UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant KEVIN A. SLAGLE

United States Air Force

ACM 38087 (recon)

22 July 2014

Sentence adjudged 30 November 2011 by GCM convened at Barksdale

Air Force Base, Louisiana. Military Judge: Matthew Van Dalen (sitting 

alone).

Approved sentence: Bad-conduct discharge, confinement for 20 months, 

forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for the appellant: Major Matthew T. King and 

Captain Travis K. Ausland.

Appellate Counsel for the United States: Colonel Don M. Christensen;

Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen; 

Major Brian C. Mason; and Gerald R. Bruce, Esquire.

Before

ALLRED, MITCHELL, and WEBER

Appellate Military Judges

OPINION OF THE COURT

UPON RECONSIDERATION

This opinion is subject to editorial correction before final publication.

PER CURIAM:

Before a general court-martial composed of military judge alone, the appellant 

pled guilty to one specification of knowingly and wrongfully receiving and possessing 

“visual depictions of a minor engaging in sexually explicit conduct,” in violation of 

Article 134, UCMJ, 10 U.S.C. § 934 (emphasis added). The court adjudged a 
bad-conduct discharge, confinement for 20 months, forfeiture of all pay and allowances, 

and reduction to the lowest enlisted grade. The convening authority approved the 

sentence as adjudged. 

Procedural History

On 25 January 2013, The Judge Advocate General of the Air Force appointed 

Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force 

Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the 

time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate 

military judge, was serving as a civilian litigation attorney in the Department of the 

Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority 

under title 5, United States Code, section 3101 et seq.,” issued a memorandum that 

“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the 

Air Force, to serve as appellate military judge on the Air Force Court of Criminal 

Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric 

Fanning, (25 June 2013).

When the appellant’s case was initially before us, the appellant raised two issues:

(1) that his plea was improvident, and (2) that the military judge erred when he 

determined the maximum punishment by referencing 18 U.S.C. § 2252A(b)(1), which 

sets maximum confinement at 20 years for receipt of child pornography in violation of 

18 U.S.C. § 2252A(a)(2).

On 16 July 2013, we issued a decision affirming the approved findings and 

sentence in the appellant’s case.1

 United States v. Slagle, 72 M.J. 710 (recon) 

(A.F. Ct. Crim. App. 2013). Pursuant to his appointment by the Secretary of Defense, 

Mr. Soybel was a member of that panel. The appellant moved to vacate the decision on 

the basis of Mr. Soybel’s participation. On 31 October 2013, our superior court 

converted the appellant’s motion to vacate, which was pending before our Court, into a 

motion for reconsideration. United States v. Slagle, 73 M.J. 91 (C.A.A.F. 2013) (mem.). 

On 15 April 2014, our superior court issued its decision in United States v. Janssen, 73 

M.J. 221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not have the 

legislative authority to appoint appellate military judges and that his appointment of Mr. 

Soybel to this Court was “invalid and of no effect.”

In light of Janssen, we granted the motion for reconsideration on 29 April 2014 

and permitted the appellant to file a supplemental assignment of errors. The appellant 

submitted a supplemental assignment of errors asserting he is entitled to relief due to 

excessive post-trial processing delays. With a properly constituted panel, we have 

1 After the appointment of Mr. Lawrence Soybel by the Secretary of Defense on 25 June 2013, this Court sua sponte 

reconsidered its 14 May 2013 opinion and issued a new opinion on 16 July 2013. The two panels had identical 

members.

2 ACM 38087 (recon)

 
reviewed the appellant’s case, to include the appellant’s previous and current filings and 

the previous opinions issued by this Court. Finding no error that materially prejudices a 

substantial right of the appellant, we affirm the findings and sentence.

Discussion

The appellant relies on United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011), to 

argue that the punishment under 18 U.S.C. § 2252A does not apply because the 

specification fails to allege the aggravating circumstance that the children in the images 

were “actually [minors] or virtually indistinguishable from minors.” Unlike the 

specification in Beaty, the specification here did not allege that the images were of only 

“what appear[] to be” minors. Moreover, Beaty expressly found no abuse of discretion in 

using the analogous United States Code maximum for a specification alleging possession 

of “visual depictions of minors engaging in sexually explicit activity.” Id. at 42.

Our superior court has recently examined the issue of maximum punishment in 

child pornography cases and reaffirmed that when all the elements of a federal crime, 

except the jurisdictional element, are included in a clause 1 or 2 Article 134, UCMJ,

specification then the analogous federal statute provides the maximum punishment. 

United States v. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014). The specification at issue here 

is directly analogous to 18 U.S.C. § 2252A(a)(2), which criminalizes receipt and 

distribution of child pornography; 18 U.S.C. § 2252A(a)(5), which criminalizes 

possession of child pornography; and 18 U.S.C. § 2256(8)(B), which defines child 

pornography. Therefore, the military judge did not err in holding the maximum possible 

sentence was based on the analogous portions of 18 U.S.C. § 2252A. See Finch, 

73 M.J. at 148.

Alternatively, the appellant argues the plea inquiry was improvident as to “actual 

minors” because the military judge failed to establish the appellant possessed images of 

actual minors. “[W]e review a military judge’s decision to accept a guilty plea for an 

abuse of discretion and questions of law arising from the guilty plea de novo.”

United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); United States v. Eberle, 

44 M.J. 374, 375 (C.A.A.F. 1996). To accomplish our review, “we apply the substantial 

basis test and look for something in the record of trial, with regard to the factual basis or 

the law, that would raise a substantial question regarding the appellant’s guilty plea.” 

Inabinette, 66 M.J. at 322; United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991) 

(holding a plea of guilty should not be overturned as improvident unless the record 

reveals a substantial basis in law or fact to question the plea). “An accused must know to 

what offenses he is pleading guilty,” United States v. Medina, 66 M.J. 21, 28 (C.A.A.F. 

2008), and a military judge’s failure to explain the elements of the charged offense is 

error, United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969). Accordingly, “a 

military judge must explain the elements of the offense and ensure that a factual basis for 

each element exists.” United States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004) (citing 

3 ACM 38087 (recon)
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996). This same issue was also 

addressed in Finch, as discussed supra.

Here, the military judge provided the same definitions as were provided in Finch. 

The military judge correctly defined “minor” as “any person under the age of 18 years.” 

In defining the prohibited content of the visual depictions, the judge explained the 

sexually explicit images must be “persons indistinguishable from minor children whether 

actual or virtual.” After acknowledging his understanding of the elements and 

definitions, the appellant admitted to having between 6000 and 8000 images of child 

pornography on his computer. He told the military judge that he was “certain” the 

images contained minors because he “could plainly see that they were young girls 

roughly between the ages of 6 and 12” involved in sex acts such as masturbation, oral 

sex, and intercourse. He found the images by searching the Internet using specific age 

and gender terms, and the file names contained ages such as 8 and 10 that were consistent 

with his search terms. At the conclusion of the inquiry, the military judge asked the 

appellant if he believed and admitted that he received and possessed “visual depictions of 

a minor engaging in sexually explicit conduct.” (emphasis added). The appellant replied 

that he did.

Trial defense counsel explicitly acknowledged that 18 U.S.C. 2252A(a)(5) 

provided a 10 year confinement maximum for the offense of possession of child 

pornography. Trial defense counsel argued that rather than the 20 year maximum sought 

by the Government for possession and receipt of child pornography, the military judge 

should merge the offenses for sentencing to limit the maximum confinement to 10 years. 

The military judge denied this motion.

In consideration of the entire inquiry, we find no substantial basis to question the 

appellant’s guilty plea. We reach the same conclusion as our superior court in Finch:

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 [the appellant] to support 

the plea. Consequently, [the appellant] has failed to establish that a 

substantial basis in law or fact exists to reject his plea.

73 M.J. at 149.

Appellate Review Time Standards

We review de novo “[w]hether an appellant has been denied [his] due process 

right to a speedy post-trial review . . . and whether [any] constitutional error is harmless 

beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). 

4 ACM 38087 (recon)
A presumption of unreasonable delay arises when appellate review is not completed and 

a decision is not rendered within 18 months of the case being docketed before this Court. 

United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards 

continue to apply as a case continues through the appellate process. United States v. 

Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is not violated 

when each period of time used for the resolution of legal issues between this Court and 

our superior court is within the 18-month standard. Id. at 136; United States v. Roach, 69 

M.J. 17, 22 (C.A.A.F. 2010).

This case was originally docketed for appellate review on 15 May 2012, and this 

Court rendered a decision on 16 July 2013, within the 18-month standard established in 

Moreno. As stated supra, our superior court recently decided that one of the judges who 

participated in that decision was not properly appointed. See Janssen, 73 M.J. at 222. 

Accordingly, we have considered the appellant’s court-martial before a properly 

constituted panel and issue this decision. The time between our superior court’s action 

and this decision has not exceeded 18 months; therefore, the Moreno presumption of 

unreasonable delay is not triggered. See Mackie, 72 M.J. at 136.

Additionally, Article 66(c), UCMJ, empowers appellate courts to grant sentence relief for 

excessive post-trial delay without the showing of actual prejudice required by Article 

59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 

2002); see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States 

v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and Marine Court 

colleagues identified a “non-exhaustive” list of factors to consider in evaluating whether 

Article 66(c), UCMJ, relief should be granted for post-trial delay. Among the nonprejudicial factors are the length and reasons for the delay; the length and complexity of 

the record; the offenses involved; and the evidence of bad faith or gross negligence in the 

post-trial process. Id. at 607. We find there was no bad faith or gross negligence in the 

post-trial processing. The reason for the delay was to allow this Court and our superior 

court to fully consider a constitutional issue of first impression about whether the 

Secretary of Defense has the authority under the Appointments Clause2 to appoint 

civilian employees to the service courts of criminal appeals. We conclude that sentence 

relief under Article 66, UCMJ, is not warranted.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ.

2 U.S. CONST. art II § 2, cl 2.

5 ACM 38087 (recon)

 
Accordingly, the approved findings and sentence are

AFFIRMED.

FOR THE COURT

LAQUITTA J. SMITH

Appellate Paralegal Specialist

6 ACM 38087 (recon)