United States v. Private E2 RYAN D. PAGE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, BERG, and YOB
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 RYAN D. PAGE
United States Army, Appellant
ARMY 20100083
Headquarters, United States Army Medical Department Center & School and Fort
Sam Houston
Gregory Gross, Military Judge
Colonel Marian Amrein, Staff Judge Advocate (pre-trial and SJAR)
Lieutenant Colonel Randolf Swansiger, Staff Judge Advocate (addendum)
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Peter Kageleiry, Jr., JA; Captain Tiffany K. Dewell, JA (on
brief).
For Appellee: Colonel Michael E. Mulligan, JA; Major Amber Williams, JA; Major
LaJohnne A. White, JA; Captain Christopher B. Witwer, JA (on brief).
28 October 2011
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of desertion and possession of child pornography, in violation
of Articles 85 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 934
(2008) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for one year, forfeiture of $964.00 pay per month for twelve
months, and reduction to E1. The convening authority approved the sentence as
adjudged.
On appeal, appellant raised three assignments of error. Two of the three
assignments of error concern the possession of child pornography specification and
PAGE—ARMY 20100083
merit discussion. * That specification alleged appellant knowingly possessed a laptop
computer:
containing 353 images of child pornography in violation of §18 U.S.C.
2252A, including /$RQV7GP6.jpg, /5319588yYq.jpg, /6974826abQ.jpg,
bbrd9.bmp, bbrd3.bmp, which conduct was prejudicial to good order and
discipline or likely to bring discredit upon the armed forces.
The stipulation of fact, admitted into evidence pursuant to appellant’s guilty
plea, indicates that there were 353 pictures, and “[m]any of the pictures are
lascivious in nature.” An enclosure to the stipulation of fact is a CD copy of the
images taken from the appellant’s computer. Appellant now takes issue with the
sufficiency of the providence inquiry and the evidence in the record to support the
possession of child pornography specification.
We review a military judge’s decision to accept a plea of guilty “for an abuse
of discretion and questions of law arising from the guilty plea de novo.” United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty plea will be set
aside on appeal only if an appellant can show a substantial basis in law or fact to
question the plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991)). The Court applies this “substantial basis” test by determining whether the
record raises a substantial question about the factual basis of appellant’s guilty plea
or the law underpinning the plea. Id. See Article 45, UCMJ; Rule for Courts-
Martial 910(e).
During the providence inquiry, the military judge defined child pornography
pursuant to §18 U.S.C. 2252A, and the appellant admitted to possessing images
meeting that definition. From our review of the record, including the enclosure to
*
ASSIGNMENT OF ERROR I: WHETHER A SUBSTANTIAL BASIS IN LAW OR
FACT EXISTS TO QUESTION APPELLANT’S PLEA OF GUILTY TO
POSSESSION OF CHILD PORNOGRAPHY WHERE THE ONLY SUPPORT THAT
APPELLANT POSSESSED IMAGES DEPICTING SEXUALLY EXPLICIT
CONDUCT, INCLUDING LASCIVIOUS EXHIBITIONS OF THE GENITALS OR
PUBIC AREA, ARE THE IMAGES ATTACHED AS ENCLOSURE 4 [USACIL CD
copy of the images taken from accused’s computer] TO PROSECUTION EXHIBIT
1, THE STIPULATION OF FACT[?]
ASSIGNMENT OF ERROR II: WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION BY ACCEPTING APPLLANT’S PLEA OF GUILTY TO
SPECIFICATION 1 OF CHARGE II (POSSESSION OF 353 IMAGES OF CHILD
PORNOGRAPHY), WHEN THE IMAGES AT ISSUE, ATTACHED AS
ENCLOSURE 4 TO THE STIPULATION OF FACT, SET UP A MATTER
INCONSISTENT WITH THE PLEA THAT THE MILITARY JUDGE DID NOT
RESOLVE?
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PAGE—ARMY 20100083
the stipulation of fact containing images the appellant acknowledged as child
pornography, it is clear that many of the images meet the definition of child
pornography under §18 U.S.C. 2252A. For example, two of the image files named in
the specification “/$RQV7GP6.jpg” and “/5319588yYq.jpg” clearly constitute child
pornography. The image under the file name “/$RQV7GP6.jpg” depicts a young boy
on a bed with his legs spread and his genitals exposed, and the image under the file
name “/5319588yYq.jpg” depicts two young naked boys fondling each other in a
shower, one with genitals exposed. We therefore find no substantial basis in law or
fact to overturn the plea of guilty to possession of child pornography.
We also find, however, that there is a substantial question as to the exact
number of images of child pornography that the appellant possessed. Upon our
review of the record, we find that although many of the images meet the statutory
definition of child pornography, a significant number of the images do not. Three of
the images listed in the specification; “/6974826abQ.jpg,” “bbrd9.bmp,” and
“bbrd3.bmp” are particularly questionable. Image “/6974826abQ.jpg” depicts two
young male children at a computer desk wearing diapers with their bare upper bodies
exposed. Files “bbrd9.bmp” and “bbrd3.bmp” in the CD enclosure to the stipulation
of fact were corrupted files and not visible or described elsewhere in the record.
Because these images do not clearly constitute child pornography, we determine that
the finding was factually deficient with regards to the number of images and thus,
we strike the files named in the specification that are questionable and reduce the
number of images in the specification from 353 to “more than three images.”
The court affirms only so much of the finding of guilty of Specification 1 of
Charge II as finds that the appellant did, on or about 20 March 2008, at Fort Sam
Houston, Texas, land owned by the United States Government, knowingly possess a
Hewlett Packard laptop computer, serial number CNF73673WJ, containing more
than three images of child pornography in violation of 18 U.S.C. §2252A, including:
/$RQV7GP6.jpg, /5319588yYq.jpg, which conduct was prejudicial to good order and
discipline or likely to bring discredit upon the armed forces. The remaining findings
of guilty are affirmed. We also caution practitioners in cases where images charged
as child pornography under the federal statute are included in a stipulation of fact, to
sufficiently review those images and ensure that those images meet the federal
statutory definition of child pornography during the providence inquiry.
Reassessing the sentence on the basis of the errors noted, the entire record,
the specific facts of this case, 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), the court affirms only so much of the sentence as provides for a
bad-conduct discharge, confinement for ten months, forfeiture of $964.00 pay per
month for ten months, and reduction to E1. We conclude that such a sentence is at
least that which would have been imposed by a court-martial for the findings of
guilty that were affirmed. All rights, privileges, and property, of which appellant
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PAGE—ARMY 20100083
was deprived by virtue of that portion of his sentence being set aside by this
decision are hereby ordered restored.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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