This opinion is subject to administrative correction before final disposition.




                               Before
              CRISFIELD, LAWRENCE, and J. STEPHENS,
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                       Ryan C. ARLES
   Information Systems Technician Third Class (E-4), U.S. Navy
                           Appellant

                             No. 201800045

                         Decided: 13 August 2019

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Commander Derek D. Butler, JAGC, USN. Sentence
 adjudged 12 October 2017 by a special court-martial convened at Na-
 val Station Norfolk, Virginia, consisting of a military judge alone. Sen-
 tence approved by the convening authority: reduction to pay grade
 E-1, confinement for 315 days and a bad-conduct discharge.

 For Appellant: Major Matthew A. Blackwood, USMCR.

 For Appellee: Lieutenant Clayton S. McCarl, JAGC, USN; Major Kelli
 A. O’Neil, USMC; Mr. Samuel Gold, Counsel Under Supervision.

 Judge LAWRENCE delivered the opinion of the Court, in which Chief
 Judge CRISFIELD and Judge J. STEPHENS joined.

                        _________________________

         This opinion does not serve as binding precedent,
          but may be cited as persuasive authority under
           NMCCA Rule of Practice and Procedure 30.2.



                    Counsel for Appellee corrected.
                      United States v. Arles, No. 201800045


                           _________________________

LAWRENCE, Judge:
    The appellant was convicted, in accordance with his plea, of one specifica-
tion of possession of child pornography in violation of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012).
    The appellant raises two assignments of error (AOEs): 1 (1) the trial de-
fense counsel (TDC) were ineffective by not advising the appellant that states
or territories of the United States in which he may later reside may consider
his special court-martial conviction a felony; and (2) the military judge erred
by admitting a victim impact statement under RULE FOR COURTS-MARTIAL
(R.C.M.) 1001A, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.),
without the presence or request of the victim, victim’s counsel, or representa-
tive of the victim. We find no prejudicial error and affirm.

                                I. BACKGROUND

    While the appellant was attending “C” School for advanced technical
training within his rating, an individual he met through a mobile messaging
application sent him a link to a separate cloud-based file hosting service that
contained files of various child pornography. The appellant created a new
password-protected account of his own on this file hosting service and trans-
ferred approximately 142 of the files to his own account.
    On the day he placed these files into his account, the appellant opened
some of the files. Approximately 33 contained pornographic videos of minors
engaging in various forms of sexual acts upon themselves or with others, or
making a lascivious exhibition of their genitalia or pubic region. Despite his
belief that these were child pornography videos, the appellant maintained
control over his account, continued to store them and made no effort to delete
them.
    The cloud-based file hosting service discovered what it believed to be child
pornography in the files uploaded by the appellant to his account. This ser-
vice contacted the National Center for Missing and Exploited Children
(NCMEC), which in turn alerted local civilian police. The Naval Criminal In-
vestigative Service traced these activities to the appellant through the per-
sonal email account he associated with the file hosting service. Additional




   1   We have reordered the AOEs.




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                        United States v. Arles, No. 201800045


facts necessary for resolution of the AOEs are included in the discussion be-
low.

                                   II. DISCUSSION

A. Ineffective Assistance of Counsel
    The appellant contends that his TDC were ineffective in their representa-
tion by assuring him that he would not be considered a felon if he waived his
right to plead not guilty and instead pleaded guilty to the sole charge and
specification under a negotiated pretrial agreement (PTA). 2

   1. The legal standard of review
    We review de novo claims of ineffective assistance. 3 The Sixth Amend-
ment to the United States Constitution entitles criminal defendants to repre-
sentation that does not fall “below an objective standard of reasonableness” in
light of “prevailing professional norms.” 4 To succeed in his claim, an appel-
lant must show that: (1) his TDC were deficient in their performance; and
(2) there is a reasonable probability that the deficient performance prejudiced
the appellant. 5
   When it is alleged that deficient performance of counsel resulted in the
appellant entering a guilty plea and forgoing his right to a contested trial, we
must “consider whether the [appellant] was prejudiced by the ‘denial of the
entire judicial proceeding . . . to which he had a right.’ ”6 In such a case, prej-
udice can be shown by the appellant “demonstrating a ‘reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.’ ” 7

   2. Discussion
   Here, in agreeing to plead guilty and waive his right to a contested trial,
the appellant entered into a pretrial agreement that changed his court-



   2   Declaration of Appellant of 13 June 2018.
   3   United States v. Harpole, 

, 236 (C.A.A.F. 2018).
   4   Strickland v. Washington, 

, 688 (1984).
   5   

   6 Lee v. United States, 

, 1965 (2017) (ellipsis in original) (quoting
Roe v. Flores-Ortega, 

, 483 (2000)).
   7   

v. Lockhart, 

, 59 (1985)) (emphasis added).




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                        United States v. Arles, No. 201800045


martial forum from a general court-martial to a special court-martial. That
change significantly reduced the maximum punishment he faced from 10
years’ confinement, total forfeitures, and a dishonorable discharge, to 1 years’
confinement, forfeiture of two-thirds pay per month for 12 months, and a bad-
conduct discharge. In his declaration, the appellant asserts, without further
support, that “[w]hile in confinement [he] learned that [he] may be considered
a felon due to [his] conviction.” 8 Further, he avers he would not have entered
into the PTA had he been informed by his TDC “there was even a chance” of
being classified a felon for purposes of disclosures on job applications or los-
ing his rights to vote or possess firearms. 9
    In contrast to the general list of potential collateral consequences refer-
enced in the appellant’s declaration, in Lee v. United States, the prospect of
avoiding deportation was “the determinative factor” in Lee’s assent to a
plea. 10 Lee faced grave consequences if deported. He had lived for 35 years as
a lawful permanent resident of the United States, not once returning to the
country from which he had emigrated as a child. He was the sole caregiver in
the United States for his elderly parents, who were naturalized citizens. The
government conceded that Lee’s counsel was deficient in his performance by
not providing even the most basic notice regarding his high risk of deporta-
tion, as mandated years before by Padilla v. Kentucky. 11 Lee not only repeat-
edly stressed to his counsel that he could not accept any risk of agreeing to a
plea if it carried a possibility of deportation, but he answered the judge in the
affirmative when asked if his decision to plead guilty would be affected by the
risk of deportation in a conviction. Only after further assurance from his
counsel that there was no such risk and that this was only a standard warn-
ing did Lee enter his guilty plea.
    In Lee, the government urged the Supreme Court to follow its line of cases
where relief for attorney errors requires the appellant to “convince the court
that a decision to reject the plea bargain would have been rational under the
circumstances.” 12 However, the Court underscored the life-altering conse-
quences of an almost-certain deportation, reasoning that in a case with such
extreme collateral consequences, it may be rational to reject a plea “if the



   8   Declaration of Appellant of 13 June 2018.
   9   

137 S. Ct. at 1967.
   11   Padilla v. Kentucky, 

(2010).
   12   

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                        United States v. Arles, No. 201800045


consequences of taking a chance at trial were not markedly harsher than
pleading.” 13
    Under Strickland, we need not determine whether counsel were constitu-
tionally deficient in their performance “[i]f it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient prejudice.” 14 Here, even if we
assume, arguendo, that the TDC were deficient in failing to properly warn
the appellant that upon his likely return to Virginia, the Commonwealth may
determine for itself which state crime is most similar to his military offense,
cause his military conviction to be treated as a felony under state law, and
impose additional collateral consequences under state law, we find no preju-
dice to the appellant. Under the circumstances, a reasonable counsel would
have advised the appellant to plead guilty to the agreement they had negoti-
ated. Irrespective of advisement of counsel regarding potential treatment of
his crimes under state law, it would not have been rational for the appellant
to reject a PTA that significantly limited his exposure to confinement and
other direct consequences of his actions.
    Not only was the negotiated PTA reasonable under the circumstances, but
during his plea inquiry, the appellant stated he understood there were “po-
tential collateral effects” of his plea, including the possibility [he would] have
to register as a sexual offender. 15 Coupled with inquiry concerning deporta-
tion, the appellant was certainly on notice of the possibility of the wide range
of other impacts to his plea. We are not convinced specific inquiry is required
to cover all possibilities for each accused.
    The evidence against the appellant was very strong. He used his email
and contact information to set up the file service on which he uploaded child
pornography. The 33 pornographic videos he uploaded, viewed and continued
to retain in his account were of known minors, including multiple series of
victims catalogued by NCMEC. Even if bargained down to a lower forum to
limit the maximum exposure to confinement, forfeitures, and form of punitive
discharge, few if any state or territory of the United States would likely treat
possession of 33 NCMEC-verified pornographic videos of minors as a misde-
meanor-level offense. The Supreme Court in Padilla offered that counsel with
a client facing multiple charges might strike an agreement to dismiss a
charge carrying a greater likelihood of deportation in order to preserve such a



   13   

.
   14   

   15   Record at 45 (emphasis added).




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                       United States v. Arles, No. 201800045


clearly expressed and paramount goal of his client. But the only reasonable
victory—a special court-martial for a sole charge and specification despite
very solid evidence—was already achieved by the appellant’s TDC. Accord-
ingly, we find no prejudice to the appellant.

B. Admission of Victim Impact Statement
    The appellant contends the military judge erred by admitting into evi-
dence, over his TDC’s objection, Prosecution Exhibit (PE) 9. This was a copy
of an unsworn victim impact statement from a victim in a specified series of
child pornography videos that was included among the videos the appellant
was convicted of possessing. The government offered PE 9 as evidence in ag-
gravation in its presentencing case. It contended PE 9 showed the continuing
psychological impact on the victim, who fears that those she encounters in
her everyday life may have seen the vile pornographic acts perpetrated upon
her as a child, with the appellant having perpetuated that fear through his
possession of this video series.
    The TDC objected to the use of this unsworn statement dated and signed
by the victim years before his client possessed these videos. They argued that
this statement was improper evidence in aggravation under R.C.M.
1001(b)(4) or as a statement of victim impact under R.C.M. 1001A.
    In his oral ruling admitting PE 9, the military judge closely relied upon
the Air Force Court of Criminal Appeals’ (AFCCA) decision in United States
v. Barker as persuasive authority. 16 He found sufficient continuing impact
upon the victim to provide a nexus with the appellant’s conduct, even though
the appellant’s criminal act of possession of the child pornography involving
this victim came years after the victim’s statement and despite no evidence
that she had participated in or was even aware of this case.

   1. The legal standard of review
    We review a military judge’s admission or exclusion of evidence for an
abuse of discretion. 17 “The abuse of discretion standard is a strict one, calling
for more than a mere difference of opinion. The challenged action must be ar-




   16United States v. Barker, 

(A.F. Ct. Crim. App. 2017), aff’d on other
grounds, 

(C.A.A.F. 2018), overruled in part in United States v. Hamilton,

(A.F. Ct. Crim. App. 2017).
   17   United States v. Solomon, 

, 179 (C.A.A.F. 2013).




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                        United States v. Arles, No. 201800045


bitrary, fanciful, clearly unreasonable, or clearly erroneous.” 18 A military
judge abuses his discretion by admitting a victim impact statement that does
comply with R.C.M. 1001A or R.C.M. 1001(b)(4). 19

   2. Discussion
    In admitting PE 9, the military judge in his oral ruling did not clearly ar-
ticulate whether he was doing so pursuant to R.C.M. 1001A (crime victim’s
right to be reasonably heard) or R.C.M. 1001(b)(4) (government’s presenta-
tion of evidence in aggravation). We discuss each in turn.
    Because R.C.M. 1001A concerns the right of the victim to be heard, “the
introduction of statements under this rule is prohibited without, at a mini-
mum, either the presence or request of the victim, R.C.M. 1001A(a), the spe-
cial victim’s counsel or the victim’s representative, R.C.M. 1001A(d)-(e).” 20 As
the Court of Appeals for the Armed Forces (CAAF) clarified:
         All of the procedures in R.C.M. 1001A contemplate the actual
         participation of the victim, and the statement being offered by
         the victim or through her counsel. Moreover, they assume the
         victim chooses to offer the statement for a particular accused,
         as they permit only the admission of information on victim im-
         pact “directly relating to or arising from the offense of which
         the accused has been found guilty.” R.C.M. 1001A(b)(2). 21
Here, the government itself sought to introduce PE 9 without any showing
that it had reached out to the victim to seek her participation through a
sworn or unsworn statement in this case as envisioned by R.C.M. 1001A.
While the military judge did not specify the rule under which he admitted the
statement, his reliance upon the earlier version of Barker—that was subse-
quently overruled by the CAAF concerning admission of victim impact state-
ments without a proper proponent—appears to indicate he erred in doing so
pursuant to R.C.M. 1001A.
   Nonetheless, PE 9 would have been properly admitted under R.C.M.
1001(b)(4). It would appear that the AFCCA opinion in Barker distracted
both the trial counsel and the military judge as neither explicitly focused up-


   18 United States v. Lloyd, 

, 99 (C.A.A.F. 2010) (citations and internal
quotation marks omitted).
   19   United States v. Hamilton, 

, 340 (C.A.A.F. 2019).
   20   

(quoting 

).
   21   

.




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                        United States v. Arles, No. 201800045


on the fact that PE 9 was offered and marked as a government exhibit.
“Marking the victim impact statement[ ] as prosecution exhibit[ ] accurately
captured how [it was] admitted as th[is] exhibit[ ] [was] offered by the Prose-
cution during its sentencing case.” 22 The CAAF in Hamilton noted that victim
impact statements were not admissible by the government in aggravation
without agreement of the defense in a stipulation or otherwise. However, the
appellant in his PTA agreed not to object to “statements offered by the
[g]overnment in aggravation to include written . . . statements . . . of any vic-
tim . . . on the basis of foundation, relevancy, hearsay, lack of confrontation,
or authenticity.” 23 The military judge inquired into the PTA with the accused
and accepted that it was in conformity with public policy and his notions of
fairness. We conclude that the PTA allowed the government to introduce
PE 9 as evidence in aggravation as it was fairly negotiated with the appellant
to allow such written victim statements.
    Even if we were to assume the military judge erred in admitting the vic-
tim impact statement, we nonetheless would find the appellant did not suffer
prejudice to his substantial rights. We test for prejudice in the admission of
evidence at sentencing by determining “whether the error substantially influ-
enced the adjudged sentence.” 24 Four factors test whether an error substan-
tially influenced a sentence: “(1) the strength of the [g]overnment’s case;
(2) the strength of the defense case; (3) the materiality of the evidence in
question; and (4) the quality of the evidence in question.” 25
    The government presented a strong presentencing case. During the provi-
dence inquiry, the appellant admitted he knowingly downloaded a number of
files from a link sent to him by a user in a social media platform. He further
admitted that he alone created an account on the file hosting service in order
to upload and store these files and that he alone knew the password required
to access the files. In his stipulation of fact, the appellant admitted he opened
33 videos he found to contain what he knew to be minors, “based on [their]
physical characteristics,” engaging in “oral or vaginal intercourse, engaging
in masturbation, or . . . other lascivious exhibition of the minors’ genitals or




   22   

(citation omitted) (emphasis in original).
   23   Appellate Exhibit I at 2.
   24   United States v. Sanders, 

, 346 (C.A.A.F. 2009) (citations omitted).
   25 

(quoting United States v. Bowen, 

, 89
(C.A.A.F. 2017)).




                                            8
                         United States v. Arles, No. 201800045


pubic area.” 26 Even so, he wrongfully continued to store them in his personal
account.
    The appellant’s presentencing case was substantially weaker by compari-
son. He presented character statements from his mother, his father, and a
work supervisor who knew the appellant for a short time after his miscon-
duct. Two evaluation reports spoke to his performance prior to his miscon-
duct, and photographs showed him with friends and family from his youth to
his time in the Navy. Finally, the appellant submitted an unsworn statement
in which among other things he apologized for his misconduct.
     Taken in context, the victim impact statement was not of great import to
the appellant’s sentence at this military judge-alone trial. We are mindful
that “the military judge is presumed to know what portions of argument are
impermissible, absent clear evidence to the contrary.” 27 Even as he admitted
the victim impact statement, the military judge recognized that there was
little danger of unfair prejudice to the appellant, noting he would only con-
sider the impact to the victim by the appellant himself possessing the videos,
not extending to the creation of the videos, or how others downloaded or
viewed them.
    In argument, the trial counsel made one reference to the statement: “[H]is
actions are a vicious cycle of child exploitation . . . . [E]very day she has to
walk down the street wondering if that person had seen her be raped as a
child.” 28 Hence, even if the exhibit itself was improperly admitted, the gov-
ernment’s argument was proper in that it “related to revictimization through
the continued circulation of pornographic images.” 29
    Lastly, the appellant substantially reduced his exposure through his PTA
that provided his offense would be tried not at a general court-martial, but
before a special court-martial. At this forum, the adjudged sentence that in-
cluded 315 days’ confinement fell within the significantly reduced jurisdic-
tional maximum. We are satisfied that any error in the admission of PE 9
had at most a negligible impact on the sentence.




   26   PE 11 at 2.
   27 

(citing United States v. Bridges, 

, 248
(C.A.A.F. 2008)).
   28   Record at 101.
   29   

.




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                    United States v. Arles, No. 201800045


                              III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and the sentence are correct
in law and fact and that there is no error materially prejudicial to Appellant’s
substantial rights. Arts. 59 and 66, UCMJ. Accordingly, the findings and the
sentence as approved by the convening authority are AFFIRMED.
   Chief Judge CRISFIELD and Judge J. STEPHENS concur.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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