UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ANIBAL A. BARRAZA
LANCE CORPORAL (E-3), U.S. MARINE CORPS
NMCCA 201400210
GENERAL COURT-MARTIAL
Sentence Adjudged: 20 February 2014.
Military Judge: LtCol E.H. Robinson, Jr., USMC.
Convening Authority: Commanding General, 3d Marine
Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,
USMC.
For Appellant: CDR Boyce A. Crocker, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt Cory
A. Carver, USMC.
26 February 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, pursuant to his pleas, of attempted
sexual assault of a child, attempted production of child
pornography, attempted sexual abuse of a child, and one
specification each of receipt, possession, and distribution of
child pornography in violation of Articles 80 and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 880 and 934. The
military judge sentenced the appellant to confinement for a
period of eight years, reduction to pay grade E-1, forfeiture of
all pay and allowances, and a dishonorable discharge. The
convening authority (CA) approved the sentence as adjudged but,
pursuant to a pretrial agreement, suspended all confinement in
excess of five years. 1
The appellant raises five assignments of error:
(1) the convictions for attempted sexual assault of a
child and attempted sexual abuse of a child constitute
an unreasonable multiplication of charges;
(2) a dishonorable discharge is inappropriately
severe;
(3) the military judged erred by accepting pleas of
guilty to the three specifications under Article 134,
UCMJ, because they were facially defective;
(4) no inquiry was made into whether the appellant
required the services of an interpreter; and,
(5) the military judge failed to inquire into whether
the appellant was a dual citizen of Colombia and the
United States and what rights and repercussions that
might entail. 2
After carefully considering the record of trial and the
submissions of the parties, we find that no error materially
prejudicial to substantial rights of the appellant occurred. We
therefore affirm the findings and the approved sentence. Arts.
59(a) and 66(c), UCMJ.
Background
On 3 July 2013, the Naval Criminal Investigative Service
(NCIS) received an anonymous tip that someone with the screen
name “Anibal Barraza” was attempting to use the internet to
initiate sexual contact with minor females. Acting on this tip,
1
To the extent the CA’s Action purports to execute the dishonorable
discharge, it is a legal nullity. United States v. Bailey, 68 M.J. 409
(C.A.A.F. 2009).
2
Assignments of Error (2), (4), and (5) were raised pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
“Amber,” an NCIS undercover agent posing as a 15-year-old girl,
submitted a “friend request” to the appellant’s Facebook
account. During the ensuing online interaction between the two,
the appellant confirmed his knowledge that “Amber” was 15 years
old, made a series of sexually explicit comments to her, and
arranged to meet her aboard Kadena Air Force Base, Okinawa,
Japan to engage in sexual activity with her. He took with him a
high definition digital camera, which he intended to use to
photograph himself and the 15-year-old engaged in sexual acts.
To his surprise, the appellant was greeted at the pre-
determined location not by a 15-year-old girl, but by NCIS
agents waiting to apprehend him. A subsequent search of the
appellant’s computer revealed, in a file labeled “pequeñas”
(translated as “little girls” by the appellant), approximately
400 images and videos of children under 18 years of age engaged
in sexually explicit activity.
Analysis
1. Unreasonable Multiplication of Charges
The appellant asserts now for the first time on appeal that
Specification 1 of Charge I, attempted sexual assault of a
child, and the specification of the Additional Charge, attempted
sexual abuse of a child, constitute an unreasonable
multiplication of charges for findings purposes. We disagree.
The prohibition against unreasonable multiplication of
charges is codified in RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.): “What is substantially one
transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” This provides
trial and appellate courts a mechanism to address prosecutorial
overreaching by imposing a standard of reasonableness. United
States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). To determine
whether the Government has unreasonably multiplied charges, we
apply a five-part test:
(1) Did the appellant object at trial?;
(2) Is each charge and specification aimed at
distinctly separate criminal acts?;
(3) Do the number of charges and specifications
misrepresent or exaggerate the appellant's
criminality?;
3
(4) Do the number of charges and specifications
unreasonably increase the appellant's punitive
exposure?; and,
(5) Is there any evidence of prosecutorial
overreaching or abuse in the drafting of the charges?
Id. at 338.
In this case, all five of the Quiroz factors weigh in the
Government’s favor, demonstrating it acted reasonably in
charging the offenses separately. The appellant did not raise
the issue at trial. Further, the specification of the
Additional Charge was aimed at the appellant’s attempted lewd
act upon a child by repeatedly communicating indecent, sexually
explicit language to a person he thought to be a 15-year-old
girl, while Specification 1 of Charge I was aimed at his attempt
to meet with and engage in a sexual act with a child. The
appellant argues the indecent language nonetheless was merely
“part and parcel” 3 of his attempt to engage in sexual acts with
“Amber.” But the communications in this case went well-beyond
that necessary to arrange a meeting or even to communicate he
was interested in sex, both in terms of the time span over which
the communications continued and the explicit, repeated nature
of his lewd suggestions. Separate convictions for his lewd
language to a would-be 15-year-old and for his attempt to engage
in sexual acts with her neither exaggerated his criminality nor
unreasonably increased his punitive exposure. Finally, we find
no evidence of prosecutorial overreaching under these
circumstances.
2. Sentence Appropriateness
Under Article 66(c), UCMJ, this court “may affirm only such
findings of guilty and the sentence or such part or amount of
the sentence as it finds correct in law and fact and determines,
on the basis of the entire record, should be approved.” We
independently determine the appropriateness of the sentence in
each case we affirm. See United States v. Baier, 60 M.J. 382,
384-85 (C.A.A.F. 2005). Assessing sentence appropriateness
involves the judicial function of assuring that justice is done
and that the accused gets the punishment he deserves. United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and the
3
Appellant’s Brief of 8 Sep 2014 at 7.
4
character of the offender.’” United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).
The appellant progressed from viewing, saving, and
distributing child pornography to making actual contact with a
person he believed was a child, committing lewd acts upon that
person, and intending to sexually assault her and to produce
child pornography by capturing the event. The approved
dishonorable discharge is not inappropriately severe.
3. Sufficiency of Article 134 Specifications
Specifications 1 through 3 of Charge III alleged the
appellant:
did, at or near Okinawa, Japan, between, on or
about 26 August 2011 and on or about 31 July
2013, knowingly and wrongfully [possess,
distribute, and receive, respectively] child
pornography, to wit: digital images or videos of
a minor, or what appears to be a minor, engaging
in sexually explicit conduct, and that said
conduct was to the prejudice of good order and
discipline in the armed forces and was of a
nature to bring discredit upon the armed
services.
The military judge, prior to providing elements and
definitions for these specifications, sua sponte raised the
issue that within the charged time, effective 12 January 2012,
the MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) was amended,
specifically enumerating child pornography under Article 134. 4
He indicated he therefore intended to bifurcate his providence
inquiry into each of these specifications, addressing child
pornography offenses on or after 12 January 2012 under clauses 1
and 2 of Article 134 and those before that date “basically under
the old rules regarding child pornography that is assimilated
under 18 [U.S. Code § 2252A.]” 5
The military judge asked both trial and defense counsel
whether there were any questions; neither had any. He then
asked if trial or defense counsel had any objections to this
4
MCM, App. 23, ¶ 68b.
5
Record at 72.
5
procedure; again, each indicated they had none. The appellant
now, however, asserts it was plain error not to dismiss the
specifications because they were “facially defective” 6 by failing
to provide notice of “the different laws that would have
governed the timeframes for the charged offenses.” 7 Before 12
January 2012, the appellant asserts, “such offenses were charged
as an assimilative crime under 18 U.S.C. § 2251.” 8
Whether a specification is defective is a question of law
that we review de novo. United States v. Ballan, 71 M.J. 28
(C.A.A.F. 2012). When an appellant raises the validity of
specifications for the first time on appeal, we interpret them
“with maximum liberality.” United States v. Bryant, 30 M.J. 72,
73 (C.M.A. 1990) (citing United States v. Watkins, 21 M.J. 208,
209 (C.M.A. 1986)) (additional citation and footnote omitted) .
The military is a notice pleading jurisdiction. United
States v. Sell, 11 C.M.R. 202, 206 (C.M.A. 1953).
Specifications are sufficient “if they, ‘first, contain[] the
elements of the offense charged and fairly inform[] a defendant
of the charge against which he must defend, and, second,
enable[] him to plead an acquittal or conviction in bar of
future prosecutions for the same offense.’” United States v.
Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (quoting Hamling v.
United States, 418 U.S. 87, 117 (1974)). Under RULE FOR COURTS-
MARTIAL 307(c)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
“[a] specification is sufficient if it alleges every element of
the charged offense expressly or by necessary implication.”
The specifications here alleged all the elements of a
clause 1 and 2 violation of Article 134: (1) that the accused
did a certain act; and (2) that, under the circumstances, the
accused’s conduct was to the prejudice of good order and
discipline in the armed forces and was of a nature to bring
discredit upon the armed forces. MCM, Part IV, ¶ 60b. Further,
as the Court of Appeals for the Armed Forces has held, child
pornography offenses occurring prior to 12 January 2012 still
could appropriately be charged under clauses 1 and 2 of Article
134. United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014);
United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011). The
specifications were, accordingly, sufficient.
6
Appellant’s Brief at 11.
7
Id. at 14 (footnote omitted).
8
Id. at 12 (footnote omitted).
6
Nonetheless, it was the military judge who spoke in terms
of assimilating § 2252A for conduct prior to 12 January 2012.
This is problematic because: (1) the appellant was not charged
with (or convicted of) a crime assimilated into the UCMJ by
clause 3, Article 134; (2) the conduct occurred in Okinawa,
Japan, raising an extraterritorial applicability issue not
addressed by the trial court (see United States v. Martinelli,
62 M.J. 52 (C.A.A.F. 2005)); and (3) in his bifurcated
providence inquiry, the military judge failed to elicit from the
appellant how his conduct prior to 12 January 2012 was
prejudicial to good order and discipline or service
discrediting. While we find this to be error, it had no impact
on the providence of the appellant’s pleas, because once he
admitted all the elements of clause 1 and 2 violations of
Article 134 for conduct occurring on or after 12 January 2012,
his pleas to those specification were fully provident.
Admitting to any conduct before that was mere surplusage as far
as providence is concerned 9 and there is no indication of any
prejudice to the appellant. 10
9
See United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004) (“[A]n 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.”) (citations and internal quotation marks
omitted).
10
Although not raised, we also note that this case presents an issue
regarding the correct maximum punishment for these specifications. Prior to
the President listing Child Pornography as an enumerated Article 134 offense,
the maximum punishment for allegations involving “what appears to be a minor”
was limited to four months of confinement. Beaty, 70 M.J. at 45. Subsequent
to the effective date of the President's action, such offenses were
punishable by 10 years of confinement for possession and receipt and 20 years
for distribution. MCM, Part IV, ¶ 68b(e). In this case, the specifications
were drafted such that the appellant would have been provident by admitting
to acts occurring either before or after that date. However, we need not
address the implications of that charging decision here. Assuming without
deciding that the maximum punishment for those offenses included only four
months’ confinement each, we still find the appellant’s pleas provident, and
that any error regarding the maximum punishment was an insubstantial factor
in the appellant's decision to plead guilty. United States v. Hunt, 10 M.J.
222, 223-224 (C.M.A. 1981). The gravamen of the appellant's offenses were
his attempts to sexually assault a child and to produce child pornography by
recording the assault and a revised maximum punishment still would have
included over 70 years’ confinement; thus, the appellant's pretrial agreement
suspending all confinement in excess of five years was a compelling bargain.
Furthermore, in light of the gravamen of the offenses, we also find that the
error would not have impacted the sentence awarded by the military judge.
7
4. Interpreter
There is no merit to the appellant’s assertion that NCIS
and the military judge were required to inquire into whether he
needed an interpreter. R.C.M. 502(e)(3)(A) provides,
“Interpreters shall interpret . . . for an accused who does not
speak or understand English.” The appellant did not request an
interpreter or indicate any difficulty speaking or understanding
English either during his interrogation or at any point during
his trial. Further, neither the record nor the pleadings
indicate that the appellant lacked the ability to speak or
understand English.
5. Inquiry into Citizenship
The appellant, asked by the military judge if he was a U.S.
citizen, responded affirmatively. The appellant now claims he
“may” 11 retain dual citizenship with Colombia and that therefore
his “obligations or rights . . . may be affected” 12 by his guilty
plea. We will not engage in such speculation; the military
judge’s inquiry was sufficient. United States v. Miller, 63
M.J. 452 (C.A.A.F. 2006).
6. Court-Martial Order
Finally, although not raised, we note that the court-
martial order (CMO), in what we deem a scrivener’s error,
misstates the period of suspension delineated in the pretrial
agreement. 13 Accordingly, we will direct corrective action in
compliance with the pretrial agreement in our decretal
paragraph. United States v. Crumpley, 49 M.J. 538, 539
(N.M.Ct.Crim.App. 1998).
Conclusion
The findings and the sentence are affirmed. The
supplemental CMO will properly reflect that the period of
suspension of all confinement in excess of five years shall
11
Appellant’s Brief at 16 (emphasis added).
12
Id. at 16-17 (emphasis added).
13
The CMO states the period of suspension “shall begin from the period of
time served plus 6 months thereafter, at that time, unless sooner vacated,
the suspended part of the confinement will be automatically remitted.” CMO
of 20 May 14. This is effectively a nullity as it does not provide a
beginning and end date of suspension.
8
begin from the date of the original CMO, 20 May 2014, and
continue for the period of confinement served plus six months
thereafter.
For the Court
R.H. TROIDL
Clerk of Court
9