UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.R. MCFARLANE, J.A. FISCHER

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JAMES P. LYNCH

FIRE CONTROLMAN FIRST CLASS (E-6), U.S. NAVY

NMCCA 201300387

GENERAL COURT-MARTIAL

Sentence Adjudged: 26 June 2013.

Military Judge: CDR Ian Thornhill, JAGC, USN.

Convening Authority: Commander, Navy Region Midwest, Great 

Lakes, IL.

Staff Judge Advocate's Recommendation: LCDR K.A. Trunnell, 

JAGC, USN.

For Appellant: LtCol Richard D. Belliss, USMCR.

For Appellee: LCDR Keith B. Lofland, JAGC, USN; Maj David 

Roberts, USMC.

19 August 2014

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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 military judge sitting as a general court-martial 

convicted the appellant, pursuant to his pleas, of two 

specifications of possession of child pornography in violation 

of Article 134, Uniform Code of Military Justice, 10 U.S.C. 
2

§ 934. The military judge sentenced the appellant to 

confinement for four years, reduction to pay grade E-1, total 

forfeiture of all pay and allowances, and bad-conduct discharge. 

The convening authority (CA) approved the sentence as adjudged

and, pursuant to a pretrial agreement, suspended all confinement 

in excess of twenty-four months.

The appellant now alleges three related assignments of 

error:

I. Whether Specification 3 of the Charge (possession 

of child pornography) fails to state an offense as 

the specification alleges conduct occurring before 

the date on which Article 134, UCMJ (Child 

Pornography) went into effect?

II. Did the military judge abuse his discretion in 

accepting appellant’s plea of guilty to 

Specification 3 of the Charge (possession of child 

pornography) as there is a substantial basis in both 

fact and law for questioning the plea?

III. Did the military judge commit plain error by 

retroactively applying Article 134, UCMJ (Child 

Pornography) to Specification 3 of the Charge 

(possession of child pornography) in violation of 

the prohibition against ex post facto laws?

All of the appellant’s assignments of error are premised 

upon the argument that Clause 2 of Article 134 could not be used 

to charge a service member with possession of child pornography 

prior to the enactment of Executive Order 13593, which expressly 

added child pornography to the list of disorders and neglects 

that can be prejudicial to good order and discipline or service 

discrediting. This argument, which bore no indication of having 

been made pursuant to United States v. Grostefon,

1 stands in 

direct contradiction to a long line of appellate case law, not 

cited by the appellant. See e.g. United States v. Barberi, 71 

 

1 United States v. Grostefon, 12 M.J. 431, 437 (C.M.A. 1982) (requiring 

appellate defense counsel to raise errors specified by the appellant, “no 

matter how frivolous the issue.”)
3

M.J. 127, 131 (C.A.A.F. 2012); United States v. Roderick, 62 

M.J. 425, 429 (C.A.A.F. 2006); United States v. Mason, 60 M.J. 

15, 18-19 (C.A.A.F. 2004); United States v. O'Connor, 58 M.J. 

450, 454 (C.A.A.F. 2003); United States v. Augustine, 53 M.J. 

95, 96 (C.A.A.F. 2000).

Finding no merit in the appellant's arguments, and having 

carefully considered the record of trial and the parties' 

pleadings, we conclude that the findings and sentence are 

correct in law and fact and that no error materially prejudicial 

to the substantial rights of the appellant was committed. Arts. 

59(a) and 66(c), UCMJ.

Conclusion

The findings and the sentence as approved by the CA are 

affirmed.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court