United States v. Private First Class MICHAEL A. UPDEGROVE, ARMY 20160166

Background

Appellant, PFC Michael A. Updegrove, pleaded guilty at a general court-martial to multiple sexual offenses involving five underage girls, including indecent communications and threats to publish nude images.
As part of a plea and pretrial agreement, some production/distribution and two possession specifications were dismissed; he remained charged with possessing child pornography (Specification 5, Charge II) based on an image of a minor (OC).
During the Care inquiry the military judge defined the elements for possession of child pornography; appellant admitted the photograph focused on the minor’s genitals, had no artistic or scientific purpose, and was intended to elicit a sexual response.
The government introduced the actual photograph: a close-up, low-angle image centered on the minor’s external genitalia and midriff, with genitals occupying the frame.
Appellant challenged the providence of his plea on appeal, arguing the image, considered independently, was not lascivious child pornography and that evidence outside the image could not convert a non-pornographic photo into child pornography.
The Court reviewed whether the photograph, alone or in context with admitted facts, met the statutory lascivious-exhibition standard and whether the government’s introduction of the image undermined the guilty plea.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the photograph constitutes child pornography (lascivious exhibition)	Photo is lascivious; context and admissions support conviction	Photo is not lascivious when evaluated independently of appellant’s admissions; outside evidence cannot make a non-pornographic image pornographic	Photo is child pornography. Even alone it is lascivious; viewed with surrounding facts the lasciviousness is plain and plea providence stands
Proper standard of appellate review for image evaluation	N/A (government)	Appellant: court must evaluate the image de novo, independent of admissions	Appellate review is mixed; apply substantial-basis test for guilty plea review (abuse-of-discretion standard), with legal questions (definition of lascivious) reviewed de novo and factual questions for whether a picture meets that definition reviewed for factual sufficiency
Whether Moon overruled Roderick on considering extrinsic circumstances	Appellant: Moon prohibits considering evidence outside the four corners of the image	Government/Court: Moon bars purely subjective beliefs but does not forbid objective contextual evidence about how image was created/possessed	Moon does not overrule Roderick; objective surrounding circumstances may be considered in the totality analysis
Whether introduction of the actual photograph creates a substantial basis to question plea providence	Appellant: Introducing the photo undermines plea if photo itself is non-lascivious	Government: Photo and appellant’s admissions are consistent and support plea	No substantial basis to question plea; the record (photo + admissions) adequately supports providence

Key Cases Cited

United States v. Inabinette, 66 M.J. 320 (C.A.A.F.) (standard for reviewing whether record raises substantial question about guilty plea)
United States v. Blouin, 74 M.J. 247 (C.A.A.F.) (military judge’s acceptance of guilty plea reviewed for abuse of discretion)
Wiegand v. United States, 812 F.2d 1239 (9th Cir. 1987) (distinguishes legal definition of lasciviousness from factual determination whether pictures meet that definition)
United States v. Roderick, 62 M.J. 425 (C.A.A.F.) (adopted Dost factors and allowed consideration of totality, including circumstances surrounding image)
United States v. Moon, 73 M.J. 382 (C.A.A.F.) (subjective beliefs of viewer cannot convert non-pornographic images into child pornography)
Dost v. United States, 636 F. Supp. 828 (S.D. Cal. 1986) (Dost factors for assessing lasciviousness)
Villard v. Evans, 700 F. Supp. 803 (D.N.J. 1988) (placement of images in hands of a pedophile does not alone make them pornographic)