United States v. Hale

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Major TODD W. HALE
United States Air Force
ACM 38707
14 December 2015
Sentence adjudged 7 October 2014 by GCM convened at Joint Base
Andrews Naval Air Facility Washington, Maryland. Military Judge:
Francisco Mendez (sitting alone).
Approved Sentence: Dismissal and confinement for 24 months.
Appellate Counsel for Appellant: Captain Annie W. Morgan.
Appellate Counsel for the United States: Major G. Matt Osborn and Gerald
R. Bruce, Esquire.
Before
MITCHELL, DUBRISKE, and BROWN
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
DUBRISKE, Judge:
In accordance with his pretrial agreement, Appellant was convicted by a military
judge sitting alone of solicitation of another to view child pornography and possession of
child pornography, in violation of Article 134, UCMJ, 10 U.S.C. § 934.1 Appellant was
sentenced to a dismissal, 38 months of confinement, and forfeiture of all pay and
allowances. The convening authority reduced Appellant’s confinement to 24 months
1
A second specification alleging possession of child pornography at an overseas location was withdrawn and
dismissed by the prosecution after acceptance of Appellant’s guilty plea in accordance with the pretrial agreement.
pursuant to the pretrial agreement and disapproved adjudged forfeitures to facilitate a
waiver of pay and allowances for Appellant’s dependents. The dismissal was approved.
Appellant raises one issue on appeal pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), alleging his sentence is inappropriately severe. Appellant
requests his confinement be reduced by six months in recognition of his military service
record and acceptance of responsibility for his criminal activity in this case.
Finding no error that materially prejudices a substantial right, we affirm the
findings and sentence in Appellant’s case.
Background
During two temporary duty assignments to the United States from his Office of
Defense Cooperation posting at an overseas location, Appellant made a number of
Craigslist posts to local message boards soliciting various forms of sexual activity. In
one of the posts, Appellant stated he was looking for someone who was interested in
masturbating to “sister/brother, niece/uncle, nephew/aunt, son/mother, daughter/daddy,
female cousin/male cousin, female/female incest stuff.”
A local civilian law enforcement detective, who also performed duties for the
Federal Bureau of Investigation’s Child Exploitation Task Force, discovered Appellant’s
post during his routine surveillance of Internet message boards like Craigslist. Given
Appellant’s apparent interest in child pornography, the detective responded to
Appellant’s post in an undercover capacity using a false name. During multiple email
exchanges with the detective, Appellant advised he could secure “nude[s] of any age, any
activity. trust [sic] me, I know where to get it and can show you too.” Appellant also
informed the detective, when asked how long he had been collecting child pornography,
that he would “collect, then delete, only to repeat.”
The civilian detective then arranged to meet Appellant at his local hotel room to
exchange child pornography and engage in activities as solicited by Appellant in his
initial post. When the detective and other law enforcement personnel arrived at
Appellant’s hotel room, they found Appellant in possession of a laptop computer which
contained 38 images and 1 video depicting child pornography. Appellant later admitted
he engaged in the email activity with the undercover officer and downloaded child
pornography in preparation for the scheduled meeting at his hotel room.
Civilian authorities ultimately relinquished jurisdiction over this interaction with
Appellant, which led to the general court-martial charges currently under review.
2 ACM 38707
Sentence Appropriateness
This court reviews sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by considering the
particular appellant, the nature and seriousness of the offense[s], the appellant’s record of
service, and all matters contained in the record of trial.” United States v. Anderson, 67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009). Although we are accorded great 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, 148 (C.A.A.F. 2010).
After giving individualized consideration to this particular Appellant, his record of
service, the nature and seriousness of the offenses, and all other matters contained in the
record of trial, we find the approved sentence is not inappropriately severe. Appellant’s
abhorrent conduct brought discredit to the United States Air Force. We acknowledge the
charged offenses occurred over a short period of time and Appellant accepted
responsibility for his conduct both at trial and during clemency. However, the severity of
the offenses causes us to find the approved sentence is not unduly harsh or otherwise
inappropriate.
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred.2 Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence
are AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Clerk of the Court
2
We note the addendum to the staff judge advocate’s recommendation (SJAR) did not specifically advise the
convening authority of his mandatory requirement to consider the SJAR and the report of result of trial before taking
action. See Rule for Courts-Martial (R.C.M.) 1107(b)(3)(A); Air Force Instruction (AFI) 51-201, Administration of
Military Justice, ¶ 9.20.1.2 (6 June 2013). Instead, it advised the convening authority “shall” consider the record of
trial and personnel records of the accused. The review of these specific documents is discretionary. See R.C.M.
1107(b)(3)(B). Additionally, the addendum stated an action had been prepared approving the findings and sentence
of the court, which was inaccurate based on the terms of Appellant’s pretrial agreement. Given the convening
authority noted he reviewed all matters attached to the addendum, including the SJAR and report of result of trial,
and ultimately approved a sentence in accordance with the pretrial agreement, we find no prejudice. The consistent
use of post-trial processing templates found in AFI 51-201 will eliminate these unnecessary errors and better
facilitate accurate post-trial processing.
3 ACM 38707