UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 CHRISTOPHER G. CANADAY
United States Army, Appellant
ARMY 20120243
Headquarters, Fort Bliss
David H. Robertson, Military Judge
Colonel Francis P. King, Staff Judge Advocate (pretrial)
Colonel Edward K. Lawson IV, Staff Judge Advocate (post-trial)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew M. Jones, JA (on brief).
For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain T. Campbell Warner, JA (on brief).
11 July 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of attempted indecent acts, one
specification of attempted communication of indecent language to a child under
sixteen years of age, and one specification of attempted transfer of obsce ne material
to a minor, in violation of Articles 80 and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 880, 934 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge and confinement for thirty months. The
convening authority approved the adjudged sentence.
Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error and personally raises matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Neither the raised error nor
the Grostefon matters warrant discussion or relief. However, upon review, we
CANADAY—ARMY 20120243
determined that the military judge abused his discretion when he accepted
appellant’s plea to the specification of the Article 134, UCMJ, charge. Specifically,
the military judge failed to elicit a factual basis that appellant’s attempted transfer
of obscene material to a minor was prejudicial to good order and discipline.
BACKGROUND
At the time of trial, appellant was a twenty-four-year-old married soldier with
one child. When he was attending Advanced Individual Training (AIT) at Fort Sill,
Oklahoma, he went home on block leave for the Christmas holidays. During this
time, he visited an online chat room, “Oklahoma1Yahoo!” using the Yahoo!
Messenger program. Unbeknownst to him, the Tulsa, Oklahoma police department
set up an online, undercover investigation where a detective posed as an underage
girl using an alias of “B,” a thirteen-year-old girl living in the Tulsa, Oklahoma
area. The profile included images of a thirteen-year-old girl with a Yahoo! email
account. The detective entered Yahoo! chat rooms using the email account
established for B, and waited for individuals to invite B into private chat sessions.
Appellant entered the chat room using an email profile used ex clusively by
him. He invited B to engage in private messaging with him. Over the course of
their online communications, the detective posing as B made it clear that she was
thirteen years old. Nevertheless, appellant sent increasingly illicit messages to B,
eventually sending videos of him masturbating and of his genitalia.
Throughout appellant’s online communication with B, he made several
suggestions that B should send videos of herself naked to him. He also provided
instructions to B as to how she should masturbate, using graphic, indecent language.
Finally, appellant admonished B not to show the videos or photos to anyone and not
to tell her parents about their online interactions.
When he returned to AIT at Fort Sill after his leave period, he no longer had
online access, so he began text messaging and emailing B using his cellular phone.
On one occasion, appellant emailed B a photo of himself naked, with an erect penis,
while he was wearing Army identification tags, or “dog tags.” This conduct was
charged as a Clause 3, Article 134 offense, but also included Clauses 1 and 2.
LAW AND DISCUSSION
“During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge’s decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
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questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
910(e).
The government charged appellant with attempting to knowingly transfer,
using a facility of interstate commerce, obscene matter to an individual who the
appellant knew had not attained the age of sixteen years, in violation of 18 U.S.C.
§ 1470, “such conduct being prejudicial to good order and discipline in the armed
forces and of a nature to bring discredit upon the armed forces.” (Charge Sheet
(emphasis added)). See Manual for Courts–Martial, United States (2008 ed.),
pt. IV, ¶ 60.c.(2), (3), and (4). As our superior court recently reiterated, “[t]he three
clauses of Article 134 constitute ‘three distinct and separate parts.’” United States
v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (quoting United States v. Frantz,
2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). Thus, if a specification alleges all
three, then there must be an adequate basis in fact in the record to support a finding
of guilty to all three.
Given the facts of this case, there is no question that appellant attempted to
transfer obscene matter in violation of § 1470. Moreover, the plea inquiry clearly
established facts demonstrating that appellant’s conduct was service-discrediting.
However, he did not discuss with appellant how or whether his conduct was
prejudicial to good order and discipline in the armed forces . Consequently, the
military judge did not elicit an adequate factual basis during his colloquy with
appellant to support his plea to committing conduct pr ejudicial to good order and
discipline. Similarly, the stipulation of fact was silent as to this element.
Accordingly, on the record before us, we find a substantial basis in fact to question
appellant’s pleas to violating Clause 1 of Article 134, UCMJ.
CONCLUSION
On consideration of the entire record, the court affirms only so much of the
finding of guilty of the Specification of Charge II as finds that appellant “did, at or
near Fort Sill, Oklahoma, on or about 4 January 2011, attempt to knowingly transfer
via the internet, a facility of interstate commerce, obscene matter, to wit: a photo of
PV2 Canaday’s penis, to another individual who PV2 Canaday knew had not attained
the age of sixteen years, in violation of 18 United States Code Section 1470, which
conduct, under the circumstances, was of a nature to bring discredit upon the armed
forces.” 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
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v.
Moffeit, 63 M.J 40 (C.A.A.F 2006), to include the factors identified by Judge Baker
in his concurring opinion in Moffeit, the sentence as approved by the convening
authority is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored. See UCMJ art. 75(a).
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FOR THE COURT:
ANTHONY
ANTHONY O. POTTINGER
O. POTTINGER
Chief Deputy Clerk of Court
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