U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40247
________________________
UNITED STATES
Appellee
v.
Douglas G. LARA
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 10 April 2023
________________________
Military Judge: Matthew N. McCall.
Sentence: Sentence adjudged 27 September 2021 by GCM convened at
Hurlburt Field, Florida . Sentence entered by military judge on 28 Oc-
tober 2021: Bad-conduct discharge and 12 months of confinement.
For Appellant: Major Stuart J. Anderson, USAF; Major Nicole J. Her-
bers, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Deepa
M. Patel, USAF; Major John P. Patera, USAF; Mary Ellen Payne, Es-
quire.
Before KEY, RAMÍREZ, and GRUEN, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge KEY and Judge GRUEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Lara, No. ACM 40247
RAMÍREZ, Judge:
A military judge found Appellant guilty, in accordance with his pleas and
pursuant to a plea agreement, of one specification of attempt to view child por-
nography in violation of Article 80, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 880, and one specification of willful dereliction of duty for failing to
refrain from storing, processing, displaying, and transmitting pornography,
sexually explicit material, or sexually oriented material while on duty, in vio-
lation of Article 92, UCMJ,
10 U.S.C. § 892.1
Appellant’s plea agreement provided, among other things, that two origi-
nally charged specifications would be withdrawn and dismissed with prejudice
and there would be a minimum and a maximum sentence that could be ad-
judged.2 It also stated, among other things, that the sentence would not include
a dishonorable discharge. The military judge sentenced Appellant to a bad-
conduct discharge and 12 months of confinement for the attempt to view child
pornography specification and 2 months for the willful dereliction of duty spec-
ification, each of the two specifications to run concurrently. The convening au-
thority took no action on the findings or the sentence.
Appellant raises four issues on appeal which we reword as follows: (1)
whether Appellant received ineffective assistance of counsel regarding sex of-
fender registration requirements; (2) whether the military judge abused his
discretion when he accepted Appellant’s guilty plea despite the information he
received concerning sex offender registration requirements; (3) whether Appel-
lant’s guilty plea to attempted viewing of child pornography was improvident;
and (4) whether Appellant’s guilty plea to willful dereliction of duty was im-
provident. Having considered Appellant’s assignments of error, we find that
Appellant’s pleas of guilty was not a knowing, intelligent act done with suffi-
cient awareness of the relevant circumstances and likely consequences. We set
aside the findings of guilty as to all Charges and Specifications as well as the
sentence and authorize a rehearing. As a result, we do not reach a conclusion
on any other raised issue.
1All references in this opinion to the UCMJ are to the Manual for Courts-Martial,
United States (2019 ed.).
2 The plea agreement stated that for the attempt to view child pornography offense,
Appellant would be sentenced to a minimum of 12 months of confinement and a max-
imum of 18 months of confinement. It also stated that for the dereliction of duty of-
fense, Appellant would be sentenced to a minimum of one month of confinement and a
maximum of six months of confinement. Finally, it stated that any adjudged periods of
confinement would run concurrently.
2
United States v. Lara, No. ACM 40247
I. BACKGROUND
Appellant stipulated that between March 2019 and December 2019, on
multiple occasions, he attempted to view child pornography on his personally
owned communication systems and equipment. Appellant further stipulated
that, during the same timeframe, he was derelict in the performance of his
duties in that he willfully failed to refrain from storing, processing, displaying,
and transmitting pornography, sexually explicit material, or sexually oriented
material on government computer systems while on duty. Specifically, Appel-
lant told the military judge he was viewing adult pornography on his govern-
ment computer, at work, in an attempt to prevent his wife from catching him
viewing pornography on his home computer after she installed software on the
home computer for that purpose. According to Appellant, he would look at por-
nography at work in an effort to “get away with it.”
Appellant was represented by two military trial defense counsel who as-
sisted Appellant in negotiating a plea agreement with the convening authority.
The plea agreement was signed by all parties on 13 September 2021. On 24
September 2021, Appellant and his trial defense counsel signed a memoran-
dum, which was prepared by both defense counsel.3 The memorandum con-
cerns sex offender registration. In relevant part, it provides:
You have been charged with attempting to view child pornogra-
phy, a violation of Article 80 of the UCMJ. [Department of De-
fense Instruction (DODI)] 1325.7[4] requires Department of De-
fense officials to notify state and local law enforcement agencies,
if you are found guilty of the charged offense. Additionally, if you
are found guilty of a lesser included offense that is listed in
DODI 1325.7, notification will also be required. If you are con-
victed of any offense listed in DODI 1325.7 you may be required
to register as a sex offender in your state of residence.
3 During the pendency of his appeal, Appellant filed a declaration and attachments
with this court to support his allegations of ineffective assistance. In response to an
order from this court, trial defense counsel, Major CB and Captain ET, provided re-
sponsive declarations as well as attachments, including the memorandum evidencing
the advice. We considered Appellant’s declaration, the declarations of trial defense
counsel, and the attachments to resolve the claim of ineffective assistance of counsel.
See United States v. Jessie,
79 M.J. 437, 442 (C.A.A.F. 2020) (noting Courts of Criminal
Appeals have considered declarations “when necessary for resolving claims of ineffec-
tive assistance of trial defense counsel”).
4 Department of Defense Instruction (DoDI) 1325.07, Administration of Military Cor-
rectional Facilities and Clemency and Parole (
11 Mar. 2013, incorporating Change 4,
19 Aug. 2020). DoDI 1325.07 is also sometimes listed as DoDI 1325.7.
3
United States v. Lara, No. ACM 40247
The memorandum further contains an indorsement from Appellant which pro-
vides:
I, [Appellant], have read DODI 1325.7, Appendix 4 to Enclosure
2: Listing Offenses Requiring Sex Offender Processing. [Major
CB] and [Captain ET] have informed me orally and in writing
that I may be required to register as a sex offender if I am found
guilty of any offense listed in DODI 1325.7, Appendix 4 to Enclo-
sure 2. I fully understand if I plead guilty to, or I am found guilty
of, any offense listed in DODI 1325.7, Department of Defense
officials will notify state and local authorities of my conviction
and I may be required to register as a sex offender. I fully un-
derstand that if I am required to register as a sex offender, I
must comply with all sex offender registration laws and I may
be subject to criminal prosecution if I fail to comply with all sex
offender registration laws.
Three days later, on 27 September 2021, at Appellant’s court-martial and prior
to accepting Appellant’s guilty pleas, the following exchange occurred on the
record:
MJ [Military Judge]: So as to sex offender reporting and regis-
tration requirements, the court’s reading of DoD Instruction[ ]
1325.07, [A]ppendix 4 of [E]nclosure 2, this offense does not re-
quire sex offender reporting and registration. Government, what
is the [G]overnment’s position?
TC [Trial Counsel]: Your Honor, that is the [G]overnment’s un-
derstanding as well.
MJ: And understanding that this is the federal rule, [D]efense, I
believe that you have already discussed this with your client?
DC [Area Defense Counsel]: Yes, Your Honor, out of an abun-
dance of caution with regard to the state rules, we did discuss
the possibility of sex offender registration.
MJ: Okay. But just to make sure that it is clear, although that’s
-- it’s impossible to say what some state authority might decide,
you agree with the court’s and the [G]overnment’s interpretation
that this offense that [Appellant] is pleading guilty to does not
require sex offenses registration and reporting?
DC: That is correct, Your Honor.
MJ: So [Appellant], at this time -- well hold on while your coun-
sel are talking.
4
United States v. Lara, No. ACM 40247
CDC [Circuit Defense Counsel]: Could we have just a moment,
Your Honor?
MJ: Sure, let’s go ahead and we will slow things down. We are
moving quite [along] this morning, so let’s go ahead and take a
recess and then we will come back on the record when you’re
ready to go forward. Court is in recess.
After a recess, the following exchange ensued:
MJ: Please be seated. Court is called order. Parties are again
present. All right, I believe where we left off, [Appellant] take a
moment now and consult again with your defense counsel and
tell me whether you still want to plead guilty. So take your time
and talk with them.
[The accused conferred with his counsels.][5]
MJ: Do you still want to plead guilty?
ACC [Appellant]: Yes, Your Honor.
Part of trial defense counsel’s declaration to this court provides more in-
sight as to what occurred during the colloquy. Major CB’s declaration states:
When the [m]ilitary [j]udge asked Defense specifically if advise-
ment was required . . . a strategic decision was made that alert-
ing the [c]ourt to a loophole, would not be in [Appellant]’s best
interest, but would in fact be the opposite. If there was a loop-
hole, an error in DODI 1325.7, or an error in the [m]ilitary
[j]udge’s reading of the requirements for such advisements, De-
fense was not going, to the detriment of our client, bring that to
the [c]ourt’s attention. This strategy did not change the advice
to [Appellant], nor did it change the substance of the advice and
the consequences of which [Appellant] was advised that he could
face as a product of his plea of guilty.
Shortly after the colloquy above, trial counsel asked to address the issue again.
CTC [Circuit Trial Counsel]: Your Honor, I apologize for inter-
rupting. So just one point of clarification, earlier you had asked
[Appellant] about reporting requirements of the DoDI?
MJ: Yes.
5This bracketed comment is contained in the certified transcript of Appellant’s court-
martial.
5
United States v. Lara, No. ACM 40247
CTC: And just to make sure it is clear on the record that the
[G]overnment’s understanding that that instruction merely in-
dicates what sort of offenses the federal government will actively
report to the state. Not necessarily what a particular state’s in-
dividual reporting requirements may be. And it is our under-
standing that the [D]efense has advised [Appellant] that even
under the terms of the plea agreement, it is potentially possible
that he may have to register given whatever law of the state that
he may end up residing in.
MJ: Sure. So did we -- so did you give that advice in writing,
[D]efense?
CDC: Your Honor, we did give that advice in writing. [Appellant]
has been advised that a state may have different requirements
than the federal and that this is based off of DoD reporting and
federal reporting, [ ] we have advised as you have.
MJ: Okay. Do you want to make that an Appellate Exhibit, if you
have that advice or?
CDC: Your Honor, our advice is tied to another legal document
that’s attorney[-]client privileged. Unless -- I don’t think . . .
MJ: We don’t make it -- I mean, you have put it on the record
that you gave that advice.
CDC: Certainly.
MJ: And you understand that, [Appellant], that every state is
different? When we talk about sex offender reporting and regis-
tration requirements, we are discussing on the federal level
what the military would put on the confinement order and would
report. And it doesn’t meet the federal requirements when it
comes to the military, but we can’t necessarily say what effect it
might have in every state.
ACC: Yes, Your Honor.
(Omission in original) (emphasis added).
After Appellant’s court-martial, the staff judge advocate prepared the first
indorsement to the “[S]tatement of [T]rial [R]esults,” which states that sex of-
fender notification is not required in accordance with DoDI 1325.07.
When Appellant was released from confinement, he received a document
entitled, “United States Probation System Offender Notice and Acknowledg-
ment of Duty to Register as a Sex Offender.” This document indicated Appel-
lant had to register as a sex offender under the federal requirements, pursuant
6
United States v. Lara, No. ACM 40247
to the Sex Offender Registration and Notification Act of 2006 (SORNA) codified
at
34 U.S.C. § 20901, and he had to register as a sex offender in any state in
which he resided.
However, Appellant claims in his declaration that “[p]rior to [his] offer to
enter into a plea agreement, [he] was advised by [his] trial defense counsel that
[he] would not have to federally register for Attempt to view Child Pornogra-
phy.” Appellant continues that he told “trial defense counsel about [his] con-
cerns about sex offender registration requirements prior to the offer to plead
guilty.” Appellant then states that “[a]t the time that [he] entered into that
agreement and when [he] was at [his] court-martial, it was [his] understanding
that [he] did not have to federally register.”
Regarding the military judge, Appellant claims in his declaration that the
“military judge at [his] trial advised [him] on the record that this offense did
not require federal registration.”
Appellant explains that he “understood that [his] federal conviction and
potential sex offender registration requirements imposed by various [s]tates
would impact where [he and his family] could live and what jobs [he] could do.”
Appellant claims prejudice, arguing he “did not know [he] would have to feder-
ally register, which now makes any location or job search more difficult.” Ad-
ditionally, Appellant claims that his “concern for [his] minor children and being
able to provide for them is documented in both [his] oral and written unsworn
statement, which [he] conferred on with [his] trial defense counsel.”
Appellant concludes his declaration stating: “I would not have [pleaded]
guilty nor entered into a plea agreement if I knew I would have to federally
register for attempt to view child pornography.”
II. DISCUSSION
A. Law
A guilty “plea is more than an admission of past conduct; it is [an accused]’s
consent that judgment of conviction may be entered without a trial -- a waiver
of his right to trial before a jury and judge.” United States v. Riley,
72 M.J. 115,
120 (C.A.A.F. 2013) (internal quotation marks and citation omitted). Such
waivers “not only must be voluntary but must be knowing, intelligent acts done
with sufficient awareness of the relevant circumstances and likely conse-
quences.”
Id. (internal quotation marks and citation omitted). Sex offender reg-
istration requirements are some of those relevant circumstances and likely
consequences. See
id. at 121 (“[W]e hold that in the context of a guilty plea
inquiry, sex offender registration consequences can no longer be deemed a col-
lateral consequence of the plea.”).
7
United States v. Lara, No. ACM 40247
Trial “defense counsel must inform the accused of [sex offender registra-
tion] consequences, but it is the military judge who bears the ultimate burden
of ensuring that the accused’s guilty plea is knowing and voluntary.”
Id. at 122.
There are three different, but interrelated, aspects of sex offense registra-
tion pertinent to this case: (1) the federal statute (
34 U.S.C. § 20901, et seq.)
which requires mandatory sex offender registration for those who are convicted
of offenses within the statute’s scope; (2) DoDI 1325.7 which identifies offenses
that trigger mandatory sex offender reporting; and (3) state laws concerning
registration for qualified sex offenses. See United States v. Miller,
63 M.J. 452,
459 (C.A.A.F. 2006); United States v. Torrance,
72 M.J. 607, 611–12 (A.F. Ct.
Crim. App. 2013).
“[T]rial defense counsel should inform an accused prior to trial as to any
charged offense listed on the DoD Instr[uction] 1325.7 [ ]: Listing Of Offenses
Requiring Sex Offender Processing.” Miller,
63 M.J. at 459 (citation omitted).
Additionally, trial “defense counsel must be aware of the federal statute that
requires mandatory reporting and registration for those who are convicted of
offenses within the statute’s scope, as well as DoDI 1325.7, which identifies
offenses that trigger mandatory sex offender reporting.” Torrance, 72 M.J. at
611–12 (internal quotation marks, brackets, and citation omitted.) “Trial de-
fense counsel should also state on the record of the court-martial that counsel
has complied with this advice requirement.” Miller,
63 M.J. at 459. “While fail-
ure to so advise an accused is not per se ineffective assistance of counsel, it will
be one circumstance [an appellate c]ourt will carefully consider in evaluating
allegations of ineffective assistance of counsel.”
Id. However, “[g]iven the pleth-
ora of sexual offender registration laws enacted in each state, it is not neces-
sary for trial defense counsel to become knowledgeable about the sex offender
registration statutes of every state.”
Id.
A military judge has a duty to ensure that trial defense counsel has com-
plied with their obligation to advise an accused concerning sex offender regis-
tration requirements. Riley,
72 M.J. at 122. The Military Judges’ Benchbook
“simply instruct[s] the military judge to ensure that defense counsel [has] com-
plied” with our superior court’s requirements for advice regarding sex offender
registration requirements.
Id. This is “clearly consistent with a military judge’s
responsibilities while conducting a plea inquiry.”
Id. “Given the lifelong conse-
quences of sex offender registration, which is a particularly severe penalty,” a
military judge’s failure to ensure an appellant understood the sex offender reg-
istration requirements of his guilty plea results in a substantial basis to ques-
tion the providence of an appellant’s plea.
Id. (internal quotation marks and
footnote omitted).
In order to determine whether an appellant’s plea was knowing and volun-
tary, or whether trial defense counsel were ineffective on such a matter, we
8
United States v. Lara, No. ACM 40247
look to the record of trial. Riley,
72 M.J. at 120; see also United States v. Jessie,
79 M.J. 437, 442 (C.A.A.F. 2020) (noting Courts of Criminal Appeals may con-
sider declarations “when necessary for resolving claims of ineffective assis-
tance of trial defense counsel”). However, “[d]etermining whether a plea is vol-
untary is by no means an exact science.” United States v. Perron,
58 M.J. 78,
85 (C.A.A.F. 2003). “The remedy for finding a plea improvident is to set aside
the finding based on the improvident plea and authorize a rehearing.” Riley,
72 M.J. at 122 (citations omitted).
“[W]here there is a mutual misunderstanding regarding a material term of
a pretrial agreement, resulting in an accused not receiving the benefit of his
bargain, the accused’s pleas are improvident” and the law requires remedial
action “in the form of specific performance, withdrawal of the plea, or alterna-
tive relief.” Perron,
58 M.J. at 82 (citations omitted).
B. Analysis
As we explained above, there are three relevant aspects of sex offense reg-
istration raised in this case: (1) the federal statute,
34 U.S.C. § 20901, et seq.,
that requires mandatory registration for those who are convicted of offenses
within the statute’s scope; (2) DoDI 1325.07, which the Department of Defense
identifies offenses that trigger mandatory sex offender reporting; and (3) state
laws concerning registration for qualified sex offenses. See Torrance,
72 M.J.
at 611–12. Appellant takes issue with the first—federal registration.
Reviewing trial defense counsel’s declarations and attachments, it appears
that trial defense counsel conflated the federal statutory registration frame-
work and the Department of Defense’s sex offender reporting to states. More
importantly, there is nothing in (1) trial defense counsel’s “Offenses Requiring
Sex Offender Processing Advisement,” (2) Appellant’s indorsement, or (3) the
trial transcript indicating that Appellant was ever notified that he would have
to register as a sex offender under the federal statutory registration require-
ments. In fact, the opposite appears to be the case.
During the court-martial, the military judge conducted his own legal anal-
ysis of federal registration requirements and told Appellant on the record that
he would not have to federally register. It further appears that trial defense
counsel believed the military judge’s analysis may have been wrong and pur-
posefully chose to keep quiet on the record.
The military judge told Appellant on the record that in his “reading of DoD
Instructions [sic] 1325.07, [A]ppendix 4 of [E]nclosure 2, this offense does not
require sex offender reporting and registration.” Trial counsel agreed with this
interpretation and apparently the staff judge advocate did as well, given his
annotations in the Statement of Trial Results. Indeed, by all indications, these
9
United States v. Lara, No. ACM 40247
individuals were under the impression Appellant would not be required to reg-
ister as a sex offender under the federal system—pursuant to federal law and
the Department of Defense instruction. This interpretation, however, turned
out to be wrong, and this error did not come to light until Appellant’s release
from confinement.6 Now, on appeal, Appellant’s trial defense counsel suggest
they might have understood the military judge’s interpretation was incorrect,
but made the specific decision not to highlight a possible “error in the [m]ilitary
[j]udge’s reading of the requirements for such advisements” by bringing the
matter to the court’s attention.
During Appellant’s guilty plea colloquy, trial defense counsel first dodged
the question with regards to the federal statute and the DoD Instruction:
MJ: And understanding that this is the federal rule, [D]efense, I
believe that you have already discussed this with your client?
DC: Yes, Your Honor, out of an abundance of caution with regard
to the state rules, we did discuss the possibility of sex offender
registration.
Then trial defense counsel put on the record that they agreed with the
military judge’s reading of the law:
MJ: Okay. But just to make sure that it is clear, although that’s
-- it’s impossible to say what some state authority might decide,
you agree with the court’s and the [G]overnment’s interpretation
that this offense that [Appellant] is pleading guilty to does not
require sex offenses registration and reporting?
DC: That is correct, Your Honor.
(Emphasis added).
Shortly afterwards, trial defense counsel put on the record, “[W]e have ad-
vised as you have,” telling the military judge that they advised Appellant that
his plea did not require federal sex offender registration and reporting.
In order to determine whether Appellant’s plea was knowing and volun-
tary, we have looked to the record of trial and the documents submitted by
Appellant and trial defense counsel. We find that Appellant’s plea may have
been voluntary but was not a knowing, intelligent act done with sufficient
awareness of the relevant circumstances and likely consequences. See Riley,
72 M.J. at 121. Specifically, because Appellant was not properly informed—
and was then misinformed—about federal sex offender registration, we find
6The Government does not challenge Appellant’s assertions that he was appropriately
required to register with federal authorities.
10
United States v. Lara, No. ACM 40247
that his plea of guilty was not a knowing, intelligent act done with sufficient
awareness of the relevant circumstances and likely consequences.
This, however, does not end our analysis. Appellant makes clear in his dec-
laration that he “would not have [pleaded] guilty nor entered into a plea agree-
ment if [he] knew [he] would have to federally register for attempt to view child
pornography.” We read that to mean he would not have entered into a plea
agreement as to either offense knowing the consequences of a plea of guilty as
to the one offense. Neither the Government nor trial defense counsel rebuts his
claim with any evidence for us to consider.
Accordingly, we are left to determine which one of the three remedial ac-
tions listed in Perron should be taken. See
58 M.J. at 82. We have considered
specific performance, withdrawal of the plea, and alternative relief. Here, nei-
ther specific performance—deregistering from a federal sex offender list—nor
alternative relief is available. Perron instructs that if neither specific perfor-
mance nor alternative relief is available, “the result is to nullify the original
pretrial agreement, returning the parties to the status quo ante.”
Id. at 86.
Therefore, we find the only appropriate remedial remedy is to nullify the
original plea agreement and return the parties to the status quo ante. We set
aside the findings and the sentence and authorize a rehearing.
III. CONCLUSION
The findings of guilty as to all Charges and Specifications are SET ASIDE.
The sentence is SET ASIDE. A rehearing is authorized. The record of trial is
returned to The Judge Advocate General. Article 66(f), UCMJ,
10 U.S.C.
§ 866(f). Thereafter, Article 66(b), UCMJ,
10 U.S.C. § 866(b), will apply.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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