Name: Benjamin S. Rzadca
Case: United States v. Rzadca
Date Of Appeal:April 28, 2004 No. NMCCA 200301476
Plea: Guilty
Charges: Indecent Acts With A Child
Military Branch: U.S. Marine Corp
Listed In National Sex Offenders Registry? NO
A military judge, sitting alone as a general court-martial, convicted the appellant, pursuant to his pleas, of committing an indecent act in the presence of a child under the age of 16 years, knowingly using an interactive computer service for carriage of obscene materials (child pornography) in interstate commerce, and knowingly possessing child pornography in a building owned by the United States Government, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, and 18 U.S.C. §§ 1462(a) and 2252A(a)(5). The appellant was sentenced to 66 months confinement, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered the punishment executed.
After carefully considering the record of trial, the appellant's two assignments of error, 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.
In the appellant’s first assignment of error, he asserts that his plea of guilty to possession of child pornography in contravention of 18 U.S.C. § 2252A(a)(5) cannot be affirmed, because the military judge failed to establish that the images were of actual minors engaging in sexually explicit conduct. The appellant bases this assignment of error on the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) and the Court of Appeals for the Armed Forces’ decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). In effect, the appellant is implicitly arguing that the military judge did not sufficiently establish whether the appellant possessed images of child pornography created using actual children, as opposed to virtual images. The appellant avers that this court should set aside the finding of guilty to Specification 2 of the Additional Charge, and dismiss Specification 2 of the Additional Charge. We disagree.
The possession of images of child pornography by any person is prohibited, in part, if that person is “in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government . . . .” 18 U.S.C. § 2252A(a)(5)(A).
The record of trial well supports the appropriateness of the appellant’s sentence. We are confident that the appellant received the individualized consideration required based on the seriousness of his offenses and the nature of his character -- that is all that the law requires. Rojas, 15 M.J. at 919. The appellant’s assignment of error amounts to nothing more than a request for clemency, which is the prerogative of the convening authority. Healy, 26 M.J. at 395-96; R.C.M. 1107(b). In this regard, the convening authority has fulfilled his obligations under the pretrial agreement. As such, we are unwilling to provide further relief.
Reoffend Update: . Benjamin S. Rzadca, 28, of Black Jack, Missouri pleaded guilty in federal court in St. Louis in October 2008 to two felony counts of child sexual exploitation and admitted filming two boys in the locker room of a Florissant, Missouri recreation center; one on Dec. 26, 2007, the other on Jan. 7, 2008. He received a sentence of almost 22 years in federal prison for the crimes. He also read defiant online postings in which someone identifying himself as Rzadca suggests ways for pedophiles to target children, calls opposition to pedophilia a form of discrimination and says, “I’m proud to be who I am.”
Federal prison ID is 35448-044. As of January 16, 2010 it shows him "in transit".
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An Unofficial Site
Of United States Military
Sexual Offender
Conviction Records
Not Associated With The U.S. Military Or Government
Benjamin S. Rzadca
Corporal (E-4), U.S. Marine Corps
Indecent Acts Child - Child Pornography
