UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

KERN, ALDYKIEWICZ, and MARTIN

Appellate Military Judges

UNITED STATES, Appellee

v.

Private First Class JUSTIN H. ADAIR

United States Army, Appellant

ARMY 20100933

Headquarters, 3d Infantry Division and Fort Stewart

Tiernan P. Dolan, Military Judge

Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate (pretrial)

Colonel Jonathan C. Guden, Staff Judge Advocate (post-trial)

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, 

JA; Captain T. Campbell Warner, JA (on brief). 

28 August 2013

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of knowingly and wrongfully possessing 

two (2) images of child pornography and one specification of knowingly and 

wrongfully possessing forty-one (41) images of obscene virtual child pornography, 

both specifications alleging conduct of a nature to bring discredit upon the Armed 

Forces, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 

934 (2006) [hereinafter UCMJ]. The court sentenced appellant to a bad-conduct 

discharge, confinement for fifteen months, and reduction to the grade of E-1. 

Pursuant to a pretrial agreement, the convening authority approved the sentence as 

adjudged with exception of the confinement, approving only six months of 

confinement. The convening authority also credited appellant with two days of 

confinement against the sentence to confinement. 
ADAIR—ARMY 20100933

2

Appellant's case is now before this court for review under Article 66, UCMJ. 

On appeal appellant raises two assignments of error. First, appellant argues that the 

sentence must be set aside “because the military judge determined the sentence 

based on the incorrect maximum punishment in light of United States v. Beaty, 70 

M.J. 39 (C.A.A.F. 2011).” Second, appellant argues that his guilty plea for 

Specification 2 is improvident because the military judge “never elicited facts 

establishing a direct and palpable connection between the military mission and 

possession of virtual images.” As discussed below, the military judge erred in 

accepting appellant’s plea to knowingly and wrongfully possessing forty-one (41) 

images of “obscene virtual images.” Our resolution of appellant’s second 

assignment of error moots appellant’s first assignment of error. Appropriate relief is 

provided in our decretal paragraph. 

BACKGROUND

In December 2009, appellant’s spouse, while looking for a picture on 

appellant’s personal computer, discovered child pornography. After confronting 

appellant about her discovery, she notified appellant’s chain of command who in 

turn notified members of the Army’s Criminal Investigation Command. A criminal 

investigation was opened, which included the seizure and forensic examination of 

appellant’s computer. Upon examination, two (2) images of actual child 

pornography and forty-one (41) images of virtual child pornography were 

discovered, images forming the basis of Specifications 1 and 2 of The Charge 

respectively. 

The issue before this court is the providence1of appellant’s plea to knowing 

and wrongful possession of “obscene virtual images” of child pornography 

(Specification 2 of The Charge). The specification at issue reads:

 

1

The specific error assigned by appellant on appeal reads:

WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW 

AND FACT TO QUESTION APPELLANT’S PLEA TO 

SPECIFICATION 2 OF THE CHARGE WHERE DURING 

APPELLANT’S GUILTY PLEA THE MILITARY JUDGE 

NEVER ELICITED FACTS ESTABLISHING A DIRECT 

AND PALPABLE CONNECTION BETWEEN THE 

MILITARY MISSION AND POSSESSION OF VIRTUAL 

IMAGES.
ADAIR—ARMY 20100933

3

SPECIFICATION 2: In that Private First Class (E-3) 

Justin Adair, US Army, did, between on or about 15 

January 2009 and on or about 8 December 2009, at or near 

Fort Stewart, Georgia, knowingly and wrongfully possess 

forty one (41) obscene virtual images, including hand 

drawn and computer generated images, of minors engaging 

in sexually explicit conduct, which conduct was 

prejudicial to good order and discipline of the Armed 

Forces or of a nature to bring discredit upon the Armed 

Forces. 

Appellant’s conviction for Specification 1 of The Charge, knowingly and 

wrongfully possessing two (2) images of child pornography [hereinafter actual child 

pornography], is correct in law and fact. Resolution of the providence of appellant’s 

plea to knowingly and wrongfully possessing forty-one (41) “obscene virtual 

images” [hereinafter virtual child pornography], however, necessarily requires 

review of the providence inquiry into appellant’s plea to the former as the military 

judge used definitions associated with the actual child pornography offense to advise 

appellant on and establish his providence for the virtual child pornography offense. 

Similarly, when discussing whether appellant’s possession of virtual child 

pornography was conduct of a nature to bring discredit upon the Armed Forces, 

appellant bootstrapped statements he made during his plea colloquy for possession 

of actual child pornography to explain why his possession of virtual child 

pornography was service discrediting. 

A. Actual Child Pornography Providence Inquiry

After providing appellant with the elements associated with Specification 1 of 

The Charge, possession of actual child pornography, the military judge advised 

appellant of the relevant legal definitions. The military judge defined, inter alia, 

“child pornography” and “sexually explicit conduct” in accordance with 18 U.S.C. § 

2256 (2006), advising appellant as follows: 

“Child pornography” means any visual depiction including 

any photograph, film, video, picture, or computer or 

computer-generated image or picture, whether made or 

produced by electronic, mechanical, or other means of 

sexually explicit conduct, where: a) the production of such 

visual depiction involves the use of a minor engaging in 

sexually explicit conduct; b) such visual depiction is a 

digital image, computer image, or computer-generated 

image that is, or is indistinguishable from, that of a minor 

engaging in sexually explicit conduct; c) such visual 

depiction has been created, adapted, or modified to appear 
ADAIR—ARMY 20100933

4

that an identifiable minor is engaging in sexually explicit 

conduct.

. . . 

“Sexually explicit conduct” means graphic sexual 

intercourse including genital-genital, oral-genital, analgenital, or oral-anal, whether between persons of the same 

or opposite sex or lascivious simulated sexual intercourse 

where the genitals, breasts, or pubic area of any person is 

exhibited; graphic or lascivious simulated; (sic) bestiality; 

(sic) masturbation; (sic) or sadistic or masochistic abuse; 

or graphic or simulated lascivious exhibition of the 

genitals or pubic area of any person.

18 U.S.C. §§ 2256(8) and 2256(2)(B) (2006) respectively. 

In defining “lascivious,” an undefined term in 18 U.S.C. § 2256, the military 

judge provided a definition virtually identical to that provided in United States v. 

Mauldin: 

“Lascivious” means exciting sexual desires or marked by 

lust. Not every exposure of genitals or pubic area 

constitutes a lascivious exhibition. Consideration of the 

overall content of the visual depiction should be made to 

determine if it constitutes a lascivious exhibition. In 

making this determination, considered are such factors as 

whether the focal point of the depictions is on the genitals 

or pubic area, whether the setting is sexually suggestive, 

whether the child is depicted in an unnatural pose or in 

inappropriate attire considering the child’s age, whether 

the child is partially clothed or nude, whether the 

depiction suggests sexual coyness or willingness to engage 

in sexual activity, whether the depiction is intended to 

elicit a sexual response in the viewer, whether the 

depiction portrays the child as a sexual object, and any 

captions that may appear on the depiction or the materials 

accompanying the depiction. A visual depiction, however, 

need not involve all of these factors to be a lascivious 

exhibition. 

United States v. Mauldin, ARMY 2010647, 2011 WL 4905724, at *2 (Army Ct. 

Crim. App. 2011) (summ. disp.) (finding lascivious definition provided proper 

according the factors adopted by United States v. Roderick, 62 M.J. 425, 429-430 
ADAIR—ARMY 20100933

5

(C.A.A.F. 2006) and derived from United States v. Dost, 636 F. Supp. 828, 832 

(S.D.Cal. 1986)).

Although not required for a finding of guilt to Specification 1 of The Charge, 

possession of actual child pornography, the military judge defined “Obscene virtual 

images of minors engaging in sexually explicit conduct” as follows: 

“Obscene virtual images of minors engaging in sexually 

explicit conduct” means images that are distinguishable 

from an actual minor engaging in sexually explicit 

activity, but nonetheless, are depictions of minors or of 

what appears to be minors engaged in sexually explicit 

conduct.

Finally, the military judge defined service discrediting conduct as “conduct 

which tends to harm the reputation of the service or lower it in public esteem,” the 

standard definition found in the Military Judges’ Benchbook. See Dep’t of Army, 

Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3-60-2A.d. (1 Jan 

2010).

When asked by the military judge why his possession of actual child 

pornography was service discrediting, the following colloquy occurred:

ACC: Viewing child pornography is basically viewing 

child abuse – child sexual abuse, and if a civilian were to 

know that me being a service member were (sic) viewing 

said materials, it would bring the armed services into a 

lower esteem in the public eye.

MJ: You mentioned earlier that your wife had 

discovered these images. Do you believe that in her eyes 

the military was somehow discredited by your actions?

ACC: I wouldn’t know, Your Honor.

MJ: Nonetheless, you believe that were word to get out, 

and this is a public forum, your actions would lower the 

esteem in which the armed forces are held in the public?

ACC: I believe so, Your Honor. 
ADAIR—ARMY 20100933

6

B. Virtual Child Pornography Providence Inquiry

In advising appellant on the elements and definitions for Specification 2 of 

The Charge, possession of virtual child pornography, the following colloquy 

occurred:

[MJ]: In Specification 2 of The Charge, you are charged 

with possession of virtual child pornography, in violation 

of Article 134, UCMJ. In order for me to find you guilty 

of this offense, you must admit and I must find that:

One, that on or about 27 July 20092and 8 December 

2009, at or near Fort Stewart, Georgia, you possessed 41 

obscene virtual images of minors engaging in sexually 

explicit conduct; and 

Two, that such possession of obscene virtual images 

of minors engaging in sexually explicit conduct was 

prejudicial to the good order and discipline of the armed 

forces or was of a nature to bring discredit upon the armed 

forces.

The Phrase “minors engaging in sexually explicit 

conduct” is a phrase that has a meaning equivalent to child 

pornography.” I defined child pornography, to include the 

phrase “obscene virtual images of minors engaging in 

sexually explicit conduct” earlier. 

Would you like me to read those definitions again?

ACC: No, Your Honor.

MJ: All the other definitions that I provided for 

Specification 1 of The Charge are the same and apply 

equally to Specification 2 of The Charge.

Would you like me to reread or reinstruct on any of 

those definitions?

ACC: No, Your Honor. 

 

2

The pleadings allege misconduct between on or about 15 January 2009 and 8 

December 2009, a fact later corrected by the military judge. 
ADAIR—ARMY 20100933

7

After noting the elements and definitions associated with Specification 2 of 

The Charge, the military judge engaged in a colloquy with appellant regarding why 

he was guilty of the offense as charged. At one point, the military judge asked 

appellant whether he believed the forty-one images in question “were of a minor 

engaged in sexually explicit conduct or images depicting art or the beauty of the 

human body?”3 Appellant responded that they were images of “sexually explicit 

conduct.” Neither the reason for the military judge’s question nor its significance 

was discussed with or explained to appellant. 

When the discussion shifted to whether appellant’s conduct was service 

discrediting, the following colloquy occurred:

MJ: Were your actions in possessing these 41 images the 

type of conduct which is service discrediting?

ACC: Yes, Your Honor.

MJ: How so?

ACC: Same as Specification 1, whereas I believe an 

average everyday citizen wouldn’t distinguish the two 

virtual -- actual being a difference.

MJ: I’m sorry?

ACC: I wouldn’t assume that an everyday citizen would 

distinguish the difference between virtual child 

pornography and actual child pornography.

MJ: So what effect on that citizen would your 

possession of these images have?

ACC: That to them it would still depict child sexual abuse 

and to know that a service member was viewing these 

materials would bring discredit or lower the esteem of the 

armed services in the eye of the public. 

 

3

The military judge asked the same question during the providence inquiry into 

appellant’s possession of actual child pornography, a question of no legal relevance 

or significance when dealing with actual child pornography as defined by 18 U.S.C. 

§ 2256(8) (2006) as opposed to “obscene virtual images” in violation of 18 U.S.C. § 

1466A(b) (2006).
ADAIR—ARMY 20100933

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C. Stipulation of Fact Definition of Virtual Child Pornography

The stipulation of fact stated, in relevant part: “For the purposes of this 

stipulation of fact, the term virtual child pornography is defined as: visual depictions 

of any kind, including a drawing, cartoon, computer generated image, scul pture, or 

painting that depicts a minor engaging in obscene sexually explicit conduct.” 

Obscene is undefined in the stipulation. 

LAW AND DISCUSSION

We conclude that the military judge abused his discretion by accepting 

appellant’s guilty plea to possession of “obscene virtual images.” In particular, the 

military judge failed to properly define the term “obscene” to appellant. The 

military judge compounded this error by not reconciling his definition of virtual 

child pornography with the definition in the stipulation of fact. Furthermore, we 

conclude that we cannot merely except the term “obscene” from Specification 2 and 

affirm a general disorder under Clause 2. We are not confident that appellant 

understood the legal consequences of possessing non-obscene virtual child 

pornography and whether possession of such images tends to bring discredit upon 

the armed forces. Accordingly, we find a substantial basis in law and fact to 

question to the providence of appellant’s guilty plea. 

A. OBSCENE VIRTUAL CHILD PORNOGRAPHY

“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)

(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a 

military judge’s decision to accept a plea for an abuse of discretion by determining 

whether the record as a whole shows a substantial basis in law or fact for 

questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial

[hereinafter R.C.M.] 910(e). 

A knowing and voluntary plea requires the military judge to explain the 

elements of an offense to the accused and to elicit the factual basis of the offense. 

United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003) (citations omitted). 

Failure to do so constitutes reversible error unless “ ‘it is clear from the entire record 

that the accused knew the elements, admitted them freely, and pleaded guilty 

because he was guilty.’” Id. (quoting United States v. Jones, 34 M.J. 270, 272 

(C.M.A. 1992)). “The providence of a plea is based not only on the accused's 

understanding and recitation of the factual history of the crime, but also on an 

understanding of how the law relates to those facts.” United States v. Medina, 66 

M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care, 18 U.S.C.M.A. 535, 538–

39, 40 C.M.R. 247, 250–51 (1969)). An accused must understand “the nature of the 

charges brought against him . . . .” Id. (citations omitted). “[A]n accused has a 
ADAIR—ARMY 20100933

9

right to know to what offense and under what legal theory he or she is pleading 

guilty.” Id. “An essential aspect of informing Appellant of the nature of the offense 

is a correct definition of legal concepts. The judge's failure to do so may render the 

plea improvident. See United States v. O'Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)

(holding plea improvident due to erroneous definition of child pornography); United 

States v. Pretlow, 13 M.J. 85, 88–89 (C.M.A. 1982) (holding plea improvident where 

a military judge failed to define the substantive elements of conspiracy to commit 

robbery, a complex offense).” United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 

2004). “Where the record contains ‘factual circumstances’ that ‘objectively support’ 

the guilty plea to a more narrowly construed statute or legal principle, the guilty 

plea may be accepted.” Id. (citations omitted).

“When a charge against a servicemember may implicate both criminal and 

constitutionally protected conduct, the distinction between what is permitted and 

what is prohibited constitutes a matter of ‘critical significance.’” United States v. 

Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011) (quoting O'Connor, 58 M.J. at 453). 

“With respect to the requisite inquiry into the providence of a guilty plea, see United 

States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969), and Rule for 

Courts-Martial 910, 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 prohibited behavior. ” Id. 

Virtual child pornography that is not obscene, unlike actual child 

pornography, implicates the First Amendment and the protections afforded speech. 

See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (finding provisions of 

the Child Pornography Prevention Act that criminalized possession of virtual child 

pornography overbroad and in violation of the First Amendment). In addressing the 

implications of Ashcroft, our higher court noted, with respect to virtual child 

pornography, “[t]he Supreme Court has now extended a cloak of First Amendment 

protection to certain depictions of minors engaging in sexually explicit conduct.” 

O’Connor, 58 M.J. at 454. If obscene, however, the images are not protected. “We 

have long held that obscene speech–sexually explicit materials that violate 

fundamental notions of decency–is not protected by the First Amendment.” United 

States v. Williams, 553 U.S. 285, 288 (2008).

In appellant’s case, the government charged that the images were “obscene

virtual images,” obscene being a legal term with constitutional implications. 

Whether material is obscene is subject to a three-part test:

(a) whether “the average person, applying contemporary 

community standards” would find that the work, taken as a 

whole, appeals to the prurient interest; (b) whether the 

work depicts or describes, in a patently offensive way, 

sexual conduct specifically defined by the applicable state 
ADAIR—ARMY 20100933

10

law; and (c) whether the work, taken as a whole, lacks 

serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24 (1973) (internal citations omitted). At no time 

during the providence inquiry did the military judge define obscenity. The record is 

devoid of any mention or discussion of “community standards” and although one 

might argue that “prurient interest” and “artistic value” were covered when the 

military judge asked appellant whether the images “were of a minor engaged in 

sexually explicit conduct or images depicting art or the beauty of the human body,” 

we specifically find otherwise. “The military judge did not explain to Appellant the 

significance of the question[], nor did the military judge ask Appellant whether he 

understood the relationship of the question[] and answer[] to the distinction [] 

between constitutionally protected behavior and criminal conduct.” Hartman, 69 

M.J. at 469 (simply asking appellant, in an Article 125, UCMJ consensual sodomy 

prosecution, to discuss the Marcum factors, United States v. Marcum, 60 M.J. 198 

(C.A.A.F. 2004), factors that take consensual adult sodomy outside the

constitutionally protected liberty interests recognized in Lawrence v. Texas, 539 

U.S. 558 (2003), is insufficient to establish appellant knew of or understood the 

constitutional implications associated with the charged offense and that his actions 

fell outside of Lawrence’s protected liberty interests). 

In Hartman, a consensual sodomy prosecution, the trial counsel and military 

judge discussed Lawrence and Marcum prompting the military judge to ask Senior 

Technician Hartman questions meant to establish the Marcum factors, ostensibly

removing his consensual sodomy from Lawrence’s sphere of protected activity. 

Despite the responses provided, our superior court described Senior Technician 

Hartman as “a mere bystander” to the “discussion about legal theory and practice” 

that occurred between the military judge and trial counsel. Hartman, 69 M.J. at 469. 

The court went on to note, “In the absence of a dialogue employing lay terminology 

to establish an understanding by the accused as to the relationship between the 

supplemental questions and the issue of criminality, we cannot view Appellant’s 

plea as provident.” Id. Appellant in the case before us is no less a “mere bystander” 

than was Senior Technician Hartman when evaluating the military judge’s “art or the 

beauty of the human body” question. Unlike in Hartman, appellant’s record is silent 

regarding the military judge’s purpose in asking his “art or the beauty of the human 

body” question. To conclude that the military judge asked the question to establish 

that the forty-one images in question were in fact obscene would be mere 

speculation. The fact that the military judge asked the same question during the 

providence inquiry into appellant’s possession of actual child pornography detracts

from, rather than supports, any obscenity-based purpose in positing the question, as 

obscenity is irrelevant to appellant’s possession of actual child pornography. More 

importantly, there is no evidence in the record from which to conclude that appellant 

understood why the question was asked or the significance of his conclusory 

response. 
ADAIR—ARMY 20100933

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Finally, the military judge never resolved the material inconsistency between 

the definition he provided for “obscene virtual images” and that stipulated to by the 

parties. The military judge told appellant that “‘[o]bscene virtual images of minors 

engaging in sexually explicit conduct’ means images that are distinguishable from an 

actual minor engaging in sexually explicit activity, but nonetheless, are depictions of 

minors or what appears to be minors engaged in sexually explicit conduct.” The 

military judge’s definition has obscenity modifying the images generally, images 

that need not be actual minors but are “depictions of minors or what appears to be 

minors engaged in sexually explicit conduct.” However, the trial counsel, defense 

counsel, and appellant all agreed “[f]or the purposes of this stipulation of fact, the 

term virtual child pornography is defined as: visual depictions of any kind, including 

a drawing, cartoon, computer generated image, sculpture, or painting that depicts a 

minor engaging in obscene sexually explicit conduct.” The stipulation between the 

parties has obscenity modifying or characterizing the sexually explicit conduct. The 

stipulation of fact inextricably links virtual child pornography with obscenity. A

corollary to the parties’ stipulation is that if the sexually explicit conduct is not 

obscene, then the images are arguably not virtual child pornography as charged. 

The military judge should have reconciled the different definitions in play and 

obtained an understanding from appellant and the parties what obscene modified, the 

images or the conduct. The military judge should then have properly defined 

obscenity. Finally, the military judge should have obtained an acknowledgment 

from appellant that the images in question were in fact obscene, taking them out of 

the realm of potentially protected images. None of the above occurred in appellant’s

case. 

B. NON-OBSCENE VIRTUAL CHILD PORNOGRAPHY

Having found appellant’s plea to Specification 2 of The Charge as written 

improvident, the appellee (i.e., government) urges us, in its pleadings before this 

court, to except the word “obscene” from the specification and affirm a n Article 134, 

UCMJ, Clause 2 general disorder. The appellant, however, argues that the cursory 

discussion regarding service discrediting conduct during the providence inquiry, in 

light of United States v. Wilcox, falls short of the “direct and palpable connection 

between [the constitutionally protected behavior] and the military mission or 

environment” required to affirm an Article 134, UCMJ, Clause 2 conviction. See 

United States v. Wilcox, 66 M.J. 442, 448-449 (C.A.A.F. 2008). 

We need not decide whether Wilcox’s “direct and palpable” requirement is 

limited to the facts of that case, that is, to traditional speech in the form of the 

spoken or written word, or whether it’s requirements reach all potentially protected 

speech to include images portraying virtual child pornography. On the facts of 

appellant’s case and the providence inquiry before us, we find the providence 

inquiry insufficient to affirm an Article 134, UCMJ, Clause 2 general disorder. 
ADAIR—ARMY 20100933

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As noted in the previous section, non-obscene virtual child pornography 

implicates the First Amendment and the protections afforded speech. See generally

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 

(2002); see also, United States v. O’Connor, 58 M.J. 450, 454 (C.A.A.F. 2003). 

Unlike civilians, however, servicemembers may be subject to limitations on speech , 

limitations that would otherwise be prohibited in the civilian community. “Parker v. 

Levy [417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)] reiterated the point that 

differences between the military community and civilian community result in 

military law that ‘regulate[s] aspects of the conduct of members of the military 

which in the civilian sphere are left unregulated.’” United States v. Wilcox, 66 M.J. 

442, 447 (C.A.A.F. 2008) (quoting Parker, 417 U.S. at 749, 94 S.Ct. 2547). 

Regarding possession of non-obscene virtual child pornography, our superior court 

noted, “the question of whether or not the possession of such visual depictions can 

be viewed as service discrediting now has a constitutional dimension.” United 

States v. O’Connor, 58 M.J. 450, 454 (C.A.A.F. 2003). Notwithstanding the 

constitutional dimension noted in O’Connor, prosecution for possessing non-obscene 

virtual child pornography as an Article 134, Clause 1 or Clause 2 offense is 

authorized. See United States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004); United 

States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006); United States v. Beaty, 70 

M.J. 39, 41 (C.A.A.F. 2011). Any analysis of whether the evidence is sufficient to 

establish the Clause 1, prejudice to good order and discipline, or Clause 2, service 

discrediting element is “undertaken on a case-by-case basis.” Mason, 60 M.J. at 19. 

See also, United States v. Forney, 67 M.J. 271, 274-75 (C.A.A.F. 2009) (holding that 

receipt and possession of virtual child pornography is also punishable as a violation 

of Article 133, UCMJ, conduct unbecoming an officer and gentlemen).

The focus of appellant’s providence inquiry regarding the virtual child 

pornography was on the sexually explicit nature of the images. The providence 

inquiry did not, as previously noted, distinguish between unprotected obscene virtual 

images and potentially protected non-obscene virtual images. The only definitions 

provided, either by the military judge or stipulated to, inexorably linked virtual child 

pornography to obscenity. It is clear appellant knew he had images 

indistinguishable from those of actual minors engaging in sexually explicit conduct . 

What is unclear, however, is an understanding by appellant that possession of the 

images in question was criminal regardless of their status as obscene or nonobscene.

The presence of obscenity in the pleadings, the definitions provided by the 

military judge during the providence inquiry, the military judge ’s failure to 

reconcile the obvious differences related to the use of the word obscene, the military 

judge’s failure to define obscene, and the absence of any discussion regarding non -

obscene virtual child pornography separate and apart from obscenity precludes us 

from finding that appellant “clearly understood the nature of the prohibited conduct” 
ADAIR—ARMY 20100933

13

under a Clause 2 theory. Therefore, we decline the government’s suggestion to 

affirm an Article 134, UCMJ, Clause 2 general disorder for possession of nonobscene virtual child pornography by excepting “obscene” from Specification 2 of 

The Charge. 

Having found appellant’s plea to Specification 2 of The Charge improvident, 

we now turn to the impact, if any, on appellant’s sentence. 

C. SENTENCE REASSESSMENT

Appellant was sentenced using a maximum period of confinement of twenty 

years (ten years for Specification 1 of The Charge and ten years for Specification 2 

of The Charge).

4

 If the military judge had properly defined obscenity and discussed 

such with appellant, ten years would have been the proper maximum punishment for 

Specification 2 of The Charge. Having failed to properly define obscenity, 

appellant’s plea to Specification 2 of The Charge, was at best a plea to a general 

disorder offense under Article 134, UCMJ, Clause 2, carrying with it a maximum 

period of confinement of four months, United States v. Beaty, 70 M.J. 39, 45 

(C.A.A.F. 2011), reducing his maximum exposure from twenty years to ten years and 

four months. Our finding that appellant’s plea to Specification 2 of The Charge, 

both as written and as a general disorder offense, is improvident, reduces appellant’s 

maximum period of confinement from twenty years to ten years. 

If we “can determine that, absent the error, the sentence would have been at 

least of a certain magnitude, then [we] may cure the error by reassessing the 

sentence instead of ordering a sentencing rehearing.” United States v. Doss, 57 M.J. 

182, 185 (C.A.A.F. 2002) (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A. 

1986)). A sentence can be reassessed only if we “confidently can discern the extent 

of the error’s effect on the sentencing authority’s decision.” United States v. Reed, 

33 M.J. 98, 99 (C.M.A. 1991). A “dramatic change in the ‘penalty landscape’” 

 

4

The record is silent on how the parties arrived at twenty years confinement. 

Looking at Rule for Courts-Martial 1003(c)(1)(B)(ii) and finding no closely related 

offense in the Manual for Courts-Martial, the parties presumably looked to Title 18 

of the United States Code as Specification 1 of The Charge alleges every element of 

an 18 U.S.C. § 2252A(a)(5)(B) offense except for the jurisdictional nexus and 

Specification 2 of The Charge alleges every element of an 18 U.S.C. § 1466A(b)(1)

offense except for the jurisdictional nexus. Absent exceptional circumstances 

allowing for greater punishment than ten years, circumstances not present in 

appellant’s case, violations of 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. § 

1466A(b)(1) each carry with them a maximum period of confinement of 10 years. 

See 18 U.S.C. § 1466A(b) and § 2252(b)(2) (2006). 
ADAIR—ARMY 20100933

14

lessens our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312 

(C.A.A.F. 2003). 

Appellant stands convicted of knowingly and wrongfully possessing two (2) 

images of actual child pornography. The stipulation of fact documents that appellant 

viewed child pornography for “about ten years” and that he “downloaded scores of 

images of child pornography,” admissions made separate and apart from any 

admissions related to virtual child pornography. Appellant acknowledged and 

admitted that the actual child pornography he sought for nearly a decade is: “a form 

of sexual abuse which can result in physical and psychological harm or both, to the 

children involved;” permanent evidence of the victims’ abuse; and, a source of 

“continuing harm” to its children victims. 

Although the maximum period of confinement is reduced from twenty years to 

ten years, the sentencing landscape has not dramatically changed. Stated another 

way, a near fifty percent reduction in appellant’s maximum confinement exposure, in 

and of itself, does not constitute a dramatic change in sentencing landscape as 

landscape encompasses more than just the period of authorized confinement. See

United States v. Pleasant, 71 M.J. 709, 717-18 (Army Ct. Crim. App. 2012). It 

includes, among other things, the nature and extent of the aggravation evidence 

properly before the sentencing authority on the remaining charges and by whom 

appellant was sentenced (i.e., judge alone versus a panel). Appellant elected trial 

before a judge alone and we are “more likely to be certain of what a military judge 

alone would have done than what a panel of members would have done.” United 

States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J., concurring in result). 

Finally, we have significant experience and familiarity with the remaining offense, 

possession of actual child pornography, and can reliably assess what sentence a 

military judge would have imposed on the remaining finding of guilt. Id. 

 

Consequently, we are confident the military judge would have adjudged a 

sentence no less severe than that approved by the convening authority in this case. 

We find appellant suffered no material prejudice to a substantial right. UCMJ, art. 

59(a). We further find that the sentence approved by the convening authority is 

appropriate. See UCMJ, art. 66. 
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CONCLUSION

Upon consideration of the entire record and the submissions by the parties, 

the finding of guilty of Specification 2 of The Charge is set aside. The remaining 

findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the 

error noted, the entire record, and in accordance with the principles of United States 

v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40 

(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring 

opinion, the sentence, as approved by the convening authority, is AFFIRMED. All 

rights, privileges, and property, of which appellant has been deprived by virtue of 

that portion of the findings set aside by this decision, are ordered restored. 

Senior Judge KERN and Judge Martin concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR. 

Clerk of Court

FOR THE COURT: