United States v. Augustine

Opinion of the Court

Senior Judge COX

delivered the opinion of the Court.

Pursuant to his pleas, appellant was convicted by a general court-martial of receiving and possessing depictions of sexually explicit conduct by minors in violation of 18 USC § 2252(a)¹ and of taking indecent liberties with a 6-year-old female, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. A military judge sitting alone sentenced him to a bad-conduct discharge, confinement for 3 years, total forfeitures, and reduction to E-l. The convening authority reduced the period of confinement to 2 years in accordance with a pretrial agreement, but otherwise approved the sentence as adjudged. The Court of Criminal Appeals affirmed in an unpublished opinion.

This Court granted review on the following issue:

WHETHER APPELLANT’S PLEA TO SPECIFICATION 4 OF THE CHARGE WAS IMPROVIDENT SINCE HIS CONDUCT WAS NOT IN VIOLATION OF 18 USC § 2252(a) AS APPELLANT DID NOT POSSESS THREE OR MORE BOOKS, MAGAZINES, PERIODICALS, FILMS, VIDEO TAPES, OR OTHER MATTER WHICH CONTAIN ILLEGAL IMAGES.

We also specified review of the following issue:

WHETHER APPELLANT WAS GUILTY OF A LESSER-INCLUDED OFFENSE UNDER ARTICLE 134, CLAUSE 1 OR CLAUSE 2, WITH RESPECT TO SPECIFICATION 4 OF THE CHARGE WHERE HE ADMITTED ALL THE ESSENTIAL ELEMENTS TO SUCH LESSER-INCLUDED OFFENSE.

With respect to the specified issue, we note that, during the providence inquiry, appellant admitted that his possession of three visual depictions of sexually explicit conduct by minors was conduct prejudicial to “good order and discipline in the armed forces.” He also admitted his conduct “was of a nature to bring discredit upon the armed forces.” His admissions were sufficient to establish his guilt of service-discrediting conduct under Article 134. See United States v. Sapp, 53 MJ 90 (2000).²

Article 59(b), UCMJ, 10 USC § 859(b), provides: “Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.” Consistent with our holding in Sapp,³ also decided this day, we will modify specification 4 to state service-discrediting conduct under Article 134. Because the scope and fundamental nature of the offense is unaltered by the modification of the specification, a return of this case to the Court of Criminal Appeals for a sentence reassessment is not required. In light of the other offenses of which appellant was convicted, we are satisfied that there was no prejudice as to sentence as a consequence of this minor modification. In light of our action, we need not reach the granted issue.

Specification 4 is amended to read as follows:

In that AIRMAN FIRST CLASS HEATH E. AUGUSTINE, United States Air Force, 2nd Space Warning Squadron, Buckley Air National Guard Base, Colorado, did, at or near Denver, Colorado, on divers occasions between on or about 5 May 1994 and 12 July 1996, wrongfully and knowingly possess three or more visual depictions of minors engaging in sexually explicit conduct.

The decision of the United States Ar Force Court of Criminal Appeals as to specification 4 as amended; the remaining specifications and Charges; and the sentence are affirmed.

1 . The violation of the federal statute was charged trader the Crimes and Offenses Not Capital Clause of Article 134, Uniform Code of Military Justice, 10 USC § 934.

2 . We disagree with the dissent’s suggestion that the present case is in the same posture as United States v. Falk, 50 MJ 385 (1999). In the present case, we can affirm the findings with respect to a lesser-included offense because we conclude that the military judge conducted an adequate providence inquiry covering the elements of the lesser-included offense. By contrast, in Falk, the adequacy of the guilty-plea inquiry as to the offense charged was at issue; a lesser offense was not at issue on appeal.

3 . This case differs from Sapp because, in that case, the Court of Criminal Appeals, rather than this Court, found the plea provident for the offense of service-discrediting conduct. Essentially, the legal issues are the same. Consequently, our rationale in affirming that conviction applies in this case.