United States v. Kim

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Byunggu KIM, Sergeant First Class
United States Army, Appellant
No. 22-0234
Crim. App. No. 20200689
Argued February 7, 2023—Decided May 5, 2023
Military Judges: Mary Catherine Vergona
and Troy A. Smith
For Appellant: Captain Carol K. Rim (argued); Colo-
nel Michael C. Friess, Lieutenant Colonel Dale C.
McFeatters, and Major Bryan A. Osterhage (on
brief); Major Julia M. Farinas, Major Rachel P. Gor-
dienko, and Jonathan F. Potter, Esq.
For Appellee: Captain Joshua A. Hartsell (argued);
Colonel Christopher B. Burgess, Lieutenant Colonel
Jacqueline J. DeGaine, and Major Pamela L. Jones
(on brief).
Judge SPARKS delivered the opinion of the Court,
in which Chief Judge OHLSON, Judge MAGGS,
Judge HARDY, and Judge JOHNSON joined.
_______________
United States v. Kim, No. 22-0234/AR
Opinion of the Court
Judge SPARKS delivered the opinion of the Court.
This case arises out of the conviction of Sergeant First
Class Byunggu Kim (Appellant), in accordance with his
pleas, of four specifications of sexual abuse of a child and
one specification each of making an indecent recording, as-
sault consummated by a battery, and indecent conduct in
violation of Articles 120b, 120c, 128, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b, 920c,
928, 934 (2018). The military judge sentenced Appellant to
a dishonorable discharge, 130 months of confinement, and
reduction to grade E-1. In keeping with the plea agree-
ment, the convening authority reduced the confinement to
six years and otherwise approved the sentence.
The United States Army Court of Criminal Appeals af-
firmed the findings and sentence in a summary disposition.
Appellant then petitioned this Court and his petition was
granted on November 7, 2022.
This Court granted oral argument to resolve three ques-
tions, 1 including whether the military judge abused his dis-
cretion by failing to abide by the heightened plea inquiry
requirements under United States v. Hartman, 69 M.J. 467(C.A.A.F. 2011). For the reasons set forth below, we con-
clude that the military judge did abuse his discretion.
1 The actual granted issues were:
I. Whether a guilty plea to an offense waives a
challenge that the conduct is not a cognizable
offense under the Uniform Code of Military
Justice.
II. Whether, in this case, internet search que-
ries for “drugged sleep” and “rape sleep” are
indecent conduct; in the alternative, whether
the military judge abused his discretion by
failing to abide by the heightened plea inquiry
requirements under United States v. Hart-
man, 69 M.J. 467 (C.A.A.F. 2011).
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United States v. Kim, No. 22-0234/AR
Opinion of the Court
Because of our resolution of this issue, we need not address
the remaining issues.
I. Background
The relevant charge in this case stemmed from Appel-
lant’s sexual abuse of his twelve-year-old stepdaughter,
AK, which unfolded over an approximately two-year period
starting in 2018. The abuse usually took place late at night
in the living room or AK’s bedroom. At first, Appellant
would wait until AK started falling asleep and then mas-
sage her on the leg, the upper thigh, and the buttocks area.
Eventually the massages migrated to her genital area, both
over and under her clothing. AK was taking medication
that could cause hallucinations and Appellant would flash
lights and pound on the walls late at night to exacerbate
this side effect. Appellant also began setting up his cell
phone to film AK in the shower. He then edited these clips
into sexually explicit videos he stored on his phone. In ad-
dition, in early 2019, Appellant conducted multiple
searches on a pornographic website using the terms “rape
sleep” and “drugged sleep” because watching such videos
reminded him of abusing AK. In April 2019, AK reported
Appellant’s actions to law enforcement.
Appellant pled guilty to four specifications of sexual
abuse of a child and several other offenses including one
specification of indecent conduct by searching for the por-
nographic videos. The specification stated that Appellant
“did . . . commit indecent conduct, to wit: conducting an in-
ternet search for ‘rape sleep’ and ‘drugged sleep,’ and that
said conduct was of a nature to bring discredit upon the
armed forces.” During the plea colloquy, Appellant told the
military judge that he sought out videos “depicting simu-
lated vulgar sex scenes involving sleep or sex with an indi-
vidual that was pretending to be asleep” and that watching
the videos reminded him of sexually abusing AK. The col-
loquy of the military judge on this offense is at issue.
II. Discussion
We review a military judge’s decision to accept a guilty
plea for an abuse of discretion and questions of law arising
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United States v. Kim, No. 22-0234/AR
Opinion of the Court
from the guilty plea de novo. United States v. Inabinette, 66
M.J. 320, 322 (C.A.A.F. 2008). “During a guilty plea inquiry
the military judge is charged with determining whether
there is an adequate basis in law and fact to support the
plea before accepting it.” Id. at 321-22 (citing United States
v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). A military judge
abuses his or her discretion by “fail[ing] to obtain from the
accused an adequate factual basis to support the plea—an
area in which we afford significant deference” or if his or
her ruling is based on an erroneous view of the law. Id. at
322.
We give the military judge broad discretion in the deci-
sion to accept a guilty plea because the facts are undevel-
oped in such cases. Id. In reviewing the military judge’s de-
cision, this Court applies a substantial basis test: “Does the
record as a whole show a substantial basis in law and fact
for questioning the guilty plea.” Id. (internal quotation
marks omitted) (quoting Prater, 32 M.J. at 436). “[B]ecause
a guilty plea is an admission of all the elements of a formal
criminal charge, it cannot be truly voluntary unless the de-
fendant possesses an understanding of the law in relation
to the facts.” United States v. Care, 18 C.M.A. 535, 539, 40
C.M.R. 247, 251 (1969) (quoting McCarthy v. United States,
394 U.S. 459, 466 (1969)).
The First Amendment to the United States Constitu-
tion states that, “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. Though ser-
vicemembers are not excluded from First Amendment pro-
tection, it is important to remember that:
the different character of the military community
and of the military mission requires a different ap-
plication of those protections. The fundamental
necessity for obedience, and the consequent neces-
sity for imposition of discipline, may render per-
missible within the military that which would be
constitutionally impermissible outside it.
Parker v. Levy, 417 U.S. 733, 758 (1974).
“When a charge against a servicemember may implicate
both criminal and constitutionally protected conduct, the
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Opinion of the Court
distinction between what is permitted and what is prohib-
ited constitutes a matter of critical significance.” Hartman,
69 M.J. at 468 (internal quotation marks omitted) (quoting
United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F.
2003)). In a guilty plea situation, “the colloquy between the
military judge and an accused must contain an appropriate
discussion and acknowledgment on the part of the accused
of the critical distinction between permissible and prohib-
ited behavior.” Id. “The fundamental requirement of plea
inquiry . . . involves a dialogue in which the military judge
poses questions about the nature of the offense and the ac-
cused provides answers that describe his personal under-
standing of the criminality of his or her conduct.” Id. at 469.
In Hartman, this Court was troubled by the fact that
the military judge failed to ask the appellant whether he
understood the relationship between certain sections of the
colloquy and the distinction between constitutionally pro-
tected behavior and criminal conduct. Id. We determined
that “[i]n the absence of a dialogue employing lay terminol-
ogy to establish an understanding by the accused as to the
relationship between the supplemental questions and the
issue of criminality, we cannot view [an appellant’s] plea as
provident.” Id.Hartman involved a conviction for sodomy under Article
125, UCMJ, 10 U.S.C. § 925 (2006). 69 M.J. at 467. As such,
it implicated the Supreme Court’s decision in Lawrence v.
Texas, 539 U.S. 558 (2003), protecting consensual sodomy
in the privacy of one’s own home. The First Amendment
right implicated in the present case was established by the
Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969).
In that case, investigators acting upon a search warrant for
evidence of illegal bookkeeping seized three reels of eight-
millimeter film they deemed obscene. Id. at 558. The ap-
pellant challenged his conviction for possession of obscene
matter, asserting his First Amendment rights had been vi-
olated. Id. at 559. The Supreme Court agreed, stating that
“the mere private possession of obscene matter cannot con-
stitutionally be made a crime.” Id. The Court upheld a con-
stitutional right “to be free, except in very limited
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Opinion of the Court
circumstances, from unwanted governmental intrusion
into one’s privacy.” Id. at 564.
If the First Amendment means anything, it means
that a State has no business telling a man, sitting
alone in his own house, what books he may read
or what films he may watch. Our whole constitu-
tional heritage rebels at the thought of giving gov-
ernment the power to control men’s minds.
Id. at 565.
This constitutional right protected in Stanley does not
automatically apply to servicemembers. Conduct that is
constitutionally protected for civilians could still qualify as
prejudicing good order and discipline or bringing discredit
upon the military. United States v. Moon, 73 M.J. 382, 388
(C.A.A.F. 2014) (quoting United States v. Barberi, 71 M.J.
127, 131 (C.A.A.F. 2012)). However, images viewed for sex-
ual gratification do not necessarily lose their First Amend-
ment protection. Id. at 389. Appellant’s behavior here oc-
cupies a constitutional gray area similar to that at issue in
Hartman. As a result, the plea colloquy should have estab-
lished why possibly constitutionally protected material
could still be service discrediting in the military context.
See id. (stating that “[w]ithout a proper explanation and
understanding of the constitutional implications of the
charge, [a]ppellant’s admissions in his stipulation and dur-
ing the colloquy regarding why he personally believed his
conduct was service discrediting and prejudicial to good or-
der and discipline do not satisfy Hartman.”). 2
Appellant argues that the military judge’s examination
of Appellant did not rise to the level of the detailed inquiry
required under Hartman whenever there is the potential to
criminalize constitutionally protected conduct. The Gov-
ernment counters that the military judge engaged in a de-
tailed colloquy that included a thorough explanation of the
charges and demonstrated Appellant’s understanding of
2 Moon involved an appellant charged with possession of im-
ages of nude minors. 73 M.J. at 383.
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Opinion of the Court
the criminality of his actions, and that this was sufficient
to meet the heightened standard required by Hartman.
The record shows that the military judge conducted a
thorough plea colloquy with regard to the elements of the
offense. He stated the elements and definitions relevant to
the charged offense and questioned Appellant in detail
about his behavior. Appellant was clear about the nature
of the videos he searched for and watched and about why
he watched them, as well as the service discrediting nature
of his actions. The military judge explored Appellant’s mo-
tivation in searching for and viewing pornographic videos
related to the terms “rape sleep” and “drugged sleep.” Ap-
pellant confirmed with the military judge the connection
between the videos and abusing his stepdaughter. Appel-
lant appeared to understand why his conduct was criminal.
See Care, 18 C.M.A. at 541, 40 C.M.R. at 253.
However, the military judge did not discuss Appellant’s
First Amendment rights or any of the constitutional
implications of his situation. In Hartman, this Court set
aside a guilty plea because the military judge failed to
discuss with the appellant the relevant distinction between
constitutionally protected behavior and criminal conduct.
69 M.J. at 469. If we adhere to the heightened standard
outlined in Hartman, the military judge should have
discussed with Appellant the existence of constitutional
rights relevant to his situation and made sure Appellant
understood why his behavior under the circumstances did
not merit such protection.
Given our decision in Hartman, we cannot view this
plea colloquy as sufficient. We have been clear that the col-
loquy between the military judge and an accused “must
contain an appropriate discussion and acknowledgment on
the part of the accused of the critical distinction between
permissible and prohibited behavior.” Id. at 468 (emphasis
added). In Moon, we further clarified that such discussion
is required in situations where an Article 134, UCMJ,
charge implicates constitutionally protected conduct. 73
M.J. at 388. Because such a discussion did not occur here,
there is a substantial basis in law for questioning the plea.
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Opinion of the Court
We therefore conclude that the military judge abused his
discretion and that Appellant’s guilty plea to the charge of
indecent conduct was improvident.
III. Decision
The decision of the United States Army Court of Crimi-
nal Appeals is reversed as to Charge VI and its specifica-
tion and the sentence, but affirmed in all other respects.
The findings of guilty with respect to this charge and spec-
ification are set aside, and Charge VI and its specification
are dismissed without prejudice. The decision is affirmed
as to the remaining findings. The case is returned to the
Judge Advocate General of the Army for remand to that
court for reassessment of the sentence.
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