UNITED STATES, Appellee v. William T. JONES III Aviation Machinist’s Mate Airman Apprentice U.S. Navy, Appellant No. 08-0335 Crim. App. No. 200602320 United States Court of Appeals for the Armed Forces Argued November 2, 2010 Decided January 13, 2011 RYAN, J., delivered the opinion of the Court, in which BAKER, ERDMANN, and STUCKY, JJ., joined. EFFRON, C.J., filed a separate dissenting opinion. Counsel For Appellant: Captain Bow Bottomly, USMC (argued); Lieutenant Brian D. Korn, JAGC, USN, and Captain Michael D. Berry, USMC. For Appellee: Lieutenant Commander Sergio Sarkany, JAGC, USN (argued); Brian K. Keller, Esq. (on brief); Colonel Louis J. Puleo, USMC. Amicus Curiae for Appellant: Anita Aboagye-Agyeman (law student) (argued); Robert M. Pitler, Esq. (supervising attorney) (on brief) -- for Brooklyn Law School. Military Judge: Daniel E. O’Toole THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. United States v. Jones, No. 08-0335/NA Judge RYAN delivered the opinion of the Court. Pursuant to his pleas, Appellant was found guilty by a military judge sitting as a general court-martial for violating a lawful general regulation on divers occasions by using government computer equipment and communication systems to view pornography, and for knowingly receiving child pornography that had been transported in interstate commerce, violations of Articles 92 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934 (2006). Appellant was sentenced to two years of confinement and a bad-conduct discharge. The convening authority approved the sentence, suspended confinement in excess of eighteen months for twelve months, and except for the punitive discharge, ordered it executed. The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) reviewed Appellant’s case pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866 (2006), and affirmed Appellant’s conviction. United States v. Jones, No. NMCCA 200602320, 2007 CCA LEXIS 627 (N-M. Ct. Crim. App. Dec. 12, 2007) (per curiam). On September 4, 2008, we granted Appellant’s petition on the following modified issue: WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE 2 United States v. Jones, No. 08-0335/NA BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT’S PLEA WAS PROVIDENT. United States v. Jones, 67 M.J. 36 (C.A.A.F. 2008) (order granting review). We returned the record of trial to the Judge Advocate General of the Navy for remand to the lower court for a new review and consideration of the modified issue under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006). On October 27, 2009, the NMCCA affirmed the findings and sentence. United States v. Jones, No. NMCCA 200602320, 2009 CCA LEXIS 356, 2009 WL 3435920 (N-M. Ct. Crim. App. Oct. 27, 2009). Appellant filed a petition and a supplement with this Court on December 22, 2009. On April 23, 2010, we granted review of the following issues: WHETHER THE MILITARY JUDGE VIOLATED APPELLANT’S RIGHTS UNDER THE SIXTH AMENDMENT AND RULE FOR COURTS-MARTIAL 701 BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY. WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND APPELLANT’S PLEA WAS THEREFORE IMPROVIDENT. United States v. Jones, 69 M.J. 89 (C.A.A.F. 2010) (order granting review).1 1 We heard oral argument in this case at Brooklyn Law School, New York, New York, as part of the Court’s “Project Outreach.” This practice was developed as a public awareness program to demonstrate the operation of a federal court of appeals and the military justice system. 3 United States v. Jones, No. 08-0335/NA We conclude that the denial of the requests to review evidence under the circumstances of this case did not violate the Sixth Amendment because Appellant did not seek to review the evidence to prepare a defense, and that Appellant’s unconditional guilty plea waived appellate review of the denial of his discovery requests under Rule for Courts-Martial (R.C.M.) 701. And we agree with the NMCCA that, considering the stipulation of fact in conjunction with Appellant’s providence inquiry, there was no substantial basis in law or fact for the military judge to reject Appellant’s guilty plea in this case. Jones, 2009 CCA LEXIS 356, at *21, 2009 WL 3435920, at *7. I. The Naval Criminal Investigative Service (NCIS) uncovered that Appellant was using several government computers at various work spaces to search, access, and download child pornography, both pictures and movies. As relevant to the granted issues, Appellant was charged with knowingly “receiv[ing] child pornography that had been transported in interstate or foreign commerce” in violation of Article 134, UCMJ. On April 6, 2006, Appellant signed a pretrial agreement, where he agreed, inter alia, to enter unconditional pleas of guilty to a military judge sitting as a general court-martial, and to enter into a stipulation 4 United States v. Jones, No. 08-0335/NA of fact that “describes the facts and circumstances surrounding the offenses to which I am pleading guilty.” On April 10, 2006, the day before trial, Appellant signed the stipulation of fact. In the stipulation, Appellant admitted to using government computers to search for, view, and download child pornography. While he did not recall the exact number of images he received or possessed, he stipulated that fifteen images recovered from work laptops he used depicted images of children posing in such a way to expose their genitals or “performing a sexual act with an adult.” Additionally, the stipulation referenced and appended two attachments, which included printed copies of pictures of child pornography stored under Appellant’s profile on the government computer as well as a copy of a digital-format movie depicting child pornography “received and possessed in the same manner.” That same day, counsel met with the military judge for a conference pursuant to R.C.M. 802. At the conference, counsel told the military judge that they had arranged for Appellant to review the Government’s evidence of child pornography prior to the start of trial. That review was prohibited by the military judge.2 2 According to Appellant’s clemency request, the military judge stated that Appellant would not be permitted to view 5 United States v. Jones, No. 08-0335/NA Trial commenced the next day, April 11, 2006. Appellant entered pleas of guilty in accordance with the pretrial agreement. The military judge explained the elements of the Article 134, UCMJ, offense to Appellant, who acknowledged that he understood each element and that they were an accurate description of what he did. As the providence inquiry progressed, Appellant had difficulty providing specific details regarding the child pornography taken from his computer. However, Appellant never denied that he in fact sought, received, and viewed child pornography from sites on the Internet. In the afternoon, the military judge noted that the accused was having a “difficult time . . . maintaining composure” and was losing his focus during the providence inquiry, so the military judge recessed until the following day. Prior to resuming the providence inquiry on April 12, 2006, counsel and the military judge held another R.C.M. 802 conference. During the conference, defense counsel asked that Appellant be allowed to review the child pornography evidence held by NCIS to assist him in the images. When pressed for a reason, the military judge explained only that “it is what [it] is.” The Government does not dispute this version of events, but it would be better practice if the substance of the R.C.M. 802 conference had been placed on the record at the next Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session. 6 United States v. Jones, No. 08-0335/NA answering the military judge’s questions. The military judge denied the request. The substance of this R.C.M. 802 conference was placed on the record when court resumed, and defense counsel argued that “the accused has the right to view the evidence against him in this case, specifically the images of pornographic material” and that it was important that Appellant see the evidence because he is “unable to give exact specific details as requested by the court.” The military judge once again denied the request, responding as follows: The issue is do we stop in the middle of this providency inquiry in the face of guilty pleas in [sic] the stipulation of fact to adjourn the court and allow him to go back and review these materials. It’s my view having proceeded as far as we had through providency that it’s clear to me that reviewing these images is not going to resolve the issues that your client was having yesterday. He broke down repeatedly, was reluctant to use specific language in describing what he clearly knows about these offenses and those kinds of reluctances and even -- well those kinds of issues are not going to be resolved by going back and looking at these images. They are going to be resolved by doing what I did and that is taking a break, allowing him to recover his composure, review with you the requirements of a provident plea . . . . So your request is denied. Defense counsel then stated for the record that Appellant’s initial request to review the images was made during the pretrial R.C.M. 802 conference. The military 7 United States v. Jones, No. 08-0335/NA judge responded with the following statement on the record: Yes, Yes it was and my inclination was the same then. That it was not necessary for these proceedings at the point at which the proceedings were. That I think that issue is off the mark procedurally in terms of the timeliness with which it was raised and context in which it was raised. That’s not to say under other circumstances that might not be a proper exercise of an accused’s right, but as it’s been raised in this case, it is untimely and improper. Notwithstanding the denial, Appellant chose to proceed with his guilty pleas and the providence inquiry continued. At that point, Appellant began to use, and at times, read off “word-for-word” from, a document created by defense counsel containing descriptions of the images recovered from the computers. Specifically, this document included an “estimated age” column and an “acts committed” column, which helped Appellant to provide answers to the military judge’s questions regarding the specifics of the child pornography at issue. Appellant, relying on the stipulation of fact, his own recollection, representations made by NCIS about the evidence, and this document, provided a factual basis to support his pleas of guilty. The military judge accepted Appellant’s pleas and Appellant retained the benefit of his pretrial agreement. 8 United States v. Jones, No. 08-0335/NA II. We consider, first, whether the military judge erred in denying Appellant’s requests to view evidence before and during the providence hearing; and second, whether Appellant’s plea was provident in light of that denial. A. Appellant first argues that the military judge violated his Sixth Amendment right to “make a defense,” by refusing his request to review the government’s evidence of child pornography against him prior to and during his providence inquiry. We agree with the NMCCA that this argument is “without merit.” Jones, 2009 CCA LEXIS 356, at *8, 2009 WL 3435920, at *3. Appellant retained at all times the right to withdraw from the pretrial agreement, plead not guilty, and require the Government to prove the offenses against him. Further, we agree with the NMCCA that “the procedural posture of the case at the time the military judge denied the appellant’s request negates any inference that the decision to deny review of the evidence interfered with the appellant’s ability to prepare a defense.” Jones, 2009 CCA LEXIS 356, at *10-*11, 2009 WL 3435920, at *4. Appellant sought to review the evidence of child pornography to assist him in pleading guilty, and not to assist him in his defense. 9 United States v. Jones, No. 08-0335/NA Appellant also argues that the military judge violated his rights under Article 46, UCMJ, 10 U.S.C. § 846 (2006), and R.C.M. 701 regarding defense access to and inspection of evidence. Article 46, UCMJ, requires that “[t]he trial counsel, the defense counsel, and the court-martial . . . have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” Article 46, UCMJ, is implemented through R.C.M. 701. R.C.M. 701(a)(2)(A) (“After service of charges, upon request of the defense, the Government shall permit the defense to inspect . . . [a]ny books, papers, documents, photographs . . . which are within the possession, custody, or control of military authorities, and which . . . were obtained from or belong to the accused . . . .”). We review a military judge’s ruling on a discovery request for an abuse of discretion. United States v. Morris, 52 M.J. 193, 198 (C.A.A.F. 1999). “The military judge may . . . specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.” R.C.M. 701(g)(1).3 See also 3 While a military judge may prescribe the time, place and manner in which discovery by the defense will take place, R.C.M. 701(g)(1), absent a “sufficient showing,” it may not be denied entirely. R.C.M. 701(g)(2). Appellant does not suggest that the defense was denied the opportunity to review the evidence. 10