UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39017

________________________

UNITED STATES

Appellee

v.

Sergiy O. ALYOKHIN

Senior Airman (E-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 10 August 2017

________________________

Military Judge: Donald R. Eller, Jr.

Approved sentence: Dishonorable discharge, confinement for 21 

months, and reduction to E-1. Sentence adjudged 20 October 2015 by 

GCM convened at Ramstein Air Base, Germany. 

For Appellant: Captain Allen S. Abrams, USAF.

For Appellee: Major Clayton H. O’Connor, USAF; Gerald R. Bruce, Esquire.

Before DREW, MAYBERRY, and MINK, Appellate Military Judges.

Chief Judge DREW delivered the opinion of the court, in which Senior 

Judge MAYBERRY and Judge MINK joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

________________________

DREW, Chief Judge:

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

accordance with his pleas, of two specifications of possessing child pornography and two specifications of distributing child pornography, in violation of 

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. The 
United States v. Alyokhin, No. ACM 39017

2

military judge sentenced him to a dishonorable discharge, confinement for 21

months, and reduction to E-1.1 The convening authority approved the adjudged sentence.

Appellant contends that (1) his pleas to the Charge and its Specifications 

were improvident, (2) his conviction for possession of child pornography is, in 

part, factually and legally insufficient, and (3) he is entitled to sentence appropriateness relief resulting from post-trial delay from the trial to the convening authority’s action.2 We find that Appellant’s plea to possessing child 

pornography was improvident as to one of the images alleged. We also find 

the military judge erred during the providence inquiry by providing Appellant an inapplicable definition. We nevertheless find that his pleas to all 

specifications were otherwise provident. Having revised the specification with 

the erroneous image, we reassess the sentence. We affirm the findings, as 

modified, and sentence, as reassessed.

I. BACKGROUND

Each of the four specifications of child pornography alleged that Appellant 

wrongfully possessed or distributed images or videos of actual minors engaged in sexually explicit conduct. In discussing the offenses with Appellant, 

the military judge defined “child pornography” as follows:

Child pornography means material that contains a visual depiction of an actual minor engaging in sexually explicit conduct. It also means material that contains an obscene visual 

depiction of a minor engaging in sexually explicit conduct. Such 

a depiction need not involve an actual minor, but instead only 

what appears to be a minor. 

(Emphasis added.)

 

1 Pursuant to a pretrial agreement (PTA), the convening authority withdrew and 

dismissed with prejudice the Additional Charge and its Specification, alleging indecent visual recording, in violation of Article 120c, UCMJ, 10 U.S.C. § 920c. The only 

sentence limitation in the PTA was an agreement by the convening authority to disapprove any confinement in excess of 24 months. The PTA thus had no impact on the 

adjudged sentence.

2 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant also 

personally raised two issues alleging that the specifications are multiplicious or an 

unreasonable multiplication of charges. On the record, Appellant expressly waived 

these issues as part of his PTA. The issues do not require further discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
United States v. Alyokhin, No. ACM 39017

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The military judge defined “sexually explicit conduct” as follows:

Sexually explicit conduct means actual or simulated sexual intercourse or sodomy, including genital to genital, oral to genital, anal-genital, or oral-anal, whether it be between persons of 

the same or opposite sex; includes bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.

The military judge defined “lascivious exhibition” as follows:

Lascivious means exciting sexual desires or marked by lust. 

Not every exposure of the genitals or pubic area constitutes 

lascivious exhibition. Consideration of the overall content of the 

visual depiction should be made in determining if it constitutes 

a lascivious exhibition. In making this determination, the panel 

would consider such factors as whether the focal point of the 

depiction is on the genitals or pubic area, whether the setting is 

sexually suggested [sic], 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, and whether the depiction is intended or designed to elicit a sexual response in the viewer, as well 

as any other factors that may qualify, if not more important, in 

determining whether the visual depiction contains a lascivious 

exhibition. A visual depiction, however, need not involve all 

those factors in order to meet that definition.

The military judge also informed Appellant that:

You are advised that you could not be convicted of possessing 

child pornography if you did not know that the images were of 

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

(Emphasis added.)

In response to the military judge asking Appellant to tell him, in Appellant’s own words, why he thought he was guilty of possession of child pornography images (Specification 1), Appellant responded:

I downloaded and possessed 17 images of child pornography 

showing obscene visual depictions of minors or what appeared 

to be minors engaging in sexually explicit conduct.

. . . .
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I possessed these files fully knowing that they contained obscene visual depictions of minors, or what appeared to be minors, engaging in sexually explicit conduct.

(Emphasis added.)

Appellant gave similar descriptions when describing his actions for the 

possession of child pornography videos (Specification 2), distribution of child 

pornography images (Specification 3), and distribution of child pornography 

videos (Specification 4); each time Appellant described the child pornography 

as containing minors or what appeared to be minors. For Specifications 2–4, 

the military judge referred back to his previous definition of child pornography without ever narrowing the definition to directly correspond to the language of the specifications alleging only actual minors.3

The providence inquiry also included a discussion between the military 

judge and Appellant about Prosecution Exhibit 1, a stipulation of fact. The 

stipulation of fact was signed by Appellant, his civilian and military defense 

counsel, and the two trial counsel. The stipulation mirrors the providence inquiry in that it includes “minors, or what appear to be minors” in several 

places. It is clear that Appellant, the military judge, and all counsel believed 

that “minors, or what appear to be minors” was the appropriate definition to 

apply to the four specifications.

Nevertheless, the stipulation also included one paragraph (paragraph 9)

describing each of the specific images and videos Appellant was charged with 

possessing and another paragraph (paragraph 12) describing each of the specific images and videos Appellant was charged with distributing. Each of the 

descriptions include the relative age of the child or children in the image or 

video, for example, “6–8 years old,” “approximately three years old,” “approximately five years old,” “young female child,” and “prepubescent or pubescent 

males.” None of the descriptions include the word “appear” in describing the 

relative age. All of the described ages indicate that the depicted children were 

actually younger than 18. However, in subsequent paragraphs of the stipulation of fact, the description paragraphs are summarized in the following fashion: “Each image or video described in Paragraph 9 is a depiction of minors 

(or what appear to be minors) . . . . Each of the image [sic] or video [sic] described in Paragraph 12 is a depiction of minors, or what appear to be minors

. . . .” (Emphasis added.)

 

3 None of the specifications use the word “actual.” Rather they simply allege “minors” 

without including the optional “or what appears to be minors.”
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During the providence inquiry, the military judge referred Appellant to 

paragraphs 9 and 12 of the stipulation of fact and asked him if he agreed that 

the descriptions were accurate. Each time, Appellant confirmed that they 

were. In concluding their discussion about each specification, the military 

judge asked Appellant if he admitted that child pornography contained images and videos of minors:

Q. Do you agree and admit that at or near Steinwenden, Germany, between on or about 7 October 2013 and on or about 9 

July 2014, you knowingly and wrongfully possessed child pornography to wit: digital images of minors engaged in sexually 

explicit conduct entitled as set forth in Specification 1 of the 

Charge?

A. Yes, Your Honor.

. . . .

Q. Do you agree and admit that at or near Steinwenden, Germany, between on or about 7 October 2013 and on or about 9 

July 2014, you knowingly and wrongfully possessed child pornography to wit: digital videos of minors engaged in sexually 

explicit conduct entitled as set forth in Specification 2 of the 

Charge?

A. Yes, Your Honor.

. . . .

Q. Do you agree and admit that at or near Steinwenden, Germany, on divers occasions between on or about 7 October 2013 

and on or about 7 [sic] July 2014, you knowingly and wrongfully distributed child pornography to wit: digital images of minors engaged in sexually explicit conduct, entitled as set forth 

in Specification 3 of the Charge?

A. Yes, sir.

. . . .

Q. Do you agree and admit that at or near Steinwenden, Germany, on divers occasions between on or about 7 October 2013 

and on or about 9 July 2014, you knowingly and wrongfully distributed child pornography to wit: digital videos of minors engaged in sexually explicit conduct entitled as set forth in Specification 4 of the Charge?

A. Yes, sir.
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II. DISCUSSION

A. Providence of the Plea

“We review a military judge’s acceptance of a guilty plea for an abuse of 

discretion.” United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015). “The 

test for an abuse of discretion in accepting a guilty plea is whether the record 

shows a substantial basis in law or fact for questioning the plea.” United 

States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United States v. Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)). “The military judge must question the 

accused under oath about the offenses to ensure there is an adequate factual 

basis for a guilty plea.” United States v. Mull, ___ M.J. ___ , No. ACM S32367, 

2017 CCA LEXIS 421, at *5 (A.F. Ct. Crim. App. 22 Jun. 2017); Rule for 

Courts-Martial (R.C.M.) 910(e); see also Article 45(a), UCMJ, 10 U.S.C. 

§ 845(a). “It is an abuse of discretion for a military judge to accept a guilty

plea without an adequate factual basis . . . .” United States v. Weeks, 71 M.J. 

44, 46 (C.A.A.F. 2012). However, we look to the entire record to determine 

whether there is a substantial basis to question the guilty plea. United States 

v. Jordan, 57 M.J. 236, 239 (C.A.A.F. 2002).

“A plea is provident so long as Appellant was ‘convinced of, and [was] able 

to describe, all of the facts necessary to establish [his] guilt.’” United States v. 

Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (alterations in original) (quoting 

United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)). “If an accused 

sets up matter inconsistent with the plea at any time during the proceeding, 

the military judge must either resolve the apparent inconsistency or reject 

the plea.” Moon, 73 M.J. at 386 (quoting United States v. Hines, 73 M.J. 119, 

124 (C.A.A.F. 2014)). We “must find a substantial conflict between the plea 

and the accused’s statements or other evidence in order to set aside a guilty 

plea. The mere possibility of a conflict is not sufficient.” Id. (quoting Hines, 73 

M.J. at 124).

In military jurisprudence, the offenses of possessing and distributing 

child pornography are generally based on 18 U.S.C. § 2252A, as well as military custom and regulation. Manual for Courts-Martial, United States (2012 

ed.) (MCM), App. 23, ¶ 68b. The military offenses criminalize conduct involving minors and what appear to be minors. The sample specification in the 

MCM includes “of a minor, or what appears to be a minor.” MCM, pt. IV, 

¶ 68b.f. On the other hand, in the model specification in the Military Judges’ 

Benchbook “or what appears to be a minor” is an optional parenthetical 

phrase. Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9, ¶ 3–

68b-1.b. (10 Sep. 2014). The Benchbook includes two definitions of child pornography and provides guidance to military judges as to which definition to 

use:
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Defining “child pornography.” The definition of “child pornography” used below will depend upon the evidence presented. 

The first definition below should be given where actual minors 

are in issue. The second definition below should be given where 

the depictions do not involve the use of actual minors, or there 

is some question as to whether actual minors were used in the 

depictions. If appropriate, give both definitions.

Benchbook, ¶ 3–68b-1.d. Note 2.

In this case, the Government chose to deviate from the MCM standard 

specification and, following the Benchbook model specification, omitted the 

“or what appears to be a minor” language. However, in addition to the definition of child pornography applicable to “an actual minor,” the military judge 

also provided Appellant with the optional, but in this case inapplicable, definition involving “what appears to be a minor.” This was error. This error was 

compounded by similar comments about “or what appears to be a minor” 

made by the military judge at other points of the providence inquiry, by the 

Prosecution’s inclusion of similar language in the stipulation of fact, and by 

the military judge’s failure to correct or clarify Appellant’s use of similar language in his discussion during the providence inquiry. 

In determining whether Appellant’s plea is provident, we do not limit our 

review only to the providence inquiry, but rather we look to the entire record 

to determine whether Appellant was convinced of, and was able to describe,

all of the facts necessary to establish his guilt. Appellant agreed that the descriptions in paragraphs 9 and 12 of the stipulation of fact accurately described each of the images and videos he possessed and distributed. Those 

descriptions clearly indicated that the children in these digital files were actual minors and not any form of digitally manipulated virtual children. It is 

certainly understandable for Appellant to have personally not been certain as 

to the specific age of some of the older children depicted. However, he could, 

and did, properly rely upon his counsel’s investigation of his case and the 

opinions of the National Center for Missing and Exploited Children and other 

experts. In the end, Appellant was convinced and adequately described that 

the images and videos in each specification portrayed actual minors. We have 

reviewed them as well and are likewise convinced. 

We are nevertheless concerned that the evidence before the military judge 

was inconsistent with Appellant’s plea of wrongfully possessing one of the 17 

images listed in Specification 1 of the Charge, t****s.jpg. Paragraph 9.f. of 

the stipulation of fact described t s.jpg as: “[a]n image of a prepubescent 

or pubescent female standing beside an exercise bicycle, wearing a small bikini top and removing a bikini bottom. The words, ‘FATHER / DAUGHTER 

TRADE: e-mail or skype: [Appellant’s email address]’ are imposed in four 
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lines across the image.” We have reviewed t** **s.jpg and our independent 

review does not support the description that the minor in the image was removing the bikini bottom she was wearing. After reviewing the image himself, the military judge did not address that inconsistency with Appellant.

For the image to constitute child pornography, the depicted minor would 

have to be engaging in sexually explicit conduct. Of the various examples of 

sexually explicit conduct defined by the military judge (and based on 18 

U.S.C. § 2256(2)(A)), the only one that potentially applied to the image was a 

lascivious exhibition of the genitals or pubic area, even though the minor in 

the image remained fully clothed in a bikini top and bikini bottom. The military judge correctly defined lascivious exhibition for Appellant using the socalled “Dost factors.” See United States v. Roderick, 62 M.J. 425, 429–30 

(C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 

1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 

1987)). In determining a lascivious exhibition, military courts combine a review of the Dost factors with an overall consideration of the totality of the circumstances. Roderick, 62 M.J. at 430. 

The military judge abused his discretion by failing to elicit from Appellant

a factual basis to conclude that t s.jpg constituted a lascivious exhibition 

of the genitals or pubic area. Accordingly, we find that Appellant’s plea to 

Specification 1 of the Charge was improvident as to the word “t** **s.jpg.” We 

find that Appellant’s pleas to the remainder of Specification 1 and to Specifications 2–4 of the Charge were provident. We except out the word “t s.jpg” 

from Specification 1 and reassess Appellant’s sentence in light of our action.

B. Legal and Factual Sufficiency 

Appellant challenges the legal and factual sufficiency of whether one image he was convicted of possessing, t** **s.jpg, constituted child pornography. 

In light of our decision regarding the providence of Appellant’s plea to Specification 1 of the Charge, his legal and factual sufficiency challenge is moot.

C. Timely Appellate Review

One hundred and thirty-nine days elapsed between announcement of sentence and convening authority action. Nevertheless, we do not find that sentence relief is warranted.

“[C]onvicted servicemembers have a due process right to timely review 

and appeal of courts-martial convictions.” United States v. Moreno, 63 M.J. 

129, 135 (C.A.A.F. 2006). Accordingly, we review de novo whether Appellant 

has been denied his due process right to a speedy post-trial review and appeal. Id. In Moreno, the Court of Appeals for the Armed Forces established a 

presumption of unreasonable post-trial delay that requires a due process re-
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view when the convening authority does not take action within 120 days of 

trial. Id. at 142. 

If there is a Moreno-based presumption of unreasonable delay or an otherwise facially-unreasonable delay, we examine the claim under the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of 

the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the 

right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135. 

Moreno identified three types of prejudice arising from post-trial processing 

delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impairment of ability to present a defense at a rehearing. Id. at 138–39. 

“We analyze each factor and make a determination as to whether that 

factor favors the Government or [Appellant].” Id. at 136. Then, we balance 

our analysis of the factors to determine whether a due process violation occurred. Id.; see also Barker, 407 U.S. at 533 (“[C]ourts must still engage in a 

difficult and sensitive balancing process.”). “No single factor is required for 

finding a due process violation and the absence of a given factor will not prevent such a finding.” Moreno, 63 M.J. at 136. However, where an appellant 

has not shown prejudice from the delay, there is no due process violation unless the delay is so egregious as to “adversely affect the public’s perception of 

the fairness and integrity of the military justice system.” United States v. 

Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).

Under Moreno, the period of 139 days between sentence and action in this 

case is presumptively unreasonable, exceeding the standard by 19 days and 

triggering a full due process review. 63 M.J. at 142. However, the relatively 

modest delay beyond 120 days was entirely at the request of Appellant and 

made with full knowledge that if the Government agreed to grant his request 

for additional time to submit clemency matters, the post-trial processing 

would exceed the 120 day standard. In response to the staff judge advocate’s 

email advising civilian defense counsel of the implications of his delay request, counsel responded: “I have discussed this issue with [Appellant], he 

has agreed to the requested extension, and the defense concedes that [Appellant] would not be prejudiced by the additional 20 days.” We agree and will 

not second-guess Appellant’s conscious decision to delay the post-trial processing of his case beyond 120 days. Accordingly, we find no due process violation.

Although we find no due process violation in Appellant’s case, we nonetheless consider whether Article 66(c), UCMJ, 10 U.S.C. § 866(c) relief pursuant to United States v. Tardif is appropriate. 57 M.J. 219, 224 (C.A.A.F. 
United States v. Alyokhin, No. ACM 39017

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2002). We are guided by factors enumerated in United States v. Gay, 74 M.J. 

736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), with 

no single factor being dispositive.4 Applying these factors and considering the 

circumstances of Appellant’s case, we are not moved to reduce an otherwise 

appropriate sentence imposed by the military judge and approved by the convening authority based on post-trial delay.

D. Sentence Reassessment

Having found error in accepting Appellant’s plea to possessing the

t s.jpg image, we must determine whether Appellant was prejudiced. The 

test for prejudice is “whether the error substantially influenced the adjudged 

sentence.” United States v. Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009); United 

States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005); United States v. Boyd, 55 

M.J. 217, 221 (C.A.A.F. 2001). This image was one of 17 images that the military judge convicted Appellant of possessing. The other images were much

more graphic and many of them involved far younger children.

We have “broad discretion” in deciding to reassess a sentence to cure error, as well as arriving at the reassessed sentence. United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). To reassess the sentence, we must be 

able to reliably conclude that, in the absence of error, the sentence “would 

have been at least of a certain magnitude,” and the reassessed sentence must 

be “no greater than that which would have been imposed if the prejudicial 

error had not been committed.” United States v. Sales, 22 M.J. 305, 307, 308 

(C.M.A. 1986). We must be able to determine this to a “degree of certainty.” 

United States v. Eversole, 53 M.J. 132, 137 (C.A.A.F. 2000). “The standard for 

reassessment is not what would be imposed at a rehearing but what would 

have been imposed at the original trial absent the error.” United States v. 

Taylor, 47 M.J. 322, 325 (C.A.A.F. 1997). A reassessed sentence “must be 

purged of prejudicial error and also must be ‘appropriate’ for the offense[s] 

 

4 These factors include: (1) How long the delay exceeded the standards set forth in 

Moreno; (2) what reasons, if any, the Government set forth for the delay, and whether there is any evidence of bad faith or gross indifference to the overall post-trial processing of this case; (3) whether there is nonetheless evidence of harm (either to the 

appellant or institutionally) caused by the delay; (4) whether the delay has lessened 

the disciplinary effect of any particular aspect of the sentence, and whether relief is 

consistent with the dual goals of justice and good order and discipline; (5) whether 

there is any evidence of institutional neglect concerning timely post-trial processing, 

either across the service or at a particular installation; and (6) whether, given the 

passage of time, whether this court can provide meaningful relief in this particular 

situation. Gay, 74 M.J. at 744, aff’d, 75 M.J. 264 (C.A.A.F. 2016).
United States v. Alyokhin, No. ACM 39017

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involved” based on our sentence approval obligation under Article 66(c), 

UCMJ. Sales, 22 M.J. at 308.

In determining whether to reassess a sentence or order a rehearing, we 

consider the totality of the circumstances, including the following illustrative, 

but not dispositive, factors: (1) dramatic changes in the penalty landscape 

and exposure, (2) the forum, (3) whether the offenses remaining after we have 

corrected the error capture the gravamen of the criminal conduct included 

within the original offenses, (4) whether significant or aggravating circumstances remain admissible and relevant, and (5) whether the remaining offenses are the type with which we, as appellate judges, have the experience 

and familiarity to reliably determine what sentence would have been imposed 

at trial by the sentencing authority. Winckelmann, 73 M.J. at 15–16.

We are mindful that the penalty landscape and exposure has not changed; 

the forum was judge-alone; the offenses of which Appellant was convicted 

remain the same; significant aggravating evidence in the stipulation of fact 

remains admissible and relevant; and this court has extensive experience and 

familiarity with Appellant’s offenses, sufficient for us to reliably determine 

what sentence would have been imposed by the military judge without the 

t** **s.jpg image. In consideration of these factors, we readily conclude that 

we can reassess the sentence in this case. We are satisfied that, based on the 

facts and circumstances surrounding the commission of Appellant’s offenses, 

the military judge would have imposed the same sentence he adjudged: a dishonorable discharge, confinement for 21 months, and reduction to E-1.

We have also concluded that the reassessed sentence is appropriate. We 

assess sentence appropriateness by considering Appellant, the nature and 

seriousness of the offenses, Appellant’s record of service, and all matters contained in the record of trial. United States v. Snelling, 14 M.J. 267, 268 

(C.M.A. 1982); United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 

2006), aff'd, 65 M.J. 35 (2007). We are convinced that the reassessed sentence 

is not inappropriately severe.

III. CONCLUSION

The approved findings, as modified, and sentence, as reassessed, are correct in law and fact, and no error materially prejudicial to the substantial 

rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 

859(a), 866(c).
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Accordingly, the findings, as modified, and the sentence, as reassessed,

are AFFIRMED.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court