## UNITED STATES ARMY COUR T 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, 1 st Cavalry Division (trial) Headquarters, III Corps an d Fort Hood (post-trial) Gregory Gross, Military Judge

Lieutenant Colonel Mark H. S ydenham, Staff Ju dge Advocate

For Appellant: Captain Brandon H. Iriye, JA (argued); Colonel Pa tricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Rich ard 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

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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, fa ilure to go to appointed place of duty, disobeying a noncommissi oned officer, and possession of child por nography in violation of Articles 86, 91, and 134, Uniform Code of Mi litary Justice, 10 U.S.C. §§ 886, 891, and 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, conf inement for twenty months, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority, pursuant to a pretrial agreem ent, approved only so much of the se ntence as providedSTREMPLER—ARMY 20100989

2 for a bad-conduct discharge, 328 days of confin ement, forfeiture of all pay and allowances, and reductio n 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. Pu rsuant to appellate defense couns el’s request, we then heard oral argument on these issues . One of these issues merits discussion and relief. The remaining specified issue and the assignm ent of error raised by appellant are rendered moot by ou r decision below. Those matters appellant personally raises

pursuant to Grostefon are without merit.

BACKGROUND

Appellant was charged with knowin gly possessing chil d pornography, as defined by 18 U.S.C. § 2256 (8), in violation of Ar ticle 134, UCMJ. The Specification of Ch arge III alleged:

In that [appellant], U.S. Ar my, did, on or about 8 August 2009, at or near Joint Securi ty Station Mc Henry, Iraq, knowingly possess ten video files of chil d pornography as defined by 18 U.S.C. 2256(8) on his Compaq Presario Laptop, such conduct being pr ejudicial to good order and discipline in the ar med forces or of a nature to bring discredit upon the ar med forces. (emphasis added).

Appellant initially entere d a plea of not guilty to this specification and charge but pleaded guilty to seve ral other minor offenses. However, prior to the government going forward on th e contested charge, appellan t entered into a pretrial agreement with the government and ultimate ly 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 ab out 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 depict ions, specifically 10 video files;

1 Appellant was credited with 280 days of confinemen t against his sentence to

confinement.STREMPLER—ARMY 20100989

3 Two, that the visual depictio ns were of real minors, or what appeared to be minors , engaged in sexu ally explicit conduct;

Three, that at the time, you knew the material you possessed, to wit: the visual depictio ns, 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 orde r and discipline in the armed forces,

or was of a nature to br ing discredit upon the armed forces. (emphasis ad ded).

After listing the elements of the offense, the military judge re iterated that “this offense requires you to ha ve knowingly possessed the material, and to have known

that the material contained a real minor en gaged in sexually ex plicit 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 j udge’s recitation of the el ements, appellant admitted that he knowingly possessed the ten video files containing chil d pornography as it was explained to him by the military judge. Appellan t and the military judged engaged in the foll owing colloquy:

MJ: When you took a look at th ose 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

4 The military judge cont inued to add the term “o r appears to be a minor” throughout the re mainder of the providen ce inquiry and neither party objected to the

use of this terminol ogy. In his response s to the military judg e, appellant never

stated that the children were “actual” minors and he never asked for clarification from the military judge on what encompa ssed “or appears to be a minor.” Based on the military judge’s questions and appellant’s res ponses, the military judge accepted appellant’s plea of guilty to the charged offense.

Following the providenc e inquiry, the military judg e asked trial counsel to

calculate the maximum sentence . The trial counsel stated, “the maximum sentence is 10 years and 8 months confinem ent, total forfeitures, di shonorable discharge, and

reduction to E-1.” 2 Defense counsel did not objec t to this instruction and the military judge instructed appellant accordingly.

LAW AND DISCUSSION

Appellant alleges ther e is a substantial basis in la w and fact to question the providency of his plea of gu ilty 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 Pr evention Act, 18 U.S.C. § 2256(8) (2006), but inst ead provided a defini tion encompassing co nduct specifically

found to be outside that cr iminalized by the federal statute, and, as a result, appellant did not underst and 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 ap pellate 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 le ss than three days, failing to report to his appointed place of duty, will fully disobeying a superior noncommissioned officer, an d possession of child po rnography. The correct maximum punishment fo r these offenses includes a dishonorable discharge, confinement for eleven years and two months, forfeiture of all pay an d allowances, and reduction to the grade of E-1. Thus, the military judge erred in advising appellant on the correct maximum punishment. However, this erro r is rendered moot by this decision.STREMPLER—ARMY 20100989

5 2008)). A knowing and voluntar y plea requires the military judg e to explain the

elements of an offense to the accused and to elicit the factual ba sis of the offense.

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

Failure to do so constitutes re versible error unless “it is clear from the entire record

that the accused knew the elements, admitted them freely, and pl eaded guilty because he was guilty.” Id . (quoting United States v. Jones , 34 M.J. 270, 272 (C.M.A. 1992)). “The pr ovidence of a plea is base d not only on the accused's understanding and reci tation of the factua l 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 un derstand “the nature of the charges brought agai nst him . . . .” Id . (citations omitted). “[ A]n accused has a right

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

Id

.

In this case, appellant was charge d with knowingly possessing child pornography as defined by 18 U.S. C. § 2256(8). The term “child pornog raphy” in 18 U.S.C. § 2256(8) is defined as follows:

[A]ny visual depi ction, including a ny photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually exp licit conduct,

where—

(A) the production of such visual depicti on 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 id entifiable minor is engaging in sexually ex plicit conduct.

During the providen cy inquiry, the military ju dge, rather than using the definition set forth in the federal statute, sua sponte and without reason or explanation expanded the de finition of child pornogra phy by utilizing the preAshcroft language of “what appear s 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 st atute was amended to

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

6 2011). Our inqu iry therefore becomes wh ether the milita ry judge’s use of the “what appears to be” language creates a substa ntial basis in law and fact to question appellant’s plea to posses sion of child porn ography as charged and defined by 18 U.S.C. § 2256(8). We co nclude 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] re quire 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). Howe ver, throughout the entire providency i nquiry, the military judge failed to adequately advise appellant the images in ques tion must contain an “actual” minor. Instead, the military judge provided an overly broad de finition of child pornography th at included conduct no t proscribed by the statute. Further, the

record does not reflect a ppellant independently understood the images in his possession must be of, or in distinguishable from , a real minor to bring his conduct

within the definition used in charging him with possession of ch ild pornography. Thus, we are not co nfident appellant un derstood the offens e for which he was charged, to which definition of child por nography he was pleading guilty, and what maximum punishment applie d to his conduct. See Medina , 66 M.J. at 26.

Because the militar y judge failed to properly ad vise appellant of the charged

definition of chil d pronography, there are insufficient facts in th e record to establish appellant underst ood the offense for which he wa s convicted without exception. See

O’Connor , 58 M.J. at 453 (C.A.A .F.2003) (finding appellant's pl ea improvident because “the military ju dge utilized the pre- [ Ashcroft v.] Free Speech Coalition

, [535 U.S. 234 (2002)] provisions of 18 U.S.C. § 2256(8) to explain the de finition of ‘child pornography’ to [a]ppellant.”); United States v. Pretlow , 13 M.J. 85, 88–89 (C.M.A.1982) (finding appella nt's plea improvident beca use the military judge did not explain “the elements of the substant ive offense which was the object of the conspiracy”). We could poss ibly affirm a conviction of the lesser-inc luded offense of possession of child po rnography, not defined by the federal statute but still satisfying the terminal el ement of Article 134, UCMJ, which would then reduce the

maximum sentence to confinement for this cr ime from ten years to only four months. However, in this case, we decline to do so. Consequent ly, we will set aside the findings of guilty, in their entirety, to Char ge III and its Specific ation in ou r 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 or der a rehearing on Charge III and its Specification and the sentence. If the convening authority determines that aSTREMPLER—ARMY 20100989

7 rehearing on Charge I II and its Specification is impr acticable, he may dismiss the charge and order a rehearin g on the sentence only.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: