United States v. Finch

UNITED STATES, Appellee/Cross-Appellant

v.

Laurence H. FINCH, Technical Sergeant
U.S. Air Force, Appellant/Cross-Appellee

Nos. 13-0353 and 13-5007

Crim. App. No. 38081 (Misc. Dkt. No. 2012-13)

United States Court of Appeals for the Armed Forces

Argued October 9, 2013

Decided March 6, 2014

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and STUCKY, J., joined. RYAN, J., filed a separate
dissenting opinion. EFFRON, S.J., filed a separate dissenting
opinion in which RYAN, J., joined.

Counsel

For Appellant/Cross-Appellee: Captain Michael A. Schrama
(argued); Major Matthew T. King and Dwight H. Sullivan, Esq. (on
brief).

For Appellee/Cross-Appellant: Major Brian C. Mason (argued);
Colonel Don M. Christensen, Lieutenant Colonel C. Taylor Smith,
and Gerald R. Bruce, Esq. (on brief).

Military Judge: Matthew D. Van Dalen

This opinion is subject to revision before final publication.
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

Judge ERDMANN delivered the opinion of the court.

Technical Sergeant (E-6) Laurence H. Finch pleaded guilty

at a general court-martial to one specification of receiving and

possessing child pornography and one specification of

distributing child pornography, both in violation of Article

134(1) and (2), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 934 (2006). The military judge found Finch guilty in

accordance with his pleas and sentenced him to confinement for

seven years, reduction to E-1, and a dishonorable discharge.

The convening authority approved the adjudged sentence. The

United States Air Force Court of Criminal Appeals (CCA) affirmed

the findings and sentence. United States v. Finch, No. ACM

38081 (Misc. Dkt. No. 2012-3), 2013 CCA LEXIS 33, at *11, 2013

WL 376065, at *4 (A.F. Ct. Crim. App. Jan. 25, 2013).

We granted review in this case to determine whether the

military judge erred when he determined the maximum sentence to

confinement was thirty years.1 Following the court’s grant of

1
We granted review of the following issue:

Where the Article 134 child pornography specifications
of which Appellant was convicted did not allege that
the images depicted actual minors and where the
military judge advised Appellant during the providence
inquiry that “There is no requirement that the images
in this case include actual images of minors,” is the
maximum authorized confinement for each specification
limited to four months?

United States v. Finch, 72 M.J. 384 (C.A.A.F. 2013) (order
granting review).

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

review, the Air Force Judge Advocate General (TJAG) certified an

issue which questioned the providence of Finch’s guilty plea.2

We hold, consistent with United States v. Leonard, 64 M.J.

381 (C.A.A.F. 2007), that the military judge did not err in

determining the maximum sentence to confinement. In addition,

based upon our review of the record, there is no substantial

basis in law or fact to question Finch’s pleas of guilty to the

offenses. See United States v. Inabinette, 66 M.J. 320, 322

(C.A.A.F. 2008). We therefore affirm the decision of the CCA.

Factual Background

The specifications in this case alleged that Finch

knowingly and wrongfully received, possessed (Specification 1),

and distributed (Specification 2) “visual depictions of a minor

engaging in sexually explicit conduct.”3 When the military judge

2
TJAG certified the following issue:

If the court finds that the specifications
sufficiently alleged that the visual depictions were
of actual minors but that the military judge’s
definitions were inconsistent with the alleged
specifications, what is the appropriate remedy, if
any, to be given?

United States v. Finch, 72 M.J. 402 (C.A.A.F. 2013)
(docketing notice).
3
Specification 1 of the charge alleged that Finch:

[D]id, within the continental United States, on divers
occasions between on or about 1 July 2006 and on or
about 18 December 2008, knowingly and wrongfully
receive and possess visual depictions of a minor
engaging in sexually explicit conduct, which conduct
was, under the circumstances, prejudicial to good

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

asked trial counsel for his calculation of the maximum sentence,

trial counsel responded “30 years confinement; total forfeitures

of all pay and allowances; reduction to E-1; and a dishonorable

discharge.” The military judge then asked trial defense counsel

if he agreed and he responded “Yes, Your Honor.” Consistent

with the agreement of both counsel, the military judge then

advised Finch of the agreed maximum possible sentence. There is

no indication in the record as to what the parties relied upon

to determine the maximum possible sentence to confinement.

However, the CCA noted that the analogous federal offenses

provide for a maximum punishment of thirty years for the two

specifications.4 Finch, 2013 CCA LEXIS 33, at *4, 2013 WL

376065, at *2.

order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces.

Specification 2 of the charge alleged that Finch:

[Did], both within and outside the continental United
States, on divers occasions between on or about 1 July
2006 and on or about 18 December 2008, knowingly and
wrongfully distribute visual depictions of a minor
engaging in sexually explicit conduct, which conduct
was, under the circumstances, prejudicial to good
order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces.
4
18 U.S.C. § 2252A(b)(1) sets out the maximum imprisonment for
violation of 18 U.S.C. § 2252A(a)(2) (distribution) at twenty
years. 18 U.S.C. § 2252A(b)(2) sets the maximum imprisonment
for a violation of 18 U.S.C. § 2252A(a)(5) (possession) at ten
years. Violation of these two federal statutes results in a
maximum sentence to confinement of thirty years.

4
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

During the subsequent providence inquiry, the military

judge initially advised Finch of the elements of the

Specification 1 and went on to provide definitions of “divers,”

“wrongful,” “knowingly,” “possess,” and “receive.” At that

point the military judge stated:

There is no requirement that the images in this case
include actual images of minors; That is, the wrongful
and knowing receipt and possession of visual
depictions containing sexually explicit images of
persons indistinguishable from minor children, whether
actual or virtual, when determined to be service-
discrediting conduct and conduct prejudicial to good
order and discipline, is an offense under Article 134.

Following that statement, the military judge resumed his

definitions of relevant terms, which included the term “minor.”

The military judge defined “minor” as “any person under the age

of 18 years,” which is the definition found in 18 U.S.C. §

2256(1). Following an extensive providence inquiry, the

military judge accepted Finch’s pleas.

In his appeal to the Air Force Court of Criminal Appeals,

Finch argued that the military judge calculated the incorrect

maximum sentence to confinement and that the Staff Judge

Advocate (SJA) misadvised the convening authority on clemency

matters. Finch, 2013 CCA LEXIS 33, at *1, 2013 WL 376065, at

*1. The CCA affirmed the findings and sentence, holding that

the offenses charged were analogous to the “offenses of knowing

receipt and possession as well as knowing distribution of child

pornography, under 18 U.S.C. § 2252A(a)(2), (5), for purposes of

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

determining the maximum punishment.” Id. at *4, 2013 WL 376065,

at *2. The CCA found no error in the recommendation of the SJA

in regard to the clemency matters and went on to hold that there

was “no substantial basis to question appellant’s guilty plea.”

Id. at *8-*10, 2013 WL 376065, at *3-*4.

Discussion

The Granted Issue

The granted issue asks whether the military judge erred in

calculating the maximum punishment to confinement. Finch argues

that the specifications did not allege, nor did the providence

inquiry establish, that the depicted images were actual minors.

Since the specifications did not allege any offense punishable

under Title 18, United States Code, Finch argues that the

maximum period of confinement for each of the two Article 134

specifications was four months, citing United States v. Beaty,

70 M.J. 39 (C.A.A.F. 2011). In addition to questioning the

maximum sentence calculation, Finch also argues that his plea

was not provident to an offense involving images of actual

minors as the military judge specifically advised him that

“[t]here is no requirement that the images in the case include

actual images of minors.” Finch’s arguments as to the

providence of the plea will be discussed under the certified

issue, which also raises the providence issue.

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

The government responds that the military judge’s

calculation of the maximum sentence was correct as the

specifications in this case are substantially the same as the

specifications in Leonard, which this court recognized as being

directly analogous to Title 18 offenses.

Where an offense is listed in Part IV of the Manual for

Courts-Martial, United States (MCM), the maximum punishment is

set forth therein. Beaty, 70 M.J. at 42 (citing R.C.M.

1003(c)(1)(A)(i)). Neither the receipt and possession

specification nor the distribution of child pornography

specification (involving either an actual minor or what appears

to be a minor) was a listed offense at the time of Finch’s

court-martial. For offenses not listed in Part IV, the maximum

punishment depends on whether the offense is included in or

closely related to a listed offense in the MCM. R.C.M.

1003(c)(1)(B); Leonard, 64 M.J. at 383; Beaty, 70 M.J. at 42

n.7. In this case, neither the receipt and possession of child

pornography nor the distribution of child pornography

specifications were included in, or closely related to, a listed

offense. Leonard, 64 M.J. at 383; Beaty, 70 M.J. at 42.

Therefore this case presents a situation where the offenses

at issue were neither listed in Part IV nor included in or

closely related to any offense listed in the MCM. In such a

case, R.C.M. 1003(c)(1)(B)(ii), provides that “[a]n offense not

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

listed in Part IV and not included in or closely related to any

offense listed therein is punishable as authorized by the United

States code, or as authorized by the custom of service.”

Neither Finch nor the government argue that a custom of the

service establishes the maximum sentence in this case. The

question, therefore, is whether the offenses in this case are

analogous to 18 U.S.C. § 2252A(a)(2) and (5), punishable by

sentences of twenty years and ten years respectively, or whether

they are simple disorders punishable by four months of

confinement. Beaty, 70 M.J. at 45. That determination is

dependent on whether the specifications alleged offenses

involving both actual and virtual images of minors or just

images of actual minors. The CCA upheld the military judge’s

thirty-year maximum sentence calculation with reference to 18

U.S.C. § 2252A(a)(2) and (5), which are restricted to actual

minors. Finch, 2013 CCA LEXIS 33, at *4, 2013 WL 376065, at *2.

In Leonard, 64 M.J. at 382, 384, we determined that the

military judge did not err in setting the maximum punishment for

a specification and charge of possession of visual depictions of

minors engaging in sexually explicit activity by reference to

the maximum punishment authorized by 18 U.S.C. § 2252(a)(2),

(b)(1). We explained:

We have looked before at the maximum sentence for
offenses charged under clauses 1 or 2 of Article 134,
UCMJ, that include the conduct and mens rea proscribed
by directly analogous federal criminal statutes. In

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

doing so, we focused on whether the offense as charged
is “essentially the same,” as that proscribed by the
federal statute. United States v. Jackson, 17 C.M.A.
580, 583, 38 C.M.R. 378, 381 (1968); see also United
States v. Williams, 17 M.J. 207, 216-17 (C.M.A. 1984)
(upholding sentence for kidnapping under clauses 1 or 2
by referencing the maximum sentence for a violation of
the federal kidnapping statute). The military judge
did not err by referencing a directly analogous federal
statute to identify the maximum punishment in this
case, when every element of the federal crime, except
the jurisdictional element, was included in the
specification.

Id. at 384 (emphasis added).

As in Leonard, here all elements of the federal crimes,

except the jurisdictional element, were included in the

specifications. Appellant was charged with receipt, possession,

and distribution of “visual depictions of a minor engaged in

sexually explicit conduct.” We agree with the CCA’s

determination that the analogous federal provisions are 18

U.S.C. § 2252A(a)(2), which criminalizes receipt and

distribution of child pornography, and § 2252A(a)(5), which

criminalizes possession.5 The term “child pornography” is

defined in § 2256(8)(B) to include “any visual depiction . . .

of a minor engaging in sexually explicit conduct.” These

5
Appellant’s citation to 18 U.S.C. § 2252A(a)(3)(B) is
inapposite, as that section targets the advertisement,
promotion, presentation, distribution, or solicitation of
material in a manner that reflects the belief, or intends to
cause another to believe, that the material is either obscenity
(of “a minor”) or child pornography (of an “actual minor”).
This is not analogous to the receipt, possession, and
distribution offenses for which Appellant was charged, which
make no distinction between obscenity of “a minor” and child
pornography of “an actual minor.”

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

sections are directly analogous to the specifications in this

case. The definition does not distinguish between minors and

actual minors. Neither do the sections of the statute directly

criminalizing receipt and distribution and possession of child

pornography. Accordingly, we hold that the CCA did not err in

holding that the maximum possible sentence was based on the

analogous portions of 18 U.S.C. § 2252A, which address

essentially the same offenses as charged in Finch’s case, and

affirm that portion of the CCA’s decision.

The Certified Issue

The issue certified by TJAG asks the court to provide the

“appropriate remedy” if the specifications sufficiently alleged

that the visual depictions were of actual minors, but the

military judge’s definitions were inconsistent with the alleged

specifications. Essentially, TJAG seeks review of the

providence of Finch’s guilty plea. As noted, Finch argues that

his plea to the specifications which involved images of actual

minors was not provident as the military judge specifically

advised him that the images could be either actual or virtual.

The government acknowledges that advisement but argues that the

singular reference in context of the entire providence inquiry

is insufficient to render the plea improvident.

“During a guilty plea inquiry the military judge is charged

with determining whether there is an adequate basis in law and

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

fact to support the plea before accepting it.” Inabinette, 66

M.J. at 321-22. “A military judge’s decision to accept a guilty

plea is reviewed for an abuse of discretion.” Id. at 322

(citations and internal quotation marks omitted). In order to

ensure a provident plea, the military judge must “accurately

inform Appellant of the nature of his offense and elicit from

him a factual basis to support his plea.” United States v.

Negron, 60 M.J. 136, 141 (C.A.A.F. 2004). “An essential aspect

of informing Appellant of the nature of the offense is a correct

definition of legal concepts. The judge’s failure to do so may

render the plea improvident.” Id. However, “an error in

advising an accused does not always render a guilty plea

improvident. Where the record contains factual circumstances

that objectively support the guilty plea to a more narrowly

construed statute or legal principle, the guilty plea may be

accepted.” Id. (citations and internal quotation marks

omitted). “To prevail, Appellant has the burden to demonstrate

a substantial basis in law and fact for questioning the plea.”

Id. (citation and internal quotation marks omitted). The “mere

possibility” of a conflict between the accused’s plea and

statements or other evidence in the record is not a sufficient

basis to overturn the trial results. United States v. Garcia,

44 M.J. 496, 498 (C.A.A.F. 1996) (citation and internal

quotation marks omitted).

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

Finch’s argument centers on the military judge’s statement

that the images could display either actual or virtual minors.

Finch argues that this inconsistent statement caused confusion

and, as a result, he could not be sure whether he was pleading

to offenses involving actual minors with a maximum sentence of

thirty years or offenses involving virtual minors with a maximum

sentence of eight months. An initial difficulty with this

argument is that Finch’s trial defense counsel explicitly agreed

with the government’s calculation of a maximum sentence to

confinement of thirty years, a statute limited to actual minors.

We note that six months prior to Finch’s court-martial, this

court held that possession of virtual child pornography charged

under Article 134, clauses 1 and 2, was punishable as a simple

disorder with a maximum punishment of four months of

confinement. See Beaty, 70 M.J. at 45. In light of the holding

in Beaty, the providence inquiry reflects that the parties

proceeded with the understanding that the specifications

involved actual minors with the corresponding thirty-year

maximum sentence despite the military judge’s inconsistent

reference to virtual minors. At no point during the providence

inquiry or sentencing portion of the trial was there any

expression of surprise or confusion as to the maximum sentence.

A further review of the providence inquiry record supports

this conclusion. Following the military judge’s inconsistent

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

statement, he defined the term “minor” as used in the

specification as a “person under the age of 18 years.” That

definition is identical to the definition of “minor” as the term

is used in 18 U.S.C. § 2252A(a)(2) and (5), which are limited to

actual minors. See 18 U.S.C. § 2256(1).6

In discussing “sexually explicit conduct” the military

judge informed Finch of the factors to consider in determining

whether the depictions included “lascivious exhibition of the

genitals or pubic area of any person.” (Emphasis added.) When

the military judge asked Finch why he believed the “individuals”

depicted were under the age of eighteen, Finch responded, “Sir,

they appeared -– their bodies were not developed.” Further,

Finch responded “yes” when the military judge asked him if he

understood the elements and definitions described and “yes” when

asked “do you believe and admit that the elements and

definitions taken together correctly describe what you did?”

Finch told the military judge that he “knowingly received

and possessed visual depictions of minors engaging in sexually

explicit conduct.” He said that he “saw that images of minors

engaged in sexually explicit conduct were downloaded and I

6
The plain meaning of the term “person” references an actual
person rather than a virtual person. See United States v.
Schell, 72 M.J. 339, 343 (C.A.A.F. 2013) (“Unless the text of a
statute is ambiguous, the plain language of a statute will
control unless it leads to an absurd result.”) (citation and
internal quotation marks omitted).

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

knowingly kept them on my computer.” Finch admitted that the

descriptions or file names contained words like “underage,”

“minor,” or “child.” He answered “yes” to similar questions

relating to the second specification alleging distribution of

those images.

Our review of the record of the providence inquiry reflects

that, despite the single inconsistent reference to images of

virtual minors, the parties proceeded as though the allegations

involved actual persons and the military judge elicited adequate

information from Finch to support the plea. Consequently, Finch

has failed to establish that a substantial basis in law or fact

exists to reject his plea. See, e.g., Garcia, 44 M.J. at 499.

Decision

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

RYAN, Judge (dissenting):

I concur with Senior Judge Effron’s dissent. I write

separately to point out the additional, constitutional infirmity

with the Charge and specifications in this case raised by the

vast disparity between the maximum sentences authorized for

actual and virtual child pornography offenses at the time of

Appellant’s court-martial.

I am well familiar with the holdings in both United States

v. Leonard, 64 M.J. 381, 384 (C.A.A.F. 2007), and United States

v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011). Leonard still

accurately stands for the general proposition that where a

specification adequately alleges the same conduct and mens rea

as a directly analogous federal statute, except for the

jurisdictional element, the offense may be punished as

authorized by the United States Code. 64 M.J. at 384; Rule for

Courts-Martial (R.C.M.) 1003(c)(1)(B)(ii). The opinion also

concluded that a particular specification merely alleging

“minors” was adequate to use the maximum punishment from the

United States Code, which was fifteen years at the relevant

time. Leonard, 64 M.J. at 382, 384.

Leonard came after the Court’s decision in United States v.

Mason, which clarified that virtual child pornography, in

addition to actual child pornography, could be prosecuted under

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

§ 934 (2000). 60 M.J. 15, 19–20 (C.A.A.F. 2004). However,

Leonard predated Beaty’s conclusion that a child pornography

offense that did not depict actual children could not be

punished by reference to the United States Code, since there was

no analogous federal crime. 70 M.J. at 44 (“An offense

comprised of acts that cannot be criminally charged under the

United States Code at all is neither ‘directly analogous’ nor

‘essentially the same’ as one that can be.”). In such cases,

the maximum authorized punishment is four months of confinement

and forfeiture of two-thirds pay per month for four months. Id.

at 45; see also Manual for Courts-Martial, United States Maximum

Punishment Chart app. 12 at A12-6 (2012 ed.) (MCM); see

generally R.C.M. 1003(c). The sentence disparity between the

two offenses was not evident until it was raised and decided in

Beaty.1

If the offenses in this case had been charged under clause

3 of Article 134, UCMJ, and referenced 18 U.S.C. § 2252A (2006),

there would not be a problem with the specifications in this

case. Under that statute “minor” has only one meaning; “minor”

is defined as “any person under the age of eighteen years,” 18

1
Moreover, in Leonard, the accused admitted during the
providence inquiry that the depictions were of actual minors.
64 M.J. at 382.
2
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

U.S.C. § 2256(1) (2006) (emphasis added), and it is clear that

the “person” must be a real person under the United States Code.2

But the Government charged the offense as a violation of

clauses 1 and 2, Article 134, UCMJ, which permitted, even prior

to the recent MCM amendments, prosecution of real, virtual, or

what appears to be child pornography. See Beaty, 70 M.J. at 41;

see also Finch, __ M.J. at __ (4–5) (Effron, S.J., with whom

Ryan, J., joined, dissenting) (discussing the recent MCM

amendments). If, of course, the depictions were of actual

2
While the definition of child pornography in 18 U.S.C.
§ 2256(8) “does not distinguish between minors and actual
minors,” United States v. Finch, __ M.J. __, __ (10) (C.A.A.F.
2014), the clear import of Supreme Court precedent is that
statutes under the United States Code may constitutionally
criminalize only child pornography that either involves actual
children or is obscene. See generally Ashcroft v. Free Speech
Coal., 535 U.S. 234, 251 (2002) (explaining that “where the
speech is neither obscene nor the product of sexual abuse, it
does not fall outside the protection of the First Amendment,”
and creating a clear distinction between the treatment of actual
and virtual child pornography). Consequently, the United States
Code only criminalizes depictions that are either of actual
minors, see, e.g., 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), or
obscene, see, e.g., 18 U.S.C. § 1466A(a). While the definition
of “child pornography” also includes a visual depiction that “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,” 18 U.S.C. § 2256(8)(B), it is
clear that the United States Code does not attempt to
criminalize non-obscene depictions of virtual minors because 18
U.S.C. § 2252A(c) provides an affirmative defense that the
depictions were of actual, adult persons or that no actual minor
was used in the production of the depictions. Our precedent
involving offenses charged as violations of clauses 1 or 2 of
Article 134, UCMJ, imposes no such limits. It is this fact,
combined with the sentence disparity, which causes the
constitutional problem discussed infra.
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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

minors, there are directly analogous federal statutes, which

authorize sentences well in excess of four months3 for the

distribution and receipt4 specifications. See, e.g., 18 U.S.C.

§ 2252A(b)(1); see also Leonard, 64 M.J. at 384. But if the

depictions were of virtual child pornography, or what appeared

to be minors, the sentencing exposure for each specification was

only four months. Beaty, 70 M.J. at 44–45.

This distinction raises the constitutional problem

presented by the specifications and adjudged sentence but

avoided by the majority. “[A]ny facts that increase the

prescribed range of penalties to which a criminal defendant is

exposed are elements of the crime.” Alleyne v. United States,

133 S. Ct. 2151, 2160 (2013) (citation and internal quotation

marks omitted). Consequently, given the widely disparate

sentences occasioned by the status of the depictions, when

charged as a violation of clause 1 or 2, Article 134, UCMJ, the

3
While the parties agreed at the court-martial that the maximum
punishment for the two specifications was thirty years, they
appear to have relied on the maximum punishment discussed in
Leonard, 64 M.J. at 384, rather than the amended statutes. See
18 U.S.C. §§ 2252(b)(1), 2252A(b)(1) (amended 2003).
4
The majority ultimately treats Specification 1 as a possession
offense, directly analogous to 18 U.S.C. § 2252A(a)(5), Finch,
__ M.J. at __ (8–10), despite noting the additional “receive”
language in the specification. Whether the specification is
best characterized as a possession offense, with a maximum
sentence of ten years of confinement, or a receipt offense, with
a maximum sentence of twenty years of confinement, however, is
largely unimportant here because the maximum sentence for either
offense is far in excess of four months.
4
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

fact that the depictions were of actual minors “necessarily

forms a constituent part of a new offense and must be submitted

to the jury.” Alleyne, 133 S. Ct. at 2162.

Even in the guilty plea context, where an accused waives

his right to trial by members, United States v. Hansen, 59 M.J.

410, 411 (C.A.A.F. 2004), such elements must be included in the

specification and shown to be understood by the accused as

elements of the offense to which he is pleading guilty. United

States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969);

see generally United States v. Ballan, 71 M.J. 28 (C.A.A.F.

2012).

One simply cannot rely on Leonard without considering the

import of Beaty for this particular set of offenses. The issue

here is not answered solely by reference to the language of the

specification without consideration of the effects of our child

pornography jurisprudence, particularly in light of the elements

as defined during the providence inquiry. Leonard neither

addresses nor purports to approach the legal landscape presented

in this case, which is the result of permitting offenses under

Article 134, UCMJ, that are not offenses under the United States

Code, and of resort to “general guidance in the Manual for

Courts-Martial in order to ascertain the maximum punishments

available under military law for different forms of child

pornography offenses.” Finch, __ M.J. at __ (3–5) (Effron,

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

S.J., with whom Ryan, J., joined, dissenting); see also R.C.M.

1003(c)(1)(B).

No one questions that the “actual” status of the minors in

the visual depictions at issue significantly increases the range

of penalties to which Appellant was exposed, because such acts

may be prosecuted under the United States Code, over the

penalties allowed if the depictions were of “virtual” child

pornography or what appeared to be minors, which generally may

not be prosecuted under the United States Code. See Finch, __

M.J. at __ (8). Given these circumstances, we are simply not

free to either disagree with or ignore the Supreme Court’s

directive as to how such facts must be treated. See, e.g.,

Alleyne, 133 S. Ct. at 2160, 2162.

Consequently, absent an allegation that the depictions were

of “actual” minors, under the law at the time of his conduct

Appellant could not be subject to the sentencing maximum for

that offense. Id. Moreover, the military judge not only failed

to render the error harmless by both explaining that the status

of the minors was relevant to the offense and eliciting the

Appellant’s admission that the pornography was of actual minors,

see Ballan, 71 M.J. at 35, he compounded the problem by telling

Appellant that they did not have to be actual minors.5

5
This fact raises serious questions as to the basis for the
majority’s conclusion that all parties involved were aware of
6
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

I respectfully dissent.

Beaty, see Finch, __ M.J. at __ (12–13), since Beaty’s holding
on the maximum sentence for virtual child pornography was
contrary to the agreed upon sentence for the elements of the
specifications as described by the military judge during the
providence inquiry.
7
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

EFFRON, Senior Judge, with whom RYAN, Judge, joins

(dissenting):

The military judge in the present case erroneously informed

Appellant that it made no difference whether the child

pornography images at issue depicted actual or virtual children.

In providing this erroneous information to Appellant, the

military judge overlooked a critical difference in the penalty

landscape at the time of Appellant’s trial. At that time, the

two offenses at issue carried a combined authorized punishment

of thirty years of confinement for the distribution and

possession of images involving actual children. United States

v. Finch, __ M.J. __, __ (4 n.4) (C.A.A.F. 2014). By contrast,

if the depictions consisted of virtual images, the combined

authorized punishment at the time of Appellant’s trial was only

eight months of confinement. Id. at __ (8-9). The majority

concludes that the erroneous statement by the military judge --

equating actual and virtual images -- constituted an

insubstantial error under the circumstances of this case. For

the reasons set forth below, I respectfully dissent.

The evolving treatment of actual and virtual images under
military law

The federal criminal code treats child pornography offenses

as serious crimes, punishable by lengthy periods of confinement.

See 18 U.S.C. § 2252A (2012). Although the Uniform Code of
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

Military Justice (UCMJ) does not contain an article that

expressly addresses child pornography, such offenses are

prosecuted in courts-martial under Article 134, UCMJ, 10 U.S.C.

§ 934 (2012), which prohibits conduct that is prejudicial to

good order and discipline, conduct that is service discrediting,

and conduct that violates federal criminal statutes.

In United States v. James, 55 M.J. 297 (C.A.A.F. 2001), we

upheld a court-martial conviction under a federal child

pornography statute that prohibited the possession of child

pornography regardless of whether the pornography depicted

actual children or computer-generated images of “virtual”

children. Our decision was consistent with the views expressed

by a majority of other federal courts of appeals that had

considered the issue at that time. See id. at 299-300.

Subsequently, however, the Supreme Court held that the

restrictions on pornographic materials involving actual children

could not be applied to computer-generated simulations or images

under the First Amendment. Ashcroft v. Free Speech Coal., 535

U.S. 234, 249-56 (2002).

In United States v. O’Connor, 58 M.J. 450, 454-55 (C.A.A.F.

2003), we recognized that the Supreme Court’s decision

established binding precedent with respect to application of the

federal criminal statute, but we left open the possibility that

child pornography offenses involving virtual images could be

2
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

prosecuted under other provisions of military law. In United

States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004), we held that

under military law, the receipt or possession of virtual child

pornography, as well as actual child pornography, could

constitute conduct prejudicial to good order and discipline or

service discrediting conduct under the first and second clauses

of Article 134, UCMJ, depending on the facts of the case.

The evolving contours of the penalty landscape

During the eight-year period that followed our 2004

decision in Mason, including the period of time covered by the

trial in the present appeal, the President did not exercise the

authority provided by Article 56, UCMJ, 10 U.S.C. § 856 (2012),

to establish maximum punishments for specific forms of child

pornography offenses. In the absence of express attention under

Article 56, UCMJ, military judges and the appellate courts were

required to apply general guidance in the Manual for Courts-

Martial in order to ascertain the maximum punishments available

under military law for different forms of child pornography

offenses. See Rule for Courts-Martial (R.C.M.) 1003(c)(1)(B);

United States v. Leonard, 64 M.J. 381, 383-84 (C.A.A.F. 2007)

(concluding that R.C.M. 1003(c)(1)(B)(ii) authorized confinement

for up to fifteen years in a case involving receipt of actual

child pornography); Finch, __ M.J. at __ (4 n.4) (noting the

current authority for confinement of up to twenty years for

3
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

distribution of actual images and confinement of up to ten years

for receipt of actual images); United States v. Beaty, 70 M.J.

39, 44-45 (C.A.A.F. 2011) (concluding that the rule authorized a

maximum punishment of four months of confinement and associated

penalties in a case involving virtual child pornography).

Subsequent to Appellant’s trial -- and subsequent to Mason,

Leonard, and Beaty -- the Manual for Courts-Martial was amended

to address expressly actual images and virtual images (i.e.,

images of “what appear[] to be minors,” Beaty, 70 M.J. at 40,

43). See Manual for Courts-Martial, United States Analysis of

the Punitive Articles app. 23 at A23-22 (2012 ed.) (MCM). Under

the amended version of the Manual, which is now in effect,

actual and virtual images are treated as the same for punishment

purposes. MCM pt. IV, para. 68b.c.(1). Offenses such as

possessing, receiving, and viewing child pornography are subject

to a maximum of ten years of confinement per offense, regardless

of whether the images are of actual children or images of

virtual children. Id. at para. 68b.e.(1). Periods of greater

confinement are authorized for offenses involving aggravating

circumstances: fifteen years for possession with intent to

distribute, twenty years for distribution; and thirty years for

production. Id. at paras. 68b.e.(2)-(4). The new rules, which

equate actual and virtual child pornography, reflect the reality

of modern imaging technology. Persons with only modest skills

4
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

can produce virtual images that, from the perspective of the

viewer, are infused with such vitality that they “appear to be”

real.

But Appellant was not tried under the new rules. At the

time he was tried, the offenses involving actual and virtual

images were not equated. Instead, the penalty landscape

presented vast differences in authorized punishments on the two

specifications involving child pornography offenses. At the

time of Appellant’s trial, the two offenses at issue carried an

authorized punishment of thirty years of confinement for the

distribution and possession of actual images, but only eight

months of confinement for images involving virtual depictions.

Consideration of the relationship between actual and virtual
images during Appellant’s trial

Given the vast disparity in the consequences associated

with the offenses under the law in effect at that time, it was

incumbent upon the military judge to engage in a plea colloquy

that accurately informed Appellant of the nature of the offenses

and the penalty landscape. See R.C.M. 910(c)(1). In this case,

the military judge erroneously told Appellant that it would make

no difference whether the images were actual or virtual. Finch,

__ M.J. at __ (5). In so doing, he left Appellant with the

misleading impression that there was no legal difference between

actual and virtual images when, in fact, the difference was

5
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

dramatic. At no point did the military judge provide any

information to Appellant to rectify this error.

An error by the military judge in misadvising an accused on

matters affecting the maximum sentence does not necessarily

amount to the type of substantial misunderstanding that will

invalidate a plea. See, e.g., United States v. Walker, 34 M.J.

264, 266 (C.M.A. 1992). The analysis is contextual. Id.

The majority concludes that there was no substantial

misunderstanding, viewing the record as demonstrating a context

in which all present understood that the case involved images of

actual children. In support of this proposition, the majority

cites defense counsel’s agreement with the military judge that

the maximum punishment was thirty years. Finch, __ M.J. at __

(12-13). Defense counsel, however, did not object to or correct

the military judge and did not offer any views as to the

considerable differences between actual and virtual images. To

the extent that the exchange between the defense counsel and the

military judge proves anything, it merely demonstrates that the

defense counsel and the military judge shared the same

misunderstanding of the relationship between actual and virtual

images -- a matter involving a vast difference in the penalty

landscape and that was never explained on the record to

Appellant.

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United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

The majority also cites the use of phrases in the plea

colloquy such as “person,” “child,” “underage,” “individuals

. . . [whose] bodies were not developed,” and “minors engaging

in sexually explicit conduct” as demonstrating an understanding

by the military judge and Appellant that the colloquy involved

actual rather than virtual images. Id. at __ (13-14). The

military judge’s own words refute the majority’s theory. He

expressly used the words “persons” in describing virtual

pornography when he erroneously equated actual and virtual

images by referring to “visual depictions containing sexually

explicit images of persons indistinguishable from minor

children, whether actual or virtual.” Id. at __ (5) (emphasis

added).

In that context, where the military judge expressly advised

Appellant that virtual images constituted depictions of “persons

indistinguishable from minor children,” nothing in Appellant’s

use of similar words would provide a basis for concluding that

Appellant was referring only to actual children. Id. Given the

graphic reality that can be achieved in the production of

virtual images, the fact that participants in a plea colloquy

used such language does not demonstrate that they were referring

to actual or virtual images.

The current Manual for Courts-Martial repeatedly uses

similar words to describe both actual and virtual images. See,

7
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

e.g., MCM pt. IV, para. 68b.c.(1) (defining child pornography as

the “visual depiction of a minor engaging in sexually explicit

conduct”); id. at para. 68b.c.(4) (defining a minor as a “person

under the age of 18 years”); id. at para. 68b.c.(7) (defining

various forms of sexually explicit conduct as occurring “between

persons of the same or opposite sex” or involving “lascivious

exhibition of the genitals or pubic area of any person”).

The amended Manual does not govern the case before us, but

the use of such language in the current Manual to describe both

actual and virtual images -- like the use of such words by the

military judge at trial -- refutes the majority’s view that the

plain meaning of such words refers only to actual images. The

Manual, in its routine use of words like “individuals” and

“persons” to describe both actual and virtual images of sexual

conduct, demonstrates that the plain meaning of these words can

encompass both. The use of these words during the plea colloquy

does not demonstrate either an express or implicit understanding

by the military judge or Appellant that the images at issue in

the present case only involved images of actual children.

The defective plea inquiry in this case involves a set of

circumstances that would not affect a plea under current law.

The plea inquiry in this case, however, demonstrates a

substantial and uncorrected error by the military judge with

respect to the law at the time of Appellant’s trial, rendering

8
United States v. Finch, Nos. 13-0353/AF & 13-5007/AF

the plea improvident. Under these circumstances, the Court

should set aside the findings and sentence, and remand the case

for a rehearing.

9