Name: Thomas R. Schonborn
Case: United States v. Schonborn NMCCA 200201514
Sentence adjudged 30 October 2001.
Decided 22 March 2004
Plea: Guilty
Charges: possessing child pornography
Military Branch: U.S. Navy
Listed In National Sex Offenders Registry? NO
military judge alone. Pursuant to his pleas, the appellant was convicted of: (1) violating the Department of Defense Joint Ethics Regulation on divers occasions, by wrongfully using a United States Government computer for viewing and storing child pornography; (2) wrongfully impeding an investigation by destroying evidence of child pornography; and, (3) on divers occasions, knowingly possessing child pornography and/or visual depictions of minors engaging in sexually explicit conduct, with the visual depictions or materials having been transported in interstate commerce, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934, and 18 U.S.C. § 2252A.
The appellant was sentenced to confinement for 8 months, reduction to pay grade E-3, and a bad-conduct discharge. The military judge recommended conditional clemency for the appellant in the form of suspending the bad-conduct discharge, provided the appellant “makes substantial effort and progress in a program of therapy and rehabilitation.” Record at 73. The convening authority approved the adjudged sentence and, pursuant to a pretrial agreement, suspended confinement in excess of 240 days for 12 months from the date of trial. In an act of clemency, the convening authority waived the execution of automatic forfeitures of the appellant’s pay and allowances for a period of 6 months, the maximum period allowable by law.
After carefully considering the record of trial, the appellant's single assignment of error, in which he asserts that his plea of guilty to possessing child pornography was improvident, and the Government's response, we conclude that the findings and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.
We now consider whether the providence inquiry was sufficient to support the appellant's pleas to possessing images of “actual” children as opposed to “virtual” images, i.e., actual child pornography, on his United States Government computer. As noted above, the appellant pled guilty to Specification 2 of Charge II, which alleged a violation of 18 U.S.C. § 2252A(a)(5)(B) on divers occasions, by knowingly possessing child pornography and/or visual depictions of minors engaging in sexually explicit conduct, with the visual depictions or materials having been transported in interstate commerce. The appellant claims that his plea to Specification 2 of Charge II was improvident, because Specification 2 of Charge II incorporated the unconstitutional definitions of 18 U.S.C. § 2256. Appellant’s Brief at 2. Specifically, the appellant asserts that the military judge provided definitions in his case that are “consistent with 18 U.S.C. § 2256(8), incorporating both ‘actual’ and ‘virtual’ images[,]” and that “[t]he subsequent providence inquiry was in accordance with the definition given. . . .” Id. Further, it is the appellant’s opinion that the military judge “failed to elicit facts to distinguish whether the images at issue were actual or virtual.” Id. In effect, the appellant argues that the military judge left open the possibility that the appellant was pleading guilty under an unconstitutional provision of the CPPA, and that the military judge failed to establish a basis for whether the real harm of child pornography was even present in this case, i.e., whether children were actually used to produce the explicit images.
However, with regard to the images that are the subject of Charge II, Specification 2, the appellant openly admitted to the Record at 32. The appellant further responded to the military judge that the children in the images were “like, anywhere from 10 to, like, 16, like, 14 to 16 years of age.” Id. at 33. The appellant also stated to the military judge that there was absolutely “no doubt” in his mind that the children in the images were minors. Id. Still further, the appellant admitted to possessing “[f]orty-seven images” of child pornography that involve “sexually explicit conduct” between male and female children and some adults. Id. at 33-34. Finally, the appellant admitted to the military judge that the depicted conduct involved genital-to-genital and oral-to-genital contact. Id. at 34-35. In
An Unofficial Site
Of
United States Military
Sexual Offender
Conviction Records
Not Associated With The U.S. Military Or Government
An Unofficial Site
Of United States Military
Sexual Offender
Conviction Records
Not Associated With The U.S. Military Or Government
Thomas R. Schonborn
Damage Controlman Second Class (E-5), U.S. Navy
Convicted Sex Offender
Possession Of Child Pornography
