United States v. Jones

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 United States v. Jones, No. 08-0335/NA

United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999)

(noting that “‘[t]he military judge may at any time order

that the discovery or inspection be denied, restricted, or

deferred, or make such other order as is appropriate’”).

Thus, it could be within the military judge’s discretion to

deny a mid-providence request to stop the trial for an

accused to review evidence.

In this case however, the military judge did not just

deny a defense request in the midst of the providence

proceedings -– he prohibited a pretrial review of the

evidence by the accused to which both the Government and

the defense had agreed. There is no argument that the

scheduled pretrial review would have interfered in the

trial proceedings. Under the circumstances of this case,

prohibiting a pretrial review of evidence to which both

parties had agreed on the scant rationale that “it is what

it is” constituted an abuse of discretion.

However, there is no suggestion that the defense

counsel did not have full access to the evidence in

question, which is what R.C.M. 701 requires. Moreover,

Appellant was well aware that he could not personally

review the child pornography prior to or during his

providence inquiry, yet did not elect to withdraw from the

pretrial agreement or withdraw his pleas of guilty.

11 United States v. Jones, No. 08-0335/NA

Instead, he entered unconditional pleas of guilty. Nor

does he claim, even now, that he received ineffective

assistance of counsel or that reviewing the evidence would

have caused him to enter a plea of not guilty and contest

the charges.

Instead, Appellant argues that “[w]ithout knowledge of

what was contained in the fifteen images [of child

pornography] . . . [he] cannot attest to whether these

were, in fact, the images that he had received or whether

they were child pornography as defined by the law.” Brief

of Appellant at 27, United States v. Jones, No. 08-0335

(C.A.A.F. June 8, 2010). This argument both ignores the

detailed stipulation of fact and addresses the factual

issue of his guilt, i.e., whether the images in the

Government’s possession were the ones Appellant accessed or

possessed and whether the images were in fact child

pornography.

An unconditional guilty plea “which results in a

finding of guilty waives any objection, whether or not

previously raised, insofar as the objection relates to the

factual issue of guilt of the offense(s) to which the plea

was made.” R.C.M. 910(j). As we recently explained in

United States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F.

2009): “‘[t]he point . . . is that a counseled plea of 12 United States v. Jones, No. 08-0335/NA

guilty is an admission of factual guilt so reliable that,

where voluntary and intelligent, it quite validly removes

the issue of factual guilt from the case’” (quoting Menna

v. New York, 423 U.S. 61 , 62 n.2 (1975)). An unconditional

guilty plea generally waives all pretrial and trial defects

that are not jurisdictional or a deprivation of due process

of law. Schweitzer, 68 M.J. at 136 (citations omitted).

Under the facts of this case, where the denial neither

implicated due process rights nor resulted in the loss of

Appellant’s pretrial agreement, Appellant’s unconditional

guilty plea waived the issues related to the military

judge’s denial of his pretrial and mid-providence requests

to view child pornography.

B.

There remains the question whether Appellant’s plea

was provident. Appellant argues that his providence

inquiry provided an insufficient factual basis for the

military judge to accept his plea of guilty to receiving

child pornography. We disagree.

“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). In determining whether a guilty plea is provident, 13 United States v. Jones, No. 08-0335/NA

the military judge may consider “‘the facts contained in

the stipulation [of fact] along with the inquiry of

appellant on the record.’” United States v. Sweet, 42 M.J.

183, 185 (C.A.A.F. 1995) (quoting United States v. Sweet, 38 M.J. 583, 587 (N-M. Ct. Crim. App. 1993) (en banc)). We

review a military judge’s decision to accept a guilty plea

for an abuse of discretion. United States v. Eberle, 44

M.J. 374, 375 (C.A.A.F. 1996).

A valid guilty plea requires Appellant to admit his

guilt and articulate those facts that objectively establish

his guilt. United States v. Davenport, 9 M.J. 364, 366-67

(C.M.A. 1980). As the Discussion in R.C.M. 910(e) states,

an accused “must be convinced of, and able to describe all

the facts necessary to establish guilt.” If an accused is

personally convinced of his guilt based upon an assessment

of the government’s evidence, his inability to recall the

specific facts underlying his offense without assistance

does not preclude his guilty plea from being provident.

United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977). A

fortiori, reliance on information provided in the

stipulation of fact or by defense counsel does not raise a

substantial basis in law or fact to question the plea. See

United States v. Luebs, 20 C.M.A. 475, 476 , 43 C.M.R. 315,

316 (1971) (holding that the accused may rely on a 14 United States v. Jones, No. 08-0335/NA

stipulation of fact and defense counsel’s advice “rather

than independent recollection” of the facts underlying the

offense charged during the providence inquiry).

Appellant challenges the providence of his plea only

with respect to the charged violation of Article 134, UCMJ,

receiving child pornography in violation of 18 U.S.C. §

2252A. The military judge was permitted to consider the

stipulation of fact when assessing the providence of

Appellant’s guilty plea. Sweet, 42 M.J. at 185 (upholding

the providence of a guilty plea where the military judge

relied primarily upon the stipulation of fact to determine

factual sufficiency of the appellant’s plea). The detailed

stipulation of fact described how Appellant searched for,

accessed, viewed, and saved the pornographic images, why he

believed the images depicted children, ranging from ten to

seventeen, some in “lascivious poses,” and some of which

included “girls performing a sexual act with an adult.”

Further, during the providence inquiry, Appellant

testified that: (1) he had read the stipulation, (2)

discussed the stipulation with defense counsel, (3)

understood everything in the stipulation, (4) provided the

information in the stipulation, and (5) that everything

contained in the stipulation was the truth. While

Appellant admitted his guilt and made no statements 15 United States v. Jones, No. 08-0335/NA

inconsistent with his plea, at different times he did

display either difficulty in remembering -- or reluctance

in relaying -- the specific details of the child

pornography that he received, particularly with respect to

the movie clip appended to the stipulation of fact.

Thus, on the first day, Appellant was unclear as to

both the specifics of which images of child pornography he

downloaded and the particular acts portrayed in the child

pornography -- but nonetheless elected to plead guilty.

When the providence inquiry resumed on the second day, he

provided sufficient detail, aided by the stipulation of

fact and the sheet prepared by his defense counsel based on

the defense counsel’s examination of the pictures and video

appended to the stipulation, to provide a factual basis for

his guilty pleas.4 See Luebs, 20 C.M.A. at 476 , 43 C.M.R.

at 316 .

In sum, Appellant’s statements during the providence

inquiry were consistent with the stipulation of fact,

raised no matters inconsistent with his guilty pleas,

demonstrated that he “was convinced of his guilt, and he

4 As the NMCCA correctly noted, even now Appellant does not “deny that he did, in fact, receive child pornography, nor does he suggest that the images he viewed were ‘virtual’ images, nor did he negate his statement at trial . . . that he ‘accessed the internet, Yahoo, Google’ and then typed in ‘[p]reteen pictures, anything of that nature.’” Jones, 2009 CCA LEXIS 356 , at *19, 2009 WL 3435920 , at *6.

16 United States v. Jones, No. 08-0335/NA

was able to describe all the facts necessary to establish

guilt, including adequate descriptions of the pornographic

images at issue.” Jones, 2009 CCA LEXIS 356 , at *21, 2009

WL 3435920 , at *7. This procedure does not raise a

substantial question of law or fact as to Appellant’s

guilty plea.

III.

The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is affirmed.

17 United States v. Jones, No. 08-0335/NA EFFRON, Chief Judge (dissenting):

I agree with the majority that the military judge erred by

prohibiting Appellant’s pretrial review of the evidence. For

the reasons set forth below, I respectfully disagree with the

majority’s conclusion that the errors by the military judge did

not affect the providence of Appellant’s pleas.

1. The pretrial agreement, the stipulation, and the plea inquiry Prior to the commencement of trial, Appellant entered into

a pretrial agreement in which he agreed to enter unconditional

guilty pleas to one specification of knowingly receiving child

pornography in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006), and to one

specification of violating a lawful general order by wrongfully

using a government computer to view child pornography, in

violation of Article 92, UCMJ, 10 U.S.C. § 892 (2006). He also

entered into a stipulation of fact in which he admitted viewing

child pornography and provided general descriptions of the

images that he viewed.

During the initial providence inquiry, Appellant

encountered difficulty in describing the child pornography that

the Government identified as being taken from his computer.

After struggling with Appellant’s answers to his questions, the

military judge noted for the record that Appellant was having a United States v. Jones, No. 08-0335/NA

“difficult time . . . maintaining composure” and recessed the

court for the evening.

When the court-martial reconvened the next morning, the

military judge noted that he had held an off-the-record

conference under Rule for Courts-Martial (R.C.M.) 802, and

provided the following summary for the record: “Defense . . .

asked during that 802 for leave of the court to have the accused

go back and review the images of pornography for which he is

pleading guilty. My inclination at that time was not to allow

that.” At that point, the defense made a request on the record

for the accused to have an opportunity to review the images

referred to in the charged offense. The defense noted that

Appellant had been unable to give specific details about the

images during the providence inquiry, and further asserted that

Appellant had a right to review the evidence against him.

The military judge denied the request on the record,

stating that he did not want to stop the proceedings in the

middle of the providence inquiry to allow Appellant to review

the materials. He added that “it’s clear to me that reviewing

these images is not going to resolve the issues that your client

was having yesterday.”

Defense counsel then referred to consideration of the same

matter at an earlier session under R.C.M. 802, held prior to

trial. Up to that point, the record contained no previous 2 United States v. Jones, No. 08-0335/NA

mention of consideration of that matter at a pretrial session

under R.C.M. 802.

Defense counsel reminded the military judge that the

subject of Appellant’s access to the images at issue in the

charges against him “was discussed in an 802 on 10 April,

originally, prior to the trial commencing.” The military judge

agreed that the subject had been discussed, but disagreed as to

the right of Appellant to view the evidence at issue prior to

trial or later during the providence inquiry, stating: “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.” He added:

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.

The providence inquiry then proceeded. The military judge

concluded that the plea inquiry and the stipulation of fact

demonstrated the providence of Appellant’s pleas.

2. Post-trial submissions Appellant’s post-trial clemency submission to the convening

authority discussed circumstances in which he had been denied

access to the evidence against him. The submission noted that

“Government Trial Counsel and Defense Counsel had arranged a 3 United States v. Jones, No. 08-0335/NA

time and location for [Appellant] to view the evidence. This

was common practice by both Trial and Defense Counsel.”

The clemency request noted that denial of access to the

evidence resulted not from actions by the prosecution, but by a

ruling from the pretrial actions of the military judge during

the off-the-record session under R.C.M. 802:

During a conference with the Military Judge under R.C.M. 802 on 10 April 2006, Trial Counsel mentioned to the Military Judge the specifics of the planned review of evidence. At that time, the Military Judge stated that [Appellant] would not be permitted to view the images. Defense counsel stated that it was common procedure and was [Appellant’s] right to view the evidence. The Military Judge again stated that [Appellant] would not be permitted to view the images.

The clemency request further noted:

Defense Counsel pressed the Military Judge for clarification on whether the statement to bar [Appellant] from viewing the information was a lawful order or an order by the court. The Military Judge stated that it is what is and that [Appellant] will not view the images. At no time did Trial counsel raise an objection to viewing of the images by [Appellant]. However, Trial Counsel was equally confused by the Military Judge’s statement and/or order.

The clemency request also discussed the mid-providence

R.C.M. 802 conferences, stating that there was a conference on

the first day of trial in which defense counsel again requested

that Appellant be allowed to view the evidence, which the

military judge denied. There was an additional R.C.M. 802

conference the next morning before trial resumed, in which the 4 United States v. Jones, No. 08-0335/NA

military judge again stated that Appellant would not be

permitted to review the images and did not give further

explanation despite defense counsel’s request for clarification.

In a post-trial declaration, Appellant stated that he

signed the stipulation of fact without reviewing the images at

issue in the charges, and that he had only a vague recollection

as to the contents of the images. He further stated that during

the second day of the providence inquiry, he had relied upon a

document prepared by defense counsel. The document contained

descriptions of the images at issue, including the estimated

ages of the individuals in the pictures and the acts depicted in

each picture. According to Appellant, he read from that

document, “often word-for-word” in answering the military

judge’s questions on the second day of the providence hearing.

3. The limited authority for off-the-record discussions By statute, the proceedings of general and special courts-

martial, including those sessions conducted outside the presence

of the members by a military judge, must be held in the presence

of the accused, defense counsel, and trial counsel, and shall be

part of the record. Article 39(b), UCMJ, 10 U.S.C. § 839 (b)

(2006). These requirements represent more than mere technical

formalities. In the military justice system, significant

constitutional rights are applied in a manner that differs

substantially from civilian criminal proceedings. In that 5 United States v. Jones, No. 08-0335/NA

context, the emphasis in the UCMJ on participation, presence,

and transparency represent critical military justice values.

In 1984, the President promulgated R.C.M. 802 in the Manual

for Courts-Martial, which was designed to facilitate the out-of-

court discussions between counsel and military judges necessary

to the day-to-day management of courts-martial in a manner

consistent with the UCMJ. R.C.M. 802 contains limited authority

for off-the-record conferences between the military judge and

the parties. Conferences under R.C.M. 802 need not be recorded

verbatim, but the “matters agreed upon at a conference shall be

included in the record orally or in writing.” R.C.M. 802(b).

Substantive rulings may be issued at such conferences only with

the consent of the parties and only if the consent is on the

record. R.C.M. 802(a) Discussion. The accused is neither

required nor prohibited from attending R.C.M. 802 conferences.

R.C.M. 802(d). The record in the present case reflects use of a

session under R.C.M. 802, at which he was not present, to

address substantial issues adversely affecting Appellant’s

rights without setting forth consent of the parties on the

record.

4. Waiver The majority concludes that Appellant’s guilty plea waived

any issues related to the military judge’s denial of his

requests to review the evidence against him. I respectfully 6 United States v. Jones, No. 08-0335/NA

disagree in the context of the improper use of off-the-record

proceedings under R.C.M. 802. The military judge made a

critical ruling off-the-record and outside the presence of the

accused. The ruling denied Appellant access to evidence central

to the charges against him. The military judge offered little

explanation for his rulings either on or off the record.

An unscripted statement of the factual circumstances

supporting a plea of guilty provides one of the critical pillars

of the plea colloquy in the military justice system under United

States v. Care, 18 C.M.A. 535 , 40 C.M.R. 247 (1969). At the

initial providence inquiry, the accused was unable to provide

clear answers to the military judge supporting the plea in the

absence of personal access to the evidence against him during

the initial colloquy. In the subsequent inquiry, his responses

came not from a review of the evidence against him, but from

reference to a document prepared by counsel. Under the

circumstances of this case, the record does not reflect a

knowing, voluntary, and intelligent waiver of his right to a

complete plea inquiry and colloquy, rendering the plea

improvident.

7