UNITED STATES, Appellee/Cross-Appellant 

v. 

Laurence H. FINCH, Technical Sergeant 

U.S. Air Force, Appellant/Cross-Appellee 

Nos. 13-0353 and 13-5007 

Crim. App. No. 38081 (Misc. Dkt. No. 2012-13) 

United States Court of Appeals for the Armed Forces 

Argued October 9, 2013 

Decided March 6, 2014 

ERDMANN, J., delivered the opinion of the court, in which BAKER, 

C.J., and STUCKY, J., joined. RYAN, J., filed a separate 

dissenting opinion. EFFRON, S.J., filed a separate dissenting 

opinion in which RYAN, J., joined. 

Counsel

For Appellant/Cross-Appellee: Captain Michael A. Schrama

(argued); Major Matthew T. King and Dwight H. Sullivan, Esq. (on 

brief). 

For Appellee/Cross-Appellant: Major Brian C. Mason (argued); 

Colonel Don M. Christensen, Lieutenant Colonel C. Taylor Smith, 

and Gerald R. Bruce, Esq. (on brief). 

Military Judge: Matthew D. Van Dalen 

This opinion is subject to revision before final publication.

 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

2

Judge ERDMANN delivered the opinion of the court. 

 Technical Sergeant (E-6) Laurence H. Finch pleaded guilty 

at a general court-martial to one specification of receiving and 

possessing child pornography and one specification of 

distributing child pornography, both in violation of Article 

134(1) and (2), Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 934 (2006). The military judge found Finch guilty in 

accordance with his pleas and sentenced him to confinement for 

seven years, reduction to E-1, and a dishonorable discharge. 

The convening authority approved the adjudged sentence. The 

United States Air Force Court of Criminal Appeals (CCA) affirmed 

the findings and sentence. United States v. Finch, No. ACM 

38081 (Misc. Dkt. No. 2012-3), 2013 CCA LEXIS 33, at *11, 2013 

WL 376065, at *4 (A.F. Ct. Crim. App. Jan. 25, 2013). 

 We granted review in this case to determine whether the 

military judge erred when he determined the maximum sentence to 

confinement was thirty years.1

 Following the court’s grant of 

 

1

 We granted review of the following issue: 

Where the Article 134 child pornography specifications 

of which Appellant was convicted did not allege that 

the images depicted actual minors and where the 

military judge advised Appellant during the providence 

inquiry that “There is no requirement that the images 

in this case include actual images of minors,” is the 

maximum authorized confinement for each specification 

limited to four months? 

United States v. Finch, 72 M.J. 384 (C.A.A.F. 2013) (order 

granting review). 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

3

review, the Air Force Judge Advocate General (TJAG) certified an 

issue which questioned the providence of Finch’s guilty plea.2 

We hold, consistent with United States v. Leonard, 64 M.J. 

381 (C.A.A.F. 2007), that the military judge did not err in 

determining the maximum sentence to confinement. In addition, 

based upon our review of the record, there is no substantial 

basis in law or fact to question Finch’s pleas of guilty to the 

offenses. See United States v. Inabinette, 66 M.J. 320, 322 

(C.A.A.F. 2008). We therefore affirm the decision of the CCA. 

Factual Background

The specifications in this case alleged that Finch 

knowingly and wrongfully received, possessed (Specification 1), 

and distributed (Specification 2) “visual depictions of a minor 

engaging in sexually explicit conduct.”3

 When the military judge 

 

2

 TJAG certified the following issue: 

If the court finds that the specifications 

sufficiently alleged that the visual depictions were 

of actual minors but that the military judge’s 

definitions were inconsistent with the alleged 

specifications, what is the appropriate remedy, if 

any, to be given? 

United States v. Finch, 72 M.J. 402 (C.A.A.F. 2013) 

(docketing notice). 

3

 Specification 1 of the charge alleged that Finch: 

[D]id, within the continental United States, on divers 

occasions between on or about 1 July 2006 and on or 

about 18 December 2008, knowingly and wrongfully 

receive and possess visual depictions of a minor 

engaging in sexually explicit conduct, which conduct 

was, under the circumstances, prejudicial to good 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

4

asked trial counsel for his calculation of the maximum sentence, 

trial counsel responded “30 years confinement; total forfeitures 

of all pay and allowances; reduction to E-1; and a dishonorable 

discharge.” The military judge then asked trial defense counsel 

if he agreed and he responded “Yes, Your Honor.” Consistent 

with the agreement of both counsel, the military judge then 

advised Finch of the agreed maximum possible sentence. There is 

no indication in the record as to what the parties relied upon 

to determine the maximum possible sentence to confinement. 

However, the CCA noted that the analogous federal offenses 

provide for a maximum punishment of thirty years for the two 

specifications.4 Finch, 2013 CCA LEXIS 33, at *4, 2013 WL 

376065, at *2. 

 

order and discipline in the armed forces and of a 

nature to bring discredit upon the armed forces. 

Specification 2 of the charge alleged that Finch: 

[Did], both within and outside the continental United 

States, on divers occasions between on or about 1 July 

2006 and on or about 18 December 2008, knowingly and 

wrongfully distribute visual depictions of a minor 

engaging in sexually explicit conduct, which conduct 

was, under the circumstances, prejudicial to good 

order and discipline in the armed forces and of a 

nature to bring discredit upon the armed forces. 

4

 18 U.S.C. § 2252A(b)(1) sets out the maximum imprisonment for 

violation of 18 U.S.C. § 2252A(a)(2) (distribution) at twenty 

years. 18 U.S.C. § 2252A(b)(2) sets the maximum imprisonment 

for a violation of 18 U.S.C. § 2252A(a)(5) (possession) at ten 

years. Violation of these two federal statutes results in a 

maximum sentence to confinement of thirty years. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

5

During the subsequent providence inquiry, the military 

judge initially advised Finch of the elements of the 

Specification 1 and went on to provide definitions of “divers,” 

“wrongful,” “knowingly,” “possess,” and “receive.” At that 

point the military judge stated: 

There is no requirement that the images in this case 

include actual images of minors; That is, the wrongful 

and knowing receipt and possession of visual 

depictions containing sexually explicit images of 

persons indistinguishable from minor children, whether 

actual or virtual, when determined to be servicediscrediting conduct and conduct prejudicial to good 

order and discipline, is an offense under Article 134. 

Following that statement, the military judge resumed his 

definitions of relevant terms, which included the term “minor.” 

The military judge defined “minor” as “any person under the age 

of 18 years,” which is the definition found in 18 U.S.C. § 

2256(1). Following an extensive providence inquiry, the 

military judge accepted Finch’s pleas. 

In his appeal to the Air Force Court of Criminal Appeals, 

Finch argued that the military judge calculated the incorrect 

maximum sentence to confinement and that the Staff Judge 

Advocate (SJA) misadvised the convening authority on clemency 

matters. Finch, 2013 CCA LEXIS 33, at *1, 2013 WL 376065, at 

*1. The CCA affirmed the findings and sentence, holding that 

the offenses charged were analogous to the “offenses of knowing 

receipt and possession as well as knowing distribution of child 

pornography, under 18 U.S.C. § 2252A(a)(2), (5), for purposes of 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

6

determining the maximum punishment.” Id. at *4, 2013 WL 376065, 

at *2. The CCA found no error in the recommendation of the SJA 

in regard to the clemency matters and went on to hold that there 

was “no substantial basis to question appellant’s guilty plea.” 

Id. at *8-*10, 2013 WL 376065, at *3-*4. 

Discussion

The Granted Issue

The granted issue asks whether the military judge erred in 

calculating the maximum punishment to confinement. Finch argues 

that the specifications did not allege, nor did the providence 

inquiry establish, that the depicted images were actual minors. 

Since the specifications did not allege any offense punishable 

under Title 18, United States Code, Finch argues that the 

maximum period of confinement for each of the two Article 134 

specifications was four months, citing United States v. Beaty, 

70 M.J. 39 (C.A.A.F. 2011). In addition to questioning the 

maximum sentence calculation, Finch also argues that his plea 

was not provident to an offense involving images of actual 

minors as the military judge specifically advised him that 

“[t]here is no requirement that the images in the case include 

actual images of minors.” Finch’s arguments as to the 

providence of the plea will be discussed under the certified 

issue, which also raises the providence issue. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

7

The government responds that the military judge’s 

calculation of the maximum sentence was correct as the 

specifications in this case are substantially the same as the 

specifications in Leonard, which this court recognized as being 

directly analogous to Title 18 offenses. 

Where an offense is listed in Part IV of the Manual for 

Courts-Martial, United States (MCM), the maximum punishment is 

set forth therein. Beaty, 70 M.J. at 42 (citing R.C.M. 

1003(c)(1)(A)(i)). Neither the receipt and possession 

specification nor the distribution of child pornography 

specification (involving either an actual minor or what appears 

to be a minor) was a listed offense at the time of Finch’s 

court-martial. For offenses not listed in Part IV, the maximum 

punishment depends on whether the offense is included in or 

closely related to a listed offense in the MCM. R.C.M. 

1003(c)(1)(B); Leonard, 64 M.J. at 383; Beaty, 70 M.J. at 42 

n.7. In this case, neither the receipt and possession of child 

pornography nor the distribution of child pornography 

specifications were included in, or closely related to, a listed 

offense. Leonard, 64 M.J. at 383; Beaty, 70 M.J. at 42. 

Therefore this case presents a situation where the offenses 

at issue were neither listed in Part IV nor included in or 

closely related to any offense listed in the MCM. In such a 

case, R.C.M. 1003(c)(1)(B)(ii), provides that “[a]n offense not 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

8

listed in Part IV and not included in or closely related to any 

offense listed therein is punishable as authorized by the United 

States code, or as authorized by the custom of service.” 

Neither Finch nor the government argue that a custom of the 

service establishes the maximum sentence in this case. The 

question, therefore, is whether the offenses in this case are 

analogous to 18 U.S.C. § 2252A(a)(2) and (5), punishable by 

sentences of twenty years and ten years respectively, or whether 

they are simple disorders punishable by four months of 

confinement. Beaty, 70 M.J. at 45. That determination is 

dependent on whether the specifications alleged offenses 

involving both actual and virtual images of minors or just 

images of actual minors. The CCA upheld the military judge’s 

thirty-year maximum sentence calculation with reference to 18 

U.S.C. § 2252A(a)(2) and (5), which are restricted to actual 

minors. Finch, 2013 CCA LEXIS 33, at *4, 2013 WL 376065, at *2. 

In Leonard, 64 M.J. at 382, 384, we determined that the 

military judge did not err in setting the maximum punishment for 

a specification and charge of possession of visual depictions of 

minors engaging in sexually explicit activity by reference to 

the maximum punishment authorized by 18 U.S.C. § 2252(a)(2), 

(b)(1). We explained: 

We have looked before at the maximum sentence for 

offenses charged under clauses 1 or 2 of Article 134, 

UCMJ, that include the conduct and mens rea proscribed 

by directly analogous federal criminal statutes. In 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

9

doing so, we focused on whether the offense as charged 

is “essentially the same,” as that proscribed by the 

federal statute. United States v. Jackson, 17 C.M.A. 

580, 583, 38 C.M.R. 378, 381 (1968); see also United 

States v. Williams, 17 M.J. 207, 216-17 (C.M.A. 1984) 

(upholding sentence for kidnapping under clauses 1 or 2 

by referencing the maximum sentence for a violation of 

the federal kidnapping statute). The military judge 

did not err by referencing a directly analogous federal 

statute to identify the maximum punishment in this 

case, when every element of the federal crime, except 

the jurisdictional element, was included in the 

specification. 

Id. at 384 (emphasis added). 

As in Leonard, here all elements of the federal crimes, 

except the jurisdictional element, were included in the 

specifications. Appellant was charged with receipt, possession, 

and distribution of “visual depictions of a minor engaged in 

sexually explicit conduct.” We agree with the CCA’s 

determination that the analogous federal provisions are 18 

U.S.C. § 2252A(a)(2), which criminalizes receipt and 

distribution of child pornography, and § 2252A(a)(5), which 

criminalizes possession.5

 The term “child pornography” is 

defined in § 2256(8)(B) to include “any visual depiction . . . 

of a minor engaging in sexually explicit conduct.” These 

 

5

 Appellant’s citation to 18 U.S.C. § 2252A(a)(3)(B) is 

inapposite, as that section targets the advertisement, 

promotion, presentation, distribution, or solicitation of 

material in a manner that reflects the belief, or intends to 

cause another to believe, that the material is either obscenity 

(of “a minor”) or child pornography (of an “actual minor”). 

This is not analogous to the receipt, possession, and 

distribution offenses for which Appellant was charged, which 

make no distinction between obscenity of “a minor” and child 

pornography of “an actual minor.” 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

10

sections are directly analogous to the specifications in this 

case. The definition does not distinguish between minors and 

actual minors. Neither do the sections of the statute directly 

criminalizing receipt and distribution and possession of child 

pornography. Accordingly, we hold that the CCA did not err in 

holding that the maximum possible sentence was based on the 

analogous portions of 18 U.S.C. § 2252A, which address 

essentially the same offenses as charged in Finch’s case, and 

affirm that portion of the CCA’s decision. 

The Certified Issue

The issue certified by TJAG asks the court to provide the 

“appropriate remedy” if the specifications sufficiently alleged 

that the visual depictions were of actual minors, but the 

military judge’s definitions were inconsistent with the alleged 

specifications. Essentially, TJAG seeks review of the 

providence of Finch’s guilty plea. As noted, Finch argues that 

his plea to the specifications which involved images of actual 

minors was not provident as the military judge specifically 

advised him that the images could be either actual or virtual. 

The government acknowledges that advisement but argues that the 

singular reference in context of the entire providence inquiry 

is insufficient to render the plea improvident. 

“During a guilty plea inquiry the military judge is charged 

with determining whether there is an adequate basis in law and 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

11

fact to support the plea before accepting it.” Inabinette, 66 

M.J. at 321-22. “A military judge’s decision to accept a guilty 

plea is reviewed for an abuse of discretion.” Id. at 322 

(citations and internal quotation marks omitted). In order to 

ensure a provident plea, the military judge must “accurately 

inform Appellant of the nature of his offense and elicit from 

him a factual basis to support his plea.” United States v. 

Negron, 60 M.J. 136, 141 (C.A.A.F. 2004). “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.” Id. However, “an error in 

advising an accused does not always render a guilty plea 

improvident. 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 and internal quotation marks 

omitted). “To prevail, Appellant has the burden to demonstrate 

a substantial basis in law and fact for questioning the plea.” 

Id. (citation and internal quotation marks omitted). The “mere 

possibility” of a conflict between the accused’s plea and 

statements or other evidence in the record is not a sufficient 

basis to overturn the trial results. United States v. Garcia, 

44 M.J. 496, 498 (C.A.A.F. 1996) (citation and internal 

quotation marks omitted). 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

12

Finch’s argument centers on the military judge’s statement 

that the images could display either actual or virtual minors. 

Finch argues that this inconsistent statement caused confusion 

and, as a result, he could not be sure whether he was pleading 

to offenses involving actual minors with a maximum sentence of 

thirty years or offenses involving virtual minors with a maximum 

sentence of eight months. An initial difficulty with this 

argument is that Finch’s trial defense counsel explicitly agreed 

with the government’s calculation of a maximum sentence to 

confinement of thirty years, a statute limited to actual minors. 

We note that six months prior to Finch’s court-martial, this 

court held that possession of virtual child pornography charged 

under Article 134, clauses 1 and 2, was punishable as a simple 

disorder with a maximum punishment of four months of 

confinement. See Beaty, 70 M.J. at 45. In light of the holding 

in Beaty, the providence inquiry reflects that the parties 

proceeded with the understanding that the specifications 

involved actual minors with the corresponding thirty-year 

maximum sentence despite the military judge’s inconsistent 

reference to virtual minors. At no point during the providence 

inquiry or sentencing portion of the trial was there any 

expression of surprise or confusion as to the maximum sentence. 

A further review of the providence inquiry record supports 

this conclusion. Following the military judge’s inconsistent 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

13

statement, he defined the term “minor” as used in the 

specification as a “person under the age of 18 years.” That 

definition is identical to the definition of “minor” as the term 

is used in 18 U.S.C. § 2252A(a)(2) and (5), which are limited to 

actual minors. See 18 U.S.C. § 2256(1).6 

 In discussing “sexually explicit conduct” the military 

judge informed Finch of the factors to consider in determining 

whether the depictions included “lascivious exhibition of the 

genitals or pubic area of any person.” (Emphasis added.) When 

the military judge asked Finch why he believed the “individuals” 

depicted were under the age of eighteen, Finch responded, “Sir, 

they appeared -– their bodies were not developed.” Further, 

Finch responded “yes” when the military judge asked him if he 

understood the elements and definitions described and “yes” when 

asked “do you believe and admit that the elements and 

definitions taken together correctly describe what you did?” 

Finch told the military judge that he “knowingly received 

and possessed visual depictions of minors engaging in sexually 

explicit conduct.” He said that he “saw that images of minors 

engaged in sexually explicit conduct were downloaded and I 

 

6

 The plain meaning of the term “person” references an actual 

person rather than a virtual person. See United States v. 

Schell, 72 M.J. 339, 343 (C.A.A.F. 2013) (“Unless the text of a 

statute is ambiguous, the plain language of a statute will 

control unless it leads to an absurd result.”) (citation and 

internal quotation marks omitted). 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

14

knowingly kept them on my computer.” Finch admitted that the 

descriptions or file names contained words like “underage,” 

“minor,” or “child.” He answered “yes” to similar questions 

relating to the second specification alleging distribution of 

those images. 

Our review of the record of the providence inquiry reflects 

that, despite the single inconsistent reference to images of 

virtual minors, the parties proceeded as though the allegations 

involved actual persons and the military judge elicited adequate 

information from Finch to support the plea. Consequently, Finch 

has failed to establish that a substantial basis in law or fact 

exists to reject his plea. See, e.g., Garcia, 44 M.J. at 499. 

Decision

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

RYAN, Judge (dissenting): 

I concur with Senior Judge Effron’s dissent. I write 

separately to point out the additional, constitutional infirmity 

with the Charge and specifications in this case raised by the 

vast disparity between the maximum sentences authorized for 

actual and virtual child pornography offenses at the time of 

Appellant’s court-martial. 

I am well familiar with the holdings in both United States 

v. Leonard, 64 M.J. 381, 384 (C.A.A.F. 2007), and United States 

v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011). Leonard still 

accurately stands for the general proposition that where a 

specification adequately alleges the same conduct and mens rea 

as a directly analogous federal statute, except for the 

jurisdictional element, the offense may be punished as 

authorized by the United States Code. 64 M.J. at 384; Rule for 

Courts-Martial (R.C.M.) 1003(c)(1)(B)(ii). The opinion also 

concluded that a particular specification merely alleging 

“minors” was adequate to use the maximum punishment from the 

United States Code, which was fifteen years at the relevant 

time. Leonard, 64 M.J. at 382, 384. 

Leonard came after the Court’s decision in United States v. 

Mason, which clarified that virtual child pornography, in 

addition to actual child pornography, could be prosecuted under 

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

2

§ 934 (2000). 60 M.J. 15, 19–20 (C.A.A.F. 2004). However, 

Leonard predated Beaty’s conclusion that a child pornography 

offense that did not depict actual children could not be 

punished by reference to the United States Code, since there was 

no analogous federal crime. 70 M.J. at 44 (“An offense 

comprised of acts that cannot be criminally charged under the 

United States Code at all is neither ‘directly analogous’ nor 

‘essentially the same’ as one that can be.”). In such cases, 

the maximum authorized punishment is four months of confinement 

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

at 45; see also Manual for Courts-Martial, United States Maximum 

Punishment Chart app. 12 at A12-6 (2012 ed.) (MCM); see 

generally R.C.M. 1003(c). The sentence disparity between the 

two offenses was not evident until it was raised and decided in 

Beaty.1

 

If the offenses in this case had been charged under clause 

3 of Article 134, UCMJ, and referenced 18 U.S.C. § 2252A (2006), 

there would not be a problem with the specifications in this 

case. Under that statute “minor” has only one meaning; “minor” 

is defined as “any person under the age of eighteen years,” 18 

 

1

 Moreover, in Leonard, the accused admitted during the 

providence inquiry that the depictions were of actual minors. 

64 M.J. at 382. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

3

U.S.C. § 2256(1) (2006) (emphasis added), and it is clear that 

the “person” must be a real person under the United States Code.2 

But the Government charged the offense as a violation of 

clauses 1 and 2, Article 134, UCMJ, which permitted, even prior 

to the recent MCM amendments, prosecution of real, virtual, or 

what appears to be child pornography. See Beaty, 70 M.J. at 41; 

see also Finch, __ M.J. at __ (4–5) (Effron, S.J., with whom 

Ryan, J., joined, dissenting) (discussing the recent MCM

amendments). If, of course, the depictions were of actual 

 

2

 While the definition of child pornography in 18 U.S.C. 

§ 2256(8) “does not distinguish between minors and actual 

minors,” United States v. Finch, __ M.J. __, __ (10) (C.A.A.F. 

2014), the clear import of Supreme Court precedent is that 

statutes under the United States Code may constitutionally 

criminalize only child pornography that either involves actual 

children or is obscene. See generally Ashcroft v. Free Speech 

Coal., 535 U.S. 234, 251 (2002) (explaining that “where the 

speech is neither obscene nor the product of sexual abuse, it 

does not fall outside the protection of the First Amendment,” 

and creating a clear distinction between the treatment of actual 

and virtual child pornography). Consequently, the United States 

Code only criminalizes depictions that are either of actual 

minors, see, e.g., 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), or 

obscene, see, e.g., 18 U.S.C. § 1466A(a). While the definition 

of “child pornography” also includes a visual depiction that “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,” 18 U.S.C. § 2256(8)(B), it is 

clear that the United States Code does not attempt to 

criminalize non-obscene depictions of virtual minors because 18 

U.S.C. § 2252A(c) provides an affirmative defense that the 

depictions were of actual, adult persons or that no actual minor 

was used in the production of the depictions. Our precedent 

involving offenses charged as violations of clauses 1 or 2 of 

Article 134, UCMJ, imposes no such limits. It is this fact, 

combined with the sentence disparity, which causes the 

constitutional problem discussed infra. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

4

minors, there are directly analogous federal statutes, which 

authorize sentences well in excess of four months3 for the 

distribution and receipt4 specifications. See, e.g., 18 U.S.C. 

§ 2252A(b)(1); see also Leonard, 64 M.J. at 384. But if the 

depictions were of virtual child pornography, or what appeared 

to be minors, the sentencing exposure for each specification was 

only four months. Beaty, 70 M.J. at 44–45. 

This distinction raises the constitutional problem 

presented by the specifications and adjudged sentence but 

avoided by the majority. “[A]ny facts that increase the 

prescribed range of penalties to which a criminal defendant is 

exposed are elements of the crime.” Alleyne v. United States, 

133 S. Ct. 2151, 2160 (2013) (citation and internal quotation 

marks omitted). Consequently, given the widely disparate 

sentences occasioned by the status of the depictions, when 

charged as a violation of clause 1 or 2, Article 134, UCMJ, the 

 

3

 While the parties agreed at the court-martial that the maximum 

punishment for the two specifications was thirty years, they 

appear to have relied on the maximum punishment discussed in 

Leonard, 64 M.J. at 384, rather than the amended statutes. See

18 U.S.C. §§ 2252(b)(1), 2252A(b)(1) (amended 2003). 

4

 The majority ultimately treats Specification 1 as a possession 

offense, directly analogous to 18 U.S.C. § 2252A(a)(5), Finch, 

__ M.J. at __ (8–10), despite noting the additional “receive” 

language in the specification. Whether the specification is 

best characterized as a possession offense, with a maximum 

sentence of ten years of confinement, or a receipt offense, with 

a maximum sentence of twenty years of confinement, however, is 

largely unimportant here because the maximum sentence for either 

offense is far in excess of four months. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

5

fact that the depictions were of actual minors “necessarily 

forms a constituent part of a new offense and must be submitted 

to the jury.” Alleyne, 133 S. Ct. at 2162. 

Even in the guilty plea context, where an accused waives 

his right to trial by members, United States v. Hansen, 59 M.J. 

410, 411 (C.A.A.F. 2004), such elements must be included in the 

specification and shown to be understood by the accused as 

elements of the offense to which he is pleading guilty. United 

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

see generally United States v. Ballan, 71 M.J. 28 (C.A.A.F. 

2012). 

One simply cannot rely on Leonard without considering the 

import of Beaty for this particular set of offenses. The issue 

here is not answered solely by reference to the language of the 

specification without consideration of the effects of our child 

pornography jurisprudence, particularly in light of the elements 

as defined during the providence inquiry. Leonard neither 

addresses nor purports to approach the legal landscape presented 

in this case, which is the result of permitting offenses under 

Article 134, UCMJ, that are not offenses under the United States 

Code, and of resort to “general guidance in the Manual for 

Courts-Martial in order to ascertain the maximum punishments 

available under military law for different forms of child 

pornography offenses.” Finch, __ M.J. at __ (3–5) (Effron, 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

6

S.J., with whom Ryan, J., joined, dissenting); see also R.C.M. 

1003(c)(1)(B). 

No one questions that the “actual” status of the minors in 

the visual depictions at issue significantly increases the range 

of penalties to which Appellant was exposed, because such acts 

may be prosecuted under the United States Code, over the 

penalties allowed if the depictions were of “virtual” child 

pornography or what appeared to be minors, which generally may 

not be prosecuted under the United States Code. See Finch, __ 

M.J. at __ (8). Given these circumstances, we are simply not 

free to either disagree with or ignore the Supreme Court’s 

directive as to how such facts must be treated. See, e.g., 

Alleyne, 133 S. Ct. at 2160, 2162. 

Consequently, absent an allegation that the depictions were 

of “actual” minors, under the law at the time of his conduct 

Appellant could not be subject to the sentencing maximum for 

that offense. Id. Moreover, the military judge not only failed 

to render the error harmless by both explaining that the status 

of the minors was relevant to the offense and eliciting the 

Appellant’s admission that the pornography was of actual minors, 

see Ballan, 71 M.J. at 35, he compounded the problem by telling 

Appellant that they did not have to be actual minors.5

 

5

 This fact raises serious questions as to the basis for the 

majority’s conclusion that all parties involved were aware of 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

7

I respectfully dissent. 

 

Beaty, see Finch, __ M.J. at __ (12–13), since Beaty’s holding 

on the maximum sentence for virtual child pornography was 

contrary to the agreed upon sentence for the elements of the 

specifications as described by the military judge during the 

providence inquiry. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

EFFRON, Senior Judge, with whom RYAN, Judge, joins 

(dissenting): 

The military judge in the present case erroneously informed 

Appellant that it made no difference whether the child 

pornography images at issue depicted actual or virtual children. 

In providing this erroneous information to Appellant, the 

military judge overlooked a critical difference in the penalty 

landscape at the time of Appellant’s trial. At that time, the 

two offenses at issue carried a combined authorized punishment 

of thirty years of confinement for the distribution and 

possession of images involving actual children. United States 

v. Finch, __ M.J. __, __ (4 n.4) (C.A.A.F. 2014). By contrast, 

if the depictions consisted of virtual images, the combined 

authorized punishment at the time of Appellant’s trial was only 

eight months of confinement. Id. at __ (8-9). The majority 

concludes that the erroneous statement by the military judge -- 

equating actual and virtual images -- constituted an 

insubstantial error under the circumstances of this case. For 

the reasons set forth below, I respectfully dissent. 

The evolving treatment of actual and virtual images under 

military law

 The federal criminal code treats child pornography offenses 

as serious crimes, punishable by lengthy periods of confinement. 

See 18 U.S.C. § 2252A (2012). Although the Uniform Code of 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

2 

Military Justice (UCMJ) does not contain an article that 

expressly addresses child pornography, such offenses are 

prosecuted in courts-martial under Article 134, UCMJ, 10 U.S.C. 

§ 934 (2012), which prohibits conduct that is prejudicial to 

good order and discipline, conduct that is service discrediting, 

and conduct that violates federal criminal statutes. 

 In United States v. James, 55 M.J. 297 (C.A.A.F. 2001), we 

upheld a court-martial conviction under a federal child 

pornography statute that prohibited the possession of child 

pornography regardless of whether the pornography depicted 

actual children or computer-generated images of “virtual” 

children. Our decision was consistent with the views expressed 

by a majority of other federal courts of appeals that had 

considered the issue at that time. See id. at 299-300. 

Subsequently, however, the Supreme Court held that the 

restrictions on pornographic materials involving actual children 

could not be applied to computer-generated simulations or images 

under the First Amendment. Ashcroft v. Free Speech Coal., 535 

U.S. 234, 249-56 (2002). 

 In United States v. O’Connor, 58 M.J. 450, 454-55 (C.A.A.F. 

2003), we recognized that the Supreme Court’s decision 

established binding precedent with respect to application of the 

federal criminal statute, but we left open the possibility that 

child pornography offenses involving virtual images could be 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

3 

prosecuted under other provisions of military law. In United 

States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004), we held that 

under military law, the receipt or possession of virtual child 

pornography, as well as actual child pornography, could 

constitute conduct prejudicial to good order and discipline or 

service discrediting conduct under the first and second clauses 

of Article 134, UCMJ, depending on the facts of the case. 

The evolving contours of the penalty landscape

During the eight-year period that followed our 2004 

decision in Mason, including the period of time covered by the 

trial in the present appeal, the President did not exercise the 

authority provided by Article 56, UCMJ, 10 U.S.C. § 856 (2012), 

to establish maximum punishments for specific forms of child 

pornography offenses. In the absence of express attention under 

Article 56, UCMJ, military judges and the appellate courts were 

required to apply general guidance in the Manual for CourtsMartial in order to ascertain the maximum punishments available 

under military law for different forms of child pornography 

offenses. See Rule for Courts-Martial (R.C.M.) 1003(c)(1)(B); 

United States v. Leonard, 64 M.J. 381, 383-84 (C.A.A.F. 2007) 

(concluding that R.C.M. 1003(c)(1)(B)(ii) authorized confinement 

for up to fifteen years in a case involving receipt of actual 

child pornography); Finch, __ M.J. at __ (4 n.4) (noting the 

current authority for confinement of up to twenty years for 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

4 

distribution of actual images and confinement of up to ten years 

for receipt of actual images); United States v. Beaty, 70 M.J. 

39, 44-45 (C.A.A.F. 2011) (concluding that the rule authorized a 

maximum punishment of four months of confinement and associated 

penalties in a case involving virtual child pornography). 

Subsequent to Appellant’s trial -- and subsequent to Mason, 

Leonard, and Beaty -- the Manual for Courts-Martial was amended 

to address expressly actual images and virtual images (i.e., 

images of “what appear[] to be minors,” Beaty, 70 M.J. at 40, 

43). See Manual for Courts-Martial, United States Analysis of 

the Punitive Articles app. 23 at A23-22 (2012 ed.) (MCM). Under 

the amended version of the Manual, which is now in effect, 

actual and virtual images are treated as the same for punishment 

purposes. MCM pt. IV, para. 68b.c.(1). Offenses such as 

possessing, receiving, and viewing child pornography are subject 

to a maximum of ten years of confinement per offense, regardless 

of whether the images are of actual children or images of 

virtual children. Id. at para. 68b.e.(1). Periods of greater 

confinement are authorized for offenses involving aggravating 

circumstances: fifteen years for possession with intent to 

distribute, twenty years for distribution; and thirty years for 

production. Id. at paras. 68b.e.(2)-(4). The new rules, which 

equate actual and virtual child pornography, reflect the reality 

of modern imaging technology. Persons with only modest skills 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

5 

can produce virtual images that, from the perspective of the 

viewer, are infused with such vitality that they “appear to be” 

real. 

But Appellant was not tried under the new rules. At the 

time he was tried, the offenses involving actual and virtual 

images were not equated. Instead, the penalty landscape 

presented vast differences in authorized punishments on the two 

specifications involving child pornography offenses. At the 

time of Appellant’s trial, the two offenses at issue carried an 

authorized punishment of thirty years of confinement for the 

distribution and possession of actual images, but only eight 

months of confinement for images involving virtual depictions. 

Consideration of the relationship between actual and virtual 

images during Appellant’s trial

Given the vast disparity in the consequences associated 

with the offenses under the law in effect at that time, it was 

incumbent upon the military judge to engage in a plea colloquy 

that accurately informed Appellant of the nature of the offenses 

and the penalty landscape. See R.C.M. 910(c)(1). In this case, 

the military judge erroneously told Appellant that it would make 

no difference whether the images were actual or virtual. Finch, 

__ M.J. at __ (5). In so doing, he left Appellant with the 

misleading impression that there was no legal difference between 

actual and virtual images when, in fact, the difference was 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

6 

dramatic. At no point did the military judge provide any 

information to Appellant to rectify this error. 

An error by the military judge in misadvising an accused on 

matters affecting the maximum sentence does not necessarily 

amount to the type of substantial misunderstanding that will 

invalidate a plea. See, e.g., United States v. Walker, 34 M.J. 

264, 266 (C.M.A. 1992). The analysis is contextual. Id. 

The majority concludes that there was no substantial 

misunderstanding, viewing the record as demonstrating a context 

in which all present understood that the case involved images of 

actual children. In support of this proposition, the majority 

cites defense counsel’s agreement with the military judge that 

the maximum punishment was thirty years. Finch, __ M.J. at __ 

(12-13). Defense counsel, however, did not object to or correct 

the military judge and did not offer any views as to the 

considerable differences between actual and virtual images. To 

the extent that the exchange between the defense counsel and the 

military judge proves anything, it merely demonstrates that the 

defense counsel and the military judge shared the same 

misunderstanding of the relationship between actual and virtual 

images -- a matter involving a vast difference in the penalty 

landscape and that was never explained on the record to 

Appellant. 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

7 

The majority also cites the use of phrases in the plea 

colloquy such as “person,” “child,” “underage,” “individuals 

. . . [whose] bodies were not developed,” and “minors engaging 

in sexually explicit conduct” as demonstrating an understanding 

by the military judge and Appellant that the colloquy involved 

actual rather than virtual images. Id. at __ (13-14). The 

military judge’s own words refute the majority’s theory. He 

expressly used the words “persons” in describing virtual 

pornography when he erroneously equated actual and virtual 

images by referring to “visual depictions containing sexually 

explicit images of persons indistinguishable from minor 

children, whether actual or virtual.” Id. at __ (5) (emphasis 

added). 

In that context, where the military judge expressly advised 

Appellant that virtual images constituted depictions of “persons 

indistinguishable from minor children,” nothing in Appellant’s 

use of similar words would provide a basis for concluding that 

Appellant was referring only to actual children. Id. Given the 

graphic reality that can be achieved in the production of 

virtual images, the fact that participants in a plea colloquy 

used such language does not demonstrate that they were referring 

to actual or virtual images. 

The current Manual for Courts-Martial repeatedly uses 

similar words to describe both actual and virtual images. See,
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

8 

e.g., MCM pt. IV, para. 68b.c.(1) (defining child pornography as 

the “visual depiction of a minor engaging in sexually explicit 

conduct”); id. at para. 68b.c.(4) (defining a minor as a “person 

under the age of 18 years”); id. at para. 68b.c.(7) (defining 

various forms of sexually explicit conduct as occurring “between 

persons of the same or opposite sex” or involving “lascivious 

exhibition of the genitals or pubic area of any person”). 

The amended Manual does not govern the case before us, but 

the use of such language in the current Manual to describe both 

actual and virtual images -- like the use of such words by the 

military judge at trial -- refutes the majority’s view that the 

plain meaning of such words refers only to actual images. The 

Manual, in its routine use of words like “individuals” and 

“persons” to describe both actual and virtual images of sexual 

conduct, demonstrates that the plain meaning of these words can 

encompass both. The use of these words during the plea colloquy 

does not demonstrate either an express or implicit understanding 

by the military judge or Appellant that the images at issue in 

the present case only involved images of actual children. 

The defective plea inquiry in this case involves a set of 

circumstances that would not affect a plea under current law. 

The plea inquiry in this case, however, demonstrates a 

substantial and uncorrected error by the military judge with 

respect to the law at the time of Appellant’s trial, rendering 
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF 

9 

the plea improvident. Under these circumstances, the Court 

should set aside the findings and sentence, and remand the case 

for a rehearing.