United States v. Alyokhin, ACM 39017

Background

Appellant pleaded guilty at a general court‑martial to two specifications of possessing and two specifications of distributing child pornography; military judge sentenced him to a dishonorable discharge, 21 months confinement, and reduction to E‑1. Convening authority approved the sentence.
The specifications alleged images/videos of minors; the government omitted the optional phrase “or what appears to be a minor” from the charge language, so the specifications alleged actual minors.
During the providence inquiry the military judge repeatedly used a definition that included “or what appears to be a minor,” and the stipulation of fact and appellant’s admissions likewise used that language, creating potential inconsistency with the actual wording of the specifications.
Paragraphs in the stipulation described individual files and specified ages (e.g., 3–8 years old), indicating actual minors; appellant admitted those descriptions and relied on counsel/expert investigation.
The court independently reviewed the files and found one image (t**s.jpg) did not support the stipulated description that it showed a minor removing bikini bottoms; the military judge failed to elicit a factual basis showing that this image constituted a lascivious exhibition.
The court held appellant’s plea was improvident as to t**s.jpg, otherwise provident as to the remaining items; it excepted the image from Specification 1, reassessed the sentence, and affirmed the findings as modified and the reassessed sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Providency of guilty pleas (whether pleas had adequate factual basis)	Appellant argued pleas were improvident because military judge used an inapplicable definition (included “what appears to be a minor”) and failed to establish factual basis for one image	Government argued stipulation and admissions established that files depicted actual minors and provided adequate factual basis	Court: Plea improvident only as to ts.jpg (mil. judge failed to elicit basis for lascivious exhibition). Pleas otherwise provident; excised ts.jpg from Spec. 1.
Legal/factual sufficiency as to t**s.jpg	Appellant challenged sufficiency for that image	Government relied on stipulation and plea admissions	Moot after court excepted t**s.jpg from conviction of Spec. 1.
Post‑trial delay (delay between sentence and convening authority action)	Appellant sought sentence relief for 139‑day delay (exceeds Moreno’s 120‑day guideline)	Government noted the 19‑day excess was at appellant’s counsels’ request and with appellant’s agreement; no prejudice shown	Court: No due process violation; appellant consented to extension so no relief warranted; also denied Tardif/Article 66(c) relief.
Sentence reassessment (prejudice from excised image)	Appellant argued removal of image might have affected sentence	Government argued the single image was minor relative to other graphic files and would not have changed sentence	Court: Reassessed and concluded original sentence would have been imposed absent error; affirmed reassessed sentence.

Key Cases Cited

United States v. Blouin, 74 M.J. 247 (discretionary review of military judge’s acceptance of guilty plea)
United States v. Moon, 73 M.J. 382 (standard for questioning guilty pleas and resolving inconsistencies)
United States v. Passut, 73 M.J. 27 (test for abuse of discretion accepting plea)
United States v. Murphy, 74 M.J. 302 (accused must be convinced of and able to describe facts necessary to establish guilt)
United States v. Moreno, 63 M.J. 129 (presumption of unreasonable post‑trial delay and Barker‑style review)
United States v. Roderick, 62 M.J. 425 (use of Dost factors to assess lasciviousness)
United States v. Sanders, 67 M.J. 344 (prejudice standard for sentence reassessment)
United States v. Winckelmann, 73 M.J. 11 (factors and standard for sentence reassessment)
United States v. Sales, 22 M.J. 305 (reassessed sentence must be no greater than would have been imposed)