THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 

UNITED STATES, Appellee 

v. 

William T. JONES III 

Aviation Machinist’s Mate Airman Apprentice 

U.S. Navy, Appellant 

No. 08-0335 

Crim. App. No. 200602320 

United States Court of Appeals for the Armed Forces 

Argued November 2, 2010 

Decided January 13, 2011 

RYAN, J., delivered the opinion of the Court, in which 

BAKER, ERDMANN, and STUCKY, JJ., joined. EFFRON, C.J., 

filed a separate dissenting opinion. 

Counsel 

For Appellant: Captain Bow Bottomly, USMC (argued); 

Lieutenant Brian D. Korn, JAGC, USN, and Captain Michael D. 

Berry, USMC. 

 

For Appellee: Lieutenant Commander Sergio Sarkany, JAGC, 

USN (argued); Brian K. Keller, Esq. (on brief); Colonel 

Louis J. Puleo, USMC. 

Amicus Curiae for Appellant: Anita Aboagye-Agyeman (law 

student) (argued); Robert M. Pitler, Esq. (supervising 

attorney) (on brief) -- for Brooklyn Law School. 

 

Military Judge: Daniel E. O’Toole 
United States v. Jones, No. 08-0335/NA

2

Judge RYAN delivered the opinion of the Court. 

Pursuant to his pleas, Appellant was found guilty by a 

military judge sitting as a general court-martial for 

violating a lawful general regulation on divers occasions 

by using government computer equipment and communication 

systems to view pornography, and for knowingly receiving 

child pornography that had been transported in interstate 

commerce, violations of Articles 92 and 134, Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934 (2006). 

Appellant was sentenced to two years of confinement and a 

bad-conduct discharge. The convening authority approved 

the sentence, suspended confinement in excess of eighteen 

months for twelve months, and except for the punitive 

discharge, ordered it executed. 

The United States Navy-Marine Corps Court of Criminal 

Appeals (NMCCA) reviewed Appellant’s case pursuant to 

Article 66(c), UCMJ, 10 U.S.C. § 866 (2006), and affirmed 

Appellant’s conviction. United States v. Jones, No. NMCCA 

200602320, 2007 CCA LEXIS 627 (N-M. Ct. Crim. App. Dec. 12, 

2007) (per curiam). 

On September 4, 2008, we granted Appellant’s petition 

on the following modified issue: 

WHETHER THE MILITARY JUDGE ERRED BY DENYING 

APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE 
United States v. Jones, No. 08-0335/NA

3

BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF 

THAT DENIAL, APPELLANT’S PLEA WAS PROVIDENT. 

United States v. Jones, 67 M.J. 36 (C.A.A.F. 2008) (order 

granting review). 

We returned the record of trial to the Judge Advocate 

General of the Navy for remand to the lower court for a new 

review and consideration of the modified issue under 

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006). On October 

27, 2009, the NMCCA affirmed the findings and sentence. 

United States v. Jones, No. NMCCA 200602320, 2009 CCA LEXIS 

356, 2009 WL 3435920 (N-M. Ct. Crim. App. Oct. 27, 2009). 

Appellant filed a petition and a supplement with this Court 

on December 22, 2009. On April 23, 2010, we granted review 

of the following issues: 

WHETHER THE MILITARY JUDGE VIOLATED APPELLANT’S RIGHTS 

UNDER THE SIXTH AMENDMENT AND RULE FOR COURTS-MARTIAL 

701 BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE 

EVIDENCE BEFORE HE PLED GUILTY. 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT 

THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED 

GUILTY AND APPELLANT’S PLEA WAS THEREFORE IMPROVIDENT. 

United States v. Jones, 69 M.J. 89 (C.A.A.F. 2010) (order 

granting review).1

 

 

1 We heard oral argument in this case at Brooklyn Law 

School, New York, New York, as part of the Court’s “Project 

Outreach.” This practice was developed as a public 

awareness program to demonstrate the operation of a federal 

court of appeals and the military justice system.
United States v. Jones, No. 08-0335/NA

4

We conclude that the denial of the requests to review 

evidence under the circumstances of this case did not 

violate the Sixth Amendment because Appellant did not seek 

to review the evidence to prepare a defense, and that 

Appellant’s unconditional guilty plea waived appellate 

review of the denial of his discovery requests under Rule 

for Courts-Martial (R.C.M.) 701. And we agree with the 

NMCCA that, considering the stipulation of fact in 

conjunction with Appellant’s providence inquiry, there was 

no substantial basis in law or fact for the military judge 

to reject Appellant’s guilty plea in this case. Jones, 

2009 CCA LEXIS 356, at *21, 2009 WL 3435920, at *7. 

I. 

The Naval Criminal Investigative Service (NCIS) 

uncovered that Appellant was using several government 

computers at various work spaces to search, access, and 

download child pornography, both pictures and movies. As 

relevant to the granted issues, Appellant was charged with 

knowingly “receiv[ing] child pornography that had been 

transported in interstate or foreign commerce” in violation 

of Article 134, UCMJ. On April 6, 2006, Appellant signed a 

pretrial agreement, where he agreed, inter alia, to enter 

unconditional pleas of guilty to a military judge sitting 

as a general court-martial, and to enter into a stipulation 
United States v. Jones, No. 08-0335/NA

5

of fact that “describes the facts and circumstances 

surrounding the offenses to which I am pleading guilty.” 

On April 10, 2006, the day before trial, Appellant signed 

the stipulation of fact. In the stipulation, Appellant 

admitted to using government computers to search for, view, 

and download child pornography. While he did not recall 

the exact number of images he received or possessed, he 

stipulated that fifteen images recovered from work laptops 

he used depicted images of children posing in such a way to 

expose their genitals or “performing a sexual act with an 

adult.” Additionally, the stipulation referenced and 

appended two attachments, which included printed copies of 

pictures of child pornography stored under Appellant’s 

profile on the government computer as well as a copy of a 

digital-format movie depicting child pornography “received 

and possessed in the same manner.” 

That same day, counsel met with the military judge for 

a conference pursuant to R.C.M. 802. At the conference, 

counsel told the military judge that they had arranged for 

Appellant to review the Government’s evidence of child 

pornography prior to the start of trial. That review was 

prohibited by the military judge.2

 

 

2

 According to Appellant’s clemency request, the military 

judge stated that Appellant would not be permitted to view 
United States v. Jones, No. 08-0335/NA

6

Trial commenced the next day, April 11, 2006. 

Appellant entered pleas of guilty in accordance with the 

pretrial agreement. The military judge explained the 

elements of the Article 134, UCMJ, offense to Appellant, 

who acknowledged that he understood each element and that 

they were an accurate description of what he did. As the 

providence inquiry progressed, Appellant had difficulty 

providing specific details regarding the child pornography 

taken from his computer. However, Appellant never denied 

that he in fact sought, received, and viewed child 

pornography from sites on the Internet. In the afternoon, 

the military judge noted that the accused was having a 

“difficult time . . . maintaining composure” and was losing 

his focus during the providence inquiry, so the military 

judge recessed until the following day. 

Prior to resuming the providence inquiry on April 12, 

2006, counsel and the military judge held another R.C.M. 

802 conference. During the conference, defense counsel 

asked that Appellant be allowed to review the child 

pornography evidence held by NCIS to assist him in 

 

the images. When pressed for a reason, the military judge 

explained only that “it is what [it] is.” The Government 

does not dispute this version of events, but it would be 

better practice if the substance of the R.C.M. 802 

conference had been placed on the record at the next 

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session. 
United States v. Jones, No. 08-0335/NA

7

answering the military judge’s questions. The military 

judge denied the request. The substance of this R.C.M. 802 

conference was placed on the record when court resumed, and 

defense counsel argued that “the accused has the right to 

view the evidence against him in this case, specifically 

the images of pornographic material” and that it was 

important that Appellant see the evidence because he is 

“unable to give exact specific details as requested by the 

court.” 

The military judge once again denied the request, 

responding as follows:

The issue is do we stop in the middle of this 

providency inquiry in the face of guilty pleas in 

[sic] the stipulation of fact to adjourn the court and 

allow him to go back and review these materials. It’s 

my view having proceeded as far as we had through 

providency that it’s clear to me that reviewing these 

images is not going to resolve the issues that your 

client was having yesterday. He broke down 

repeatedly, was reluctant to use specific language in 

describing what he clearly knows about these offenses 

and those kinds of reluctances and even -- well those 

kinds of issues are not going to be resolved by going 

back and looking at these images. They are going to 

be resolved by doing what I did and that is taking a 

break, allowing him to recover his composure, review 

with you the requirements of a provident plea . . . . 

So your request is denied. 

Defense counsel then stated for the record that 

Appellant’s initial request to review the images was made 

during the pretrial R.C.M. 802 conference. The military 
United States v. Jones, No. 08-0335/NA

8

judge responded with the following statement on the record: 

Yes, Yes it was and my inclination was the same then. 

That it was not necessary for these proceedings at the 

point at which the proceedings were. That I think that 

issue is off the mark procedurally in terms of the 

timeliness with which it was raised and context in 

which it was raised. That’s not to say under other 

circumstances that might not be a proper exercise of an 

accused’s right, but as it’s been raised in this case, 

it is untimely and improper. 

Notwithstanding the denial, Appellant chose to proceed 

with his guilty pleas and the providence inquiry continued. 

At that point, Appellant began to use, and at times, read 

off “word-for-word” from, a document created by defense 

counsel containing descriptions of the images recovered 

from the computers. Specifically, this document included 

an “estimated age” column and an “acts committed” column, 

which helped Appellant to provide answers to the military 

judge’s questions regarding the specifics of the child 

pornography at issue. Appellant, relying on the 

stipulation of fact, his own recollection, representations 

made by NCIS about the evidence, and this document, 

provided a factual basis to support his pleas of guilty. 

The military judge accepted Appellant’s pleas and Appellant 

retained the benefit of his pretrial agreement. 
United States v. Jones, No. 08-0335/NA

9

II. 

We consider, first, whether the military judge erred 

in denying Appellant’s requests to view evidence before and 

during the providence hearing; and second, whether 

Appellant’s plea was provident in light of that denial. 

A. 

Appellant first argues that the military judge 

violated his Sixth Amendment right to “make a defense,” by 

refusing his request to review the government’s evidence of 

child pornography against him prior to and during his 

providence inquiry. We agree with the NMCCA that this 

argument is “without merit.” Jones, 2009 CCA LEXIS 356, at 

*8, 2009 WL 3435920, at *3. 

Appellant retained at all times the right to withdraw 

from the pretrial agreement, plead not guilty, and require 

the Government to prove the offenses against him. Further, 

we agree with the NMCCA that “the procedural posture of the 

case at the time the military judge denied the appellant’s 

request negates any inference that the decision to deny 

review of the evidence interfered with the appellant’s 

ability to prepare a defense.” Jones, 2009 CCA LEXIS 356, 

at *10-*11, 2009 WL 3435920, at *4. Appellant sought to 

review the evidence of child pornography to assist him in 

pleading guilty, and not to assist him in his defense. 
United States v. Jones, No. 08-0335/NA

10

Appellant also argues that the military judge violated 

his rights under Article 46, UCMJ, 10 U.S.C. § 846 (2006), 

and R.C.M. 701 regarding defense access to and inspection 

of evidence. Article 46, UCMJ, requires that “[t]he trial 

counsel, the defense counsel, and the court-martial . . . 

have equal opportunity to obtain witnesses and other 

evidence in accordance with such regulations as the 

President may prescribe.” Article 46, UCMJ, is implemented 

through R.C.M. 701. R.C.M. 701(a)(2)(A) (“After service of 

charges, upon request of the defense, the Government shall 

permit the defense to inspect . . . [a]ny books, papers, 

documents, photographs . . . which are within the 

possession, custody, or control of military authorities, 

and which . . . were obtained from or belong to the accused 

. . . .”). We review a military judge’s ruling on a 

discovery request for an abuse of discretion. United 

States v. Morris, 52 M.J. 193, 198 (C.A.A.F. 1999). 

“The military judge may . . . specify the time, place, 

and manner of making discovery and may prescribe such terms 

and conditions as are just.” R.C.M. 701(g)(1).3 See also

 

3

 While a military judge may prescribe the time, place and 

manner in which discovery by the defense will take place, 

R.C.M. 701(g)(1), absent a “sufficient showing,” it may not 

be denied entirely. R.C.M. 701(g)(2). Appellant does not 

suggest that the defense was denied the opportunity to 

review the evidence.
United States v. Jones, No. 08-0335/NA

11

United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999) 

(noting that “‘[t]he military judge may at any time order 

that the discovery or inspection be denied, restricted, or 

deferred, or make such other order as is appropriate’”). 

Thus, it could be within the military judge’s discretion to 

deny a mid-providence request to stop the trial for an 

accused to review evidence. 

In this case however, the military judge did not just 

deny a defense request in the midst of the providence 

proceedings -– he prohibited a pretrial review of the 

evidence by the accused to which both the Government and 

the defense had agreed. There is no argument that the 

scheduled pretrial review would have interfered in the 

trial proceedings. Under the circumstances of this case, 

prohibiting a pretrial review of evidence to which both 

parties had agreed on the scant rationale that “it is what 

it is” constituted an abuse of discretion. 

However, there is no suggestion that the defense 

counsel did not have full access to the evidence in 

question, which is what R.C.M. 701 requires. Moreover, 

Appellant was well aware that he could not personally 

review the child pornography prior to or during his 

providence inquiry, yet did not elect to withdraw from the 

pretrial agreement or withdraw his pleas of guilty. 
United States v. Jones, No. 08-0335/NA

12

Instead, he entered unconditional pleas of guilty. Nor 

does he claim, even now, that he received ineffective 

assistance of counsel or that reviewing the evidence would 

have caused him to enter a plea of not guilty and contest 

the charges. 

Instead, Appellant argues that “[w]ithout knowledge of 

what was contained in the fifteen images [of child 

pornography] . . . [he] cannot attest to whether these 

were, in fact, the images that he had received or whether 

they were child pornography as defined by the law.” Brief 

of Appellant at 27, United States v. Jones, No. 08-0335 

(C.A.A.F. June 8, 2010). This argument both ignores the 

detailed stipulation of fact and addresses the factual 

issue of his guilt, i.e., whether the images in the 

Government’s possession were the ones Appellant accessed or 

possessed and whether the images were in fact child 

pornography. 

An unconditional guilty plea “which results in a 

finding of guilty waives any objection, whether or not 

previously raised, insofar as the objection relates to the 

factual issue of guilt of the offense(s) to which the plea 

was made.” R.C.M. 910(j). As we recently explained in 

United States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 

2009): “‘[t]he point . . . is that a counseled plea of 
United States v. Jones, No. 08-0335/NA

13

guilty is an admission of factual guilt so reliable that, 

where voluntary and intelligent, it quite validly removes 

the issue of factual guilt from the case’” (quoting Menna 

v. New York, 423 U.S. 61, 62 n.2 (1975)). An unconditional 

guilty plea generally waives all pretrial and trial defects 

that are not jurisdictional or a deprivation of due process 

of law. Schweitzer, 68 M.J. at 136 (citations omitted). 

Under the facts of this case, where the denial neither 

implicated due process rights nor resulted in the loss of 

Appellant’s pretrial agreement, Appellant’s unconditional 

guilty plea waived the issues related to the military 

judge’s denial of his pretrial and mid-providence requests 

to view child pornography. 

B. 

There remains the question whether Appellant’s plea 

was provident. Appellant argues that his providence 

inquiry provided an insufficient factual basis for the 

military judge to accept his plea of guilty to receiving 

child pornography. We disagree. 

“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.”

United States v. Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 

2008). In determining whether a guilty plea is provident, 
United States v. Jones, No. 08-0335/NA

14

the military judge may consider “‘the facts contained in 

the stipulation [of fact] along with the inquiry of 

appellant on the record.’” United States v. Sweet, 42 M.J. 

183, 185 (C.A.A.F. 1995) (quoting United States v. Sweet, 

38 M.J. 583, 587 (N-M. Ct. Crim. App. 1993) (en banc)). We 

review a military judge’s decision to accept a guilty plea 

for an abuse of discretion. United States v. Eberle, 44 

M.J. 374, 375 (C.A.A.F. 1996). 

A valid guilty plea requires Appellant to admit his 

guilt and articulate those facts that objectively establish 

his guilt. United States v. Davenport, 9 M.J. 364, 366-67 

(C.M.A. 1980). As the Discussion in R.C.M. 910(e) states, 

an accused “must be convinced of, and able to describe all 

the facts necessary to establish guilt.” If an accused is 

personally convinced of his guilt based upon an assessment 

of the government’s evidence, his inability to recall the 

specific facts underlying his offense without assistance 

does not preclude his guilty plea from being provident. 

United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977). A

fortiori, reliance on information provided in the 

stipulation of fact or by defense counsel does not raise a 

substantial basis in law or fact to question the plea. See 

United States v. Luebs, 20 C.M.A. 475, 476, 43 C.M.R. 315, 

316 (1971) (holding that the accused may rely on a 
United States v. Jones, No. 08-0335/NA

15

stipulation of fact and defense counsel’s advice “rather 

than independent recollection” of the facts underlying the 

offense charged during the providence inquiry). 

Appellant challenges the providence of his plea only 

with respect to the charged violation of Article 134, UCMJ, 

receiving child pornography in violation of 18 U.S.C. § 

2252A. The military judge was permitted to consider the 

stipulation of fact when assessing the providence of 

Appellant’s guilty plea. Sweet, 42 M.J. at 185 (upholding 

the providence of a guilty plea where the military judge 

relied primarily upon the stipulation of fact to determine 

factual sufficiency of the appellant’s plea). The detailed 

stipulation of fact described how Appellant searched for, 

accessed, viewed, and saved the pornographic images, why he 

believed the images depicted children, ranging from ten to 

seventeen, some in “lascivious poses,” and some of which 

included “girls performing a sexual act with an adult.” 

Further, during the providence inquiry, Appellant 

testified that: (1) he had read the stipulation, (2) 

discussed the stipulation with defense counsel, (3) 

understood everything in the stipulation, (4) provided the 

information in the stipulation, and (5) that everything 

contained in the stipulation was the truth. While 

Appellant admitted his guilt and made no statements 
United States v. Jones, No. 08-0335/NA

16

inconsistent with his plea, at different times he did 

display either difficulty in remembering -- or reluctance 

in relaying -- the specific details of the child 

pornography that he received, particularly with respect to 

the movie clip appended to the stipulation of fact. 

Thus, on the first day, Appellant was unclear as to 

both the specifics of which images of child pornography he 

downloaded and the particular acts portrayed in the child 

pornography -- but nonetheless elected to plead guilty. 

When the providence inquiry resumed on the second day, he 

provided sufficient detail, aided by the stipulation of 

fact and the sheet prepared by his defense counsel based on 

the defense counsel’s examination of the pictures and video 

appended to the stipulation, to provide a factual basis for 

his guilty pleas.4

 See Luebs, 20 C.M.A. at 476, 43 C.M.R. 

at 316. 

In sum, Appellant’s statements during the providence 

inquiry were consistent with the stipulation of fact, 

raised no matters inconsistent with his guilty pleas, 

demonstrated that he “was convinced of his guilt, and he 

 

4

 As the NMCCA correctly noted, even now Appellant does not 

“deny that he did, in fact, receive child pornography, nor 

does he suggest that the images he viewed were ‘virtual’ 

images, nor did he negate his statement at trial . . . that 

he ‘accessed the internet, Yahoo, Google’ and then typed in 

‘[p]reteen pictures, anything of that nature.’” Jones, 

2009 CCA LEXIS 356, at *19, 2009 WL 3435920, at *6.
United States v. Jones, No. 08-0335/NA

17

was able to describe all the facts necessary to establish 

guilt, including adequate descriptions of the pornographic 

images at issue.” Jones, 2009 CCA LEXIS 356, at *21, 2009 

WL 3435920, at *7. This procedure does not raise a 

substantial question of law or fact as to Appellant’s 

guilty plea. 

III. 

The decision of the United States Navy-Marine Corps 

Court of Criminal Appeals is affirmed. 

 
United States v. Jones, No. 08-0335/NA 

EFFRON, Chief Judge (dissenting): 

 I agree with the majority that the military judge erred by 

prohibiting Appellant’s pretrial review of the evidence. For 

the reasons set forth below, I respectfully disagree with the 

majority’s conclusion that the errors by the military judge did 

not affect the providence of Appellant’s pleas. 

1. The pretrial agreement, the stipulation, and the plea 

inquiry

Prior to the commencement of trial, Appellant entered into 

a pretrial agreement in which he agreed to enter unconditional 

guilty pleas to one specification of knowingly receiving child 

pornography in violation of Article 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 934 (2006), and to one 

specification of violating a lawful general order by wrongfully 

using a government computer to view child pornography, in 

violation of Article 92, UCMJ, 10 U.S.C. § 892 (2006). He also 

entered into a stipulation of fact in which he admitted viewing 

child pornography and provided general descriptions of the 

images that he viewed. 

During the initial providence inquiry, Appellant 

encountered difficulty in describing the child pornography that 

the Government identified as being taken from his computer. 

After struggling with Appellant’s answers to his questions, the 

military judge noted for the record that Appellant was having a 
United States v. Jones, No. 08-0335/NA 

2

“difficult time . . . maintaining composure” and recessed the 

court for the evening. 

 When the court-martial reconvened the next morning, the 

military judge noted that he had held an off-the-record 

conference under Rule for Courts-Martial (R.C.M.) 802, and 

provided the following summary for the record: “Defense . . . 

asked during that 802 for leave of the court to have the accused 

go back and review the images of pornography for which he is 

pleading guilty. My inclination at that time was not to allow 

that.” At that point, the defense made a request on the record 

for the accused to have an opportunity to review the images 

referred to in the charged offense. The defense noted that 

Appellant had been unable to give specific details about the 

images during the providence inquiry, and further asserted that 

Appellant had a right to review the evidence against him. 

 The military judge denied the request on the record, 

stating that he did not want to stop the proceedings in the 

middle of the providence inquiry to allow Appellant to review 

the materials. He added that “it’s clear to me that reviewing 

these images is not going to resolve the issues that your client 

was having yesterday.” 

 Defense counsel then referred to consideration of the same 

matter at an earlier session under R.C.M. 802, held prior to 

trial. Up to that point, the record contained no previous 
United States v. Jones, No. 08-0335/NA 

3

mention of consideration of that matter at a pretrial session 

under R.C.M. 802. 

Defense counsel reminded the military judge that the 

subject of Appellant’s access to the images at issue in the 

charges against him “was discussed in an 802 on 10 April, 

originally, prior to the trial commencing.” The military judge 

agreed that the subject had been discussed, but disagreed as to 

the right of Appellant to view the evidence at issue prior to 

trial or later during the providence inquiry, stating: “Yes, 

Yes it was and my inclination was the same then. That it was 

not necessary for these proceedings at the point at which the 

proceedings were.” He added: 

I think that issue is off the mark procedurally in 

terms of the timeliness with which it was raised and 

context in which it was raised. That’s not to say 

under other circumstances that might not be a proper 

exercise of an accused’s right, but as it’s been 

raised in this case, it is untimely and improper. 

The providence inquiry then proceeded. The military judge 

concluded that the plea inquiry and the stipulation of fact 

demonstrated the providence of Appellant’s pleas. 

2. Post-trial submissions 

Appellant’s post-trial clemency submission to the convening 

authority discussed circumstances in which he had been denied 

access to the evidence against him. The submission noted that 

“Government Trial Counsel and Defense Counsel had arranged a 
United States v. Jones, No. 08-0335/NA 

4

time and location for [Appellant] to view the evidence. This 

was common practice by both Trial and Defense Counsel.” 

The clemency request noted that denial of access to the 

evidence resulted not from actions by the prosecution, but by a 

ruling from the pretrial actions of the military judge during 

the off-the-record session under R.C.M. 802: 

During a conference with the Military Judge under 

R.C.M. 802 on 10 April 2006, Trial Counsel mentioned 

to the Military Judge the specifics of the planned 

review of evidence. At that time, the Military Judge 

stated that [Appellant] would not be permitted to view 

the images. Defense counsel stated that it was common 

procedure and was [Appellant’s] right to view the 

evidence. The Military Judge again stated that 

[Appellant] would not be permitted to view the images. 

The clemency request further noted: 

Defense Counsel pressed the Military Judge for 

clarification on whether the statement to bar 

[Appellant] from viewing the information was a lawful 

order or an order by the court. The Military Judge 

stated that it is what is and that [Appellant] will 

not view the images. At no time did Trial counsel 

raise an objection to viewing of the images by 

[Appellant]. However, Trial Counsel was equally 

confused by the Military Judge’s statement and/or 

order. 

 The clemency request also discussed the mid-providence 

R.C.M. 802 conferences, stating that there was a conference on 

the first day of trial in which defense counsel again requested 

that Appellant be allowed to view the evidence, which the 

military judge denied. There was an additional R.C.M. 802 

conference the next morning before trial resumed, in which the 
United States v. Jones, No. 08-0335/NA 

5

military judge again stated that Appellant would not be 

permitted to review the images and did not give further 

explanation despite defense counsel’s request for clarification. 

In a post-trial declaration, Appellant stated that he 

signed the stipulation of fact without reviewing the images at 

issue in the charges, and that he had only a vague recollection 

as to the contents of the images. He further stated that during 

the second day of the providence inquiry, he had relied upon a 

document prepared by defense counsel. The document contained 

descriptions of the images at issue, including the estimated 

ages of the individuals in the pictures and the acts depicted in 

each picture. According to Appellant, he read from that 

document, “often word-for-word” in answering the military 

judge’s questions on the second day of the providence hearing. 

3. The limited authority for off-the-record discussions

By statute, the proceedings of general and special courtsmartial, including those sessions conducted outside the presence 

of the members by a military judge, must be held in the presence 

of the accused, defense counsel, and trial counsel, and shall be 

part of the record. Article 39(b), UCMJ, 10 U.S.C. § 839(b) 

(2006). These requirements represent more than mere technical 

formalities. In the military justice system, significant 

constitutional rights are applied in a manner that differs 

substantially from civilian criminal proceedings. In that 
United States v. Jones, No. 08-0335/NA 

6

context, the emphasis in the UCMJ on participation, presence, 

and transparency represent critical military justice values. 

In 1984, the President promulgated R.C.M. 802 in the Manual 

for Courts-Martial, which was designed to facilitate the out-ofcourt discussions between counsel and military judges necessary 

to the day-to-day management of courts-martial in a manner 

consistent with the UCMJ. R.C.M. 802 contains limited authority 

for off-the-record conferences between the military judge and 

the parties. Conferences under R.C.M. 802 need not be recorded 

verbatim, but the “matters agreed upon at a conference shall be 

included in the record orally or in writing.” R.C.M. 802(b). 

Substantive rulings may be issued at such conferences only with 

the consent of the parties and only if the consent is on the 

record. R.C.M. 802(a) Discussion. The accused is neither 

required nor prohibited from attending R.C.M. 802 conferences. 

R.C.M. 802(d). The record in the present case reflects use of a 

session under R.C.M. 802, at which he was not present, to 

address substantial issues adversely affecting Appellant’s 

rights without setting forth consent of the parties on the 

record. 

4. Waiver

 The majority concludes that Appellant’s guilty plea waived 

any issues related to the military judge’s denial of his 

requests to review the evidence against him. I respectfully 
United States v. Jones, No. 08-0335/NA 

7

disagree in the context of the improper use of off-the-record 

proceedings under R.C.M. 802. The military judge made a 

critical ruling off-the-record and outside the presence of the 

accused. The ruling denied Appellant access to evidence central 

to the charges against him. The military judge offered little 

explanation for his rulings either on or off the record. 

An unscripted statement of the factual circumstances 

supporting a plea of guilty provides one of the critical pillars 

of the plea colloquy in the military justice system under United 

States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). At the 

initial providence inquiry, the accused was unable to provide 

clear answers to the military judge supporting the plea in the 

absence of personal access to the evidence against him during 

the initial colloquy. In the subsequent inquiry, his responses 

came not from a review of the evidence against him, but from 

reference to a document prepared by counsel. Under the 

circumstances of this case, the record does not reflect a 

knowing, voluntary, and intelligent waiver of his right to a 

complete plea inquiry and colloquy, rendering the plea 

improvident.