In United States v. Ferguson, 68 M.J. 431 (C.A.A.F. 2010) the accused communicated on-line with a police officer posing as a fourteen-year-old boy. During their first conversation, the accused explained what it was like to have a man ejaculate in his mouth. Later that day, the accused sent six images of himself with an erect penis; in one of those images, the accused was ejaculating. Over the next few weeks, the accused sent videos of adult men engaged in sexual acts and sent two video clips of the accused ejaculating. The accused also masturbated and ejaculated in front a webcam, intentionally sending the images the undercover officer’s screen name. For the last offense, the accused pled guilty to indecent exposure. The service court specified an issue regarding the providence of this plea but ultimately affirmed the plea. On appeal, defense argued the exposure was not “in public view” because it was in a private setting and there was no evidence that a third person or that the accused intended anyone other than the undercover officer to view the exposure. In a 3-2 opinion authored by Judge Stucky, the CAAF affirmed.
“When an accused pleads guilty, there is no requirement that the government establish the factual predicate for the plea.” (citing United States v. Faircloth, 45 M.J. 182, 174 (C.A.A.F. 1996)). Relying on Faircloth, the CAAF further held: a) The factual predicate for a guilty plea is sufficiently established if “the factual circumstances” as presented by the accused objectively support the plea. b) A military judge’s acceptance of a plea will not be reversed based on a “mere possibility” of a defense. c) The court will not “speculate” post-trial about the existence of facts that might invalidate an accused’s guilty plea.
The defense presented two cases that discussed the “willful” and “public view” elements, respectfully.9 In strong language, the court noted the accused in those cases chose to plead not guilty and “contested the government’s theory of the case,” as opposed to the accused in this case who elected to plead guilty. Had the accused pled not guilty, the government would have had to prove beyond a reasonable doubt that the accused “ejaculated in public view,” and the issue would have been litigated. Instead, the accused agreed that his actions were in public view. “By doing so, Appellant relinquished his right to contest the prosecution’s theory on appeal, unless the record discloses matter inconsistent with the plea.” (citations omitted). Without more analysis, the majority concluded the military judge did not abuse his discretion by accepting the accused’s plea.