CAAF decided the Air Force case of United States v. Finch, No. 13-0353 and 13-5007/AF, 73 M.J. 144 (CAAFlog case page) (link to slip op.), on Thursday, March 6, 2014. The court narrowly affirms the decision of the Air Force Court of Criminal Appeals, rejecting Appellant’s claim that the maximum authorized confinement for his child pornography offenses totals just eight months, and finding no substantial basis to question the providence of Appellant’s pleas of guilty to possession and distribution of child pornography in violation of clauses 1 and 2 of Article 134.
Judge Erdmann writes for the court, joined by Chief Judge Baker and Judge Stucky. Judge Ryan and Senior Judge Effron both dissent, and both write separate opinions with Judge Ryan also joining Senior Judge Effron’s dissent.
Appellant pleaded guilty, at a general court-martial composed of a military judge alone, to one specification of possession of child pornography and one specification of distribution of child pornography, both in violation of Clauses 1 and 2 of Article 134. He was sentenced to reduction to E-1, confinement for seven years, and a dishonorable discharge. Appellant’s offense was discovered in 2008 and his court-martial occurred in November 2011, just a month before the President defined a child pornography offense under Article 134.
The parties agreed during the trial that Appellant faced a maximum punishment that included confinement for 30 years. Yet on automatic review at the CCA, Appellant asserted that the maximum authorized punishment was dramatically lower because the language of the specifications did not allege that the images he possessed and distributed were of “actual” minors. Appellant’s claim was bolstered by the fact that during the plea inquiry the military judge stated:
There is no requirement that the images in this case include actual images of minors; That is, the wrongful and knowing receipt and possession of visual depictions containing sexually explicit images of persons indistinguishable from minor children, whether actual or virtual, when determined to be service-discrediting conduct and conduct prejudicial to good order and discipline, is an offense under Article 134.
Slip op. at 5 (emphasis added). And it’s true that sexually explicit images of things that appear to be minors but aren’t (i.e., so-called “virtual child pornography”) may support a prosecution under Article 134 while they are insufficient to support a child pornography prosecution under the United States Code. See Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) (link). Because of this, CAAF determined in United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (link to slip opinion), that the maximum confinement for possession of what only “appears to be a minor” engaging in sexually explicit conduct is just four months. This distinction was eliminated with the President’s enumeration of a child pornography offense under Article 134 (that treats actual and virtual images the same), but if Appellant could convince the court that his plea encompassed only virtual images, he would get significant relief.
After he was sentenced, Appellant filed a petition for a writ of habeas corpus, seeking his release from confinement pending the outcome of his appeal. The petition was rejected by the CCA and CAAF, and on ordinary review the CCA disagreed with Appellant’s assertion and found the language of the specifications sufficient to allege “actual” minors. CAAF then granted review of one issue:
Where the Article 134 child pornography specifications of which Appellant was convicted did not allege that the images depicted actual minors and where the military judge advised Appellant during the providence inquiry that “there is no requirement that the images in this case include actual images of minors,” is the maximum authorized confinement for each specification limited to four months?
Soon after, the Air Force JAG certified a second 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 majority resolves the case by separately considering the military judge’s computation of the maximum authorized sentence and the providence of Appellant’s pleas of guilty. Judge Erdmann begins by noting that Appellant’s offenses were not (at the time of trial) listed in the Manual for Courts-Martial, nor were they included in or closely related to an offense listed in the Manual. Accordingly, pursuant to Rule for Courts-Martial 1003(c)(1)(B)(ii), they are “punishable as authorized by the United States Code, or as authorized by the custom of service.” Slip op. at 8. Since there is no claim that a custom of the service applies in this case, the question “is whether the offenses in this case are analogous to 18 U.S.C. § 2252A(a)(2) and (5), punishable by sentences of twenty years and ten years respectively, or whether they are simple disorders punishable by four months of confinement.” Slip op. at 8. The majority answers this question in the affirmative by relying heavily on the fact that “all elements of the federal crimes, except the jurisdictional element, were included in the specifications.” Slip op. at 9.
Judge Erdmann then addresses the certified issue from the perspective that “[e]ssentially, TJAG seeks review of the providence of Finch’s guilty plea.” Slip op. at 10. He notes that, “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.” Slip op. at 11 (quoting United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004)). But it seems this issue was lost for Appellant by his defense counsel:
An initial difficulty with this argument is that Finch’s trial defense counsel explicitly agreed with the government’s calculation of a maximum sentence to confinement of thirty years, a statute limited to actual minors. We note that six months prior to Finch’s court-martial, this court held that possession of virtual child pornography charged under Article 134, clauses 1 and 2, was punishable as a simple disorder with a maximum punishment of four months of confinement. See Beaty, 70 M.J. at 45. In light of the holding in Beaty, the providence inquiry reflects that the parties proceeded with the understanding that the specifications involved actual minors with the corresponding thirty-year maximum sentence despite the military judge’s inconsistent reference to virtual minors. At no point during the providence inquiry or sentencing portion of the trial was there any expression of surprise or confusion as to the maximum sentence.
Slip op. at 12. This is so right except for the way in which it is so wrong. Regardless of what Appellant’s trial defense counsel agreed to, the issue is Appellant’s understanding as he undertook the guilty plea inquiry with the military judge. It’s not clear that Appellant (or really even his defense counsel, or the military judge) was actually aware of CAAF’s holding in Beaty. Considering that the appellate record indicates that Appellant pleaded guilty without the benefit of a pretrial agreement, something about this plea just smells funny.
But Judge Erdmann and the majority take a broad view and conclude that, “Our review of the record of the providence inquiry reflects that, despite the single inconsistent reference to images of virtual minors, the parties proceeded as though the allegations involved actual persons and the military judge elicited adequate information from Finch to support the plea.” Slip op. at 14. And it’s certainly true that Appellant was advised of the 30-year maximum and nevertheless persisted with his unnegotiated guilty plea (normally a guilty plea without a pretrial agreement is called a “naked” plea, but considering the facts of this case I’ll stick with “unnegotiated”).
The dissents, however, are pointed:
The military judge in the present case erroneously informed Appellant that it made no difference whether the child pornography images at issue depicted actual or virtual children.
Effron, S.J., diss. op. at 1. Senior Judge Effron, joined by Judge Ryan, finds that the “vast disparity in the consequences” made it “incumbent upon the military judge to engage in a plea colloquy that accurately informed Appellant of the nature of the offenses and the penalty landscape.” Effron, S.J., diss. op. at 5. He adds that the defense counsel’s agreement that the maximum confinement was 30 years “merely demonstrates that the defense counsel and the military judge shared the same misunderstanding of the relationship between actual and virtual images.” Effron, S.J., diss. op. at 6. And he concludes that:
The plea inquiry in this case, however, demonstrates a substantial and uncorrected error by the military judge with respect to the law at the time of Appellant’s trial, rendering the plea improvident.
Effron, S.J., diss. op. at 8-9. Moreover, Judge Ryan writes separately to address the “constitutional infirmity with the Charge and specifications in this case.” Ryan, J., diss. op. at 1. She emphasizes that, “it is clear that the United States Code does not attempt to criminalize non-obscene depictions of virtual minors.” Ryan, J. diss. op. at 3 n.2. And she concludes:
Consequently, absent an allegation that the depictions were of “actual” minors, under the law at the time of his conduct Appellant could not be subject to the sentencing maximum for that offense. Moreover, the military judge not only failed to render the error harmless by both explaining that the status of the minors was relevant to the offense and eliciting the Appellant’s admission that the pornography was of actual minors, he compounded the problem by telling Appellant that they did not have to be actual minors.
Ryan, J., diss. op. at 6 (citations omitted).
It’s hard to get excited about anything in this case. Appellant’s argument isn’t based on a claim of innocence of the actual child pornography offense, but rather is based on a rather-subtle claim of error in his guilty plea inquiry. And Appellant entered into that plea knowing he was facing a 30 year maximum. He may regret that decision, but CAAF doesn’t save him from it. So ultimately, for those who think the military appellate system is overly paternalistic, Finch is a reality check.
• AFCCA opinion
• Blog post: CAAF grant on issue dealing with maximum punishment for child pornography offenses
• Blog post: An unusual Air Force certification
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis