UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER

Appellate Military Judges

UNITED STATES OF AMERICA

v.

RICHARD L. LESLEY

AVIONICS TECHNICIAN FIRST CLASS (E-6), 

NMCCA 201400271

GENERAL COURT-MARTIAL

Sentence Adjudged: 11 March 2014.

Military Judge: CDR Michael J. Luken, JAGC, USN.

Convening Authority: Commander, Naval Air Force Atlantic, 

Norfolk, VA.

Staff Judge Advocate's Recommendation: CAPT T.J. Welsh, 

JAGC, USN.

For Appellant: Capt David A. Peters, USMC.

For Appellee: LCDR Keith B. Lofland, JAGC; USN LT Ann E. 

Dingle, JAGC, USN.

26 February 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

 

A panel of officer and enlisted members sitting as a 

general court-martial convicted the appellant, contrary to his 

pleas, of a single specification of possessing child pornography 

in violation of Article 134, Uniform Code of Military Justice, 

10 U.S.C. § 934. The members sentenced the appellant to 18 

months’ confinement and a bad-conduct discharge (BCD). The 
2

convening authority (CA) approved the sentence as adjudged, and, 

except for the BCD, ordered it executed. 

The appellant raises two assignments of error: First that

the military judge erred in applying the maximum sentence 

applicable to 18 U.S.C. § 2252A when that statute’s elements 

were not directly analogous to the offense of which the 

appellant was convicted. Second, that the CA’s instruction 

restricting eligibility for court-martial membership frustrated 

the appellant’s right to a properly convened court-martial. 

After carefully considering the record of trial and the 

submissions of the parties, we agree with the appellant’s first 

assignment of error, but find no merit in the second. We 

conclude that the military judge erred both in ruling the 

members’ initial announcement of findings to be ambiguous and in 

applying the incorrect maximum punishment. After taking 

corrective action in our decretal paragraph and reassessing the 

sentence, we conclude the remaining findings and reassessed 

sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant remains. Arts 59(a) and 66(c), UCMJ.

Background

In July of 2008, Commander, Naval Air Force Atlantic 

(COMNAVAIRLANT), the CA in this case, issued an instruction to 

subordinate commands establishing the procedure for nomination 

of prospective court-martial members.1

 That instruction directed 

each subordinate command to provide a certain number of nominees 

in the pay grades of E-7 through O-5. The instruction did not 

call for nominees below E-7, regardless of how junior a 

particular accused may be, and did not call for anyone O-6 or 

above. This instruction was in effect when the CA selected and 

detailed the members of the appellant’s court-martial.

The appellant was charged with “knowingly and wrongfully 

possess[ing] child pornography, to wit: digital videos of a 

minor, or what appears to be a minor, engaging in sexually 

explicit conduct, and that said conduct was to the prejudice of 

good order and discipline in the armed forces and was of a 

nature to bring discredit upon the armed forces.”2 After a trial 

on the merits, during which both parties stipulated that the 

 

1 COMNAVAIRLANT Instruction 5813.1H, dated 29 July 2008. 

2 Charge Sheet (emphasis added). 
3

videos “are actual child pornography within the meaning of 

Article 134, UCMJ,”3 the members found the appellant guilty of 

the Charge and specification, without exception to the language 

charged. 

Upon announcement of the findings, the appellant’s defense 

counsel argued that the maximum sentence applicable was that for 

a general, or simple, disorder under Article 134 (four month’s 

confinement and forfeiture of two-thirds’ pay per month for four 

months), not for a conviction under 18 U.S.C. § 2252A (10 years’ 

confinement, forfeiture of all pay and allowances, and a 

dishonorable discharge). The Government disagreed. The 

military judge then sought to have the members clarify this 

“ambiguity”4 by issuing “special findings.”5

 The military judge 

provided the members a new “special findings worksheet”6

presenting them with four options: 

[W]hat you could have is an acquittal, conviction of 

the charge as is, or you could have a finding of 

guilty for knowing and wrongfully possessing child 

pornography to wit: digital videos of a minor 

engaging in explicit sexual conduct or you could find, 

knowing and wrongfully possessing child pornography to 

wit: what appears to be a minor engaging [in explicit 

sexual conduct].7

The military judge then allowed both counsel to present 

additional argument on the specific issue of whether the images 

in question involved actual minors or merely the appearance 

thereof. In his argument, the appellant’s defense counsel 

conceded that the images were of “real children.”8 After 

 

3 Prosecution Exhibit 7. 

4 Record at 738. 

5 Id. at 739. 

6 Appellate Exhibit LXXIV. 

7 Record at 739. We find it puzzling why a procedure purportedly aimed at 

clarifying an ambiguity would keep as an option the very finding that was 

deemed to be ambiguous, that is, conviction of the charge as-is. We also 

note that providing the members with the option of acquittal goes beyond 

merely asking them to clarify their announced findings and invites them to 

reopen deliberations – something they clearly could not do. Fortunately, for 

reasons provided below, we need not reach and address these concerns here.]

8 Id. at 743. 
4

approximately 15 minutes in the deliberation room, the members 

returned and announced new findings:

Excepting out the words: “or what appears to be a 

minor,” Of the excepted words: Not Guilty; 

Of the specification as excepted: Guilty; 

Of the Charge: Guilty.9

Based on these revised findings, the military judge found that 

the offense of which the appellant was convicted was “analogous 

or basically equal” to 18 U.S.C. § 2252A, and instructed the 

members that the maximum punishment was confinement for 10 

years, a dishonorable discharge, reduction to pay grade E-1, and 

total forfeitures.10 The defense maintained its position that 

the original findings were valid, and that the maximum sentence 

was only that applicable to a simple disorder under Article 134, 

UCMJ.

Other facts necessary to address the assigned errors will 

be provided below.

Maximum Sentence

1. Determining the applicable maximum sentence for offenses 

charged under clause 1 and 2 of Article 134, UCMJ

The maximum punishment authorized for an offense is a 

question of law, which we review de novo. United States v. 

Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011). For limits on authorized 

punishments under the UCMJ, we turn to RULE FOR COURTS-MARTIAL 1003,

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).11 This Rule 

“employs mutually exclusive criteria, dependent upon whether the 

offenses are ‘listed’ or ‘not listed’ ‘in Part IV [of the Manual 

for Courts-Martial].’” United States v. Booker, 72 M.J. 787, 

799 (N.M.Ct.Crim.App. 2013), appeal denied sub nom. United 

States v. Schaleger, 73 M.J. 92, (C.A.A.F. 2013) (summary 

disposition) (citation omitted). The maximum limits for 

authorized punishments are set forth for each offense listed in 

Part IV of the Manual. For offenses not listed in Part IV of 

the Manual, we turn to the President’s guidance in R.C.M. 

1003(c)(1)(B)(i)-(ii). There we find the inquiry is “dependent 

 

9 Id. at 753. 

10 Id. at 766. 

11 Pursuant to authority delegated from Congress under Article 56, UCMJ, the 

President has specified offense-based limits on punishment in R.C.M. 1003.
5

upon whether the charged offense: (1) is closely related to or 

necessarily included in an offense listed in Part IV of the 

Manual, and, if neither, then (2) whether the charged offense is 

punishable as authorized by the United States Code or as 

authorized by custom of the service.” Booker, 72 M.J. at 802 

(footnote omitted). 

 

The President issued Executive Order (EO) 13593 on December 

13, 2011,12 amending Part IV of the Manual for Courts-Martial to 

include Child Pornography as an enumerated Article 134 offense.13 

This Presidential action effectually “listed” Child Pornography 

as an offense in Part IV of the Manual. See Booker, 72 M.J. at 

800-02. Under this offense, possessing child pornography 

carries a maximum punishment of 10 years’ confinement. The 

elements and legal definitions in the new Article 134 offense 

for wrongfully possessing child pornography are virtually 

identical to those the military judge used to instruct the 

members.14 Thus, the charged offense is now either “listed” in 

Part IV of the Manual or “closely related” to the offense of 

wrongfully possessing child pornography as proscribed by MCM 

(2012 ed.), Part IV, ¶ 68b. Additionally, there is no doubt 

that the Article 134 offense of possessing child pornography 

existed in Part IV of the Manual at all relevant stages of the 

appellant’s trial.15 However, the appellant’s charged offense 

occurred on or about June 2011, well before the effective date 

of EO 13593. 

R.C.M. 1003(c) is silent on the question of whether, for 

its punishment limitations to apply, a “listed” offense must be 

in Part IV of the Manual at both the time of the alleged offense 

and at the time of trial, or simply at the time of trial. 

Ultimately, we need not answer this question here, as to read 

R.C.M. 1003(c) to permit in this case the application of the 

maximum punishment now applicable to MCM (2012 ed.), Part IV, ¶ 

68b, would constitute an impermissible ex post facto increase in 

the allowable punishment.16 The Court of Appeals for the Armed 

 

12 Amendments contained in EO 13593 took effect 30 days following its 

issuance. 

13 See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 68b. 

14 Record at 693-96. 

15 Charges were preferred on 9 July 2013, referred on 27 September 2013, and 

the appellant was arraigned on 7 October 2013. 

16 EO 13593 states, in part: “Nothing in these amendments shall be construed 

to make punishable any act done or omitted prior to the effective date of 
6

Forces held, prior to EO 13593’s effective date, that possession 

of “what appears to be” child pornography was punishable under 

Article 134 only as a simple disorder. Beaty, 70 M.J. at 40, 

45. Thus, at the time the appellant committed the charged 

misconduct - post-Beaty, but pre-EO 13593 – the maximum 

punishment applicable was four months’ confinement and 

forfeiture of two-thirds’ pay per month for four months. 

Increasing the possible confinement thirty-fold and adding a 

punitive discharge after the appellant committed the offense 

would violate the appellant’s constitutional protections.

2. Choosing between Findings and “Special Findings”

The critical question, then, is whether the appellant was 

convicted of the specification as written on the charge sheet 

(as was announced by the members in their initial findings) or 

of the specification as excepted by the members (as was 

announced in their second, “special” findings). We conclude it 

was the former.

“A finding on the guilt or innocence of the accused is not 

final until it is formally and correctly announced in open 

court.” United States v. Trew, 68 M.J. 364, 367 (C.A.A.F. 2010)

(citation omitted). Findings, once “announced in open session,” 

are not subject to reconsideration. R.C.M. 924(a). Where an 

error is made in the announcement of findings, however, the 

military judge may instruct the members to correct the error via 

a new announcement. R.C.M. 922(d). In cases where announced 

findings are ambiguous, the military judge should instruct the 

members to clarify their findings. R.C.M. 922(b), Discussion. 

An ambiguous finding that prevents a Court of Criminal Appeals 

from performing the review required under Article 66(c), UCMJ, 

affects an appellant’s “substantial right to a full and fair 

review of his conviction.” United States v. Walters, 58 M.J. 

391, 397 (C.A.A.F. 2003). This court “may not conduct a factual 

sufficiency review when the findings are ambiguous because such 

action creates the possibility that the court would affirm a 

finding of guilt based on an incident of which the appellant had 

been acquitted by the factfinder at trial.” United States v. 

Wilson, 67 M.J. 423, 428 (C.A.A.F. 2009) (citing Walters, 58 

M.J. at 395).

 

this order that was not punishable when done or omitted.” There is no 

similar language regarding maximum punishments. However, “[t]he Constitution 

forbids the application of any new punitive measure to a crime already 

consummated, to the detriment or material disadvantage of the wrongdoer.” 

Lindsey v. Washington, 301 U.S. 397, 401 (1937) (citations omitted).
7

Such was not the case here. There is nothing in the 

original findings that prevents this court from determining 

whether the findings or sentence were “correct in law and in 

fact” and should be approved. Art. 66(c), UCMJ. Nor is there 

anything in the findings that indicates the appellant was 

acquitted of any part of the offense charged. Had the military 

judge not found the initially announced findings to be 

ambiguous, this court would have had no problem performing the 

required review of those findings, and would have arrived at the 

same conclusion it does today.

The Government chose to charge the appellant with 

possessing child pornography using a broad definition that 

allowed the members to convict if they found, inter alia, the 

digital videos to be “of a minor, or what appears to be a minor, 

engaging in sexually explicit conduct.”17 The military judge 

instructed the members that “child pornography” includes both 

depictions of an actual minor child engaging in “sexually 

explicit conduct” and “obscene visual depiction[s] of a minor 

engaged in sexually explicit conduct.”18 He further instructed 

them that “[s]uch a depiction need not involve an actual minor, 

but instead only what appears to be a minor.”19 This is exactly 

what the members found the appellant possessed: digital videos 

of a minor, or what appears to be a minor, engaging in sexually 

explicit conduct. 

It is not for us to second guess the Government’s choice of 

charging language, so long as the language states an offense and 

is sufficiently supported by the evidence presented. In this 

case the Government elected to prosecute the appellant using a 

broad definition of “child pornography.” This broad definition 

lowered the Government’s burden in that it did not necessarily 

need to prove that the images in the videos were of real 

children. In doing so, it bound itself (consciously or not) to 

a lower maximum punishment: that applicable to a simple 

disorder. 

 

17 Charge Sheet. 

18 Record at 694. 

19 Id. The military judge did not instruct the members regarding findings by 

exceptions. We presume that, if the Government’s goal was to have the 

members except the language “or what appears to be a minor,” it would have 

requested this instruction. Likewise, the original findings worksheet 

provided no option for findings by exception. AE XXVI. The Government 

indicated it had no objections to the original findings instructions or 

worksheet. Record at 654.
8

The Government invites us to see the revised findings as 

evidence that the initial findings were ambiguous. We decline 

to do so. What occurred after the initial announcement of 

findings is irrelevant. Once findings were announced, absent 

any error or real ambiguity, they were final. That the members 

subsequently excepted out “or what appears to be a minor” from 

the specification’s language, thus clarifying that they believed 

the images were of actual children, does not affect the validity 

or finality of their initial findings. Nor does it matter that 

the defense stipulated that the images were of actual minors. 

Assuming the members found the stipulated matters to be true, 

the fact the images contained actual minors does not contradict 

their finding that the images were child pornography that 

contained either actual minors or a depiction thereof.

Accordingly, we find the initial findings announced by the 

members in open session were not ambiguous, and that the 

military judge erred both in directing the members to provide 

revised findings and in applying the maximum punishment 

applicable to 18 U.S.C. § 2252A. Under Beaty, it should have 

been clear to the military judge what the applicable maximum 

punishment was given the member’s initial findings.20 Because 

the appellant’s sentence of 18 months’ confinement and a BCD 

exceeded the maximum lawful sentence, it materially prejudiced 

the appellant’s substantial rights. See Beaty, 70 M.J. at 45.

Members Selection

The standard of review for the proper selection of a courtmartial panel is de novo. United States v. Kirkland 53 M.J. 22, 

24 (C.A.A.F. 2000). We look at three primary factors to 

determine whether an impermissible member selection has taken 

place:

 

20 The Government argues that this court’s decision in United States v. 

Barbier, 2012 CCA LEXIS 128 (N.M.Ct.Crim.App. 12 Apr 2012), dictates a 

different result. We disagree. Barbier involved a guilty plea; the 

providence inquiry in that case left no doubt that the accused understood his 

plea and the maximum sentence applicable. There was a clear meeting of the 

minds that Barbier was, in effect, pleading guilty by excepting out the “or 

what appears to be” language. At trial, all parties in Barbier agreed on the 

maximum punishment; the appellant in that case did not voice a contrary 

argument until the case was reviewed on appeal. In the case at bar, the 

appellant raised the issue immediately following announcement of findings, 

thus indicating there was no such agreement on the applicable maximum 

punishment. 
9

1. Improper motive in packing a member pool;

2. Systematic exclusion of potential members based on 

rank or other impermissible variable; and,

3. Good faith attempts to be inclusive and open the 

court-martial process to the entirety of the military 

community.

United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If 

either of the first two criteria is present, the process is 

impermissible. Id. These criteria are not only considered in 

the actual panel selection process, but also in the process of 

presenting nominations to the CA. United States v. Roland, 50 

M.J. 66, 69 (C.A.A.F. 1999). 

In a case of systematic exclusion of members by rank, it is 

the responsibility of the defense to establish the improper 

exclusion. Kirkland, 53 M.J.at 24. Once improper exclusion has 

been established, the burden is placed on the Government “to 

demonstrate that the error did not ‘materially prejudice the 

substantial rights of the accused.’” Dowty, 60 M.J. at 173 

(quoting Art. 59(a), UCMJ). 

Although the record is clear that service members were 

impermissibly excluded from the selection process by virtue of 

their rank,21 the question remains whether that improper 

nomination process materially prejudiced the appellant. In 

reviewing this case we find: (1) no evidence that the errant 

instruction was issued with an improper motive; (2) no evidence 

that the CA had an improper motive when detailing the members 

assigned to the appellant's court-martial; (3) the CA was a 

person authorized to convene a general court-martial; (4) the CA 

was properly advised of his Article 25 responsibilities, and 

that he could pick any member of his command, not just those who 

had been nominated; (5) the court members were personally chosen 

by the CA from a pool of eligible candidates; and, (6) the court 

members all met the criteria in Article 25, UCMJ. Additionally, 

given the appellant’s status as an E-6 past high-year tenure, it 

is unlikely any members below the pay grade of E-7 would have 

been senior to the appellant, and thus eligible to serve as a 

member of his court-martial. Under these circumstances, we are 

convinced that the appellant’s case was heard by a fair and 

impartial panel, and that the error in this case was harmless. 

See United States v. Bartlett, 66 M.J. 426, 431 (C.A.A.F. 2008).

 

21 While the CA indicates he understood it was within his discretion “to 

detail anyone throughout the COMNAVAIRLANT claimancy, including members of 

[his] staff” and that he “could detail officers in the pay grade of O-6,” AE 

XCII at 2, this does not cure the defect in the nomination process. 
10

Failure to Comment on Legal Error

Although not raised as error, we note that the staff judge 

advocate (SJA) failed to comment on the allegations of legal 

error contained in the appellant’s request for clemency 

submitted pursuant to R.C.M. 1105. The SJA “is not required to 

examine the record for legal errors,” but must “state whether, 

in the [SJA’s] opinion, corrective action on the findings or 

sentence should be taken when an allegation of legal error is 

raised in matters submitted under R.C.M. 1105.” R.C.M. 

1106(c)(4). “This applies even if the errors are submitted 

after service of the [SJA] recommendation, as long as that is 

done within the time prescribed by RCM 1105(c)(1).” United 

States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996) (citing United

States v. Hill, 27 M.J. 293, 295-96 (C.M.A. 1988)). The 

appellant’s trial defense counsel submitted the clemency request 

alleging legal error four days after receiving the SJA’s 

recommendation, yet the SJA did not prepare an addendum to his 

recommendation addressing the alleged error. This failure, 

however, does not require an automatic return of the case to the 

CA. “[A]n appellate court may determine if the accused has been 

prejudiced by testing whether the alleged error has any merit 

and would have led to a favorable recommendation by the SJA or 

corrective action by the [CA].” Green, 44 M.J. at 95 (citations 

omitted). 

In his clemency request, the trial defense counsel alleged 

two errors: First, that an investigator’s testimony that she 

thought the appellant was lying and evasive during his 

interrogation constituted improper “human lie detector” 

testimony; and, second, that there was insufficient evidence in 

the record to prove the appellant possessed the child 

pornography during the period alleged in the specification. 

We find both allegations to be without merit. While the 

investigator’s comments on the appellant’s veracity may have 

been improper, we are satisfied that the military judge’s 

curative instruction was sufficient to address the issue. Also, 

the testimony of numerous witnesses that the laptop computer and 

hard drive in question belonged to the appellant was confirmed 

by the appellant himself during his videotaped interrogation. 

Although there was no evidence presented to place either item in 

the appellant’s hands during the period alleged, there was more 

than sufficient evidence to prove that he constructively 

possessed the computer and hard drive, as well as the child 

pornography found thereon. 
11

Accordingly, we find that the alleged errors would not have 

led to a favorable SJA recommendation or corrective action by 

the CA. There being no prejudice, no remedy is required. 

Sentence Reassessment 

As we hold that the maximum punishment applicable in this 

case was four months’ confinement and forfeiture of two-thirds’ 

pay per month for four months, we will reassess the sentence in 

accordance with the principles set forth in United States v. 

Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006), United States v. Cook, 

48 M.J. 434, 438, (C.A.A.F. 1998), and United States v. Sales, 

22 M.J. 305, 307-09 (C.M.A. 1986). Applying the incorrect 

maximum punishment of ten years’ confinement, total forfeiture 

of pay and allowances, and a dishonorable discharge, the members 

sentenced the appellant to confinement for 18 months and a BCD. 

While our holding certainly presents a “dramatic change in the 

penalty landscape,” United States v. Buber, 62 M.J. 476, 479 

(C.A.A.F. 2006) (quoting United States v. Riley, 58 M.J. 305, 

312 (C.A.A.F. 2003)), this change does not preclude our ability 

to reassess the sentence in this case. 

The correct applicable maximum sentence is far below what 

the members imposed. However, the evidence considered by the 

members has not changed; the graphic and disturbing images 

involved have not changed; the impact on good order and 

discipline has not changed; and the evidence ultimately provided 

to the members during the sentencing proceedings almost 

certainly would not have changed. In his argument on 

sentencing, the trial defense counsel asked the members to 

“consider something slightly more serious than NJP. . . .

something in the 60 to 75-day range and a reduction of one or 

two rates.”22 The members far exceeded this in their sentence, 

obviously viewing the appellant’s misconduct as something 

meriting punishment much “more serious than NJP.” Maximum 

sentences serve as an upper limit on the permissible range of 

punishments for a given offense, and we believe the members 

would have found the appellant’s conduct to fall within the most 

egregious of simple disorders. Finally, and unfortunately, this 

court is all too familiar with cases involving the possession of 

child pornography and the sentences that accompany them. 

Accordingly, we conclude that the members would have imposed the 

maximum sentence permitted for a general disorder involving the 

 

22 Record at 806. Nonjudicial punishment (NJP) is authorized to address 

“minor offenses” and does not (except in a very limited circumstance) include 

confinement. Art. 15, UCMJ. 
12

possession of this child pornography under these circumstances. 

We further conclude such a sentence is appropriate in this case.

Conclusion 

The revised findings announced by the court-martial are a 

nullity. The original findings announced by the court-martial 

and only so much of the sentence as includes four months’ 

confinement and forfeiture of two-thirds’ pay per month for four 

months are approved. 

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court