The Air Force JAG has certified an unusual case to CAAF:

No. 13-5007/AF.  U.S. v. Laurence H. FINCH.  CCA 38081.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

IF THE COURT FINDS THAT THE SPECIFICATIONS SUFFICIENTLY ALLEGED THAT THE VISUAL DEPICTIONS WERE OF ACTUAL MINORS BUT THAT THE MILITARY JUDGE’S DEFINITIONS WERE INCONSISTENT WITH THE ALLEGED SPECIFICATIONS, WHAT IS THE APPROPRIATE REMEDY, IF ANY, TO BE GIVEN?

The AFCCA’s per curiam opinion is here. The Appellant pleaded guilty, at a general court-martial consisting of a military judge alone, to possession and distribution of child pornography, and was sentenced to reduction to E-1, confinement for seven years, and a dishonorable discharge. At the CCA the Appellant complained that the language of the specifications did not allege that the images he possessed and distributed were of “actual” minors (the specifications alleged “visual depictions of a minor…”) but instead only alleged that the images depicted what appeared to be minor (invoking a much lower maximum punishment). The CCA disagreed, and found the language of the specifications sufficient.

The Appellant also argued that the military judge conducted a plea inquiry that was only sufficient to establish that the images depicted what appears to be minors, and not actual minors. Again the CCA disagreed, concluding:

Although the military judge initially used the phrase “appearing to be” in regard to the images, the inquiry as a whole shows that both he and the appellant understood that the appellant was pleading guilty as charged to images involving a minor rather than images of only what appeared to be a minor.

Slip op. at 4. The CCA affirmed the findings and sentence, meaning the Government won on direct appeal. But the AF JAG certified anyway. Correction: A comment reminds me that CAAF granted review in Finch (and we covered it here).

4 Responses to “An unusual Air Force certification”

  1. Tyson Kindness says:

    Correction:  On 16 May, CAAF granted review of a different issue in Finch.  While the case was already before CAAF, TJAG decided to seek review of an additional issue.  The Air Force did not certify a win; it merely raised another issue once it was compelled to defend the conviction.

  2. Anonymous Air Force senior defense counsel says:

    Ahh.  So CAAF grants review and the govt filed what amounts to a “cross-appeal?”  Like in Humphries, but only the other way around?

  3. Dwight Sullivan says:

    Correction to the correction:  the granted issue doesn’t involve the conviction; it involves only the maximum authorized sentence.  [Insert familiar disclosure.]

  4. Tyson Kindness says:

    As you know good sir, that is the question. Does it only involve the max punishment issue or does it encompass the providency of the plea?  We shall see…