United States v. MACKO ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Joshua J. MACKO
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000159
Decided: 22 November 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Mark D. Sameit
Sentence adjudged 8 April 2020 by a general court-martial convened
at Marine Corps Base Camp Foster, Okinawa, Japan, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, confinement for 96 months, and a dishonorable
discharge.
For Appellant:
Commander Jonathan M. Riches, JAGC, USN
For Appellee:
Lieutenant John L. Flynn, JAGC, USN
Major Clayton L. Wiggins, USMC
Judge HOUTZ delivered the opinion of the Court, in which Senior
Judge GASTON and Judge MYERS joined.
United States v. Macko, NMCCA No. 202000159
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
HOUTZ, Judge:
Appellant was convicted, pursuant to his pleas, of attempted sexual abuse
of a child, attempted conspiracy to rape a child, sexual abuse of a child,
production of child pornography, and possession of child pornography, in
violation of Articles 80, 120b, and 134, Uniform Code of Military Justice
[UCMJ]. 1
Appellant asserts two assignments of error: (1) that Specification 2 of
Additional Charge II, alleging production of child pornography, fails to state
an offense when Appellant did not produce, create, or manufacture porno-
graphic material; and (2) that the military judge erred in accepting Appel-
lant’s guilty plea to this specification. We find no prejudicial error and affirm.
I. BACKGROUND
Appellant’s convictions stem from his sexually explicit communications
with a law enforcement agent he believed to be a 13-year-old girl; his
requests for a “risqué” picture from another law enforcement agent he
believed to be a nine-year-old girl, and his attempt to meet the fictitious girl
to have oral and vaginal sex with her; and his successful demands for over a
year for a 16-to-17-year-old girl he grew up with to take and send nude
pictures of herself, threatening that if she did not he would disclose her
secrets and nude photographs to her family. He entered into a plea agree-
ment in which he agreed to plead guilty to the offenses in exchange for a
confinement term of 96 months and waiver of automatic forfeitures. In the
plea agreement, he also agreed to waive all motions “except those that are
non-waivable pursuant to R.C.M 705(c)(1)(B) or otherwise.” 2
The specification at issue in this appeal—Specification 2 of Additional
Charge II—reads as follows:
1 10 U.S.C. §§ 880, 920b, 934.
2 Appellate Ex. II at 7-8.
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United States v. Macko, NMCCA No. 202000159
Opinion of the Court
In that [Appellant], while on active duty, did, at or near Twen-
tynine Palms, California and at or near Camp Pendleton, Cali-
fornia, between on or about 30 October 2017 and on or about 18
November 2018, produce child pornography, to wit: digital pic-
tures of a minor engaging in sexually explicit conduct, and that
the said conduct was of a nature to bring discredit upon the
armed forces.
The specification, as written, did not contain the words “knowingly” or
“wrongfully.”
During his providence inquiry regarding this specification, the military
judge discussed all the elements of the offense with Appellant prior to
accepting his pleas. Appellant stated in both the stipulation of fact and the
plea colloquy that he committed the conduct “knowingly and wrongfully.” He
also stated that he understood he was acting as a principal under Article 77,
UCMJ, because he commanded, instructed, encouraged, and directed the
minor victim to take the sexually explicit photographs of herself which
constitute child pornography.
II. DISCUSSION
A. Appellant Waived His Claim for Failure to State an Offense
We review de novo the legal question of whether an appellant has waived
an issue. 3 Forfeiture is the failure to make a timely assertion of a right
whereas waiver is the intentional relinquishment or abandonment of a
known right. 4 We note that the difference between waiver and forfeiture can
sometimes be a difficult distinction. For instance, our superior court held in
United States v. Davis that even where a Rule for Courts-Martial [R.C.M.]
expressly states an issue is waived, it may actually only be forfeited. 5
The rule at issue here, R.C.M. 907(b)(2)(E), makes failure to state an
offense a “waivable” ground for dismissal of a charge or specification “upon
3 United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020).
4 Davis, 79 M.J. at 331 (quoting United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009)).
5 United States v. Davis, 76 M.J. 224, 227–28 (C.A.A.F. 2017) (holding the express
language of R.C.M. 920(f) (2016 ed.), that “failure to object to an instruction or to an
omission of an instruction before the members close to deliberate constitutes waiver,”
actually meant forfeiture).
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Opinion of the Court
motion made by the accused before the final adjournment of the court-
martial.” 6 However, this ground is not automatically waived if not brought
prior to adjournment, as R.C.M. 905(e) states that “motions, requests,
defenses, or objections, except lack of jurisdiction or failure of a charge to
allege an offense, must be raised before the court-martial is adjourned for
that case” and that “[f]ailure to raise such [issues]. . . shall constitute
forfeiture, absent an affirmative waiver. 7 In United States v. Sorrells, we
applied forfeiture in evaluating a failure-to-state-an-offense claim, brought
for the first time on appeal, where “[w]e [did] not find evidence in the record
that the appellant intentionally relinquished a known right.” 8
In this case, we find affirmative waiver. In addition to pleading guilty
unconditionally, Appellant signed a plea agreement in which he waived all
motions “except those that are non-waivable.” 9 He confirmed to the military
judge that he had discussed the waiver of motions with his defense counsel
and agreed to it in order to receive the benefits of the plea agreement. As
R.C.M. 907(b)(2)(E) made failure to state an offense a waivable motion at the
time of both his plea agreement and his trial, 10 we find that Appellant
knowingly and intentionally waived the issue he now asserts as error. 11
We generally do not review waived issues “because a valid waiver leaves
no error for us to correct on appeal.” 12 However, while there is no waiver
provision present in Article 66, UCMJ, military courts of criminal appeals
still must review the entire record and approve only that which “should be
6 R.C.M. 907(b)(2)(E) (2019). See also R.C.M. 907(b)(1) (2019) (listing lack of
jurisdiction by the court-martial as the only non-waivable ground for dismissal).
7 R.C.M. 905(e) (2019) (emphasis added).
8 United States v. Sorrells, No. 201700324, 2019 CCA LEXIS 112 at *6 (N-M. Ct.
Crim. App. Mar. 13, 2019) (unpublished).
9 App. Ex. II at 8.
10 See United States v. Sanchez, 81 M.J. 501, 504 (Army Ct. Crim. App. 2021)
(discussing that R.C.M. 907 was amended in 2016 “to make clear that claims of
failure to state an offense [are] non-jurisdictional, and therefore waivable”).
11 See United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009) (holding pretrial
agreement term that “expressly waived all waivable motions,” which the appellant
indicated he understood the effect of, effectively waives, rather than forfeits,
waivable issues even if they are not specifically addressed by the military judge at
trial).
12 Davis, 79 M.J. at 331 (quoting United States v. Campos, 67 M.J. 330, 332
(C.A.A.F. 2009)).
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Opinion of the Court
approved.” 13 This includes reviewing “whether to leave an accused’s waiver
intact, or to correct error.” 14 In this case we leave the waiver intact because
even if we were to review his claim, we would find no prejudicial error.
“The military is a notice pleading jurisdiction.” 15 “A specification is suffi-
cient if it alleges every element of the charged offense expressly or by
necessary implication.” 16 Although we review de novo whether a specification
fails to state an offense, “if the claim is first raised after trial then the
deficient specification will be viewed with greater tolerance and will be
liberally constru[ed] in favor of validity.” 17 In other words, the specification
will be viewed with “maximum liberality.” 18
Production of child pornography is an enumerated Article 134, UCMJ,
offense which has two elements: (1) that the accused knowingly and
wrongfully produced child pornography; and (2) that under the circumstances
the conduct was (as charged) service discrediting. 19 Here, the specification at
issue omitted the words, “knowingly and wrongfully,” in alleging that
Appellant “produce[d] child pornography, to wit: digital pictures of a minor
engaging in sexually explicit conduct, and that the said conduct was of a
nature to bring discredit upon the armed forces.” 20
13 United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (quoting Article 66,
UCMJ).
14 Id.15 United States v. Hill, No. 201800161, 2019 CCA LEXIS 402 at *6 (N-M. Ct.
Crim. App. Oct. 18, 2019) (unpublished) (quoting United States v. Fosler, 70 M.J. 225,
229 (C.A.A.F. 2011)).
16 R.C.M. 307(c)(3) (2019).
17 United States v. Turner, 79 M.J. 401, 405 (C.A.A.F. 2020) (citing United States
v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986)).
18 Turner, 79 M.J. at 403 (quoting United States v. Bryant, 30 M.J. 72, 73 (C.M.A.
1990)).
19 Manual for Courts-Martial, United States (2016 ed.), [MCM (2016)], pt. IV,
para. 68b.b.(4). “Producing” refers to “making child pornography that did not
previously exist.” Id., para. 68b.b.(6).
20 We find no merit in Appellant’s claim that the specification is defective in
charging him with “produc[ing] child pornography” when it was his command and
direction that caused the minor victim, rather than himself, to take the sexually
explicit photographs. See Article 77, UMCJ (stating a person can be liable as a
principal if, among other things, he “counsels, commands, or procures its commis-
5
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Opinion of the Court
“Knowingly” and “wrongfully” are not equivalent. “Knowingly” denotes an
awareness of an act in relation to its criminal result. An accused commits an
offense “knowingly” when “he is aware that it is practically certain that his
conduct will cause such a result, despite what his desire might be as to the
result.” 21 “Wrongfully,” on the other hand—which is described with respect to
child pornography more for what it is not than for what it is 22— is “a word of
criminality and . . . words of criminality speak to mens rea and the lack of a
defense or justification, not to the elements of an offense.” 23 As with the
similar difference between “intentionally” and “knowingly,” we hold that
“wrongfully” and “knowingly” describe “two states of mind [that] are not
interchangeable” because they “describe differing states of criminal aware-
ness.” 24
Applying these definitions with maximum liberality to the specification in
this case, we conclude it does not fail to state an offense. First, the words,
“produce child pornography,” necessarily imply that Appellant’s act was
“knowing.” 25 While there may be scenarios where an individual could
unknowingly “produce” child pornography, we find that when liberally
construed in favor of validity, these words sufficiently connote an awareness
by Appellant of the practical certainty that his conduct would cause such a
result. Second, we agree with the Government’s assertion that the word
“wrongfully” is necessarily implied by the specification’s allegation that
Appellant produced “digital pictures of a minor engaging in sexually explicit
conduct.” 26
sion” or “causes an act to be done which if directly performed by him would be
punishable”); United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
21 United States v. Flores-Rivas, 80 M.J. 547, 552 (N-M. Ct. Crim. App. 2020)
(quoting United States v. Christy, 65 M.J. 657, 662 (Army Ct. Crim. App. 2007)).
22 MCM (2016), pt. IV, para. 68b.c.(9) at IV-124 (stating the unintentional or
inadvertent acquisition of child pornography, as shown by the method of acquisition,
length of time it is maintained, and whether it was promptly, in good faith, destroyed
or reported, is relevant to wrongfulness).
23 Fosler, 70 M.J. at 230–31.
24 Flores-Rivas, 80 M.J. at 552.
25 See United States v. Tobias, 33 Fed. Appx. 547, 549 (2d Cir. 2002) (holding
“robbery” necessarily implies knowing and willful).
26 See Hill, 2019 CCA LEXIS 402 at *8-9 (holding that the words “offensive
touching” necessarily implied wrongfully and criminality); Turner, 79 M.J. at 407
(holding that “unlawful” was necessarily implied in a specification alleging an
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Opinion of the Court
“Even if this conclusion is susceptible to debate, it is unquestionably true
that there simply is no prejudice to be found in this case—even when the
stringent constitutional standard of harmlessness beyond a reasonable doubt
is applied.” 27 As our superior court has held,
[w]here . . . the specification is not so defective that it cannot
within reason be construed to charge a crime, the accused does
not challenge the specification at trial, pleads guilty, has a pre-
trial agreement, satisfactorily completes the providence in-
quiry, and has suffered no prejudice, the conviction will not be
reversed on the basis of defects in the specification. 28
As discussed more fully below, we find such is the case here. In light of
Appellant’s plea agreement, his statements in the stipulation of fact and
during the providence inquiry, as well as his unconditional guilty plea,
there is no basis to conclude that if the Government had
properly included the word[s] [“wrongfully and knowingly”] . . .
that Appellant would have handled his defense at court-martial
any differently; that the result . . . would have been any differ-
ent; or that Appellant would have been provided any additional
protection from double jeopardy. 29
B. The Military Judge Did Not Err in Accepting Appellant’s Plea
We review a military judge’s decision to accept a plea for an abuse of
discretion. 30 A military judge has abused his or her discretion in accepting a
“attempt to kill with premeditation” a fellow soldier in the United States “by means
of shooting her with a loaded firearm”).
27 Turner, 79 M.J. at 407.
28 Watkins, 21 M.J. at 210 (internal quotation marks omitted) (denying claim for
failure to state an offense where specification charging absence without leave failed
to allege the absence was “without authority”); accord United States v. Brecheen, 27
M.J. 67, 68–69 (C.M.A. 1988) (denying claim for failure to state offense under similar
circumstances where specification charging attempted distribution of lysergic acid
diethylamide failed to allege the attempted distribution was “wrongful”).
29 Turner, 79 M.J. at 407.
30 United States v. Spykerman, 81 M.J. 709, 735 (N-M. Ct. Crim. App. 2021).
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Opinion of the Court
guilty plea if the record shows a “substantial basis in law or fact for
questioning the plea.” 31
We find no substantial basis in law or fact for questioning Appellant’s
plea to Specification 2 of Additional Charge II. Both the stipulation of fact
and the military judge’s providence inquiry discussed the above-described
elements of the offense, including that Appellant committed the conduct
“knowingly and wrongfully”; that the images produced constitute child
pornography because they were obscene visual depictions of the minor victim
engaging in sexually explicit conduct, focused on her breasts and vagina in
such a way as to excite lust or sexual desire; that while Appellant himself did
not take the pictures, he was acting as a principal because he commanded,
instructed, encouraged, and directed the victim to photograph such lascivious
exhibitions of herself; 32 that he knew and intended for his commands to
result in the production of such child pornography; that the victim would not
have produced such photographs but for his instructions; and that his
conduct was service discrediting.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 33
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
31 Spykerman, 81 M.J. at 735 (quoting United States v. Moon, 73 M.J. 382, 386
(C.A.A.F. 2014)) (internal quotation marks omitted).
32 See Article 77, UCMJ (stating a person can be liable as a principal if, among
other things, he “counsels, commands, or procures its commission” or “causes an act
to be done which if directly performed by him would be punishable”).
33 Articles 59 & 66, UCMJ.
8