UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.R. MCFARLANE, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
MARC A. SEALS
LIEUTENANT (O-3), U.S. NAVY
NMCCA 201300367
GENERAL COURT-MARTIAL
Sentence Adjudged: 21 May 2013.
Military Judge: CAPT D. Jacques Smith, JAGC, USN.
Convening Authority: Commander, Walter Reed National
Military Medical Center, Bethesda, MD.
Staff Judge Advocate's Recommendation: LT Molly A.
Dennison, JAGC, USN.
For Appellant: Col Terri Zimmerman, USMCR.
For Appellee: Maj Paul Ervasti, USMC; Maj Suzanne Dempsey,
USMC.
29 January 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, in accordance with his pleas, of five
specifications 1 of conduct unbecoming of an officer and a
gentleman by knowingly possessing images of child pornography in
1
Although the appellant pleaded guilty to a sixth specification (listed on
the Charge Sheet as Specification 2 of the sole charge), the military judge
found that it failed to state an offense and dismissed it. Record at 60.
violation of Article 133, Uniform Code of Military Justice, 10
U.S.C. § 933. The appellant was sentenced to confinement for
two years and a dismissal from the naval service. The convening
authority suspended all confinement in excess of 60 days
pursuant to the terms of the pretrial agreement, but otherwise
approved the sentence as adjudged and, except for the dismissal,
ordered it executed.
The appellant now avers: (1) that his guilty pleas were
improvident; (2) that charging him with six specifications of
misconduct represented an unreasonable multiplication of
charges; and, (3) that the search of two of the appellant’s
computers violated his Fourth Amendment rights rendering the
images found on them inadmissible. 2
After careful examination of the record of trial and the
pleadings of the parties, we are satisfied that the findings and
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellate occurred. Arts. 59(a) and 66(c), UCMJ.
Background
In March 2010, ES, the appellant’s wife at the time,
contacted the Anne Arundel (Maryland) Police Department and
informed them that she found several images of child pornography
on two of her husband’s computers. She subsequently turned over
the two computers to the authorities. ES also informed the
detective investigating the allegation that the appellant was on
deployment with the Haiti Relief Project and that he had in his
possession an iPod, a laptop computer, and a digital camera all
capable of storing videos and images as well. A search warrant
was executed and those items were seized and searched as well.
The two computers turned over to the authorities by ES contained
child pornography. Additional relevant facts are further
developed below.
Providence of Guilty Pleas
In his initial assignment of error, the appellant contends
that his pleas were not provident because: (1) there was no
evidence that all the images possessed by the appellant depict
minors; (2) his possession of child pornography was not knowing;
2
The second and third assignments of error were submitted pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
and, (3) he did not fully understand the ramifications of his
guilty plea.
Standard of Review
“A military judge’s decision to accept a guilty plea
is reviewed for an abuse of discretion.” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citations and
internal quotation marks omitted). We will not disturb a
guilty plea unless the record of trial shows a substantial
basis in law or fact for questioning the guilty plea. Id.
To prevent the acceptance of improvident pleas, the
military judge is required to develop, on the record, the
factual bases for “the acts or the omissions of the accused
[that] constitute the offense or offenses to which he is
pleading guilty.” United States v. Care, 40 C.M.R. 247,
253 (C.M.A. 1969) (citations omitted); see also Art. 45,
UCMJ. The appellant must admit every element of the
offense to which he pleads guilty. United States v.
Aleman, 62 M.J. 281, 283 (C.A.A.F. 2006); see also RULE FOR
COURTS-MARTIAL 910(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). If the military judge fails to establish that
there is an adequate basis in law or fact to support the
appellant’s plea during the Care inquiry, the plea will be
improvident. Inabinette, 66 M.J. at 322; see also R.C.M.
910(e). This court “must find ‘a substantial conflict
between the plea and the [appellant’s] statements or other
evidence’ in order to set aside a guilty plea. The ‘mere
possibility’ of a conflict is not sufficient.” United
States v. Watson, 71 M.J. 54, 58 (C.A.A.F. 2012) (quoting
United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996)).
“In determining on appeal whether there is a substantial
inconsistency, this Court considers the ‘full context’ of
the plea inquiry, including Appellant’s stipulation of
fact.” United States v. Goodman, 70 M.J. 396, 399
(C.A.A.F. 2011) (citing United States v. Smauley, 42 M.J.
449, 452 (C.A.A.F. 1995)).
Analysis and Discussion
The appellant first challenges the providence of his
pleas by contending that there is no evidence that all of
the images depicted minors. In his brief, the appellant
seems to suggest that since there was only one image
matched to a child as documented by the National Center for
Missing and Exploited Children (NCMEC), the other images of
nude or scantily-clad underage children in sexually
3
provocative and other inappropriate positions cannot be
considered as child pornography. The appellant further
avers that because all of these images cannot be considered
as child pornography, we cannot know which images the judge
considered in forming the factual predicate necessary to
accept his guilty plea.
First, we summarily dismiss the appellant’s contention
that there is no evidence that many of the images depicted
on Prosecution Exhibit 3 contained child pornography merely
because the children shown in the images are not listed by
the NCMEC. The military judge reviewed the images
contained on PE-3 and determined, with the exception of one
of the five images pertaining to Specification 6, that
these images met the definition of child pornography as
defined by 18 U.S.C. § 2256. Record at 59. After
thoroughly reviewing the record, to include the images
contained on PE-3, we do not find a substantial basis in
law or fact to question the guilty plea. Inabinette, 66
M.J. at 322. Accordingly, we find this aspect of the
appellant’s argument to be without merit.
The appellant next contends that his pleas were
improvident because his possession of child pornography was
not knowing and conscious. Specifically, he contends, for
the first time, that all of the images containing child
pornography were located in his temporary internet files
that are not accessible to the average user. He
additionally, and also for the first time, avers that he
did not actually understand that his browser could save
images from websites automatically to his hard drive
without taking any action to accomplish this. Appellant’s
Brief of 4 Apr 2014 at 8. This contention is in direct
contravention of the sworn statements the appellant
presented to the military judge during his providence
inquiry.
In order for the military judge to accept the
appellant’s plea of guilty to conduct unbecoming an officer
and a gentleman, as provided on the charge sheet, the
appellant had to admit that (1) he possessed child
pornography as defined by 18 U.S.C. § 2256 and (2) that
such conduct was unbecoming an officer and a gentleman.
After the military judge explained the elements and
definitions associated with the charge and specifications
to which the appellant was pleading guilty, he asked the
appellant if he received and possessed images of child
4
pornography. Record at 42. Starting with Specification 1,
the appellant stated:
Prior to and during this charge time frame, I
regularly viewed pornography on the internet. I would
often view pornography on sites where the majority of
images were of teens, that is females ranging from 18
to 20-years old. On more than one occasion, prior to
and during the charge time frame I came across images
I believe could constitute child pornography. I knew
the images were child pornography because of the
apparent age, size, and state of physical development
of the individuals in the photographs. While I was
not intentionally looking for child pornography, I did
knowingly possess it. I know and knew at the time
when I viewed an image on the internet it could be
stored in my temporary internet files where it could
be accessed by me or another user later. Once these
images ended up on the computer, I knowingly possessed
them for as long as I possessed the computer. My
possession was wrongful. If I had come across one
image on a site and called law enforcement or at least
immediately stopped going to that particular site, I
believe my possession may not have been wrongful.
However, I continued to go to these sites knowing
there was a very real possibility I would continue to
encounter child pornography. In fact, I encountered
it on several of these sites and, therefore, possessed
it on several additional occasions. I have no legal
justification or excuse for possessing these pictures.
My conduct was unbecoming of an Officer and a
gentleman. 3
Record at 42-43 (emphasis added). When further questioned
by the military judge, the appellant admitted that the
images contained “minors engaged in sexually explicit
misconduct”. Id at 50.
Based primarily on the admissions the appellant made during
the providence inquiry, we find nothing in the record that would
3
Although he did not give a similar statement when questioned regarding
Specifications 2-6, the appellant did however state it was the same conduct
as he stated in Specification 1 with the exception that the misconduct took
place in Pasadena, Maryland. Record at 44-48.
5
give us cause to disturb the appellant’s guilty pleas and we
thus find this contention to be without merit as well. 4
The appellant lastly contends that his pleas were
improvident because he did not fully understand the consequences
of the plea or what rights he gave up by pleading guilty, and
did not fully understand the legal principles that might have
provided a viable defense to the charge. Appellant’s Brief at
13. The record reflects otherwise.
The military judge went over all of the rights the
appellant was relinquishing by pleading guilty, to include the
right to a trial by the court and the potential impact of sexual
offender registration laws, and the appellant indicated that he
understood them. Record at 24, 26. The appellant additionally
stated that he had enough time to discuss his case with counsel
and that he believed that their advice was in his best interest.
Id. at 26.
We find no substantial basis in law of fact to question the
appellant’s pleas. Watson, 71 M.J. at 58. Accordingly, we find
that the military judge did not abuse his discretion by
accepting the appellant’s pleas of guilty to the charge and
corresponding specifications.
The appellant’s remaining assignments of error alleging
unreasonable multiplication of charges and unlawful search have
been considered and are without merit. United States v.
Clifton, 35 M.J. 79 (C.M.A 1992).
4
The appellant argues that the Court of Appeals for the Armed Forces (CAAF)
decision in United States v. Navrestad, 66 M.J. 262 (C.A.A.F. 2008) is
controlling in the case at bar. In Navrestad, the CAAF set aside a
conviction for possession and distribution of child pornography when that
appellant used a computer at an internet café to view child pornography.
Citing the definition in the Manual, that “‘[p]osse[sion] means to exercise
control of something’”, the court held that the appellant’s action in that
case went no further than just viewing the images. Id. at 267 (quoting
Manual for Courts-Martial, United States), Part IV, ¶ 37c(2) (2005 ed.)).
The court concluded that the appellant did not exercise sufficient dominion
and control over the images to constitute possession. Id. Critical in the
CAAF’s decision was the fact that: (1) the record did not reflect that the
appellant was aware that the images were being automatically saved to the
hard drive; and (2) the appellant did not have access to that hard drive and
could not download them to a portable storage device. Such is not the same
in the case at bar as the appellant admitted during the providence inquiry
that he knew the images were being saved to his temporary internet files and
that he exercised dominion and control over the computer. The appellant’s
reliance on Navrestad is misplaced.
6
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
7