UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, AND WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 JOSHUA A. MARKS 

United States Army, Appellant 

ARMY 20150428 

Headquarters, U.S. Army Combined Arms Center & Fort Leavenworth 

Charles L. Pritchard, Jr., Military Judge 

Lieutenant Colonel Leslie A. Rowley, Acting Staff Judge Advocate 

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Heather L. 

Tregle, JA (on brief); Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, 

JA; Captain Matthew L. Jalandoni, JA (on brief on specified issue) 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Michael E. Korte, JA (on brief). 

28 November 2016 

--------------------------------- 

MEMORANDUM OPINION 

--------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge: 

In this appeal we address the appropriateness of appellant’s sentence of five 

years confinement for drawing thirteen obscene cartoons. More specifically, this 

case raises the unique circumstance where the parties agreed that in determining an 

appropriate sentence, (and reviewing that sentence on appeal), the court was allowed 

to consider the mandatory minimum sentence that would have applied had the case 

been tried in a federal district court. 

Before a military judge sitting as a general court-martial, appellant pleaded 

guilty to one specification of producing obscene material (for drawing the thirteen 

obscene cartoons) and one specification of possession of obscene material (for 

possessing those same thirteen cartoons). Both specifications alleged violations of 

18 U.S.C. § 1466A, charged under clause 3 of Article 134, Uniform Code of Military 
MARKS—ARMY 20150428 

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Justice, 10 U.S.C. § 934 [hereinafter UCMJ]. In addition to the five years of 

confinement, the military judge also sentenced appellant to be dishonorably 

discharged. The convening authority approved the adjudged sentence, but, 

consistent with a pretrial agreement, suspended the final year of the sentence for a 

period of thirty-two months. 

Critical to understanding this case, is the fact that this was not appellant’s 

first court-martial. In September 2013, appellant was sentenced to dishonorable 

discharge and nine years of confinement after pleading guilty to several 

specifications of possessing child pornography. Pursuant to a pretrial agreement in 

that case, the convening authority reduced appellant’s sentence to confinement to 

two years. The obscene material that is the subject of this appeal was discovered in 

appellant’s cell in the Joint Regional Confinement Facility at Fort Leavenworth, 

Kansas, during a routine cell inspection. 

We specified the issue of whether this Court may consider the parties’ 

stipulation.1

 

BACKGROUND 

A. The Drawings 

On thirteen pieces of paper appellant drew cartoons of young girls performing 

sexual acts with adult men. The girls are all drawn in an “ánime” or “manga” style 

associated with Japanese cartoons. While the girls are drawn clearly, the male 

images are somewhat formless, often without faces or facial features, and except for 

the male genitalia, drawn without detail. The girls are clearly drawn with childlike 

expressions and bodies, are wearing children’s clothes, and stand at approximately 

half the height or less of the male images. In each of the images, the girl is depicted 

performing one or more sex acts on the male penises. In most cases, appellant drew 

the man’s penis in an enlarged manner, often larger than the girl’s arms or thighs. A 

few of the drawings have captions or speech bubbles, including: “they start out so 

 

1

 Appellant’s sole assigned error was that the cartoons are not obscene. Whether 

something is “obscene” is a question of fact. When appellant described the drawings 

and agreed that the cartoons were obscene because they were “patently offensive,” 

and admitted they had no “artistic” or “scientific” value,” he adequately established 

the factual predicate for his plea. Thus, we find no basis in law or fact to question 

the providence of appellant’s plea. “[W]e adhere to the well-established legal 

principle that a guilty plea generally precludes the post-trial litigation of factual 

questions pertaining to one’s guilt.” United States v. Lloyd, 46 M.J. 19, 24 

(C.A.A.F. 1997). Nonetheless, even looking at this issue with fresh eyes as 

appellant requests, we would independently find the drawings to be obscene. See 

Miller v. California, 413 U.S. 15, 24 (1973). 
MARKS—ARMY 20150428 

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young;” “sex for candy;” and “kids these days.” In one image, a girl is leaning out 

of a shower while being penetrated from behind by a male figure. A voice outside 

the picture asks “Honey, have you seen your dad[?],” to which the girl responds, 

“No mom havint [sic] seen him.” 

B. The Stipulation 

As part of appellant’s agreement to plead guilty, appellant agreed to “enter 

into a written Stipulation of Fact . . . .” He further agreed that “[t]his stipulation 

may be used pursuant to this agreement to determine the providence of my plea and 

to inform the Military Judge of matters pertinent to an appropriate sentence.” 

(emphasis added). 

As is typical, the stipulation included an agreement on how the stipulation 

could be used. The parties agreed that: 

These facts and enclosures are admissible and may be 

considered by the sentencing authority and on appeal in 

determining an appropriate sentence, even if the evidence 

of such facts is deemed otherwise inadmissible. . . .The 

Accused waives any objection he may have to the 

admission of these facts and any referenced prosecution 

exhibits into evidence under any Military Rule of 

Evidence and under R.C.M. 1001(b). 

The parties later went further and agreed that the stipulation may be used “for any 

lawful purpose.” 

As part of the stipulation the parties agreed to take judicial notice of the 

penalties attributable under federal law. Specifically, the parties stipulated that in 

the case of someone who had previously been convicted of possession of child 

pornography, that there was a 10 year mandatory minimum sentence for a subsequent 

offense of possessing obscene material.2

 

 

2

 As appellant pointed out in his brief on the specified issue, there are several 

problems with the stipulation as written. First, it asserts that judicial notice will be 

taken under “R.C.M. 201(b).” It is Military Rule of Evidence [hereinafter Mil. R. 

Evid.] 201 and 201A that govern judicial notice. Second, judicial notice of a federal 

statute is not a “fact” but is rather an agreement on the law. That is, the parties were 

stipulating to laws not facts. Third, the stipulation referenced the wrong title of the 

United States Code. So, the parties referenced the mandatory minimum sentence for 
MARKS—ARMY 20150428 

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LAW AND DISCUSSION 

A. Mandatory Minimum Sentences 

Although not in serious dispute, as an initial matter, we find that there is no 

mandatory minimum sentence in this case. 

Congress has placed few limits on the punishments that courts-martials may 

adjudge. In general, the maximum statutory punishment for each offense is “as a 

court-martial may direct.” See Articles 78; 80-105; 106a-134, UCMJ; but see 

Article 106, UCMJ (“shall be punished by death”). Congress has placed four 

limitations on this broad authority. First, Congress specifically limited a sentence of 

death to certain offenses. See Articles 85, 90, 94, 99-103, 104-106a, 110, 113, and 

118, UCMJ. Second, Congress prohibited punishment by flogging, branding, 

marking, tattooing, and other “cruel and unusual punishment.” UCMJ art. 55. 

Third, the Congress has limited the punishment that may be adjudged at summary 

and special courts-martial. UCMJ arts. 19, 20. Fourth, and most important, 

Congress delegated to the President the authority to set “limits” on punishments that 

a court-martial may adjudge. UCMJ art. 56. 

The President has exercised his Article 56, UCMJ, authority in two distinct 

manners. 

First, the President has limited the type of punishment that may be adjudged. 

Rule for Court-Martial [hereinafter R.C.M.] 1003(b) (“Authorized punishments”). 

Thus, a court-martial may not adjudge “probation” or require that an accused attend 

drug treatment or parenting classes. The court-martial is limited to the specific 

types of punishments (punitive discharge, confinement, fines, forfeitures, reductions, 

etc.) allowed by the President. 

Second, the President has limited the amount of punishment that may be 

adjudged. R.C.M 1003(c). The President has prescribed limits on the punishment 

that may be imposed based on the type of offense, the rank of the accused, and on 

the accused’s reserve status or as a status as a person “accompanying an armed force 

in the field.” R.C.M 1003(c)(1-4). 

 

(continued . . .) 

(. . . continued) 

possession of obscene matter under “10 U.S.C. 1466A(a)” (which does not exist), 

instead of 18 U.S.C. 1466A (which is the offense to which appellant pleaded guilty). 

Nonetheless, we find that within the context of the entire agreement, the parties 

intended to agree that the court-martial could consider the mandatory minimum 

sentence that appellant would have faced had the case been tried in a U.S. District 

Court. Accordingly, we address whether we may consider such an agreement. 
MARKS—ARMY 20150428 

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For the offenses presented in this case, the President has prescribed that the 

offense is “punishable as authorized by the United States Code.” R.C.M. 

1003(c)(1)(B)(ii) (“When the United States Code provides for confinement for a 

specified period . . . the maximum punishment by court-martial shall include 

confinement for that period.”). 

However, neither the Congress’s delegation of authority under Article 56, 

UCMJ, nor the President’s exercise of that authority, incorporates mandatory 

minimum punishments from the United States Code into court-martial sentences. 

Accordingly, there is no mandatory minimum sentence in this case. 

B. Limits on Pretrial Agreements 

R.C.M. 1001 severely restricts the type of evidence that may be admitted 

during pre-sentencing proceedings. Relevant evidence under Mil. R. Evid. 402 is 

excluded unless it is of the type specified in R.C.M. 1001(b) and (c). Government 

sentencing evidence is limited to evidence of aggravating circumstances directly 

relating to the offenses, the service record of the accused, opinions on the accused’s 

rehabilitative potential, and any evidence of prior convictions. R.C.M. 1001(b). 

Unless somehow rebutting evidence offered by the defense, it is unlikely that 

evidence concerning mandatory minimum sentences that would be imposed by 

civilian courts fits within one of these permissible categories. 

Accordingly, we next consider whether it permissible for a pretrial agreement 

to put before the sentencing authority the mandatory minimum sentence that might 

be imposed under the United States Code. That is, is it permissible to bypass the 

rules governing admissible evidence in sentencing as part of a pretrial agreement? 

In general, pretrial agreements may include any term unless it is prohibited. 

R.C.M 705(d)(1) (“Either the defense or the government may propose any term or 

condition not prohibited by law or public policy.”) (emphasis added). The rule is 

permissive. 

Our superior court has stated that “an otherwise valid guilty plea will rarely, 

if ever, be invalidated on the basis of plea-agreement provisions proposed by the 

defense.” United States v. Gibson, 29 M.J. 379, 382 (C.M.A. 1990) (citations 

omitted) (emphasis added). Even when the government proposes a term, “[o]nly 

actions which may reasonably be construed as attempts to orchestrate the trial 

proceeding itself” or terms that attempt to turn “the trial proceedings into an empty 

ritual” will be rejected. United States v. Jones, 23 M.J. 305, 307 n.4 (C.M.A. 1987). 
MARKS—ARMY 20150428 

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Rules governing evidence and criminal procedure are “presumptively 

waivable.” United States v. Mezzanatto, 513 U.S. 196, 201-02 (1995).3

 This 

principle by the Supreme Court was adopted by our superior court in United States v. 

Rivera, 46 M.J. 52, 53-54 (C.A.A.F. 1997). The Court of Appeals for the Armed 

Forces stated that Article 36, UCMJ, sets out a “congressionally mandated policy” 

that to the extent practicable court-martial procedures should mirror those of U.S. 

district courts. Id. at 53. 

The Court in Mezzanatto, however distinguished between agreements that 

sought to put more evidence in front of the fact-finder, and agreements that sought 

to prevent the fact-finder from hearing certain facts. In Mezzanatto the defendant 

had waived the protections of Fed. R. Evid. 410 and statements made by him as part 

of pretrial negotiations were introduced against him for impeachment: 

The admission of plea statements for impeachment 

purposes enhances the truth-seeking function of trials and 

will result in more accurate verdicts. Cf. . . . Note, 

[Contracts to Alter the Rules of Evidence], 46 Harv. L. 

Rev. [138], 142-,43 ("[A] contract to deprive the court of 

relevant testimony . . . stands on a different ground than 

one admitting evidence that would otherwise have been 

barred by an exclusionary rule. One contract is an 

impediment to ascertaining the facts, the other aids in the 

final determination of the true situation"). 

513 U.S. at 204-05 (some internal citations omitted). Such a view also comports 

with the Rules for Courts-Martial. R.C.M. 705(c)(1)(B) prohibits any term in a plea 

agreement that deprives the accused of “the right to complete sentencing 

proceedings.” 

Cases in which an agreement expanded the evidence that could be considered 

by the court have been found permissible. United States v. Gallaspie, 63 M.J. 647, 

648 (N-M. Ct. Crim. App. 2006) (reviewing an agreement that waived any objection 

to hearsay); see also United States v. Gibson, 29 M.J. 379 (C.M.A. 1990) (permitting 

pretrial agreement in which the accused waived his rights to object to hearsay and 

confrontation clause issues). 

 

3 But see, e.g. United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) 

(Agreement to be tried by twelve orangutans would be invalid “because some 

minimum of civilized procedure is required by community feeling regardless of what 

the defendant wants or is willing to accept.”). 
MARKS—ARMY 20150428 

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On the other hand courts have looked unfavorably on agreements where the 

parties agreed to restrict the evidence that was put in front of the court. United 

States v. Sunzeri, 59 M.J. 758 (N.M. Ct. Crim. App. 2004) (agreement prohibited 

remote witnesses from testifying by any means); but see United States v. Edwards, 

58 M.J. 49 (C.A.A.F. 2003) (finding no error in agreement that limited the accused’s 

unsworn statement because the limitation did not restrict mitigation evidence). 

As the agreement in this case sought to expand the information available to 

the fact-finder it did not deprive appellant of “complete sentencing proceedings” 

under R.C.M. 705(c)(1)(B). As such, we find the term to be permissible. 

C. Evidentiary Weight 

Accordingly, the question before us is what weight, if any, a court-martial (or, 

on appeal, a Court of Criminal Appeals) may give to the fact that a mandatory 

minimum sentence would apply in a different forum. Put more broadly, may a 

military sentencing authority or reviewing authority consider factors that guide the 

sentence in civilian forums when determining or reviewing a court-martial 

sentence?4

 We answer the narrow question before us in the affirmative: Where the 

court-martial was composed of a military judge alone, where the parties have 

specifically agreed to put the issue in front of the court, and where the parties have 

jointly waived the applicability of the rules of evidence and rules of courts-martial, 

the court may give it the weight that it is due. 

In United States v. Hutchison, our superior court found that a court of 

criminal appeals is “statutorily required to review the entire record to determine 

whether the sentence, as approved by the convening authority, should be approved 

on appeal. 57 M.J. 231, 234 (C.A.A.F. 2002). In that case, the record included 

parallel civilian proceedings. Id. The CAAF held that the court could consider this 

information in determining sentence appropriateness. The court also stated that the 

court “could bring to bear their wisdom, experience, and expertise” to include 

“service regulations, customs, and policies.” Id. That is, the court could consider 

civilian proceedings (if introduced into the record) and could consider service 

regulations, customs, and policies. In other words, Hutchinson would appear to 

condone the very issue we wrestle with here. 

 

4

 While information concerning a mandatory minimum would appear to always favor 

the government, the applicable sentencing guideline in a civilian court or the median 

sentence adjudged by a civilian court for an offense may weigh in favor of an 

accused. 
MARKS—ARMY 20150428 

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Accordingly, we will accord the stipulated mandatory minimum their due 

weight. Which, as we explain below, is to say, not much. We assign this particular 

stipulation little weight for several reasons. 

First, the ham-fisted manner in which the stipulation was written detracts 

from the evidentiary weight we are willing to give it. See fn. 2, supra. That is, 

while we assess that the intent of the parties in the stipulation was to inject the issue 

of mandatory minimums into the court-martial, our lack of full confidence in that 

determination subtracts from the weight that we might otherwise give it. Our 

confidence is further eroded by the absence of any discussion between the military 

judge and the parties about how the stipulation was to be used; forcing us to rely 

entirely on the language of the stipulation itself. 

Next, a ten-year mandatory minimum may reflect the Congress’s wisdom that 

repeat offenders need extra deterrence. It may also reflect a belief that a minimum 

ten-year sentence is necessary for either the protection of society or even perhaps for 

pure retributive concerns. However, the need for deterrence, retribution, and the 

protection of society, especially in a case that involves a second offense, is already 

squarely before us. The fact that the accused, while serving a sentence for 

possession of child pornography, created and possessed obscene images of adults 

having sex with children is already highly aggravating. 

Finally, it could just as easily be inferred that the absence of any 

congressionally mandated minimum sentence in the UCMJ for repeat offenders also 

reflects the wisdom of Congress. 

Thus, while we will consider the stipulation as it concerns civilian mandatory 

minimums, we do not view this consideration as materially affecting our assessment 

of the sentence. Finally, given that the military judge’s sentence of five years was 

half the stipulated mandatory minimum, and given that appellant specifically agreed 

that the convening authority could approve a five year sentence, we similarly find 

that the military judge gave the stipulation its proper weight. 

CONCLUSION 

 The findings and sentence are AFFIRMED. 
MARKS—ARMY 20150428 

9

Senior Judge MULLIGAN and Judge Febbo concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: