United States v. Odagiri ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40276
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UNITED STATES
Appellee
v.
Tyson A.Z. ODAGIRI
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 27 April 2023
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Military Judge: Matthew D. Talcott (Pretrial); Dayle P. Percle.
Sentence: Sentence adjudged on 5 January 2022 by GCM convened at
Fort George G. Meade, Maryland. Sentence entered by military judge
on 3 February 2022: Dishonorable discharge, confinement for 54
months, forfeiture of all pay and allowances, reduction to E-1, and a
reprimand.
For Appellant: Major Spencer R. Nelson, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John
P. Patera, USAF; Major Brittany M. Speirs, USAF; Mary Ellen Payne,
Esquire.
Before RICHARDSON, CADOTTE, and GOODWIN, Appellate Military
Judges.
Judge GOODWIN delivered the opinion of the court, in which Senior
Judge RICHARDSON and Judge CADOTTE joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Odagiri, No. ACM 40276
GOODWIN, Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a plea agreement, of two specifica-
tions of possessing or viewing child pornography (Specifications 1 and 2) and
four specifications of possessing or distributing obscene visual depictions of mi-
nors or images of minors engaged in sexually explicit conduct (Specifications 4
through 7), all on divers occasions and all in violation of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934.1,2 The military judge sen-
tenced Appellant to a dishonorable discharge, confinement for 54 months, for-
feiture of all pay and allowances, reduction to the grade of E-1, and a repri-
mand.
The convening authority took no action on the findings or sentence. The
military judge signed an entry of judgment reflecting the findings and sen-
tence. Appellant raises four issues before this court pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether the convening authority
erred by not taking action on his sentence; (2) whether the Government and
Appellant could stipulate to victim impact statements as matters in aggrava-
tion; (3) whether trial counsel engaged in inappropriate argument; and (4)
whether Appellant’s sentence is inappropriately severe.
We have carefully considered issue (2) and find it does not require discus-
sion or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987). Finding no error materially prejudicial to a substantial right of Appel-
lant, we affirm the findings and sentence.
I. BACKGROUND
Appellant was stationed at Fort George G. Meade, Maryland (Fort Meade)
at the time of the offenses for which he was convicted. On 11 July 2019, the
National Center for Missing and Exploited Children received a CyberTipline
Report stating suspected child pornography was uploaded to Appellant’s
1 Specifications 4 through 7 alleging wrongful possession or distribution of obscene
visual depictions of minors or images of minors relate to misconduct occurring both
before and after 1 January 2019. The version of Article 134, UCMJ, in effect during all
instances of misconduct is substantially identical to the version in effect at the time of
Appellant’s court-martial. Thus, unless otherwise stated, all references in this opinion
to the UCMJ and Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Mar-
tial, United States (2019 ed.).
2The convening authority agreed to dismiss with prejudice one specification of distri-
bution of child pornography and “not refer the specification anew unless [Appellant]
breaks the terms of [the] agreement.”
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United States v. Odagiri, No. ACM 40276
Dropbox account.3 After a local detective received the CyberTipline Report and
discovered Appellant was an Airman, he forwarded the CyberTipline report to
the Air Force Office of Special Investigations (AFOSI) at Fort Meade.
During his interview with AFOSI agents, Appellant admitted to viewing
child pornography for roughly three years, including approximately ten times
during 2019. Appellant used his mobile phones and Dropbox account to save
photos and videos of child pornography, obscene cartoon and computer-gener-
ated images of minors, and videos depicting minors engaging in graphic besti-
ality. Appellant used an Internet browser which enabled him to hide his Inter-
net protocol address and view websites containing child pornography anony-
mously. Appellant told the agents he found it difficult to locate child pornogra-
phy and “good” bestiality sites. Consequently, when he located an image or
video he liked, Appellant saved it. Appellant also admitted sending to others
child pornography and cartoons depicting child bestiality—approximately 15
images and three videos during 2019. Appellant also joined groups through an
instant messaging application to share child pornography photographs with
other users.
As part of his plea agreement, Appellant entered into a stipulation of fact
which was admitted as Prosecution Exhibit 1 at his court-martial. In this stip-
ulation, Appellant explained he no longer found adult pornography sexually
exciting and had a “morbid curiosity and desire to view child pornography and
[child] bestiality.” Appellant admitted to viewing both pubescent and pre-pu-
bescent child pornography on multiple occasions. Appellant admitted he re-
ceived sexual gratification while viewing and masturbating to child pornogra-
phy and cartoons of child bestiality.
Attachments 2 through 4 to the stipulation of fact contain the pornographic
images and videos located on Appellant’s electronic devices for which he stands
convicted. These images and videos show actual children ranging from infancy
through pubescent teens engaged in conduct including lascivious exhibition of
the genitals, oral to genital intercourse, anal to genital intercourse, and genital
to genital intercourse. These images and videos also show cartoons and com-
puter-generated images and videos depicting children engaged in sexually ex-
plicit conduct with other children and with animals.
3 Dropbox is a file hosting service offering cloud storage, file synchronization, personal
cloud and client software. Users frequently use Dropbox for file sharing and collabora-
tion and can access it from a personal computer or mobile device. During the charged
timeframe, Appellant maintained a Dropbox account which was linked to his email
address.
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United States v. Odagiri, No. ACM 40276
II. DISCUSSION
A. Convening Authority’s Decision on Action
The convening authority took no action on the findings and sentence. How-
ever, the timeframe charged in Specifications 4 through 7—the “visual repre-
sentation” offenses—began on 1 November 2018, prior to the implementation
of the post-1 January 2019 version of Article 60, UCMJ, 10 U.S.C. § 860. See
Exec. Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9889–90 (8 Mar. 2018). On ap-
peal, Appellant asserts the convening authority erred by failing to take action
on the sentence, asserts no specific prejudice, and requests remand to the con-
vening authority for proper action.
In cases involving a conviction for an offense committed before 1 January
2019, “a convening authority errs if he fails to take one of the following post-
trial actions: approve, disapprove, commute, or suspend the sentence of the
court-martial in whole or in part.” United States v. Brubaker-Escobar, 81 M.J.
471, 472 (C.A.A.F. 2021) (per curiam); see also Article 60, UCMJ, Manual for
Courts-Martial, United States (2016 ed.) (2016 MCM).
The convening authority’s failure to explicitly take one of those actions is a
“procedural” error. Brubaker-Escobar, 81 M.J. at 475. “Pursuant to Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2018), procedural errors are ‘test[ed] for ma-
terial prejudice to a substantial right to determine whether relief is war-
ranted.’” Id. (alteration in original) (quoting United States v. Alexander, 61
M.J. 266, 269 (C.A.A.F. 2005)).
We have tested for material prejudice to Appellant’s substantial rights and
find none. Pursuant to Article 60, UCMJ (2016 MCM), the convening authority
was authorized to grant relief on Appellant’s sentence with regard to the for-
feitures and reduction in grade. However, Appellant did not request the con-
vening authority grant relief on either of these components of his sentence dur-
ing the post-trial processing of his case. Trial defense counsel made only one
specific clemency request on Appellant’s behalf: “speedy post-trial processing
of [Appellant’s] case.” The request also stated, “Pursuant to R.C.M. 1109(c)(3)
. . . [the convening authority] may ‘reduce, commute, or suspend in whole or in
part . . . the confinement portion of a sentence.”4 Appellant did not, however,
request any relief from his sentence to confinement. Even if Appellant had, the
convening authority did not have the authority to grant such relief. See Article
60(c)(4)(A), 10 U.S.C. § 860(c)(4)(A), (2016 MCM) (“[T]he convening authority
. . . may not disapprove, commute, or suspend in whole or in part an adjudged
4The language trial defense counsel quoted does not appear in either the 2016 or 2019
versions of R.C.M. 1109(c)(3) in the Manual for Courts-Martial.
4
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sentence of confinement for more than six months.”). Consequently, we deny
relief.
B. Trial Counsel’s Sentencing Argument
During sentencing argument, trial counsel stated, “The accused is not going
to be able to stop this behavior no matter how hard he tries, and the only way
to guarantee that he doesn’t reoffend or act on his sexual desires is to adjudge
the max[imum] confinement authorized.” Appellant contends this statement
constituted improper argument because it referred to facts not in evidence and
overstepped the “bounds of that propriety and fairness which should charac-
terize the conduct of . . . an officer in the prosecution of a criminal offense.”
United States v. Voorhees, 79 M.J. 5, 10 (C.A.A.F. 2019). While we agree trial
counsel’s argument on this point was error, we find no prejudice, and deny
relief.
We review claims of prosecutorial misconduct and improper argument de
novo; when no objection is made at trial, the error is forfeited, and we review
for plain error. Id. at 9 (citation omitted). Under the plain error standard, such
error occurs “when (1) there is error, (2) the error is plain or obvious, and (3)
the error results in material prejudice to a substantial right of the accused.”
United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citation omitted).
Prosecutorial misconduct is an action or inaction taken by a trial counsel
in violation of a legal norm or standard. United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996) (citation omitted). However, trial counsel may argue not only
the evidence within the record, but also “all reasonable inferences fairly de-
rived from such evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F.
2000). We do not review statements made during an argument in isolation, but
rather the entire argument “viewed in context.” United States v. Young, 470
U.S. 1, 16 (1985).
With respect to sentencing arguments, we must be confident an appellant
“was sentenced on the basis of the evidence alone.” United States v. Frey, 73
M.J. 245, 248 (C.A.A.F. 2014) (quoting United States v. Halpin, 71 M.J. 477,
480 (C.A.A.F. 2013)). In assessing the impact of improper sentencing argument
on an appellant’s substantial rights in the absence of an objection, we ask
whether the outcome would have been different without the error. United
States v. Norwood, 81 M.J. 12, 19–20 (C.A.A.F. 2021), cert. denied, 141 S. Ct.
2864 (2021).
Here, unlike in Frey, there existed before the military judge indications ar-
guably showing Appellant may have difficulty avoiding viewing, possessing,
and distributing child pornography in the future. First, Appellant admitted
adult pornography no longer stimulated him, which is why he turned to child
pornography. Second, in his unsworn statement, Appellant said he was
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United States v. Odagiri, No. ACM 40276
“thankful [to] the Air Force for forcing [him] to confront” his attraction to child
pornography because he “was not strong enough to be able to do it on [his]
own.” Finally, review of the images and videos at issue in this case reveals a
dramatic level of obscenity, far outside societal norms. However, our superior
court requires “recidivism” be supported by expert testimony. Frey, 73 M.J. at
250. While there may have been indications that Appellant will have difficulty
avoiding similar offenses in the future, the Government did not introduce ex-
pert testimony regarding Appellant’s likelihood of recidivism. Consequently,
trial counsel’s argument on this point was error. However, having reviewed the
record and trial counsel’s entire argument, we conclude Appellant was not prej-
udiced. We presume the military judge knows and follows the law “absent clear
evidence to the contrary,” and we “presume that the military judge is able to
distinguish between proper and improper sentencing arguments.” United
States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citation omitted).
C. Sentence Appropriateness
Finally, Appellant argues his sentence was unduly severe. Specifically, he
asserts the military judge failed to adequately mitigate his sentence because
of his negative experience with the Air Force’s mental health program and his
“alienating and isolating experience” as a result of the slow pace of his security
clearance approval. Appellant presents only speculation that the military
judge failed to properly consider these portions of his unsworn statement.
Without specifying which portions of his sentence are unduly severe, Appellant
requests we reassess his sentence. We are not persuaded and accordingly deny
relief.
1. Law
This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citation omitted). We “may affirm only . . .
the sentence or such part or amount of the sentence, as [we find] correct in law
and fact and determine[ ], on the basis of the entire record, should be ap-
proved.” Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1). “We assess sentence
appropriateness by considering the particular appellant, the nature and seri-
ousness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F.
Ct. Crim. App. 2009) (per curiam) (citations omitted). Although we have broad
discretion in determining whether a particular sentence is appropriate, we are
not authorized to engage in exercises of clemency. United States v. Nerad, 69
M.J. 138, 146 (C.A.A.F. 2010).
2. Analysis
During sentencing, Appellant introduced only an oral unsworn statement.
Appellant’s adjudged confinement was 54 months, whereas his plea agreement
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allowed for up to five years, or 60 months of confinement. The maximum term
of confinement for the offenses of which Appellant was convicted was 80 years.
We note trial defense counsel conceded during sentencing argument the appro-
priateness of a dishonorable discharge. After trial defense counsel’s sentencing
argument, the military judge thoroughly questioned Appellant and established
that Appellant understood the ramifications of the two potential punitive dis-
charges, consented to trial defense counsel’s argument for a dishonorable dis-
charge, and expressly desired to be discharged from the service with a dishon-
orable discharge. We further note that while Appellant submitted a clemency
request, he requested no specific relief regarding his sentence and provided no
justification for relief.5
Appellant provided no support for his assertion that the military judge
failed to consider matters Appellant offered in mitigation. We have given indi-
vidualized consideration to Appellant, the nature and seriousness of the of-
fenses, Appellant’s record of service, and all other matters contained in the
record of trial. The images and videos Appellant possessed, viewed, and dis-
tributed are highly aggravating factors. We conclude the sentence is not inap-
propriately severe.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
5 Although not raised as an error on appeal, we note Appellant’s clemency request was
addressed to the special court-martial convening authority, not the general court-mar-
tial convening authority (GCMCA). In his decision on action, the GCMCA stated that
he considered all timely matters submitted by Appellant, which we presume included
Appellant’s clemency request.
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ticles 59 and 66(d), UCMJ, 10 U.S.C. §§ 859, 866(d). Accordingly, the findings
and sentence are AFFIRMED.6
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
6Although we do not find this issue constitutes error materially affecting Appellant’s
substantial rights, during our review we discovered the record of trial includes two
search warrants that state, “Filed under Seal.” These are not actually sealed in the
record, and we see no order sealing or unsealing them. No party has requested we take
corrective action, and we decline to do so sua sponte.
8