United States v. Uriostegui
2016 CCA LEXIS 574
| N.M.C.C.A. | 2016Background
- Appellant, stationed in Japan, communicated via an anonymous app with an undercover NCIS profile he believed was a 15‑year‑old girl; he sent sexually explicit texts and a photograph of his erect penis and traveled to meet her, where he was arrested.
- At pretrial motions the appellant was represented at counsel table by a detailed military defense counsel (Captain P); he had retained civilian defense counsel (CDC) who participated telephonically (speakerphone) in an Article 39(a) motions session.
- The military judge allowed the CDC’s telephonic participation; the CDC questioned and argued at length, the appellant waived any objection and consented to proceed.
- The appellant pleaded guilty to multiple offenses including attempted sexual assault/abuse of a child, attempted receipt of child pornography, and indecent exposure (Article 120c(c)).
- On appeal the appellant argued (1) deprivation of counsel because CDC participated by speakerphone (seeking presumed prejudice), (2) statutory interpretation whether “expose” under Article 120c(c) covers electronic transmission of a photo of genitalia, (3) improvident plea to indecent exposure in light of precedent, and (4) multiplication of charges.
- The court found the telephonic participation violated R.C.M. 805(c) and JAGMAN guidance (which require audiovisual tech when counsel is remote), but no prejudice shown; it set aside the indecent exposure conviction (guilty plea improvident) because Article 120c(c) does not cover sending a static digital image to an adult, and affirmed the remaining findings and reassessed sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CDC’s participation by speakerphone at Article 39(a) deprived appellant of counsel such that prejudice is presumed under Cronic | CDC’s physical absence and phone-only participation amounted to a complete denial of counsel requiring presumed prejudice | The military counsel was physically present and actively represented appellant; CDC did meaningfully participate by phone; any rule violation does not automatically trigger Cronic | Court: Violation of R.C.M. 805(c)/JAGMAN occurred (speakerphone inadequate), but the record shows no complete denial of counsel or inherently unfair proceeding; Strickland prejudice test applies and appellant failed to show prejudice |
| Whether "expose" in Article 120c(c) criminalizes electronically transmitting a photograph of one’s genitalia to another adult | Sending a photo of genitalia is an exposure and thus punishable under Article 120c(c) | Statutory context and related provisions (Article 120b’s express "any communication technology" for child victims) show Article 120c(c) targets live/physical exposure, not transmission of static images | Court: "Expose" under Article 120c(c) does not reach sending a static digital image; conviction for indecent exposure set aside |
| Whether the military judge abused discretion in accepting guilty plea to indecent exposure given Ferguson and Quick | Appellant’s plea should stand; Ferguson permits indecent exposure via communication technology in some contexts | The statutory scheme and precedent (Quick) indicate limits; guilty plea may be legally insufficient | Court: There is substantial basis in law to question the plea; plea improvident and set aside |
| Whether attempted sexual abuse of a child conviction (Specification 6) and indecent exposure conviction were unreasonably multiplied | Appellant argued multiplication because both arose from same photo transmission | Government treated Spec 6 as greater offense; trial judge merged for sentencing | Court: Trial judge granted merger for sentencing; no prejudice to appellant; attempted sexual abuse conviction affirmed |
Key Cases Cited
- Cronic v. United States, 466 U.S. 648 (presumption of prejudice when counsel totally absent or prevented from functioning)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance requires deficient performance and prejudice)
- United States v. Quick, 74 M.J. 517 (statutory interpretation limiting criminalization of viewing/recordings under Article 120c)
- United States v. Ferguson, 68 M.J. 431 (indecent exposure via live internet transmission to a minor; factual distinction from static-image transmission)
- United States v. Williams, 75 M.J. 663 (holding that electronically transmitting an image is not indecent exposure under Article 120c when victim is an adult)