CAAFlog » September 2013 Term » United States v. Finch

It’s been a relatively long time since a cert petition in a military justice case (the last one I tracked was Dalton v. United States, No. 13-589 (synopsis in this TWIMJ post) (cert denied on Jan. 10, 2014)). But last Sunday I noted a cert petition in Finch v. United States, No. 13-1440 (CAAFlog case page).

 I received a copy of the petition and it’s available hereThe question presented is:

[W]hether a divided Court of Appeals for the Armed Forces erred when it affirmed Petitioner’s sentence in violation of Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) and Alleyne v. United States, 133 S. Ct. 2151 (2013)?

The petition concludes:

The crux of the issue in the present case is whether the offenses for which Petitioner was found guilty are directly analogous to 18 U.S.C. § 2252A(a)(2) and (5). In a 3-2 decision, the Court of Appeals for the Armed Forces held that it is.

However, in coming to its decision, it appears the majority did not consider how U.S.C. § 2252A(a)(2) and (5) have been modified by Ashcroft. As noted in the dissent by the Honorable Margaret Ryan, Court of Appeals for the Armed Forces, “the United States Code may constitutionally criminalize only child pornography that either involves actual children or is obscene.” Finch, 73 M.J. at 150 n.2; see also Ashcroft, 535 U.S. at 251.

That issue was not considered by the majority when it determined the federal statute was essentially the same as the charged offense. Put simply, because the federal code cannot charge someone with the possession or distribution of virtual child pornography while the military can, the crimes are not directly analogous. Because there exists no statute in federal law analogous to the offenses for which Petitioner was found guilty (see Ashcroft), the maximum confinement Petitioner should have faced was four months for each specification, or eight months total. See Beaty, 70 M.J. at 45.

Further, even assuming the statutes were analogous, in order to punish the Petitioner under the higher federal maximums, his guilt to possession of actual images would have to be proven beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2160. That did not occur. Instead, Petitioner was only found guilty of possession and distribution of images that had no requirement (or proof) that they “include actual images of minors,” as articulated by the military judge.

Pet. at 13-15.

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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Mead, No 13-0459/AR (CAAFlog case page): Argument audio.

United States v. Finch, No. 13-5007/AF (CAAFlog case page): Argument audio.

CAAF will hear oral argument in United States v. Finch, No. 13-5007/AF (CAAFlog case page), on Wednesday, October 9, 2013. It’s the eighth oral argument of the term, and the fifth in a case involving child exploitation offenses (the others being Merritt, Winckelmann, Warner, and Payne).

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.

During the trial the parties agreed 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 but instead that the specification alleged that the images depicted only what “appeared to be minors” (the specifications alleged images that contained “visual depictions of a minor engaging in sexually explicit conduct”). Appellant also filed petitions for a writ of habeas corpus, seeking his release from confinement pending the outcome of his appeal. The petitions were rejected by the CCA and CAAF, and the CCA disagreed with Appellant’s assertion and found the language of the specifications sufficient to allege “actual” minors.

CAAF then granted review of this 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 an additional 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?

In United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007) (slip opinion), CAAF revisited the question of the maximum punishment for an offense under Clause 1 or 2 of Article 134 where the President has not specifically enumerated a maximum in the Manual for Courts-Martial. CAAF unanimously (with then-Judge Baker concurring) affirmed existing law that it is not error to look to “a directly analogous federal statute to identify the maximum punishment in [such a] case, when every element of the federal crime, except the jurisdictional element, was included in the specification.” 64 M.J. at 384. In Leonard, the Article 134 offense was “wrongfully and knowingly receiving visual depictions of minors engaging in sexually explicit conduct. . .” and the appellant admitted to receiving “visual depictions of actual minors engaging in sexually explicit conduct. . .” 64 M.J. at 382 (emphasis added).

Four years later, in United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (slip opinion), CAAF considered a slightly but significantly different offense: “. . .wrongfully and knowingly possess[ing] one or more visual depictions of what appears to be a minor engaging in sexually explicit conduct. . .” Beaty, 70 M.J. at 40 (emphasis added). Finding that “[t]he United States Code does not criminalize possession of ‘what appears to be’ child pornography,” Id. at 43, CAAF explained that “[a]n offense comprised of acts that cannot be criminally charged under the United States Code at all is neither ‘directly analogous’ nor ‘essentially the same’ as one that can be,” Id. at 44, and the court concluded that:

when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment “authorized by the custom of the service,” they are punishable as “general” or “simple” disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months.

Id. at 45. Now, with the facts of Finch, CAAF will fill the void between Leonard and Beaty and determine the maximum sentence for a child pornography offense that doesn’t specifically allege depictions of either actual or apparent minors in a case where the military judge at one point during the plea inquiry 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, UCMJ.

Appellant’s Br. at 4 (emphasis added).

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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).

CAAF today granted review of this 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?

United States v. Finch, __ M.J. __, N0. 13-0353/AF (C.A.A.F. May 16, 2013).  AFCCA’s unpublished decision in the case is available here.  The issue is similar to that in AFCCA’s recent published opinion in Slagle, which we noted here.

Insert familiar disclosure here.  I now have a 100% grant rate for supps using the phrase, “baby Wookiee.”