CAAF released this 3-2 decision today in United States v. Ferguson, No. 10-0020.  In one sense, as Judge Erdmann observed in a dissent joined by Judge Ryan, “the impact of the majority and dissenting opinions in this case will necessarily be limited.”  That’s because, as the dissent notes, “The offense at issue in this case, the Article 134, Uniform Code of Military Justice (UCMJ), offense of indecent exposure, has been replaced by the revised Article 120, UCMJ, and the elements of the new offense are different than they were under the Article 134, UCMJ, offense.”  Nevertheless, I think Ferguson will garner many entries in Shepard’s Citations due to its approach to reviewing a guilty plea’s providence.

Ferguson concerns whether a guilty plea to the old Article 134 indecent exposure offense is provident where the accused sent webcast images of himself masturbating via a private Internet chat to a supposed 14-year-old who was actually (of course) an undercover police officer.

The case involves two dichotomies.  One is between the majority’s deferential approach and the dissent’s deeper analysis of the requirements for an exposure limited to one consenting individual to be indecent.  But another dichotomy concerns the level of paternalism in the military justice appellate system.  Note that the case was originally submitted to the Air Force Court without any assignment of error.  The Air Force Court then specified the issue of the plea’s providence and ordered briefs before affirming the original findings and sentence by a 2-1 vote.  From that paternalistic specified issue arises an anti-paternalism opinion.

The majority, in an opinion written by Judge Stucky, observes:

In this case, there is nothing in the record to suggest that Appellant’s pleas were irregularly entered or that he entered his pleas improvidently or without understanding the meaning and effect of his pleas. He was represented by counsel, advised of the elements of the offense and the consequences of pleading guilty, was carefully questioned by the military judge about the offense, was given the opportunity to consult with his counsel and ask the military judge questions before his plea was accepted, and provided the military judge a factual basis for the plea. Therefore, unless Appellant pled guilty to conduct that was not criminal, we should only review to ensure that he did not set up matter inconsistent with his plea.

I suspect we’ll be reading that final sentence in quite a few upcoming CCA opinions. 

The majority emphasizes that despite taking precautions to ensure that no one but the intended recipient saw the web cast of him masturbating, Ferguson stipulated that someone else could have seen it–no matter how farfetched that possibility, as established by the dissent. In another phrase I suspect we’ll be seeing again, the majority concludes that by pleading guilty and admitting to the elements, “Appellant relinquished his right to contest the prosecution’s theory on appeal . . . unless the record discloses matter inconsistent with the plea.”

To me, the dissent makes the better argument concerning whether Ferguson’s admitted conduct established the old Article 134 indecent exposure offense. But that’s an argument that the majority wasn’t interested in having. The deference that the majority accords to the accepted guilty plea is what makes Ferguson a significant opinion.

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