United States v. Private First Class TIMOTHY J. JANEIRO, JR. ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class TIMOTHY J. JANEIRO, JR.
United States Army, Appellant
ARMY 20120519
Headquarters, V Corps
Christopher T. Frederikson, Military Judge
Colonel Mark D. Maxwell, Staff Judge Advocate
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Susrut A. Carpenter, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).
16 July 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of one specification of possession of child pornography, in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence to a
bad-conduct discharge, confinement for four months, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
Appellant’s case is before this court for review pursuant to Article 6 6, UCMJ.
Appellant raises two assignments of error and personally submits matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the raised errors
warrants discussion and relief. We conclude the military judge failed to elicit an
adequate factual basis that appellant’s possession of child pornography was
prejudicial to good order and discipline. Appellant’s remaining assignment of error
and Grostefon matters lack merit.
JANEIRO—ARMY 20120519
LAW AND DISCUSSION
“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
910(e).
The government charged appellant with knowingly possessing child
pornography, as defined by 18 U.S.C. § 2256(8), “which conduct was prejudicial to
good order and discipline in the armed forces and was of a nature to bring discredit
upon the armed forces.” See Manual for Courts–Martial, United States (2008 ed.),
pt. IV, ¶¶ 60.c.(2), (3), and (4). As our superior court recently reiterated, “[t]he
three clauses of Article 134 constitute ‘three distinct and separate parts.’” United
States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (quoting United States v. Frantz,
2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). It follows, then that “[v]iolation
of one clause does not necessarily lead to a violation of the other clauses. ” Id.More specifically to the case before us, the court in Fosler went on to state that
“disorders and neglects to the prejudice of good order and discipline” are not
synonymous with “conduct of a nature to bring discredit upon the armed forces . . . .”
Id. Thus, if a specification alleges both Clause 1 and 2 , then there must be a
substantial basis in fact in the record to support a finding of guilty to both.
Given the facts of this case, there is no question that appellant possessed
images of child pornography. Moreover, the plea inquiry clearly established facts
demonstrating that appellant’s conduct was service-discrediting. However, the plea
inquiry failed to elicit an adequate factual basis regarding the prejudicial effect of
appellant’s possession of child pornography on good order and discipline in the
armed forces. Although the military judge properly defined the Clause 1 element of
“prejudice to good order and discipline in the armed forces,” and asked appellant to
explain how his conduct violated the element, appellant’s response was limited to
the following:
As a representative of the Army, Your Honor, and everything I
do, me owning these images, it can upset trust in others and it will,
in all honesty, upset them to a point where they might not trust
me with a mission, Your Honor.
Furthermore, the stipulation of fact is completely silent as to this element. We
therefore find a substantial basis in fact to question the providence of appellant’s
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JANEIRO—ARMY 20120519
plea to committing conduct prejudicial to good order and discipline in violation of
Clause 1 of Article 134, UCMJ.
CONCLUSION
On consideration of the entire record, as well as those matters personally
raised by appellant pursuant to Grostefon, the court affirms only so much of the
finding of guilty of The Charge and its specification as finds that appellant “did, at
or near Wiesbaden, Germany, on or about 17 November 2011, knowingly possess a
HP Laptop computer, containing images of child pornography as defined in Title 18
USC § 2256(8), which conduct was of a nature to bring discredit upon the armed
forces.” 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 in Moffeit, 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. See UCMJ art. 75(a).
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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