United States v. Lynch ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.R. MCFARLANE, J.A. FISCHER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
JAMES P. LYNCH
FIRE CONTROLMAN FIRST CLASS (E-6), U.S. NAVY
NMCCA 201300387
GENERAL COURT-MARTIAL
Sentence Adjudged: 26 June 2013.
Military Judge: CDR Ian Thornhill, JAGC, USN.
Convening Authority: Commander, Navy Region Midwest, Great
Lakes, IL.
Staff Judge Advocate's Recommendation: LCDR K.A. Trunnell,
JAGC, USN.
For Appellant: LtCol Richard D. Belliss, USMCR.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Maj David
Roberts, USMC.
19 August 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of two
specifications of possession of child pornography in violation
of Article 134, Uniform Code of Military Justice, 10 U.S.C.
§ 934. The military judge sentenced the appellant to
confinement for four years, reduction to pay grade E-1, total
forfeiture of all pay and allowances, and bad-conduct discharge.
The convening authority (CA) approved the sentence as adjudged
and, pursuant to a pretrial agreement, suspended all confinement
in excess of twenty-four months.
The appellant now alleges three related assignments of
error:
I. Whether Specification 3 of the Charge (possession
of child pornography) fails to state an offense as
the specification alleges conduct occurring before
the date on which Article 134, UCMJ (Child
Pornography) went into effect?
II. Did the military judge abuse his discretion in
accepting appellant’s plea of guilty to
Specification 3 of the Charge (possession of child
pornography) as there is a substantial basis in both
fact and law for questioning the plea?
III. Did the military judge commit plain error by
retroactively applying Article 134, UCMJ (Child
Pornography) to Specification 3 of the Charge
(possession of child pornography) in violation of
the prohibition against ex post facto laws?
All of the appellant’s assignments of error are premised
upon the argument that Clause 2 of Article 134 could not be used
to charge a service member with possession of child pornography
prior to the enactment of Executive Order 13593, which expressly
added child pornography to the list of disorders and neglects
that can be prejudicial to good order and discipline or service
discrediting. This argument, which bore no indication of having
been made pursuant to United States v. Grostefon,1 stands in
direct contradiction to a long line of appellate case law, not
cited by the appellant. See e.g. United States v. Barberi, 71
1
United States v. Grostefon, 12 M.J. 431, 437 (C.M.A. 1982) (requiring
appellate defense counsel to raise errors specified by the appellant, “no
matter how frivolous the issue.”)
2
M.J. 127, 131 (C.A.A.F. 2012); United States v. Roderick, 62
M.J. 425, 429 (C.A.A.F. 2006); United States v. Mason, 60 M.J.
15, 18-19 (C.A.A.F. 2004); United States v. O'Connor, 58 M.J.
450, 454 (C.A.A.F. 2003); United States v. Augustine, 53 M.J.
95, 96 (C.A.A.F. 2000).
Finding no merit in the appellant's arguments, and having
carefully considered the record of trial and the parties'
pleadings, we conclude that the findings and sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
3