United States v. Private First Class JOE SOTELO ( 2012 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    YOB, KRAUSS, and BURTON
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private First Class JOE SOTELO
    United States Army, Appellant
    ARMY 20110267
    Headquarters, Combined Joint Task Force -101
    Michael J. Hargis, Military Judge
    Colonel William R. Kern, Staff Judge Advocate
    For Appellant: Captain Jack D. Einhorn, JA (argued); Colonel Patricia A. Ham, JA;
    Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain
    Jack D. Einhorn, JA (on brief).
    For Appellee: Captain Bradley M. Endicott, JA (argued); Lieutenant Colonel Amber
    J. Roach, JA; Major Catherine L. Brantley, JA; Captain Bradley M. Endicott, JA (on
    brief).
    28 November 2012
    -----------------------------------
    MEMORANDUM OPINION
    -----------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    YOB, Senior Judge:
    A military judge sitting as a general court–martial convicted appellant,
    pursuant to his pleas, of wrongfully and knowingly possessing over 250 images and
    over 40 videos of child pornography, which conduct was prejudicial to good order
    and discipline or of a nature to bring discredit upon the Armed Forces, and of
    wrongfully and knowingly possessing over 60 images of drawings depicting children
    performing sexual acts on adults, which conduct was prejudicial to good order and
    discipline or of a nature to bring discredit upon the Armed Forces, in violation of
    Article 134, Uniform Code of Military Justice, 
    10 U.S.C. § 934
     (2006) [hereinafter
    UCMJ]. The convening authority approved the adjudged sentence of a bad–conduct
    discharge, confinement for twelve months, and reduction to the grade of E–1.
    SOTELO—ARMY 20110267
    Appellant’s case is now before this court for review under Article 66, UCMJ.
    We have considered the record of trial, appellant’s assignments of error, the
    government’s response, and the matters discussed during oral argument. Appellant
    essentially argues that there is a substantial basis in law and fact to question his
    guilty plea to Specification 2 of The Charge. We agree and order relief in our
    decretal paragraph.
    FACTS
    As initially drafted, Specification 2 of The Charge alleged the following
    offense:
    In that Private First Class (E-3) Joe Sotelo, U.S. Army,
    did, between on or about 1 March 2010 and on or about 9
    April 2010, at or near Fort Campbell, Kentucky,
    wrongfully and knowingly possess over 60 images of
    drawings depicting children performing sexual acts on
    adults, over 70 images of partially nude children, and an
    image that states ‘Pedophile: You’d be crazy not to,’ or
    words to that effect, which conduct was prejudicial to
    good order and discipline or of a nature to bring discredit
    upon the Armed Forces.
    Prior to appellant’s guilty plea, the military judge expressed reservations
    about two clauses contained within Specification 2 of The Charge: the first clause
    involved 70 images of partially nude children and the second clause concerned the
    image stating “Pedophile: You’d be crazy not to.” Specifically, the military judge
    believed these two clauses within Specification 2 of The Charge raised “significant
    due process notice and First Amendment issues.” The military judge informed the
    government that he would not accept appellant’s guilty plea to these two clauses of
    Specification 2 of The Charge. Consequently, the government dismissed “over 70
    images of partially nude children, and an image that states ‘Pedophile: You’d be
    crazy not to,’ or words to that effect,” from Specification 2 of The Charge.
    As a result, Specification 2 of The Charge, as modified, simply alleged that
    appellant possessed “drawings depicting children performing sexual acts on adults.”
    The military judge had the following exchange with the trial counsel regarding the
    remainder of Specification 2 of The Charge:
    MJ: And I understand that you also indicated in the [Rule
    for Courts-Martial] 802 session that it was your intent to,
    in the first clause, ‘posses[s] over 60 images of drawings
    depicting children performing sexual acts on adults’ to
    charge, essentially, a violation of 
    18 U.S.C. § 1466
     A?
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    SOTELO—ARMY 20110267
    TC: Yes, sir.
    During the providence inquiry into Specification 2 of The Charge, the military
    judge informed appellant that the offense consisted of the following elements:
    First, that at or near Fort Campbell, Kentucky, between on
    or about 1 March 2010 and 9 April 2010, . . . you
    knowingly possessed over 60 images of drawings
    depicting children performing sexual acts on adults;
    Second, that at the time you knew you possessed the
    alleged images;
    Third, that your acts were wrongful; and
    Fourth, 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.
    Appellant described to the military judge that he obtained these drawings by
    using the peer-to-peer file-sharing program Limewire. Appellant estimated that he
    possessed between 70 and 90 drawings, and that these drawings depicted “children
    either exposing themselves in a lewd way and/or performing oral and/or sexual acts
    on other adults and/or children.” Appellant clarified that sexual acts included oral
    and vaginal sex. After confirming that children meant somebody under the age of
    sixteen, the military judge confirmed that sexual acts included “sexual intercourse,
    genital to genital sexual intercourse, or oral to genital sexual intercourse.”
    The military judge next introduced into the discussion that the children
    depicted in the drawings exposed their genitalia in a lascivious fashion:
    MJ: In other words, in these cartoons, when these
    children were exhibiting their genitalia, were they doing
    that in a manner that would be staged or posed?
    Acc: Yes, sir.
    MJ: Would they be in an unnatural position for a child of
    that age?
    Acc: Yes, sir.
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    SOTELO—ARMY 20110267
    MJ: Did it appear that the person doing the drawing
    wanted the viewer’s focus to be on the genitalia of that
    child?
    Acc: Yes, sir.
    MJ: Did it look like the child was . . . indicating a
    willingness to engage in sexual activity?
    Acc: Yes, sir.
    MJ: Do you believe that those images, those drawings,
    elicited a sexual response in the viewer?
    Acc: Yes, sir.
    MJ: That was the intent of the person that drew them?
    Acc: Yes, it was, sir.
    Thus, appellant concluded that the drawings depicted children under the age
    of sixteen engaging in sexually explicit conduct either with other children or with
    adults. The military judge then asked appellant if he thought the drawings were
    obscene. Appellant agreed that the drawings were obscene “[d]ue to the fact of the
    exposure and the acts [the children] were engaged in . . . .” Appellant also agreed
    that the drawings lacked literary, artistic, political, or scientific value. Instead of
    being artistic renditions, appellant stated that “[t]he sole purpose of these images
    was to excite a sexual response from the viewer to excite them and have them view
    these images even more.”
    At this point in the providence inquiry, the military judge went back to the
    elements of Specification 2 of The Charge. The military judge did so because he
    wanted “to be a little more explicit now.” The military judge then re-explained the
    elements of Specification 2 of The Charge as the following:
    That, at or near Fort Campbell, Kentucky, between on or
    about 1 March 2010 and 9 April 2010, you knowingly
    possessed over 60 images of drawings of children engaged
    in sexually explicit conduct;
    That those drawings were obscene;
    That those drawings lacked serious literary, artistic,
    political, or scientific value; and
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    SOTELO—ARMY 20110267
    That, at the time, you knew you possessed the images;
    That your acts were wrongful; and
    That, under the circumstances, your conduct was
    prejudicial to good order and discipline in the armed
    forces or was of a nature to bring discredit upon the armed
    forces.
    After being advised of these elements, appellant confirmed that he possessed
    the drawings at issue on a laptop computer and hard drive, and that he possessed
    these drawings at Fort Campbell, Kentucky, between 1 March 2010 and 9 April
    2010. Appellant also verified that he knew he was getting these particular drawings
    because he intentionally sought them out and downloaded them from Limewire.
    Appellant agreed with the military judge that if the drawings were of real children,
    they would constitute child pornography. Finally, appellant admitted that his
    conduct was wrongful, prejudicial to good order and discipline, and service-
    discrediting.
    As part of his pretrial agreement with the convening authority, appellant
    entered into a stipulation of fact with the government. The following paragraph
    from the stipulation of fact is pertinent to Specification 2 of The Charge:
    The Accused specifically admits that he did, at or near
    Fort Campbell, Kentucky, between on or about 1 March
    2010 and on or about 9 April 2010, wrongfully and
    knowingly possess over 60 images of drawings depicting
    children performing sexual acts on adults . . . . This
    conduct was prejudicial to good order and discipline or of
    a nature to bring discredit upon the Armed Forces. These
    images of drawings included images of children cartoon
    characters such as ‘Dennis the Menace’ performing sexual
    acts with adults. The images also included Japanese
    anime drawings of naked children and children engaging
    in explicit sexual conduct. The images graphically depict
    prepubescent male and female genitalia and conduct that is
    degrading towards women and children. In addition, many
    of these cartoons are explicit, sensationalized portrayals of
    pedophilia. Possessing these images . . . depicting and
    promoting sexually explicit conduct with children is
    prejudicial to good order and discipline in that it is
    conduct which other [s]oldiers view with such disdain that
    it degrades unit morale when they discover a fellow
    [s]oldier is viewing it. It is also conduct which brings
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    SOTELO—ARMY 20110267
    discredit upon the Armed Forces because if the general
    public were to discover that a [s]oldier possessed and
    viewed such images, they would think less of [s]oldiers
    and the military.
    LAW
    “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.
    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)).
    Moreover, “[t]he 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). This is due to the fact
    that “an accused has a right to know to what offense and under what legal theory he
    or she is pleading guilty.” 
    Id.
     An essential aspect of accurately informing appellant
    of the nature of the offenses “is a correct definition of legal concepts.” United
    States v. Negron, 
    60 M.J. 136
    , 141 (C.A.A.F. 2004).
    DISCUSSION
    The providence inquiry into Specification 2 of The Charge was deficient
    because the military judge failed to define the term “obscene” for appellant and
    failed to elicit facts to demonstrate how the drawings at issue depicted “obscene”
    material under the appropriate legal standard.
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    SOTELO—ARMY 20110267
    Even though the government did not charge appellant with possessing
    “obscene” material, the military judge gratuitously advised appellant during the
    providence inquiry that one of the elements of Specification 2 of The Charge
    required the drawings to be “obscene.” 1 However, the military judge then failed to
    define the term “obscene” for appellant. In fact, the only discussion of obscenity
    occurred when the military judge asked appellant if he thought the drawings at issue
    were obscene. But even this cursory discussion occurred prior to the military judge
    informing appellant that the material must be obscene as a required element.
    More importantly, appellant’s response as to how the drawings were obscene
    did not address the guidelines for determining whether material is obscene as set
    forth in Miller v. California, 
    413 U.S. 15
     (1973). In Miller, the Supreme Court
    established the following test to determine whether material is obscene:
    (a) whether the average person, applying contemporary
    community standards would find that the work, taken as a
    whole, appeals to the prurient interest [citations omitted];
    (b) whether the work depicts or describes, in a patently
    offensive way, sexual conduct specifically defined by the
    applicable state law; and (c) whether the work, taken as a
    whole, lacks serious literary, artistic, political, or
    scientific value.
    
    Id. at 24
     (internal quotation marks omitted).
    While the military judge separately advised appellant of the third prong of the
    Miller test, he failed to advise appellant of the first two prongs of the Miller test.
    Further, the military judge conducted an insufficient inquiry into whether appellant
    believed the drawings met the first two prongs of the Miller test. Nonetheless,
    appellant’s conduct could result in a criminal conviction only if all of the Miller
    requirements are met, which would then remove it from the protections offered by
    1
    The military judge probably gratuitously added this element because he believed
    the government “essentially” charged appellant with a violation of 18 U.S.C. §
    1466A (2006). In turn, § 1466A(b)(1) criminalizes the possession of obscene
    drawings depicting minors engaged in sexually explicit conduct. The military
    judge’s view that the government “essentially” charged appellant with violating §
    1466A also probably compelled the judge to review the so-called Dost factors during
    the providence inquiry to determine if the drawings at issue depicted the “lascivious
    exhibition of the genitals or pubic area of any person.” 
    18 U.S.C. § 2256
    (2) (2006).
    See also United States v. Dost, 
    636 F.Supp. 828
    , 832 (S.D. Cal. 1986).
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    SOTELO—ARMY 20110267
    the First Amendment. See United States v. Rudzavice, 
    586 F.3d 310
    , 315 (5th Cir.
    2009) (acknowledging that federal courts incorporate the Miller test “into federal
    obscenity statutes in order to construe them in a manner consistent with the
    Constitution.”). Thus, we conclude that appellant’s cursory and unexplored
    statement that the drawings were obscene constituted an insufficient factual basis for
    his guilty plea to Specification 2 of The Charge. See United States v. Outhier, 
    45 M.J. 326
    , 331 (C.A.A.F. 1996) (stating that “[m]ere conclusions of law recited by an
    accused are insufficient to provide a factual basis for a guilty plea.”) (citation
    omitted).
    In sum, the military judge advised appellant that the drawings at issue had to
    be “obscene” in order for them to serve as the basis for a criminal conviction despite
    the fact that the specification did not allege the drawings to be obscene. As a result,
    the military judge had an obligation to correctly and completely define the term
    “obscene” for appellant. The military judge failed to do so; therefore, there are
    insufficient facts in the record to satisfy the Miller guidelines for a showing of
    obscenity. 2 See United States v. O’Connor, 
    58 M.J. 450
    , 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.”). Consequently, we
    will set aside Specification 2 of The Charge in our decretal paragraph.
    After setting aside Specification 2 of The Charge, we are convinced that we
    can perform a sentence reassessment in this case and need not return the case to the
    convening authority for a sentence rehearing. In making our decision, we consider
    the principles defined in United States v. Sales, 
    22 M.J. 305
    , 308 (C.M.A. 1986);
    and United States v. Moffeit, 
    63 M.J. 40
    , 41 (C.A.A.F. 2006), including those
    specifically discussed in Judge Baker’s concurring opinion, Moffeit, 63 M.J. at 43
    2
    We also note that the military judge misadvised appellant with respect to a separate
    element when he went back and re-explained the elements of Specification 2 of The
    Charge to him. The military judge informed appellant that a required element
    consisted of appellant admitting that he knowingly possessed “over 60 images of
    drawings of children engaged in sexually explicit conduct.” However, the
    government merely charged appellant with possessing drawings “depicting children
    performing sexual acts on adults.” This discrepancy also supports our conclusion
    that there is a substantial basis in law and fact to question appellant’s guilty plea to
    Specification 2 of The Charge. Again, this confusion probably existed due to the
    parties’ belief that the government “essentially” charged a § 1466A offense.
    8
    SOTELO—ARMY 20110267
    (Baker, J., concurring in the result). This non-exhaustive list includes the following:
    (1) whether there are changes in the penalty landscape, including whether charges
    with significant exposure or aggravating circumstances are taken off the table; (2)
    whether appellant chose sentencing by members or by military judge alone; (3) the
    nature of the remaining offense(s); and (4) our identification on the record of the
    factors that informed our reassessment decision. Id.
    First, the gravamen of appellant’s conduct and the offense with the most
    aggravating circumstances remains appellant’s possession of child pornography.
    Appellant downloaded child pornography beginning in January 2008 and frequently
    masturbated to it. Moreover, some of the videos and images containing child
    pornography involved girls appearing as young as four years old engaging in
    sexually explicit conduct. Appellant also admitted that “[i]n some of the videos, you
    can see the children in obvious discomfort and in one you can observe a girl crying
    after a man is done having intercourse with her.” The government almost
    exclusively focused on appellant’s possession of child pornography in fashioning
    their requested sentence during sentencing arguments. Thus, while the maximum
    period of confinement has dropped from twenty years to ten years, the sentencing
    landscape has not significantly changed because the gravamen of appellant’s
    misconduct remains his possession of child pornography, much of which involved
    prepubescent children. In addition, appellant’s sentence of twelve months’
    confinement was well short of the nineteen-month cap for which he negotiated as
    part of his pretrial agreement.
    Second, appellant chose to be tried and sentenced by a military judge alone.
    A service court of criminal appeals is “more likely to be certain of what a military
    judge alone would have done than what a panel of members would have done.”
    Moffeit, 63 M.J. at 43 (Baker, J., concurring in the result).
    Third, the nature of appellant’s remaining offense more readily lends itself to
    sentence reassessment. Id. at 41 (recognizing that the Courts of Criminal Appeals
    have “reviewed the records of a substantial number of courts-martial involving
    convictions for child pornography activities . . . and [have] extensive experience
    with the level of sentences imposed for such offenses under various
    circumstances.”). Indeed, this court routinely reviews findings and sentences related
    to the possession of graphic child pornography.
    Therefore, after applying the Sales and Moffeit analyses, and after careful
    consideration of the entire record, we remain confident that the military judge would
    have adjudged a sentence no less than that approved by the convening authority in
    this case even absent Specification 2 of The Charge. Sales, 22 M.J. at 308.
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    SOTELO—ARMY 20110267
    CONCLUSION
    The finding of guilty of Specification 2 of The Charge is set aside and that
    specification is dismissed. The remaining findings of guilty are affirmed.
    Reassessing the sentence on the basis of the error noted, the entire record, and in
    accordance with the sentencing principles outlined above, the court affirms the
    sentence as approved by the convening authority.
    Judge KRAUSS and Judge BURTON concur.
    FOR
    FORTHE
    THECOURT:
    COURT:
    MALCOLMH.
    MALCOLM      H.SQUIRES,
    SQUIRES,JR.
    JR.
    Clerkof
    Clerk  ofCourt
    Court
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