U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39017
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Sergiy O. ALYOKHIN
             Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 10 August 2017
                         ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 21
months, and reduction to E-1. Sentence adjudged 20 October 2015 by
GCM convened at Ramstein Air Base, Germany.
For Appellant: Captain Allen S. Abrams, USAF.
For Appellee: Major Clayton H. O’Connor, USAF; Gerald R. Bruce, Es-
quire.
Before DREW, MAYBERRY, and MINK, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge MINK joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

DREW, Chief Judge:
   A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas, of two specifications of possessing child pornogra-
phy and two specifications of distributing child pornography, in violation of
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. The
                   United States v. Alyokhin, No. ACM 39017


military judge sentenced him to a dishonorable discharge, confinement for 21
months, and reduction to E-1. 1 The convening authority approved the ad-
judged sentence.
   Appellant contends that (1) his pleas to the Charge and its Specifications
were improvident, (2) his conviction for possession of child pornography is, in
part, factually and legally insufficient, and (3) he is entitled to sentence ap-
propriateness relief resulting from post-trial delay from the trial to the con-
vening authority’s action. 2 We find that Appellant’s plea to possessing child
pornography was improvident as to one of the images alleged. We also find
the military judge erred during the providence inquiry by providing Appel-
lant an inapplicable definition. We nevertheless find that his pleas to all
specifications were otherwise provident. Having revised the specification with
the erroneous image, we reassess the sentence. We affirm the findings, as
modified, and sentence, as reassessed.

                                 I. BACKGROUND
   Each of the four specifications of child pornography alleged that Appellant
wrongfully possessed or distributed images or videos of actual minors en-
gaged in sexually explicit conduct. In discussing the offenses with Appellant,
the military judge defined “child pornography” as follows:
       Child pornography means material that contains a visual de-
       piction of an actual minor engaging in sexually explicit con-
       duct. It also means material that contains an obscene visual
       depiction of a minor engaging in sexually explicit conduct. Such
       a depiction need not involve an actual minor, but instead only
       what appears to be a minor.
(Emphasis added.)


1 Pursuant to a pretrial agreement (PTA), the convening authority withdrew and
dismissed with prejudice the Additional Charge and its Specification, alleging inde-
cent visual recording, in violation of Article 120c, UCMJ, 10 U.S.C. § 920c. The only
sentence limitation in the PTA was an agreement by the convening authority to dis-
approve any confinement in excess of 24 months. The PTA thus had no impact on the
adjudged sentence.
2 Pursuant to United States v. Grostefon, 

(C.M.A. 1982), Appellant also
personally raised two issues alleging that the specifications are multiplicious or an
unreasonable multiplication of charges. On the record, Appellant expressly waived
these issues as part of his PTA. The issues do not require further discussion or war-
rant relief. See United States v. Matias, 

, 361 (C.M.A. 1987).




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                 United States v. Alyokhin, No. ACM 39017


   The military judge defined “sexually explicit conduct” as follows:
      Sexually explicit conduct means actual or simulated sexual in-
      tercourse or sodomy, including genital to genital, oral to geni-
      tal, anal-genital, or oral-anal, whether it be between persons of
      the same or opposite sex; includes bestiality, masturbation, sa-
      distic or masochistic abuse, or lascivious exhibition of the geni-
      tals or pubic area of any person.
   The military judge defined “lascivious exhibition” as follows:
      Lascivious means exciting sexual desires or marked by lust.
      Not every exposure of the genitals or pubic area constitutes
      lascivious exhibition. Consideration of the overall content of the
      visual depiction should be made in determining if it constitutes
      a lascivious exhibition. In making this determination, the panel
      would consider such factors as whether the focal point of the
      depiction is on the genitals or pubic area, whether the setting is
      sexually suggested [sic], whether the child is depicted in an
      unnatural pose or in inappropriate attire considering the
      child’s age, whether the child is partially clothed or nude,
      whether the depiction suggests sexual coyness or willingness to
      engage in sexual activity, and whether the depiction is intend-
      ed or designed to elicit a sexual response in the viewer, as well
      as any other factors that may qualify, if not more important, in
      determining whether the visual depiction contains a lascivious
      exhibition. A visual depiction, however, need not involve all
      those factors in order to meet that definition.
   The military judge also informed Appellant that:
      You are advised that you could not be convicted of possessing
      child pornography if you did not know that the images were of
      minors or what appears to be minors engaged in sexually ex-
      plicit conduct.
(Emphasis added.)
   In response to the military judge asking Appellant to tell him, in Appel-
lant’s own words, why he thought he was guilty of possession of child pornog-
raphy images (Specification 1), Appellant responded:
      I downloaded and possessed 17 images of child pornography
      showing obscene visual depictions of minors or what appeared
      to be minors engaging in sexually explicit conduct.
       ....



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                   United States v. Alyokhin, No. ACM 39017


       I possessed these files fully knowing that they contained ob-
       scene visual depictions of minors, or what appeared to be mi-
       nors, engaging in sexually explicit conduct.
(Emphasis added.)
    Appellant gave similar descriptions when describing his actions for the
possession of child pornography videos (Specification 2), distribution of child
pornography images (Specification 3), and distribution of child pornography
videos (Specification 4); each time Appellant described the child pornography
as containing minors or what appeared to be minors. For Specifications 2–4,
the military judge referred back to his previous definition of child pornogra-
phy without ever narrowing the definition to directly correspond to the lan-
guage of the specifications alleging only actual minors. 3
    The providence inquiry also included a discussion between the military
judge and Appellant about Prosecution Exhibit 1, a stipulation of fact. The
stipulation of fact was signed by Appellant, his civilian and military defense
counsel, and the two trial counsel. The stipulation mirrors the providence in-
quiry in that it includes “minors, or what appear to be minors” in several
places. It is clear that Appellant, the military judge, and all counsel believed
that “minors, or what appear to be minors” was the appropriate definition to
apply to the four specifications.
      Nevertheless, the stipulation also included one paragraph (paragraph 9)
describing each of the specific images and videos Appellant was charged with
possessing and another paragraph (paragraph 12) describing each of the spe-
cific images and videos Appellant was charged with distributing. Each of the
descriptions include the relative age of the child or children in the image or
video, for example, “6–8 years old,” “approximately three years old,” “approx-
imately five years old,” “young female child,” and “prepubescent or pubescent
males.” None of the descriptions include the word “appear” in describing the
relative age. All of the described ages indicate that the depicted children were
actually younger than 18. However, in subsequent paragraphs of the stipula-
tion of fact, the description paragraphs are summarized in the following fash-
ion: “Each image or video described in Paragraph 9 is a depiction of minors
(or what appear to be minors) . . . . Each of the image [sic] or video [sic] de-
scribed in Paragraph 12 is a depiction of minors, or what appear to be minors
. . . .” (Emphasis added.)



3None of the specifications use the word “actual.” Rather they simply allege “minors”
without including the optional “or what appears to be minors.”




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                  United States v. Alyokhin, No. ACM 39017


    During the providence inquiry, the military judge referred Appellant to
paragraphs 9 and 12 of the stipulation of fact and asked him if he agreed that
the descriptions were accurate. Each time, Appellant confirmed that they
were. In concluding their discussion about each specification, the military
judge asked Appellant if he admitted that child pornography contained imag-
es and videos of minors:
       Q. Do you agree and admit that at or near Steinwenden, Ger-
       many, between on or about 7 October 2013 and on or about 9
       July 2014, you knowingly and wrongfully possessed child por-
       nography to wit: digital images of minors engaged in sexually
       explicit conduct entitled as set forth in Specification 1 of the
       Charge?
       A. Yes, Your Honor.
       ....
       Q. Do you agree and admit that at or near Steinwenden, Ger-
       many, between on or about 7 October 2013 and on or about 9
       July 2014, you knowingly and wrongfully possessed child por-
       nography to wit: digital videos of minors engaged in sexually
       explicit conduct entitled as set forth in Specification 2 of the
       Charge?
       A. Yes, Your Honor.
       ....
       Q. Do you agree and admit that at or near Steinwenden, Ger-
       many, on divers occasions between on or about 7 October 2013
       and on or about 7 [sic] July 2014, you knowingly and wrongful-
       ly distributed child pornography to wit: digital images of mi-
       nors engaged in sexually explicit conduct, entitled as set forth
       in Specification 3 of the Charge?
       A. Yes, sir.
       ....
       Q. Do you agree and admit that at or near Steinwenden, Ger-
       many, on divers occasions between on or about 7 October 2013
       and on or about 9 July 2014, you knowingly and wrongfully dis-
       tributed child pornography to wit: digital videos of minors en-
       gaged in sexually explicit conduct entitled as set forth in Speci-
       fication 4 of the Charge?
       A. Yes, sir.



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                   United States v. Alyokhin, No. ACM 39017


                                 II. DISCUSSION
   A. Providence of the Plea
    “We review a military judge’s acceptance of a guilty plea for an abuse of
discretion.” United States v. Blouin, 

, 251 (C.A.A.F. 2015). “The
test for an abuse of discretion in accepting a guilty plea is whether the record
shows a substantial basis in law or fact for questioning the plea.” United
States v. Moon, 

, 386 (C.A.A.F. 2014) (citing United States v. Pas-
sut, 

, 29 (C.A.A.F. 2014)). “The military judge must question the
accused under oath about the offenses to ensure there is an adequate factual
basis for a guilty plea.” United States v. Mull, ___ M.J. ___ , No. ACM S32367,
2017 CCA LEXIS 421, at *5 (A.F. Ct. Crim. App. 22 Jun. 2017); Rule for
Courts-Martial (R.C.M.) 910(e); see also Article 45(a), UCMJ, 10 U.S.C.
§ 845(a). “It is an abuse of discretion for a military judge to accept a guilty
plea without an adequate factual basis . . . .” United States v. Weeks, 

, 46 (C.A.A.F. 2012). However, we look to the entire record to determine
whether there is a substantial basis to question the guilty plea. United States
v. Jordan, 

, 239 (C.A.A.F. 2002).
    “A plea is provident so long as Appellant was ‘convinced of, and [was] able
to describe, all of the facts necessary to establish [his] guilt.’” United States v.
Murphy, 

, 308 (C.A.A.F. 2015) (alterations in original) (quoting
United States v. O’Connor, 

, 453 (C.A.A.F. 2003)). “If an accused
sets up matter inconsistent with the plea at any time during the proceeding,
the military judge must either resolve the apparent inconsistency or reject
the plea.” 

(quoting United States v. Hines, 

,
124 (C.A.A.F. 2014)). We “must find a substantial conflict between the plea
and the accused’s statements or other evidence in order to set aside a guilty
plea. The mere possibility of a conflict is not sufficient.” 

73
M.J. at 124).
    In military jurisprudence, the offenses of possessing and distributing
child pornography are generally based on 18 U.S.C. § 2252A, as well as mili-
tary custom and regulation. Manual for Courts-Martial, United States (2012
ed.) (MCM), App. 23, ¶ 68b. The military offenses criminalize conduct involv-
ing minors and what appear to be minors. The sample specification in the
MCM includes “of a minor, or what appears to be a minor.” MCM, pt. IV,
¶ 68b.f. On the other hand, in the model specification in the Military Judges’
Benchbook “or what appears to be a minor” is an optional parenthetical
phrase. Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9, ¶ 3–
68b-1.b. (10 Sep. 2014). The Benchbook includes two definitions of child por-
nography and provides guidance to military judges as to which definition to
use:



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                  United States v. Alyokhin, No. ACM 39017


       Defining “child pornography.” The definition of “child pornog-
       raphy” used below will depend upon the evidence presented.
       The first definition below should be given where actual minors
       are in issue. The second definition below should be given where
       the depictions do not involve the use of actual minors, or there
       is some question as to whether actual minors were used in the
       depictions. If appropriate, give both definitions.
Benchbook, ¶ 3–68b-1.d. Note 2.
    In this case, the Government chose to deviate from the MCM standard
specification and, following the Benchbook model specification, omitted the
“or what appears to be a minor” language. However, in addition to the defini-
tion of child pornography applicable to “an actual minor,” the military judge
also provided Appellant with the optional, but in this case inapplicable, defi-
nition involving “what appears to be a minor.” This was error. This error was
compounded by similar comments about “or what appears to be a minor”
made by the military judge at other points of the providence inquiry, by the
Prosecution’s inclusion of similar language in the stipulation of fact, and by
the military judge’s failure to correct or clarify Appellant’s use of similar lan-
guage in his discussion during the providence inquiry.
    In determining whether Appellant’s plea is provident, we do not limit our
review only to the providence inquiry, but rather we look to the entire record
to determine whether Appellant was convinced of, and was able to describe,
all of the facts necessary to establish his guilt. Appellant agreed that the de-
scriptions in paragraphs 9 and 12 of the stipulation of fact accurately de-
scribed each of the images and videos he possessed and distributed. Those
descriptions clearly indicated that the children in these digital files were ac-
tual minors and not any form of digitally manipulated virtual children. It is
certainly understandable for Appellant to have personally not been certain as
to the specific age of some of the older children depicted. However, he could,
and did, properly rely upon his counsel’s investigation of his case and the
opinions of the National Center for Missing and Exploited Children and other
experts. In the end, Appellant was convinced and adequately described that
the images and videos in each specification portrayed actual minors. We have
reviewed them as well and are likewise convinced.
    We are nevertheless concerned that the evidence before the military judge
was inconsistent with Appellant’s plea of wrongfully possessing one of the 17
images listed in Specification 1 of the Charge, t****s.jpg. Paragraph 9.f. of
the stipulation of fact described t****s.jpg as: “[a]n image of a prepubescent
or pubescent female standing beside an exercise bicycle, wearing a small bi-
kini top and removing a bikini bottom. The words, ‘FATHER / DAUGHTER
TRADE: e-mail or skype: [Appellant’s email address]’ are imposed in four

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                  United States v. Alyokhin, No. ACM 39017


lines across the image.” We have reviewed t****s.jpg and our independent
review does not support the description that the minor in the image was re-
moving the bikini bottom she was wearing. After reviewing the image him-
self, the military judge did not address that inconsistency with Appellant.
    For the image to constitute child pornography, the depicted minor would
have to be engaging in sexually explicit conduct. Of the various examples of
sexually explicit conduct defined by the military judge (and based on 18
U.S.C. § 2256(2)(A)), the only one that potentially applied to the image was a
lascivious exhibition of the genitals or pubic area, even though the minor in
the image remained fully clothed in a bikini top and bikini bottom. The mili-
tary judge correctly defined lascivious exhibition for Appellant using the so-
called “Dost factors.” See United States v. Roderick, 

, 429–30
(C.A.A.F. 2006) (citing United States v. Dost, 

, 832 (S.D. Cal.
1986), aff'd sub nom. United States v. Wiegand, 

(9th Cir.
1987)). In determining a lascivious exhibition, military courts combine a re-
view of the Dost factors with an overall consideration of the totality of the cir-
cumstances. 

.
    The military judge abused his discretion by failing to elicit from Appellant
a factual basis to conclude that t****s.jpg constituted a lascivious exhibition
of the genitals or pubic area. Accordingly, we find that Appellant’s plea to
Specification 1 of the Charge was improvident as to the word “t****s.jpg.” We
find that Appellant’s pleas to the remainder of Specification 1 and to Specifi-
cations 2–4 of the Charge were provident. We except out the word “t****s.jpg”
from Specification 1 and reassess Appellant’s sentence in light of our action.
   B. Legal and Factual Sufficiency
    Appellant challenges the legal and factual sufficiency of whether one im-
age he was convicted of possessing, t****s.jpg, constituted child pornography.
In light of our decision regarding the providence of Appellant’s plea to Speci-
fication 1 of the Charge, his legal and factual sufficiency challenge is moot.
   C. Timely Appellate Review
   One hundred and thirty-nine days elapsed between announcement of sen-
tence and convening authority action. Nevertheless, we do not find that sen-
tence relief is warranted.
   “[C]onvicted servicemembers have a due process right to timely review
and appeal of courts-martial convictions.” United States v. Moreno, 

, 135 (C.A.A.F. 2006). Accordingly, we review de novo whether Appellant
has been denied his due process right to a speedy post-trial review and ap-
peal. 

the Court of Appeals for the Armed Forces established a
presumption of unreasonable post-trial delay that requires a due process re-



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                  United States v. Alyokhin, No. ACM 39017


view when the convening authority does not take action within 120 days of
trial. 

    If there is a Moreno-based presumption of unreasonable delay or an oth-
erwise facially-unreasonable delay, we examine the claim under the four fac-
tors set forth in Barker v. Wingo, 

, 530 (1972): “(1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice.” 

.
Moreno identified three types of prejudice arising from post-trial processing
delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impair-
ment of ability to present a defense at a rehearing. 

    “We analyze each factor and make a determination as to whether that
factor favors the Government or [Appellant].” 

Then, we balance
our analysis of the factors to determine whether a due process violation oc-
curred. Id.; see also 

(“[C]ourts must still engage in a
difficult and sensitive balancing process.”). “No single factor is required for
finding a due process violation and the absence of a given factor will not pre-
vent such a finding.” 

. However, where an appellant
has not shown prejudice from the delay, there is no due process violation un-
less the delay is so egregious as to “adversely affect the public’s perception of
the fairness and integrity of the military justice system.” United States v.
Toohey, 

, 362 (C.A.A.F. 2006).
    Under Moreno, the period of 139 days between sentence and action in this
case is presumptively unreasonable, exceeding the standard by 19 days and
triggering a full due process 

. However, the relatively
modest delay beyond 120 days was entirely at the request of Appellant and
made with full knowledge that if the Government agreed to grant his request
for additional time to submit clemency matters, the post-trial processing
would exceed the 120 day standard. In response to the staff judge advocate’s
email advising civilian defense counsel of the implications of his delay re-
quest, counsel responded: “I have discussed this issue with [Appellant], he
has agreed to the requested extension, and the defense concedes that [Appel-
lant] would not be prejudiced by the additional 20 days.” We agree and will
not second-guess Appellant’s conscious decision to delay the post-trial pro-
cessing of his case beyond 120 days. Accordingly, we find no due process vio-
lation.
   Although we find no due process violation in Appellant’s case, we none-
theless consider whether Article 66(c), UCMJ, 10 U.S.C. § 866(c) relief pursu-
ant to United States v. Tardif is appropriate. 

, 224 (C.A.A.F.




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                    United States v. Alyokhin, No. ACM 39017


2002). We are guided by factors enumerated in United States v. Gay, 

, 744 (A.F. Ct. Crim. App. 2015), aff’d, 

(C.A.A.F. 2016), with
no single factor being dispositive. 4 Applying these factors and considering the
circumstances of Appellant’s case, we are not moved to reduce an otherwise
appropriate sentence imposed by the military judge and approved by the con-
vening authority based on post-trial delay.
    D. Sentence Reassessment
    Having found error in accepting Appellant’s plea to possessing the
t****s.jpg image, we must determine whether Appellant was prejudiced. The
test for prejudice is “whether the error substantially influenced the adjudged
sentence.” United States v. Sanders, 

, 346 (C.A.A.F. 2009); United
States v. Griggs, 

, 410 (C.A.A.F. 2005); United States v. Boyd, 

, 221 (C.A.A.F. 2001). This image was one of 17 images that the mili-
tary judge convicted Appellant of possessing. The other images were much
more graphic and many of them involved far younger children.
    We have “broad discretion” in deciding to reassess a sentence to cure er-
ror, as well as arriving at the reassessed sentence. United States v. Winckel-
mann, 

, 12 (C.A.A.F. 2013). To reassess the sentence, we must be
able to reliably conclude that, in the absence of error, the sentence “would
have been at least of a certain magnitude,” and the reassessed sentence must
be “no greater than that which would have been imposed if the prejudicial
error had not been committed.” United States v. Sales, 

, 307, 308
(C.M.A. 1986). We must be able to determine this to a “degree of certainty.”
United States v. Eversole, 

, 137 (C.A.A.F. 2000). “The standard for
reassessment is not what would be imposed at a rehearing but what would
have been imposed at the original trial absent the error.” United States v.
Taylor, 

, 325 (C.A.A.F. 1997). A reassessed sentence “must be
purged of prejudicial error and also must be ‘appropriate’ for the offense[s]


4 These factors include: (1) How long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is nonetheless evidence of harm (either to the
appellant or institutionally) caused by the delay; (4) whether the delay has lessened
the disciplinary effect of any particular aspect of the sentence, and whether relief is
consistent with the dual goals of justice and good order and discipline; (5) whether
there is any evidence of institutional neglect concerning timely post-trial processing,
either across the service or at a particular installation; and (6) whether, given the
passage of time, whether this court can provide meaningful relief in this particular
situation. 

, aff’d, 

(C.A.A.F. 2016).




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                  United States v. Alyokhin, No. ACM 39017


involved” based on our sentence approval obligation under Article 66(c),
UCMJ. 

.
    In determining whether to reassess a sentence or order a rehearing, we
consider the totality of the circumstances, including the following illustrative,
but not dispositive, factors: (1) dramatic changes in the penalty landscape
and exposure, (2) the forum, (3) whether the offenses remaining after we have
corrected the error capture the gravamen of the criminal conduct included
within the original offenses, (4) whether significant or aggravating circum-
stances remain admissible and relevant, and (5) whether the remaining of-
fenses are the type with which we, as appellate judges, have the experience
and familiarity to reliably determine what sentence would have been imposed
at trial by the sentencing authority. 

–16.
    We are mindful that the penalty landscape and exposure has not changed;
the forum was judge-alone; the offenses of which Appellant was convicted
remain the same; significant aggravating evidence in the stipulation of fact
remains admissible and relevant; and this court has extensive experience and
familiarity with Appellant’s offenses, sufficient for us to reliably determine
what sentence would have been imposed by the military judge without the
t****s.jpg image. In consideration of these factors, we readily conclude that
we can reassess the sentence in this case. We are satisfied that, based on the
facts and circumstances surrounding the commission of Appellant’s offenses,
the military judge would have imposed the same sentence he adjudged: a dis-
honorable discharge, confinement for 21 months, and reduction to E-1.
    We have also concluded that the reassessed sentence is appropriate. We
assess sentence appropriateness by considering Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all matters con-
tained in the record of trial. United States v. Snelling, 

, 268
(C.M.A. 1982); United States v. Bare, 

, 714 (A.F. Ct. Crim. App.
2006), aff'd, 

(2007). We are convinced that the reassessed sentence
is not inappropriately severe.

                               III. CONCLUSION
    The approved findings, as modified, and sentence, as reassessed, are cor-
rect in law and fact, and no error materially prejudicial to the substantial
rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c).




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                 United States v. Alyokhin, No. ACM 39017


   Accordingly, the findings, as modified, and the sentence, as reassessed,
are AFFIRMED.


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




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