UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, GALLAGHER, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class MATTHEW R. STREMPLER 

United States Army, Appellant 

ARMY 20100989 

Headquarters, 1st Cavalry Division (trial) 

Headquarters, III Corps and Fort Hood (post-trial) 

Gregory Gross, Military Judge 

Lieutenant Colonel Mark H. Sydenham, Staff Judge Advocate 

For Appellant: Captain Brandon H. Iriye, JA (argued); Colonel Patricia A. Ham, JA; 

Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain 

Brandon H. Iriye, JA (on brief). 

For Appellee: Captain Jessica J. Morales, JA (argued); Lieutenant Colonel Amber J. 

Roach, JA; Captain Edward J. Whitford, JA; Captain Jessica J. Morales (on brief). 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Per Curiam: 

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

pursuant to his pleas, of absence without leave, failure to go to appointed place of 

duty, disobeying a noncommissioned officer, and possession of child pornography in 

violation of Articles 86, 91, and 134, Uniform Code of Military Justice, 10 U.S.C. 

§§ 886, 891, and 934 (2006) [hereinafter UCMJ]. The military judge sentenced 

appellant to a bad-conduct discharge, confinement for twenty months, forfeiture of 

all pay and allowances, and reduction to the grade of E-1. The convening authority, 

pursuant to a pretrial agreement, approved only so much of the sentence as provided 
STREMPLER—ARMY 20100989 

2

for a bad-conduct discharge, 328 days of confinement, forfeiture of all pay and 

allowances, and reduction to the grade of E-1.1

This case is before us for review under Article 66, UCMJ. Appellate defense 

counsel originally raised one assignment of error to this court, and appellant 

personally submitted matters pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982). Following our review of the record, we ordered briefs on two 

additional issues. Pursuant to appellate defense counsel’s request, we then heard 

oral argument on these issues. One of these issues merits discussion and relief. The 

remaining specified issue and the assignment of error raised by appellant are 

rendered moot by our decision below. Those matters appellant personally raises 

pursuant to Grostefon are without merit. 

BACKGROUND

 Appellant was charged with knowingly possessing child pornography, as 

defined by 18 U.S.C. § 2256(8), in violation of Article 134, UCMJ. The 

Specification of Charge III alleged: 

In that [appellant], U.S. Army, did, on or about 8 August 

2009, at or near Joint Security Station McHenry, Iraq, 

knowingly possess ten video files of child pornography as 

defined by 18 U.S.C. 2256(8) on his Compaq Presario 

Laptop, such conduct being prejudicial to good order and 

discipline in the armed forces or of a nature to bring 

discredit upon the armed forces. (emphasis added). 

 Appellant initially entered a plea of not guilty to this specification and charge 

but pleaded guilty to several other minor offenses. However, prior to the 

government going forward on the contested charge, appellant entered into a pretrial 

agreement with the government and ultimately pleaded guilty to Charge III and its 

Specification. 

 During the providency inquiry, the military judge advised appellant of the 

elements of the offense as follows: 

One, that on or about 8 August 2009, at or near Joint 

Security Station McHenry, Iraq, you knowingly possessed 

material, to wit: a Compaq Presario laptop computer, 

which contained visual depictions, specifically 10 video 

files; 

 

1

 Appellant was credited with 280 days of confinement against his sentence to 

confinement. 
STREMPLER—ARMY 20100989 

3

Two, that the visual depictions were of real minors, or 

what appeared to be minors, engaged in sexually explicit 

conduct; 

Three, that at the time, you knew the material you 

possessed, to wit: the visual depictions, showed sexually 

explicit conduct; 

Four, that you knew that at least one of the persons 

engaged in sexually explicit conduct in each of the visual 

depictions was a minor, or what appears to be a minor; 

Five, the act was wrongful; and 

Six, that under the circumstances, your conduct was to the 

prejudice of good order and discipline in the armed forces, 

or was of a nature to bring discredit upon the armed 

forces. (emphasis added). 

After listing the elements of the offense, the military judge reiterated that “this 

offense requires you to have knowingly possessed the material, and to have known 

that the material contained a real minor engaged in sexually explicit conduct, or 

what appeared to be a real minor engaged in sexually explicit conduct.” He then 

provided several definitions contained in 18 U.S.C. 2256(8) but modified the 

definitions by adding the term, “or appears to be a minor.” 

 

 Following the military judge’s recitation of the elements, appellant admitted 

that he knowingly possessed the ten video files containing child pornography as it 

was explained to him by the military judge. Appellant and the military judged 

engaged in the following colloquy: 

MJ: When you took a look at those videos – specifically 

the ten in question here that your’re charged with 

possessing – were they of real minors, or at least what 

appeared to be minors? 

ACC: Yes, sir. 

MJ: What were the minors doing in these videos? 

ACC: Sexual acts, sir. 
STREMPLER—ARMY 20100989 

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 The military judge continued to add the term “or appears to be a minor” 

throughout the remainder of the providence inquiry and neither party objected to the 

use of this terminology. In his responses to the military judge, appellant never 

stated that the children were “actual” minors and he never asked for clarification 

from the military judge on what encompassed “or appears to be a minor.” Based on 

the military judge’s questions and appellant’s responses, the military judge accepted 

appellant’s plea of guilty to the charged offense. 

 Following the providence inquiry, the military judge asked trial counsel to 

calculate the maximum sentence. The trial counsel stated, “the maximum sentence is 

10 years and 8 months confinement, total forfeitures, dishonorable discharge, and 

reduction to E-1.”2

 Defense counsel did not object to this instruction and the 

military judge instructed appellant accordingly. 

LAW AND DISCUSSION 

Appellant alleges there is a substantial basis in law and fact to question the 

providency of his plea of guilty to possession of child pornography as defined by 18 

U.S.C. § 2256(8). Specifically, appellant argues the military judge provided an 

erroneous definition of “child pornography” when he failed to provide a definition 

mirroring that set forth in the Child Pornography Prevention Act, 18 U.S.C. § 

2256(8) (2006), but instead provided a definition encompassing conduct specifically 

found to be outside that criminalized by the federal statute, and, as a result, 

appellant did not understand the offense to which he pleaded guilty. 

 “A military judge's decision to accept a guilty plea is reviewed for an abuse of 

discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996) (citing 

United States v. Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). An appellate court will 

not set aside a guilty plea unless there is “a ‘substantial basis’ in law and fact for 

questioning the guilty plea.” Id. (quoting United States v. Prater, 32 M.J. 433, 436 

(C.M.A. 1991)). 

 A military judge can abuse his discretion if he accepts appellant's guilty plea 

based upon “an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46 

(C.A.A.F. 2012) (citing United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 

 

2

 Appellant was convicted of absence without leave for less than three days, failing 

to report to his appointed place of duty, willfully disobeying a superior 

noncommissioned officer, and possession of child pornography. The correct 

maximum punishment for these offenses includes a dishonorable discharge, 

confinement for eleven years and two months, forfeiture of all pay and allowances, 

and reduction to the grade of E-1. Thus, the military judge erred in advising 

appellant on the correct maximum punishment. However, this error is rendered moot 

by this decision. 
STREMPLER—ARMY 20100989 

5

2008)). 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 right 

to know to what offense and under what legal theory he or she is pleading guilty.” 

Id. 

 In this case, appellant was charged with knowingly possessing child 

pornography as defined by 18 U.S.C. § 2256(8). The term “child pornography” in 18 

U.S.C. § 2256(8) is defined as follows: 

[A]ny 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; or 

(C) such visual depiction has been created, adapted, or 

modified to appear that an identifiable minor is engaging 

in sexually explicit conduct. 

During the providency inquiry, the military judge, rather than using the 

definition set forth in the federal statute, sua sponte and without reason or 

explanation expanded the definition of child pornography by utilizing the preAshcroft language of “what appears to be a minor.” “The United States Code does 

not criminalize possession of ‘what appears to be’ child pornography. In fact, while 

such possession was criminal under a prior version . . . that statute was amended to 

remove reference to such conduct.” United States v. Beaty, 70 M.J. 39, 43 (C.A.A.F. 
STREMPLER—ARMY 20100989 

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2011). Our inquiry therefore becomes whether the military judge’s use of the “what 

appears to be” language creates a substantial basis in law and fact to question 

appellant’s plea to possession of child pornography as charged and defined by 18 

U.S.C. § 2256(8). We conclude that it does. 

An essential aspect of informing appellant of the nature of the offense is a 

correct definition of legal concepts. When applying 18 U.S.C. § 2256(8), “[t]he 

relevant provisions of [the statute] require the image depict an actual minor 

engaging in sexually explicit conduct.” United States v. O’Connor, 58 M.J. 450, 453 

(C.A.A.F. 2003). However, throughout the entire providency inquiry, the military 

judge failed to adequately advise appellant the images in question must contain an 

“actual” minor. Instead, the military judge provided an overly broad definition of 

child pornography that included conduct not proscribed by the statute. Further, the 

record does not reflect appellant independently understood the images in his 

possession must be of, or indistinguishable from, a real minor to bring his conduct 

within the definition used in charging him with possession of child pornography. 

Thus, we are not confident appellant understood the offense for which he was 

charged, to which definition of child pornography he was pleading guilty, and what 

maximum punishment applied to his conduct. See Medina, 66 M.J. at 26. 

Because the military judge failed to properly advise appellant of the charged 

definition of child pronography, there are insufficient facts in the record to establish 

appellant understood the offense for which he was convicted without exception. See

O’Connor, 58 M.J. at 453 (C.A.A.F.2003) (finding appellant's plea improvident 

because “the military judge utilized the pre- [Ashcroft v.] Free Speech Coalition, 

[535 U.S. 234 (2002)] provisions of 18 U.S.C. § 2256(8) to explain the definition of 

‘child pornography’ to [a]ppellant.”); United States v. Pretlow, 13 M.J. 85, 88–89 

(C.M.A.1982) (finding appellant's plea improvident because the military judge did 

not explain “the elements of the substantive offense which was the object of the 

conspiracy”). We could possibly affirm a conviction of the lesser-included offense 

of possession of child pornography, not defined by the federal statute but still 

satisfying the terminal element of Article 134, UCMJ, which would then reduce the 

maximum sentence to confinement for this crime from ten years to only four months. 

However, in this case, we decline to do so. Consequently, we will set aside the 

findings of guilty, in their entirety, to Charge III and its Specification in our decretal 

paragraph. 

CONCLUSION

The findings of guilty to Charge III and its Specification are set aside. The 

remaining findings of guilty are AFFIRMED. The sentence is set aside. The same 

or a different convening authority may order a rehearing on Charge III and its 

Specification and the sentence. If the convening authority determines that a 
STREMPLER—ARMY 20100989 

7

rehearing on Charge III and its Specification is impracticable, he may dismiss the 

charge and order a rehearing on the sentence only. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: