

       Consequently, we are confident the military judge woul d have adjudged a
sentence no less severe than that approved by the convening authority in this case.
We find appellant suffered no material prejudice to a substantial right. UCMJ, art.
59(a). We further find that the sentence approved by the convening authority is
appropriate. See UCMJ, art. 66.




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                                      CONCLUSION

       Upon consideration of the entire record and the submissi ons by the parties,
the finding of guilty of Specification 2 of The Charge is set aside. 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, the sentence, as approved by the convening authority, is AFFIRMED. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by this decision, are ordered restored.

      Senior Judge KERN and Judge Martin concur.


                                        FOR THE
                                        FOR  THECOURT:
                                                  COURT:



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




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