United States v. Ozbirn ( 2020 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39556
________________________
UNITED STATES
Appellee
v.
Jacob M. OZBIRN
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 1 MAY 2020
________________________
Military Judge: John C. Harwood.
Approved sentence: Dishonorable discharge, confinement for 3 years,
and reduction to E-1. Sentence adjudged 11 May 2018 by GCM con-
vened at Royal Air Force Mildenhall, United Kingdom.
For Appellant: Captain David A. Schiavone, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Anne M. Delmare, USAF; Mary
Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Judge POSCH joined. Judge KEY filed a separate opinion concurring
in part and dissenting in part.
________________________
This is an unpublished opinion and, as such, does not serve as prece-
dent under AFCCA Rule of Practice and Procedure 30.4.
________________________
J. JOHNSON, Chief Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of two specifications of attempted sexual abuse of a
United States v. Ozbirn, No. ACM 39556
child, one specification of attempted sexual assault of a child, and one specifi-
cation of attempted receipt of child pornography, all in violation of Article 80,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880. 1,2 The court-
martial sentenced Appellant to a dishonorable discharge, confinement for
three years, and reduction to the grade of E-1. The convening authority ap-
proved the sentence as adjudged.
Appellant raises eight issues on appeal: (1) whether the evidence was le-
gally and factually sufficient to support his conviction; (2) whether the mili-
tary judge erred by failing to dismiss the specification alleging attempted re-
ceipt of child pornography for unreasonable multiplication of charges; (3)
whether the specification alleging attempted sexual assault of a child failed
to state an offense by failing to allege Appellant committed a requisite overt
act; (4) whether the military judge erred by identifying such overt acts in his
instructions to the members; (5) whether the military judge erred by instruct-
ing the members they could use Appellant’s uncharged acts with respect to
one purported child as evidence of his intent to sexually assault another pur-
ported child; (6) whether the military judge erred by incorrectly instructing
the members on the maximum sentence and by failing to instruct them on
the nature and effect of the mandatory dishonorable discharge; (7) whether
the Government’s failure to disclose a witness’s arrest history warrants set-
ting aside Appellant’s convictions for two of the specifications or, alternative-
ly, warrants a post-trial fact-finding hearing; and (8) whether he is entitled to
relief for unreasonable post-trial and appellate delay. In addition, although
not raised by Appellant, we address an error in the staff judge advocate’s rec-
ommendation to the convening authority (SJAR).
We set aside the language in Specifications 1 and 2 that Appellant com-
mitted the alleged attempted sexual abuse of a child “on divers occasions” as
legally insufficient. Having accordingly reassessed the sentence, and having
found no other substantial error that materially prejudiced Appellant’s
rights, we affirm the remaining findings and the sentence.
1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Mili-
tary Rules of Evidence (Mil. R. Evid.), and Rules for Courts-Martial (R.C.M.) are to
the Manual for Courts-Martial, United States (2016 ed.).
2The members found Appellant not guilty of a third specification of attempted sexual
abuse of a child. In total, Appellant was tried for one charge and five specifications of
violating Article 80, UCMJ.
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I. BACKGROUND
Appellant was stationed at and lived on Royal Air Force (RAF) Mildenhall
in the United Kingdom. Over an approximately 48-hour period in August
2017, Appellant used messaging applications on his phone to exchange mes-
sages with three individuals who held themselves out to be a 12-year-old girl
named “Febes,” a 13-year-old girl named “Jodie Walsh,” and a 12-year-old girl
named “Jessica Saunders.” Despite being put clearly on notice of their pur-
ported ages, Appellant engaged all three in sexually explicit conversations in
which he discussed sexual conduct he wanted to engage in with them. He
asked all three to send him naked pictures of themselves and made arrange-
ments to meet two of the “girls” for purposes of having sexual intercourse
with them. These arrangements included meeting “Febes” at 1930 hours on
18 August 2017 on a road next to a hotel in Burton-on-Trent, and then meet-
ing “Jodie” in a different town shortly after midnight that same night. Appel-
lant then drove to the Burton-on-Trent hotel, about two and a half hours
away from RAF Mildenhall, to meet “Febes.”
The three “girls,” however, did not actually exist. Rather, they were per-
sonas created and assumed by three different adult British citizens working
with two groups organized for the purpose of identifying people with a pro-
pensity for engaging in inappropriate online conversations with children. The
adult behind the “Febes” persona was Mr. GW, and the “Jessica” persona was
Mr. JG, both members of the group “Keeping Kids Safe” (KKS). The “Jodie”
persona was Ms. LM, a member of the group “Silent Justice.” The modus op-
erandi of the two groups was to create “decoy” child personas, deploy them on
messaging and social media platforms, and then wait for adult users to en-
gage with them. Once an adult user started having sexualized conversations
with a decoy child persona, the group would investigate that user to deter-
mine identifying information, such as phone numbers, home addresses, social
media accounts, and the like. The group would use the decoy persona to at-
tempt to arrange an in-person meeting with the user. If that meeting failed,
the members would go to the user’s house and try to engage the user in per-
son. Operating under aliases, the groups would livestream meetings with
such users while seeking to obtain incriminating admissions, only calling law
enforcement authorities after first making positive contact with their targets.
The groups were not supported, endorsed, or approved by any government
entity, to include British law enforcement.
When Appellant arrived in Burton-on-Trent, he drove down the narrow
road where he had arranged to meet “Febes.” Once there, he was blocked in
by six members of KKS, to include Mr. GW and Mr. JG. They surrounded
Appellant, took his keys and phone, and attempted to interrogate him for ap-
proximately 45 minutes while waiting for the local police to arrive, recording
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United States v. Ozbirn, No. ACM 39556
and livestreaming the entire episode over Facebook. Once the police arrived,
the KKS members gave the police Appellant’s cell phone, and Appellant was
taken into custody, derailing any later plans to meet up with “Jodie.”
Based upon these events, Appellant was charged with three specifications
of attempted sexual abuse of a child—one specification for each decoy. Each
of these three specifications alleged Appellant attempted to commit a lewd
act by communicating indecent language to a child under the age of 16 years
“on divers occasions,” and each consisted of a lengthy catalog of messages
sent by Appellant to each decoy. Appellant was also charged with a specifica-
tion of attempted sexual assault of a child based upon his traveling to Bur-
ton-on-Trent to meet “Febes.” Finally, Appellant was charged with attempted
receipt of child pornography on divers occasions for asking the three decoys to
send him naked pictures of themselves.
The court members acquitted Appellant of the specification alleging at-
tempted sexual abuse of a child with respect to “Jessica Saunders.” In addi-
tion, the members purported to except the words “Jessica Saunders” from the
attempted receipt of child pornography specification, despite the fact that
such words were not actually in the specification. The court members convict-
ed Appellant of the remaining specifications.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Additional Background
a. Attempted Sexual Abuse and Attempted Sexual Assault
The evidence against Appellant included testimony by the three adults
who posed as young girls: Mr. GW, Mr. JG, and Ms. LM. Each testified re-
garding the messages they exchanged with Appellant using two different
messaging applications, Nearby and WhatsApp. 3 Photographs (screenshots)
of the messages on all three decoy operators’ phones were admitted into evi-
dence. In the messages, Appellant sent a picture of himself to Mr. GW (por-
traying “Febes”) and Ms. LM (portraying “Jodie”), and stated he was 20 years
3 The decoys started their conversations on Nearby but would try to move to
WhatsApp because the latter application provided more detailed user information.
Mr. GW and Ms. LM used both applications to message with Appellant. Mr. JG (who
portrayed “Jessica”) did not try to shift his conversation with Appellant to WhatsApp
because he had determined his colleague, Mr. GW, was already arranging an in-
person meeting with Appellant.
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United States v. Ozbirn, No. ACM 39556
old, was from RAF Mildenhall, and drove a silver Volvo. The WhatsApp
screenshots from “Febes’s” and “Jodie’s” phones show Appellant’s cell phone
number, and Appellant’s avatar on Nearby was a picture of himself. Appel-
lant’s messages to all three decoys were similar—assuring each that she was
the “right age” to learn about sex, that Appellant was willing to teach her,
and she could learn by having sexual intercourse with him.
In his messages with “Febes,” Appellant said he would get a room at the
hotel in Burton-on-Trent, where they could have sex. Shortly thereafter, Ap-
pellant told her there were no rooms available, so they would “have to use the
car or another place.” They then agreed to meet down a road alongside the
hotel. At trial, Mr. GW and Mr. JG testified about confronting Appellant
when he drove down that road in a silver left-hand-drive Volvo. Earlier in the
day, around noon, Appellant told “Jodie” he was at a “work party,” but that
he would not be getting drunk because he had “to drive.”
A computer forensics analyst testified he analyzed Appellant’s phone, and
evidence extracted from it confirmed Appellant had, in fact, called the hotel,
as well as the number of a neighboring hotel at the same time he was making
arrangements with “Febes.” The analyst also found Internet searches in
which Appellant seemed to be trying to determine whether the people he was
messaging were in fact who they claimed to be. 4
The analyst extracted messages Appellant sent to and received from
“Febes” and “Jodie” via WhatsApp (Appellant communicated with “Jessica”
only on Nearby), but he was unable to retrieve any messages associated with
Nearby from Appellant’s phone. The WhatsApp messages taken from Appel-
lant’s phone are nearly identical to the screenshots of “Febes’s” and “Jodie’s”
phones, although a few of the messages are in a slightly different order in the
analyst’s extraction than they appear in the screenshots.
In addition to the ordering of the messages, trial defense counsel argued
the members should be skeptical of the prosecution exhibits consisting of
screenshots of the various messages due to the times shown in those screen-
shots. One of the Air Force Office of Special Investigations (AFOSI) special
agents involved in the case had testified that, around 31 August 2017, he and
a second agent went back to the British police station which originally took
custody of Appellant. On one day of that trip, the first agent took screenshots
of the Nearby messages with “Jessica” on Mr. JG’s phone, with the screen-
4For example, the searches included “what year would a 13 year old go to school in
England” and “when does year 9 start in England” (“Jodie” said she was 13 years old
and was about to start Year 9 in school).
5
United States v. Ozbirn, No. ACM 39556
shots showing they were taken shortly after 1130 hours. He also took screen-
shots of Appellant’s Nearby messages with “Febes” on Mr. GW’s phone, which
indicated a cell phone time of just after 1300 hours. On a different day on the
same trip, one of the agents took screenshots of the Nearby and WhatsApp
messages with “Jodie” on Ms. LM’s phone; the screenshots showed times of
approximately 1830 hours and 1840 hours, respectively.
b. Attempted Receipt of Child Pornography
Appellant asked “Febes,” “Jodie,” and “Jessica” for naked pictures. With
respect to his communications with “Febes,” Appellant engaged in the follow-
ing exchanges:
[Appellant:] have you seen naked guys or every [sic] sent na-
ked pictures? . . .
[“Febes”:] never seen no
[Appellant:] Oh I could show you if you want and I would like
to see you too
[“Febes”:] I don’t have a camera
....
[Appellant:] There is nothing to be afraid of I will take care of
you! And please can I have on[e] more picture
[“Febes”:] U can take tom[orrow]
[“Febes”:] With ur phone
[“Febes”:] We can do selfy
[Appellant:] Can I take naked ones?
[“Febes”:] I’m very shy
[Appellant:] We are having sex tomorrow and only I will see
them
[“Febes”:] Kk
[“Febes”:] If u promise
[Appellant:] I do
Appellant made a similar request of “Jodie”:
[Appellant:] Have you ever sent a naked picture to anyone or
seen a guys part?
[“Jodie”:] No
....
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United States v. Ozbirn, No. ACM 39556
[Appellant:] Can you send me a naked picture?
[“Jodie”:] No I can’t do that
[Appellant:] Why?
[Appellant:] It will help
....
[“Jodie”:] I’m not sending naked pictures of me
[Appellant:] I mean any pictures
[“Jodie”:] Oh ok
[“Jodie”:] [Sends clothed photo of head and shoulders]
[Appellant:] Yeah I was hoping the naked one would help but
any will do
Finally, Appellant had the following exchange with “Jessica”:
[Appellant:] have you ever traded naked pictures before?
[“Jessica”:] no one has seen me naked
[Appellant:] do you want to see a d*ck so that you will know
what goes in?
[“Jessica”:] ok
[Appellant:] So you have to send a picture of you naked then
you get to see a d*ck
[“Jessica”:] I haven’t got any naked photos
[Appellant:] you have to take one
[“Jessica”:] I can’t my sister is sleeping and my camera is
broke
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable
doubt, however, does not mean that the evidence must be free from conflict.”
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United States v. Ozbirn, No. ACM 39556
United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289
(C.A.A.F. 2018). Circumstantial evidence may suffice. See United States v.
Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014) (citation omitted). “[I]n resolving
questions of legal sufficiency, we are bound to draw every reasonable infer-
ence from the evidence of record in favor of the prosecution.” United States v.
Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). As a result,
“[t]he standard for legal sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (altera-
tion in original) (citation omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
“In conducting this unique appellate role, we take ‘a fresh, impartial look at
the evidence,’ applying ‘neither a presumption of innocence nor a presump-
tion of guilt’ to ‘make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable
doubt.’” Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington,
57 M.J. at 399).
In order to find Appellant guilty of an attempt, the court members were
required to find the following four elements proven beyond a reasonable
doubt: (1) that Appellant did a certain overt act; (2) that the act was done
with the specific intent to commit a certain offense under the code; (3) that
the act amounted to more than mere preparation; and (4) that the act appar-
ently tended to effect the commission of the intended offense. Manual for
Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 4.b.
The elements for sexual abuse of a child by indecent communication, as
charged here, required the Government to prove beyond a reasonable doubt:
(1) Appellant intentionally communicated indecent language to a child under
the age of 16 years; and (2) he did so with the intent to gratify his sexual de-
sire. See MCM, pt. IV, ¶ 45b.b.(4)(d).
The elements of sexual assault of a child in this case required proof be-
yond a reasonable doubt that: (1) Appellant committed a sexual act upon a
child causing penetration of her vulva with his penis; and (2) at the time of
the sexual act, the child had attained the age of 12 years but had not attained
the age of 16 years. See MCM, pt. IV, ¶ 45b.b.(3)(a).
The elements of receipt of child pornography in this case included: (1) Ap-
pellant knowingly and wrongfully received child pornography; and (2) that
under the circumstances, Appellant’s conduct was to the prejudice of good or-
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United States v. Ozbirn, No. ACM 39556
der and discipline in the armed forces and of a nature to bring discredit upon
the armed forces. See MCM, pt. IV, ¶ 68b.b.(1). “Child pornography” is de-
fined as “material that contains either an obscene visual depiction of a minor
engaging in sexually explicit conduct or a visual depiction of an actual minor
engaging in sexually explicit conduct.” See MCM, pt. IV, ¶ 68b.c.(1). Because
Appellant was charged with attempting to receive pictures of “what appear to
be minors” rather than actual minors, the Government had to prove that the
pictures were obscene in addition to depicting a minor engaging in sexually
explicit conduct. See, e.g., United States v. Stanton, No. ACM 38385, 2014
CCA LEXIS 650, at *9 (A.F. Ct. Crim. App. 28 Aug. 2014) (unpub. op.). “Sex-
ually explicit conduct” is defined as actual or simulated sexual intercourse,
sodomy, bestiality, masturbation, sadistic or masochistic abuse, or the “las-
civious exhibition of the genitals or pubic area of any person.” MCM, pt. IV, ¶
68b.c.(7). More than mere nudity is required to prove an image amounts to a
“lascivious exhibition.” United States v. Piolunek, 72 M.J. 830, 836 (A.F. Ct.
Crim. App. 2015) (citation omitted), aff’d, 74 M.J. 107 (C.A.A.F. 2015).
Whether an image constitutes a “lascivious exhibition” ultimately depends on
the totality of the circumstances. See United States v. Roderick, 62 M.J. 425,
430 (C.A.A.F. 2006) (citations omitted). 5
3. Analysis
Appellant argues the evidence is legally and factually insufficient to sup-
port any of the specifications for which he was convicted. We consider each
offense in turn.
5 Military courts use the so-called Dost factors in conjunction with the totality of the
circumstances to determine whether an exhibition of the genitals or pubic area is las-
civious. Piolunek, 74 M.J. at 109 (citation omitted); see also Roderick, 62 M.J. at 429
(citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom.
United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)). The Dost factors are:
(1) whether the focal point of the visual depiction is on the child’s gen-
italia or pubic area; (2) whether the setting of the visual depiction is
sexually suggestive, i.e. in a place or pose generally associated with
sexual activity; (3) whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of the child; (4) wheth-
er the child is fully or partially clothed, or nude; (5) whether the visu-
al depiction suggests sexual coyness or a willingness to engage in
sexual activity; (6) whether the visual depiction is intended or de-
signed to elicit a sexual response in the viewer.
Roderick, 62 M.J. at 429 (quoting Dost, 636 F. Supp. at 832).
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United States v. Ozbirn, No. ACM 39556
a. Attempted Sexual Abuse of a Child
i. Strength of the Evidence
Appellant argues the evidence of the messages he sent “Febes” and
“Jodie” is “not forensically sound.” He points to alleged evidentiary inconsist-
encies such as the differences in time shown on pictures taken by the AFOSI
agents of the cell phone screens, which he asserts contradicted the agents’
testimony as to the time they spent taking the pictures. In addition, he con-
tends the fact that different exhibits depicting the same messages do not ap-
pear exactly the same vitiates their reliability. We are not persuaded.
The screenshots of the Nearby messages with “Febes” show a time around
1300, while the “Jodie” WhatsApp messages show a time after 1830 hours.
However, on cross-examination the first agent testified that he did not spend
five and a half hours taking screenshots of the various phones. Therefore, as
at trial, on appeal Appellant argues the screenshots are “not forensically
sound” and are “internally inconsistent.” However, Appellant’s contention is
undermined by the fact the screenshots were taken on two different days.
That is, the screenshots showing midday times were taken one day, while the
screenshots showing evening times were taken another day, which explains
the AFOSI agent’s testimony. On this point, Appellant has simply misappre-
hended the evidence adduced at trial.
Similarly, we are not persuaded by Appellant’s suggestion the Govern-
ment’s evidence of the messages is “inconsistent” due to a small number of
them appearing in a different order in the forensic extraction when compared
to the screenshots. Mr. GW and Ms. LM testified that the screenshots admit-
ted into evidence were accurate copies of the messages they sent to and re-
ceived from Appellant. Neither of the witnesses was impeached in any signif-
icant way, and no evidence was offered indicating either of them attempted to
modify the messages in order to deceive investigators or for any other reason.
Despite Appellant’s argument, the vast majority of messages in the screen-
shots are identical to—and in the same order as—those extracted from his
phone, which sharply minimizes the evidentiary significance of a few mes-
sages appearing slightly out of order. We are not persuaded these minor dif-
ferences render the entire body of the messages unreliable.
The evidence showing that Appellant sent the messages to “Febes” and
“Jodie” underpinning his conviction for attempted sexual abuse is strong. The
screenshots taken from the witnesses’ phones directly correspond with the
evidence extracted from Appellant’s own phone. Appellant used a photograph
of himself as his avatar on the Nearby application, which was visible from the
decoys’ side of the messages, as was his name, Jacob Ozbirn. Appellant sent a
picture of himself and explained that he was from RAF Mildenhall and drove
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United States v. Ozbirn, No. ACM 39556
a silver Volvo. Most compellingly, Appellant arranged to meet “Febes” at a
particular place in Burton-on-Trent at a particular time on a particular day
in the messages he exchanged with her, and then he arrived at that place, at
that time, on that day, driving his silver Volvo. We see no serious challenge to
the evidence that Appellant sent the charged messages.
Similarly, the evidence demonstrates Appellant believed “Febes” and
“Jodie” were the young girls they consistently held themselves out to be. The
first message Appellant sent “Febes” asked, “How old are you?” “Febes” re-
sponded, “I’m 12.” Appellant’s first message to “Jodie” was “How are you?”
She responded, “gd thx I’m Jodie 13 from Birmingham wbu.” Throughout
their conversations, “Febes” and “Jodie” reminded Appellant of their ages and
frequently referred to facets of childhood, such as being in school, not being
allowed to have boyfriends, needing to evade parents to meet with Appellant,
and so on. At no time did Appellant indicate that he thought he was exchang-
ing messages with an adult rather than a 12-year-old and a 13-year-old girl.
The indecency of the messages is readily apparent. Appellant detailed not
just that he wanted to engage in sexual activity with the girls, but also how
he would do it, explaining vaginal and oral acts using terms and comparisons
a child would understand. He explained to the girls they were at the right age
to learn to have sex, expressed his desire to teach them, assured them they
would not get pregnant, and asked them to send him naked pictures of them-
selves. The fact Appellant detailed the sexual acts he wished to perform with
the girls in conjunction with his arranging to meet them for the purpose of
having sex is very strong evidence that Appellant’s intent in sending the
messages was to gratify his sexual desire. Because “Febes” and “Jodie” were
not actually children, Appellant could not be convicted of sexually abusing
children. He could, however, be convicted of attempting to do so.
ii. “Divers Occasions”
Appellant argues the two specifications of attempted sexual abuse of a
child “on divers occasions” are legally insufficient in that there is no evidence
either offense was committed on more than one occasion. We agree with Ap-
pellant that the “on divers occasions” language is legally insufficient.
“Divers” means “two or more.” See, e.g., United States v. Neblock, 45 M.J.
191, 199 n.10 (C.A.A.F. 1996) (citation omitted). As noted above, these speci-
fications are arranged by decoy (i.e., one specification pertains to “Febes” and
the other pertains to “Jodie Walsh”). Each specification contains a lengthy
list of the messages Appellant sent to the decoys. Although the evidence
shows Appellant sent these messages, there is no evidence that Appellant
sent these specific messages to the respective decoy more than once. Appel-
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United States v. Ozbirn, No. ACM 39556
lant did send his messages at different times over a period of about two days,
but there is no evidence he sent any of the messages two or more times.
The Government argues the “divers occasions” language is meant to cap-
ture the fact Appellant sent messages at different times. “Divers occasions,”
however, means an accused has committed an offense two or more times, not
that a single offense was perpetrated over a period of time. See id. When the
Government elects to charge an offense alleging the use of specific words, it
stands to reason that a charge of “divers occasions” is legally insufficient un-
less Appellant repeats those particular words on two or more occasions. To
hold otherwise exaggerates Appellant’s criminality by portraying him as hav-
ing committed the offenses in these two specifications multiple times, when
he only committed them once. We take corrective action in our decretal para-
graph below.
iii. Conclusion as to Attempted Sexual Abuse of a Child
With the exception of the words “on divers occasions” in each of the sexual
abuse specifications, we conclude a rational trier of fact could find all the el-
ements of the offense of attempted sexual abuse of a child with respect to
both “Febes” and “Jodie.” Having taken a fresh and impartial look at the evi-
dence, we are also satisfied of Appellant’s guilt beyond a reasonable doubt.
b. Attempted Sexual Assault of a Child
With respect to attempted sexual assault, Appellant argues the Govern-
ment never proved a substantial step occurred “at or near [RAF] Mildenhall,”
as charged. Rather, Appellant argues he drove to Burton-on-Trent, which was
approximately two and a half hours away from RAF Mildenhall. He contends
no rational trier of fact could find he took a substantial step towards commit-
ting the offense “at or near” RAF Mildenhall. We disagree.
We first note Appellant has not cited any legal authority for the proposi-
tion that a place being two and a half hours away from that which is de-
scribed as “at or near” in the specification renders the specification infirm.
More significantly, the evidence indicates Appellant lived and worked on RAF
Mildenhall and attended a work party before driving to meet “Febes” later
that day. Although there is no direct evidence that Appellant was on the base
when he was sending messages to the girls, the fact Appellant lived and
worked on RAF Mildenhall is solid circumstantial evidence that Appellant’s
offenses originated at the base. The same circumstantial evidence supports
the conclusion that Appellant drove directly from RAF Mildenhall to Burton-
on-Trent in order to carry out the sexual assault he had arranged with
“Febes.” Put differently, the evidence indicates Appellant’s overt acts did not
just begin “at or near” RAF Mildenhall—they began on RAF Mildenhall.
Even if we were to find Appellant’s offenses originated and were carried out
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United States v. Ozbirn, No. ACM 39556
off-base, we conclude that “at or near Royal Air Force Mildenhall” is suffi-
ciently broad to include the act of driving from the vicinity of RAF Mildenhall
to Burton-on-Trent and to put Appellant on notice of the charge he had to de-
fend against. See United States v. Gallo, 53 M.J. 556, 564 (A.F. Ct. Crim.
App. 200), aff’d, 55 M.J. 418 (C.A.A.F. 2001) (“If a specification informs an
accused of the offense against which he or she must defend and bars a future
prosecution for the same offense, the specification is sufficient.”) (citations
omitted).
Appellant not only arranged to meet with “Febes” for the stated purpose
of engaging in sexual intercourse with a 12-year-old girl; he drove to Burton-
on-Trent to meet her, which is a substantial step towards committing the of-
fense of sexual assault of a child. The chief obstacle to Appellant’s commis-
sion of the offense was that “Febes” was not actually a child. We conclude a
rational trier of fact could find all the essential elements of the offense of at-
tempted sexual assault of a child with respect to “Febes.” Having taken a
fresh and impartial look at the evidence, we are also satisfied of Appellant’s
guilt beyond a reasonable doubt.
c. Attempted Receipt of Child Pornography
Finally, Appellant argues his conviction for attempted receipt of child
pornography cannot stand due to the absence of evidence he actually sought
child pornography from the personas he was messaging. Again, we disagree.
The elements of the offense Appellant attempted to commit, receipt of
child pornography in violation of Article 134, UCMJ, 10 U.S.C. § 934, include:
(1) receipt of child pornography that is knowing and wrongful; and (2) that
under the circumstances Appellant’s conduct was prejudicial to good order
and discipline and service discrediting. The court members could easily con-
clude Appellant’s attempted receipt of child pornography, if completed, would
have met these elements. Appellant repeatedly solicited naked photographs
from what he believed to be a 12- and 13-year-old British girls in the context
of attempting to initiate sexual relationships with them. There is little ques-
tion that, had he received such images, his conduct would have been knowing
and wrongful. Moreover, Appellant’s actions, in addition to being service-
discrediting by virtue of his status as an Airman, directly resulted in his
identification, public apprehension, and arrest, first by British citizens acting
as vigilantes and then by British police.
As for the elements of attempt, we find the court members could readily
conclude Appellant’s direct and repeated solicitations for naked pictures were
overt acts that went beyond mere preparation and tended to effect the com-
mission of the offense of receipt of child pornography. Therefore, the Govern-
ment proved the first, third, and fourth elements of attempt.
13
United States v. Ozbirn, No. ACM 39556
Appellant argues the evidence is insufficient with regard to the remaining
element: that he had the specific intent to commit the offense of receipt of
child pornography. We agree with Appellant that, as charged in this case, the
evidence must support a finding that Appellant intended to receive “an ob-
scene visual depiction of a minor engaging in sexually explicit conduct,” a def-
inition that includes, inter alia, a “lascivious exhibition of the genitals or pu-
bic area of any person.” We disagree with Appellant’s assertion that there is
“no evidence” of such an intent.
“[T]he government is free to meet its burden of proof with circumstantial
evidence.” King, 78 M.J. at 221 (citations omitted); see also Rule for Courts-
Martial (R.C.M.) 918(c) (“Findings may be based on direct or circumstantial
evidence.”); United States v. Davis, 49 M.J. 79, 83 (C.A.A.F. 1998) (holding
intent to commit offense may be proven by circumstantial evidence) (citation
omitted). Therefore, the Government was not required to introduce a specific
statement by Appellant that he desired a lascivious display of “Febes’s” or
“Jodie’s” genitals or pubic areas, or any other specific words. Circumstantial
evidence demonstrating his intent beyond a reasonable doubt could be suffi-
cient.
In this case, the Government did introduce strong circumstantial evidence
of Appellant’s intent. The entire focus of Appellant’s communications with
the fictional personas was sexual. Appellant encouraged the “girls” to engage
in sexual activity, and specifically to engage in sexual activity with him. Ap-
pellant’s messages referred explicitly to acts he intended to perform on their
genitals. In that context, he specifically requested naked images of the “girls.”
Moreover, he requested to take naked pictures of “Febes” when he met her in
person to engage in sexual intercourse. We find it more than reasonable to
conclude that any naked photographs of “Febes” under those circumstances
that included her genitals or pubic region would constitute a “lascivious dis-
play,” and therefore “sexually explicit conduct.” 6
Appellant’s exchanges with “Jessica” are also revealing with regard to the
nature of the “naked pictures” in which he was interested. Appellant encour-
aged “Jessica” to “trade” him a “naked picture” of herself in exchange for a
picture of a penis, stating “you have to send a picture of you naked then you
6 “Lascivious” means “[t]ending to incite lust,” “lewd,” “obscene,” “licentious,” or
“tending to deprave the morals with respect to sexual relations.” Lascivious, BLACK’S
LAW DICTIONARY (6th ed. 1990). We find the Dost factors to be of limited utility in
this case because there are no actual images to evaluate—nor, or course, were any
such images required in order for Appellant to be found guilty of an attempt. See gen-
erally Roderick, 62 M.J. at 429.
14
United States v. Ozbirn, No. ACM 39556
get to see a d*ck.” 7 However, even without Appellant’s messages to “Jessica,”
we conclude a reasonable finder of fact could find proof beyond a reasonable
doubt that Appellant intended to receive child pornography.
Drawing every reasonable inference from the evidence of record in favor
of the Government, the evidence was legally sufficient to support Appellant’s
conviction of attempted receipt of child pornography beyond a reasonable
doubt. Additionally, having weighed the evidence in the record of trial and
having made allowances for not having personally observed the witnesses, we
are convinced of Appellant’s guilt beyond a reasonable doubt.
B. Unreasonable Multiplication of Charges
1. Additional Background
Specifications 1, 2, and 3 of the Charge alleged Appellant attempted to
commit a “lewd act” upon “Febes,” “Jodie Walsh,” and “Jessica Saunders,” re-
spectively, by intentionally communicating indecent language with the intent
to gratify his sexual desire between on or about 16 August 2017 and on or
about 18 August 2017. 8 Each specification included a lengthy recitation of
7 We recognize the court members purported to except the words “Jessica Saunders”
from their finding that Appellant was guilty of attempted receipt of child pornogra-
phy. However, we make two observations in this regard. First, the members’ purport-
ed exception was without legal effect, because the words “Jessica Saunders” did not
appear in the specification to be excepted from it, and because court members render
only general findings of guilt and, unlike military judges, cannot make special find-
ings. See R.C.M. 918(a), (b); United States v. Nicola, 78 M.J. 223, 226 n.2 (C.A.A.F.
2019). Second, when evidence offered at trial “support[s] two different offenses, a
Court of Criminal Appeals is not necessarily precluded from considering the evidence
that was introduced in support of the charge for which the appellant was acquitted
when conducting its Article 66(c), UCMJ, legal and factual sufficiency review of the
charge for which the appellant was convicted.” United States v. Rosario, 76 M.J. 114,
117 (C.A.A.F. 2017). Therefore, we conclude evidence of Appellant’s communications
with “Jessica” were not only relevant to show he sought child pornography from her,
but would also be available to demonstrate his intent with regard to “Febes” and
“Jodie” in accordance with Mil. R. Evid. 404(b), and therefore properly informs our
legal and factual sufficiency review. Cf. United States v. Hyppolite, 79 M.J. 161, 165–
67 (C.A.A.F. 2019) (finding military judges did not abuse discretion in ruling that
evidence of one charged offense could be used as evidence of common plan or scheme
to commit other charged offenses under Mil. R. Evid. 404(b)).
8 Specifications 1 and 3 alleged Appellant committed the offenses between on or
about 17 August 2017 and on or about 18 August 2017; Specification 2 alleged Appel-
lant committed the offense between on or about 16 August 2017 and on or about 18
August 2017.
15
United States v. Ozbirn, No. ACM 39556
Appellant’s messages to the respective decoy, including the messages solicit-
ing naked pictures from the decoys.
Specification 5 of the Charge alleged Appellant attempted to receive child
pornography, specifically “photographs of what appear to be minors engaging
in sexually explicit conduct,” between on or about 16 August 2017 and on or
about 18 August 2017.
Before trial, the Defense moved to dismiss Specification 5 as both multi-
plicious and an unreasonable multiplication of charges with Specifications 1,
2, and 3. The Government opposed the motion. Following Appellant’s ar-
raignment, the military judge conducted a hearing at which he heard argu-
ments on the motion to dismiss. He subsequently orally announced his ruling
and entered a written ruling into the record.
The military judge granted the defense motion in part and denied it in
part. He found the charged attempted sexual abuse of a minor specifications
and the attempted receipt of child pornography specification each required
proof of elements the other offense did not, and were therefore not multi-
plicious. See generally Roderick, 62 M.J. at 431–32. With regard to unreason-
able multiplication of charges, the military judge applied the five-part test
the United States Court of Appeals for the Armed Forces (CAAF) articulated
in United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001), and concluded
that dismissal of Specification 5 was not warranted. However, he found “the
specifications are unreasonably multiplied in the context of sentencing.”
Therefore, he ruled that if the court-martial returned a finding of guilty as to
any of Specifications 1, 2, or 3, as well as Specification 5, he would instruct
the court-martial to consider Specification 5 merged with attempted sexual
abuse offense(s) and modify the maximum imposable punishment according-
ly.
The court members found Appellant guilty of Specifications 1, 2, and 5.
The military judge’s sentencing instructions to the court members advised
them: “At a previous hearing, I determined that for sentencing purposes,
Specification 5 should be considered merged with Specifications 1 and 2.” The
Defense did not object to this instruction. 9
9The military judge did not provide the court members with any further guidance on
what “merged” meant in this context, or how the merger should be factored into the
determination of an appropriate sentence. However, trial defense counsel told the
military judge the Defense had no objection or request for additional instruction on
this point. The CAAF has recently held that “affirmatively declin[ing] to object to the
military judge’s instructions” waives the objection on appeal. United States v. Davis,
(Footnote continues on next page)
16
United States v. Ozbirn, No. ACM 39556
2. Law
We review a military judge’s denial of relief for claims of unreasonable
multiplication of charges for an abuse of discretion. United States v. Camp-
bell, 71 M.J. 19, 22 (C.A.A.F. 2012) (citations omitted). We also review a mili-
tary judge’s selection of a remedy for an abuse of discretion. United States v.
Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). “A military judge abuses his discre-
tion when: (1) the findings of fact upon which he predicates his ruling are not
supported by the evidence of record; (2) if incorrect legal principles were used;
or (3) if his application of the correct legal principles to the facts is clearly un-
reasonable.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing
United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)). “The abuse of dis-
cretion standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreason-
able,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F.
1997); United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).
Rule for Courts-Martial 307(c)(4) provides in pertinent part: “What is
substantially one transaction should not be made the basis for an unreasona-
ble multiplication of charges against one person.” The Government may not
needlessly “pile on” charges against an accused. United States v. Foster, 40
M.J. 140, 144 n.4 (C.M.A. 1994), overruled on other grounds by United States
v. Miller, 67 M.J. 385, 388–89 (C.A.A.F. 2009); see also R.C.M. 906(b)(12). We
consider the following non-exhaustive factors in determining whether unrea-
sonable multiplication of charges has occurred:
(1) Did the [appellant] object at trial that there was an un-
reasonable multiplication of charges and/or specifications?; (2)
Is each charge and specification aimed at distinctly separate
criminal acts?; (3) Does the number of charges and specifica-
tions misrepresent or exaggerate the appellant’s criminality?;
(4) Does the number of charges and specifications unfairly in-
crease the appellant’s punitive exposure?; and (5) Is there any
79 M.J. 329, 331–32 (C.A.A.F. 2020). In light of trial defense counsel’s evident belief
that the sentencing instructions were adequate, the CAAF’s opinion in Davis, and
Appellant’s declination to assert on appeal that the sentencing instructions were er-
roneous, we find Appellant has waived any potential issue with the adequacy of the
military judge’s merger instruction, and we decline to disturb his waiver. See general-
ly United States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018) (citation omitted) (ex-
plaining Courts of Criminal Appeals have discretion under Article 66, U.C.M.J., 10
U.S.C. § 866, to pierce waiver or forfeiture to correct a legal error).
17
United States v. Ozbirn, No. ACM 39556
evidence of prosecutorial overreaching or abuse in the drafting
of the charges?
Quiroz, 55 M.J. at 338 (citation and internal quotation marks omitted).
3. Analysis
Appellant contends the military judge abused his discretion by merely
merging Specification 5 with Specifications 1 and 2 for purposes of sentenc-
ing, and failing to dismiss Specification 5. We conclude the military judge
reasonably applied the Quiroz factors and did not abuse his discretion.
The military judge found, and we agree, that the first two factors favored
Appellant. The Defense made a timely pretrial objection that the specifica-
tions were unreasonably multiplied. Furthermore, the messages constituting
Appellant’s charged attempt to receive child pornography—his messages so-
liciting naked photographs from the decoys—are entirely captured in the
specifications alleging the attempted sexual abuse by communicating inde-
cent language. Thus, although the charged attempted receipt of child pornog-
raphy is a separate crime from attempted sexual abuse of minors, it is rooted
in the same criminal acts.
However, as to the third factor, we further agree with the military judge
that Specifications 1, 2, 3, and 5, taken together, do not exaggerate or mis-
represent Appellant’s criminality. Specifications 1, 2, and 3 address Appel-
lant’s alleged lewd communications to each of the three decoys, and focus on
the harm that Appellant’s language might have been done to each “victim”
had she been an actual child. Specification 5 addresses a distinct governmen-
tal interest in preventing a different harm, specifically the creation and pro-
liferation of child pornography. See United States v. Martens, 59 M.J. 501,
504 (A.F. Ct. Crim. App. 2003) (quoting Pub. L. No. 104–208, Div. A, Title I, §
121, subsec. 1 (30 Sep. 1996) (noting Congress has found the elimination of
child pornography provides a compelling government interest for prohibiting,
inter alia, the distribution of child pornography). Moreover, as the military
judge noted, the Government consolidated all of Appellant’s alleged attempts
to receive child pornography from each of the decoys into a single specifica-
tion, mitigating the potential proliferation of specifications.
As to the fourth factor, the military judge found that, considering the ex-
tensive maximum imposable punishment Appellant faced if convicted for
Specifications 1 through 4, 10 an additional ten years of potential confinement
10The military judge correctly determined Appellant faced a maximum term of 15
years of confinement for each of the attempted sexual abuse specifications, but incor-
(Footnote continues on next page)
18
United States v. Ozbirn, No. ACM 39556
for conviction for Specification 5 was not “per se unreasonable.” However, he
continued, considering that Specification 5 was “part of a short timeframe
and is inextricably intertwined with the alleged indecent language charged in
the first three specifications,” the military judge found “the inclusion of Speci-
fication 5 for sentencing purposes unreasonably increased [Appellant’s] puni-
tive exposure.”
As to the fifth factor, the military judge found “no evidence” of prosecuto-
rial overreaching or abuse. Appellant suggests the inclusion of the term “child
pornography” on the charge sheet “would evoke a visceral reaction from the
members,” despite the fact that the conduct alleged in the other four specifi-
cations was “objectively worse.” Further, Appellant contends the Government
already sought to “punish Appellant for his words” in Specifications 1, 2, and
3, and the inclusion of Specification 5 “greatly misrepresent[ed]” his criminal-
ity. However, as stated above in relation to the third factor, Specification 5
addressed a distinct crime that causes a separate harm than the other Speci-
fications. We are not persuaded the Government was prohibited from ad-
dressing this distinct offense and separate harm in a separate specification,
particularly where all of Appellant’s attempts to receive child pornography
were consolidated in a single specification.
We conclude the military judge did not abuse his discretion by declining
to dismiss Specification 5 and by instead merging it with Specifications 1 and
2 for purposes of sentencing.
C. Overt Act for Attempted Sexual Assault of a Child
Appellant raises two further challenges to his conviction for attempted
sexual assault of a child. First, he argues the specification fails to state an
offense because it did not specifically allege what overt act he took in further-
ance of his attempt to sexually assault “Febes.” By not identifying this overt
act, Appellant argues the specification provided inadequate notice of what he
needed to defend himself against. 11 Second, Appellant asserts the military
judge erred by adding overt acts to the specification in the findings instruc-
tions he gave the members.
rectly concluded the attempted sexual assault carried a 30-year maximum term of
confinement rather than 20 years. See Section III.E.1.b., infra. However, this error
does not materially affect our analysis of unreasonable multiplication of charges.
11Appellant asserts that by omitting an overt act in the specification, he was only
prepared to defend against actions taken “at or near Royal Air Force Mildenhall,”
which he argues would not include driving to Burton-on-Trent.
19
United States v. Ozbirn, No. ACM 39556
1. Additional Background
Specification 4 of the Charge alleged Appellant:
did, at or near Royal Air Force Mildenhall, United Kingdom, on
or about 18 August 2017, attempt to commit a sexual act upon
“Febes,” a person [Appellant] believed to be a child who had at-
tained the age of 12 years, but not attained the age of 16 years,
by causing penetration of “Febes’” vulva with his penis.
At the close of the Government’s case, trial defense counsel moved for a
finding of not guilty pursuant to R.C.M. 917. The Defense’s argument was
that the overt act charged by the Government was “by causing penetration of
[‘Febes’s’] vulva with his penis,” and—because there was no evidence of any
such penetration—the Government failed to prove the overt act element re-
quired for a finding of guilty for attempt under Article 80, UCMJ. Trial coun-
sel responded that the overt act was Appellant “arranging to meet ‘Febes’ a
person whom [Appellant] believed to be a child under the age of 16, near the
Stanhope Arms in Burton-on-Trent, and then driving his vehicle to the loca-
tion to meet ‘Febes.’” The military judge denied the defense motion, ruling
that the Government was not required to specifically allege overt acts form-
ing the predicate of an attempt and that the Government had put on evidence
in support of the overt act proposed by trial counsel.
Over defense objection, 12 the military judge instructed the members that
they could convict Appellant of Specification 4 only if the Government proved,
inter alia:
That, at or near Royal Air Force Mildenhall, United Kingdom,
on or about 18 August 2017, [Appellant] did certain acts, that
is: arranging to meet “Febes,” a person that [Appellant] be-
lieved to be a child who had not attained the age of 16 years,
near the Stanhope Arms in Burton-on-Trent and then driving
to the Stanhope Arms to meet “Febes;” . . . .
2. Law
Whether a specification is defective is a question of law we review de no-
vo. United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citations omitted).
A specification is sufficient if it fairly informs an accused of the offense he
must defend against and enables the accused to “plead an acquittal or convic-
12Trial defense counsel explained their objection to the instructions was the same as
that raised in their R.C.M. 917 motion, “that the language about certain acts . . . per-
tains to something that is different than what the Government charged.”
20
United States v. Ozbirn, No. ACM 39556
tion in bar of future prosecutions for the same offense.” United States v. Nor-
wood, 71 M.J. 204, 206 (C.A.A.F. 2012) (quoting Hamling v. United States,
418 U.S. 87, 117 (1974)). Attempts under Article 80, UCMJ, may be charged
without specifically alleging the overt act in the specification. United States v.
Mobley, 31 M.J. 273, 278 (C.M.A. 1990) (citation omitted).
Military judges have wide discretion in fashioning instructions, but those
instructions must give the members “an accurate, complete, and intelligible
statement of the law.” United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F.
2012) (citations omitted). We review military judges’ instructions de novo.
United States v. Hale, 78 M.J. 268, 274 (C.A.A.F. 2019) (citation omitted).
3. Analysis
We agree with Appellant that the attempted sexual assault specification
did not allege any particular overt act. However, as our superior court held in
Mobley, 31 M.J. at 278, and as we recently discussed in an unpublished opin-
ion, United States v. Allen, No. ACM 39043, 2017 CCA LEXIS 649, at *13–19
(A.F. Ct. Crim. App. 11 Oct. 2017) (unpub. op.), an attempt specification need
not allege a specific overt act. Appellant has cited no authority to the contra-
ry. We see no indication in the record of trial that Appellant sought a bill of
particulars from the Government. See R.C.M. 906(b)(6). We similarly discern
no prejudice to Appellant and are not persuaded he was misled as to what he
needed to defend against at trial.
Appellant was charged with attempting to sexually assault “Febes” by
penetrating her vulva with his penis. He was also charged with attempting to
sexually abuse her by communicating indecent language to her, which was
proven in part through the introduction of messages between Appellant and
“Febes” in which he made arrangements to meet her at a precise time and
place coinciding with the time and place where he was later apprehended. As
discussed above, the evidence indicates Appellant not only made these ar-
rangements while he was at RAF Mildenhall, but left from the base to drive
to Burton-on-Trent where he had arranged to meet “Febes.” We perceive no
credible argument that the omission of the overt act might have misled Ap-
pellant as to the alleged offense he was required to defend against.
Furthermore, the Government remedied any vagueness in the specifica-
tion when it identified, and the military judge adopted, the overt acts of Ap-
pellant arranging to meet “Febes” and then driving to meet her. Doing so
narrowed the offense, and the military judge then instructed the members
that they not only had to find those overt acts beyond a reasonable doubt, but
that Appellant took those acts with the specific intent to commit the offense
of sexual assault of a child. Thus Appellant can precisely plead his conviction
on these facts in order to bar any subsequent prosecution arising from the
21
United States v. Ozbirn, No. ACM 39556
same conduct. Despite Appellant’s argument that the military judge relieved
the Government of the burden of identifying the overt acts at the time Appel-
lant was charged, we believe the more accurate view is that the military
judge added an evidentiary burden at trial that the Government was re-
quired to meet. Had the military judge not specified any particular overt acts,
the members would have been free to convict Appellant based upon a deter-
mination that Appellant did some overt act, the identification of which would
be forever hidden behind the veil of the members’ secret deliberations.
We conclude the military judge did not abuse his discretion in identifying
the two overt acts here. Appellant’s arranging to meet “Febes” and his subse-
quent travel to meet her were established by the evidence and a straightfor-
ward assessment of the evidence presented in the case. The military judge
acted well within his discretion in identifying those overt acts as those which
the Government had to prove in order to convict Appellant.
D. Evidence of Intent
Appellant had arranged to meet “Jodie” several hours after he was sup-
posed to meet “Febes.” Evidence of this plan came from the messages between
Appellant and “Jodie” admitted at trial along with the testimony of Ms. LM,
“Jodie’s” alter ego. The Defense did not object to this evidence during the
Government’s case in chief, 13 but it did object to trial counsel’s proposed in-
struction that the evidence could be used to show “intent, plan, and absence
of mistake” on Appellant’s part. Trial defense counsel argued the evidence
would be improperly used to show propensity, and not for any of trial coun-
sel’s stated purposes. The Defense, however, did not advance an alternative
instruction or otherwise identify a desired remedy.
The military judge overruled the objection and instructed the members
that they could consider “evidence that [Appellant] may have arranged to
meet ‘Jodie Walsh’ for the limited purpose of its tendency, if any, to prove
that [he] intended to engage in sexual acts with ‘Febes.’” He further instruct-
ed the members they could not use the evidence for any other purpose, nor
could they conclude from it that Appellant “is a bad person or has general
criminal tendencies and that he therefore committed the offenses charged.”
On appeal, Appellant argues the military judge’s instruction that the
members could only use this evidence to prove intent with respect to “Febes”
Appellant did object to other messages between himself and “Jodie,” but not to the
13
messages arranging to meet with her.
22
United States v. Ozbirn, No. ACM 39556
“allowed the members to conclude that . . . he had a propensity to commit
sexual assault of a child.”
1. Law
Military judges have broad discretion when fashioning instructions. Be-
henna, 71 M.J. at 232 (citations omitted). In assessing whether an instruction
was erroneous, we must determine whether the instruction sufficiently cov-
ered the issues in the case and whether, in the context of all the instructions
given, the instruction “completed its purpose.” Id. (citation omitted); see Unit-
ed States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citation omitted). We
will find an abuse of discretion when a military judge makes findings of fact
not supported by the record, uses incorrect legal principles, or applies legal
principles to the facts in a clearly unreasonable fashion. Ellis, 68 M.J. at 344
(citation omitted).
Under Mil. R. Evid. 404(b), “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a par-
ticular occasion the person acted in accordance with the character,” but such
evidence may be admissible for other purposes, “such as proving motive, op-
portunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Extrinsic acts may be admitted for the purpose of proving
an accused’s intent to commit another offense. United States v. Humpherys,
57 M.J. 83, 91 (C.A.A.F. 2002) (citation omitted).
The failure to make a timely objection to evidence at trial forfeits that er-
ror in the absence of plain error. Mil. R. Evid. 103(a)(1)(A); United States v.
Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citation omitted).
2. Analysis
We note at the outset that the evidence of Appellant arranging to meet
“Jodie” was admitted without defense objection or request for a limiting in-
struction at the time. It was trial counsel who later asked for a limiting in-
struction on the use of the evidence after the close of findings, and trial de-
fense counsel objected to the instruction. We cannot clearly discern from the
record what remedy trial defense counsel sought at trial. We infer Appellant
believes the military judge should have given a more restrictive instruction
that prohibited the use of the evidence for the purpose of establishing Appel-
lant’s intent regarding “Febes,” although the Defense did not propose such an
instruction at trial and Appellant does not identify one on appeal.
Presuming Appellant’s contention is that the military judge’s instruction
failed to adequately limit the use of the evidence that Appellant arranged to
meet “Jodie,” we conclude he has preserved the issue on appeal despite the
ambiguous defense objection at trial. However, we further conclude the mili-
23
United States v. Ozbirn, No. ACM 39556
tary judge did not abuse his discretion by admitting the evidence or giving
the limiting instruction.
In this case, the Appellant exchanged very similar messages with “Febes”
and “Jodie” over a period of approximately 48 hours, and Appellant made ar-
rangements to meet each of them the same night for the same illicit purpose.
Evidence that Appellant sought to commit substantially the same offense
with two different underage victims only hours apart, and did so over the
same two-day period, is relevant and material evidence of his intent to carry
out his plan to sexually assault “Febes.” Had Appellant’s communications
with “Jodie” been removed in time from, or less similar to, his communica-
tions with “Febes,” Appellant’s complaint might have more force. Under these
facts, however, evidence of Appellant’s intent to meet up with “Jodie” for sex
clearly suggests his intent to meet up with “Febes” earlier that evening for a
similar purpose. The evidence was properly admissible under Mil. R. Evid.
404(b), and the military judge’s decision to give a limiting instruction on this
evidence was more than appropriate. See United States v. Levitt, 35 M.J. 114,
119 (C.M.A. 1992) (explaining the military judge has a duty to provide limit-
ing instructions for uncharged misconduct admitted pursuant to Mil. R. Evid.
404(b) when requested by party) (citing Mil. R. Evid. 105) (additional cita-
tions omitted). Appellant argues the members might have improperly used
the “Jodie” evidence to conclude Appellant had a propensity to commit simi-
lar offenses, but the military judge specifically instructed the members they
were not permitted to reach that conclusion. We presume court members fol-
low the military judge’s instructions absent evidence to the contrary. United
States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012) (citation omitted). We have
no such evidence in this case, nor any basis to find prejudicial error.
E. Sentencing Instructions
Appellant asserts two errors with respect to the military judge’s sentenc-
ing instructions. First, he argues the military judge erred by not instructing
the members “on the nature and effect of the mandatory dishonorable dis-
charge.” Second, he notes the military judge incorrectly instructed the mem-
bers, with the concurrence of both trial counsel and trial defense counsel, that
the maximum sentence to confinement was 60 years, when in fact it was 50
years. Appellant requests this court set aside the sentence in his case.
1. Additional Background
a. Mandatory Dishonorable Discharge
In his sentencing instructions, the military judge advised the members:
The law imposes a mandatory minimum sentence of a dishon-
orable discharge for the offense of attempted sexual assault of a
child. Such a discharge deprives one of substantially all bene-
24
United States v. Ozbirn, No. ACM 39556
fits administered by the Department of Veterans Affairs and
the Air Force establishment. A dishonorable discharge should
be reserved for those who, in the opinion of the court, should be
separated under conditions of dishonor after conviction of seri-
ous offenses of a civil or military nature warranting such se-
vere punishment.
Prior to giving his instructions to the members, the military judge asked
the parties whether they had any objections to the instructions or requested
any additional instructions. Trial defense counsel answered, “No, Your Hon-
or.” Immediately after giving the instructions to the members, the military
judge again asked whether the parties had any objections to the instructions
or would like to request any additional instructions. Again, trial defense
counsel answered, “No, Your Honor.”
For the first time on appeal, Appellant argues the military judge should
have included the following instruction drawn from the Military Judges’
Benchbook: 14
You are advised that the stigma of a punitive discharge is
commonly recognized by our society. A punitive discharge will
place limitations on employment opportunities and will deny
the accused other advantages which are enjoyed by one whose
discharge characterization indicates that he has served honor-
ably. A punitive discharge will affect an accused’s future with
regard to his legal rights, economic opportunities, and social
acceptability.
b. Maximum Sentence
In computing the maximum imposable sentence to confinement, the mili-
tary judge incorrectly determined the maximum confinement for attempted
sexual assault of a child to be 30 years. Although the offense of sexual assault
of a child is subject to a 30-year maximum, the attempted commission of the
offense has a 20-year maximum. 15 As a result, the military judge overstated
the maximum confinement for all convicted offenses as 60 years, when it was,
in fact, 50 years. 16 Both trial counsel and trial defense counsel concurred with
14 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 84 (10 Sep. 2014).
15 MCM, pt. IV, ¶ 4.e.
16The military judge merged the attempted receipt of child pornography offense with
the attempted sexual abuse specifications for purposes of sentencing, resulting in a
ten-year decrease in the overall maximum sentence to confinement.
25
United States v. Ozbirn, No. ACM 39556
the military judge’s calculation. Trial counsel recommended a sentence of six
years confinement, and the members sentenced Appellant to three years. On
appeal, the Government concedes the computational error, but argues Appel-
lant was not prejudiced.
2. Law
Under R.C.M. 920(f), the absence of an objection to a particular instruc-
tion or to the omission of an instruction prior to the members starting their
deliberations forfeits the objection. United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020) (citations omitted). We review forfeited objections for plain
error. United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (citation
omitted). In order to prevail under the plain error standard, Appellant must
establish “(1) error that is (2) clear or obvious and (3) results in material
prejudice to his substantial rights.” United States v. McClour, 76 M.J. 23, 25
(C.A.A.F. 2017) (quoting Knapp, 73 M.J. at 36).
However, when an appellant affirmatively declines to object to the mili-
tary judge’s instructions, the issue is waived. Davis, 79 M.J. at 331 (citations
omitted). The CAAF cannot review waived issues, because affirmative waiver
leaves no error to correct on appeal. Id. (citation omitted).
Pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c), the Courts of Crimi-
nal Appeals have the unique statutory responsibility to affirm only so much
of the sentence that is correct and “should be approved.” Thus, we retain the
authority to address errors raised for the first time on appeal despite waiver
of those errors at trial. See, e.g., United States v. Hardy, 77 M.J. 438, 442–43
(C.A.A.F. 2018).
Military judges are required to instruct members as to the maximum pun-
ishment which may be adjudged. R.C.M. 1005(e)(1).
3. Analysis
a. Mandatory Dishonorable Discharge
Under Davis, when trial defense counsel expressly stated they had no ob-
jections to the sentencing instructions, which included the mandatory dis-
honorable discharge instruction Appellant now challenges, Appellant waived
this issue. We have considered whether we should grant relief under our Ar-
ticle 66(c), UCMJ, authority in spite of this waiver, and we decline to do so.
The military judge’s instruction highlighted the severity of a dishonorable
discharge, that such a discharge should be reserved for those leaving the ser-
vice “under conditions of dishonor,” and that Appellant would lose “substan-
tially all benefits.” This instruction accurately captured the severity of a dis-
honorable discharge, and the military judge was not required to sua sponte
give the instruction Appellant now requests.
26
United States v. Ozbirn, No. ACM 39556
b. Maximum Sentence
We agree with the parties that the military judge erred in computing Ap-
pellant’s maximum sentence by incorrectly finding the maximum confine-
ment associated with an attempted sexual assault of a child to be 30 years
instead of 20 years, leading to the members being instructed that Appellant
was subject to a maximum period of confinement of 60 years, when the max-
imum confinement actually authorized was 50 years. However, the clear im-
plication of Davis is that Appellant affirmatively waived this error as well.
“By ‘expressly and unequivocally acquiescing’ to the military judge’s instruc-
tions, Appellant waived all objections to the instructions, including in regards
to the elements of the offense.” Davis, 79 M.J. at 331 (quoting United States
v. Smith, 2 C.M.A. 440, 442 (C.M.A. 1953)) (additional citation omitted). If an
appellant may waive so fundamental a matter as the elements of the offense,
we do not doubt the CAAF would also find he may waive an objection to the
military judge’s computation of the maximum punishment.
Again recognizing our authority under Article 66, UCMJ, to pierce waiver
in order to correct a legal error, we again decline to do so. We do not discount
the importance of the military judge providing the members correct instruc-
tions regarding the maximum imposable sentence, and the military judge
clearly erred in this case. However, we doubt that instructing the members
that Appellant could be sentenced to a maximum term of 50 years in con-
finement rather than 60 years in confinement would have materially affected
the adjudged sentence. Both figures are vastly beyond both the six-year term
trial counsel recommended and the three-year term the members imposed.
Moreover, in either event, the offenses and evidence for which the members
sentenced Appellant would be unchanged. We conclude this case does not call
for piercing Appellant’s waiver in order to remedy the legal error.
F. SJAR Error
1. Law
“The proper completion of post-trial processing is a question of law the
court reviews de novo.” United States v. Zegarrundo, 77 M.J. 612, 613–14
(A.F. Ct. Crim. App. 2018) (citing United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)). Failure to comment in a timely manner on matters in or at-
tached to the SJAR forfeits a later claim of error; we analyze such forfeited
claims for plain error. Id. at 614 (citations omitted). “To prevail under a plain
error analysis, Appellant must persuade this Court that: ‘(1) there was an
error; (2) it was plain or obvious; and (3) the error materially prejudiced a
substantial right.’” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005)
(quoting Kho, 54 M.J. at 65) (additional citation omitted). “To meet this bur-
den in the context of a [SJAR] error, whether that error is preserved or is
27
United States v. Ozbirn, No. ACM 39556
otherwise considered under the plain error doctrine, an appellant must make
‘some colorable showing of possible prejudice.’” Id. at 436–37 (quoting Kho, 54
M.J. at 65).
2. Analysis
Although not raised by Appellant, we note the SJAR repeated the military
judge’s error with respect to the maximum imposable term of confinement,
advising the convening authority that Appellant faced a maximum term of 60
years rather than 50 years. However, the Defense’s clemency submission to
the convening authority neither objected nor even commented on the military
judge’s erroneous instruction or the SJAR error. Reviewing for plain error, we
find that the SJAR was obviously wrong; however, we find no colorable show-
ing of possible prejudice. See Scalo, 60 M.J. at 436–37 (citation omitted). In
some cases, we have found erroneous advice to the convening authority re-
garding the maximum punishment required a new post-trial process and ac-
tion. See, e.g., United States v. Gooding, No. ACM S32337, 2016 LEXIS CCA
766, at *16–22 (A.F. Ct. Crim. App. 6 Dec. 2016). However, in this case, in the
context of the entire sentencing and post-trial landscape, we are confident the
error did not materially influence the convening authority’s action. Among
other considerations, we note the convening authority lacked the authority to
modify Appellant’s adjudged three-year term of confinement. See 10 U.S.C. §
860(c)(4)(a). Accordingly, we find no corrective action is warranted with re-
spect to the SJAR error.
G. Mr. GW’s Criminal History
Appellant argues the attempted sexual abuse and attempted sexual as-
sault specifications pertaining to “Febes” should be set aside because the
Government did not turn over Mr. GW’s criminal history in its possession.
Alternatively, Appellant asks us to order a post-trial factfinding hearing.
1. Additional Background
Prior to arraignment, trial defense counsel requested via discovery “the
results of a [United Kingdom] arrest/conviction records check of all members
of Keeping Kids Safe who were present during the encounter with [Appellant]
at the Stanhope Arms Hotel.” Before trial, trial defense counsel interviewed
Mr. GW, who said he had never been charged with or convicted of any offens-
es, only that he received a cease-and-desist order from a British constabulary.
On 9 May 2018, during the presentation of the Government’s case in
chief, British authorities sent the Air Force the results of background checks
for four people believed to be involved with KKS, including a “Mr. GC-W.”
The email forwarding this information indicated British authorities believed
Mr. GC-W was the same person as Mr. GW, who had testified for the Gov-
ernment earlier in the day as the person behind the “Febes” decoy. The back-
28
United States v. Ozbirn, No. ACM 39556
ground check showed Mr. GC-W had no convictions, reprimands, warnings, or
cautions. Shortly after receiving this information, trial counsel turned it over
to the Defense.
Later that same day, British authorities sent the Air Force a second email
explaining that their records showed Mr. GC-W and Mr. GW had the same
date of birth and may be the same person. The email went on to explain Mr.
GC-W had been arrested in 2014 for an assault, but no action was taken.
With respect to Mr. GW, the email said his last known address was in Bur-
ton-on-Trent and that he had been processed for common assault in 2014,
and was arrested for breaching a non-molestation order in 2015. The email
went on to explain no further action was taken in either case involving Mr.
GW, and there was no recorded finding of guilt. Finally, the email noted, “it is
probable that this person is synonymous with your subject [Mr. GW].” This
email, however, was not turned over to the Defense during trial.
After the members announced their findings two days later, trial defense
counsel told the military judge they still had not received information about
the criminal backgrounds of three of the witnesses they had requested. Trial
counsel asserted they “did turn over the response that came in to the legal
office after that initial discovery which was turned over to the Defense and is
an appellate exhibit; that there were no records on the remaining names that
had not been contained in the initial document.” Trial counsel continued:
So, my understanding is that it has been turned over. However
if it was not turned over the answer is that there were no rec-
ords on those remaining three people. So, there was no kind of
response at all in the system which is, in some of the records,
there were names; and then it said no convictions, no warnings,
no whatever. With the rest of them there is not even that kind
of record . . . there was nothing on the remaining three individ-
uals. I apologize if that did not get turned over to the Defense
but there were no records on those remaining three people.
The military judge then moved on to the presentencing portion of trial.
About three months after the trial concluded, trial defense counsel asked
trial counsel whether the Government had received any information about
Ms. LM’s criminal background. Only then did trial counsel turn over the
email discussing the criminal background information for Mr. GW. In provid-
ing the email, trial counsel wrote, “There was no objection by Defense or re-
quest to review the exact source of the information” upon which trial counsel
relied when they announced at trial: “there was nothing on the remaining
three individuals.” Trial counsel then added, “Nevertheless, in light of your
29
United States v. Ozbirn, No. ACM 39556
recent request and in the spirit of open discovery and disclosure, the Gov-
ernment is turning over the attached e-mail . . . .”
In response to Appellant’s appeal, the Government concedes “it may have
been prudent” to turn over the information sooner than it did, and “trial
counsel were certainly wise to disclose the information out of an abundance of
caution when requested,” but the information is not inconsistent with
Mr. GW’s testimony, and therefore serves no exculpatory value.
2. Law
“[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prose-
cution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The United States Su-
preme Court has extended Brady, clarifying “that the duty to disclose such
evidence is applicable even though there has been no request by the accused
. . . and that the duty encompasses impeachment evidence as well as exculpa-
tory evidence.” Strickler v. Greene, 527 U.S. 263, 280 (1999); see United States
v. Claxton, 76 M.J. 356, 359 (C.A.A.F. 2017).
“A military accused also has the right to obtain favorable evidence under
Article 46, UCMJ . . . as implemented by R.C.M. 701–703.” United States v.
Coleman, 72 M.J. 184, 186–87 (C.A.A.F. 2013). Article 46 and these imple-
menting rules provide a military accused statutory discovery rights that are
greater than those afforded by the Constitution. See id. at 187; United States
v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004). In particular, R.C.M.
701(a)(2)(A) requires the Government, upon defense request, to permit the
inspection of, inter alia, any documents “within the possession, custody, or
control of military authorities, and which are material to the preparation of
the defense . . . .” Information which is relevant to a witness’s credibility may
be “material to the preparation of the defense” for purposes of R.C.M.
701(a)(2)(A). Roberts, 59 M.J. at 326.
In addition, each party is entitled to the production of evidence which is
relevant and necessary. R.C.M. 703(f)(1); United States v. Rodriguez, 60 M.J.
239, 246 (C.A.A.F. 2004). Evidence is relevant if “it has any tendency to make
a fact more or less probable than it would be without the evidence” and “is of
consequence in determining the action.” Mil. R. Evid. 401. “Relevant evidence
is ‘necessary when it is not cumulative and when it would contribute to a par-
ty’s presentation of the case in some positive way on a matter in issue.’” Ro-
driguez, 60 M.J. at 246 (quoting R.C.M. 703((f)(1) Discussion).
There are two categories of disclosure error: (1) cases in which the defense
made no discovery request or merely a general request for discovery; and, (2)
cases in which the defense specifically requested the information. Coleman,
30
United States v. Ozbirn, No. ACM 39556
72 M.J. at 187 (citing Roberts, 59 M.J. at 326–27). The harmless error stand-
ard of review—“whether there is a reasonable probability that, had the evi-
dence been disclosed, the result of the proceeding would have been differ-
ent”—applies to the first category. Id. (quoting Smith v. Cain, 565 U.S. 73, 75
(2012) (internal quotation marks omitted)). The heightened constitutional
harmless beyond a reasonable doubt standard applies to the second category.
Id. “Failing to disclose requested material favorable to the defense is not
harmless beyond a reasonable doubt if the undisclosed evidence might have
affected the outcome of the trial.” Id. (citation omitted).
In reviewing discovery matters, we conduct the following two-step analy-
sis: “first, we determine whether the information or evidence at issue was
subject to disclosure or discovery; second, if there was nondisclosure of such
information, we test the effect of that nondisclosure on [Appellant’s] trial.” Id.
(quoting Roberts, 59 M.J. at 325 (internal quotation marks omitted)).
3. Analysis
Appellant requested Mr. GW’s criminal history. In spite of this request
pertaining to a government witness, trial counsel failed to disclose responsive
material in its possession. This was error. The error was compounded when
trial counsel incorrectly told the military judge both that they had no such
information and that the criminal records inquiry returned a negative re-
sponse.
To be clear, it was not merely “prudent” for the Government to turn over
this information; it was plainly required by R.C.M. 701 once the Government
received it. Whatever the in-court admissibility of Mr. GW’s criminal back-
ground, the Defense requested it, and the Defense was entitled to it insofar
as it would inform the investigation they would pursue and the strategy they
would have developed for defending Appellant at trial. In this case, the De-
fense sought to impugn the accuracy of the messages exchanged between Ap-
pellant and Mr. GW in his role as “Febes.” This placed Mr. GW’s credibility,
motives, and biases squarely in issue for the Defense to investigate and pre-
pare for trial, regardless of the admissibility of the information at trial. Alt-
hough Mr. GW’s criminal background came to the Government’s attention
mid-trial, the Defense might have made use of it; for example, trial defense
counsel could have sought a continuance to investigate the matters, or asked
the court to recall Mr. GW to the stand to question him about them.
Despite this discovery failure, Appellant is not entitled to relief if the
nondisclosure was harmless beyond a reasonable doubt. See Roberts, 59 M.J.
at 327 (citation omitted). We conclude that it was and no relief is warranted.
Although Mr. GW’s role as a government witness for key charges put his
credibility squarely in issue, neither his criminal history nor his statements
31
United States v. Ozbirn, No. ACM 39556
to trial defense counsel about his criminal background impugned his credibil-
ity in any significant way. In his interview with trial defense counsel,
Mr. GW stated he had not been “charged with or convicted of” any crimes.
Based on the background check information trial counsel eventually turned
over, Mr. GW had not, in fact, been charged with or convicted of any offenses.
The information indicated he had been arrested twice and “processed” once,
but we see nothing that would render his statements to trial defense counsel
false such that they could be used to attack his credibility at trial.
Because there is no evidence Mr. GW was convicted of a crime, Mil. R.
Evid. 609 would not have enabled the Defense to impeach him with the ar-
rests, the “processing,” or any underlying offenses. Appellant contends the
information might have been used to conduct further investigation that may
have yielded evidence of a conviction that would be admissible under Mil. R.
Evid. 609. This assertion, however, is highly speculative and Appellant has
not brought forward any material information that Mr. GW’s arrest record
would have enabled him to discover. Without more, we do not see that Appel-
lant’s defense was prejudiced by the untimely discovery.
Testimony at trial effectively demonstrated that Mr. GW was a member of
a self-selected group of citizens operating without recognition or indorsement
at any level of British government. The primary import of his testimony,
however, was to discuss his role as “Febes” and to authenticate and explain
the messages he exchanged with Appellant, as well as to verify that Appel-
lant had, in fact, shown up at the place he had arranged to meet “Febes.” The
messages they exchanged via WhatsApp were retrieved both from the phone
Mr. GW was using and from Appellant’s phone. The fact Appellant arranged
to meet “Febes” was corroborated by Appellant’s journey to Burton-on-Trent
and his driving to the spot where he was to meet her.
We recognize that court members are likely to view an unorthodox organ-
ization like KKS with a fair degree of skepticism and to question the motives
of its members, but significant other evidence strongly corroborated Mr. GW’s
testimony. 17 As a result, attacks on his credibility, especially unspecified at-
tacks based on the possibility of a past conviction, would not have had any
material impact on Appellant’s trial.
17We note the members acquitted Appellant of all offenses pertaining to “Jessica
Saunders,” who was portrayed by Mr. JG, another KKS member. Because Appellant
and “Jessica” only corresponded on Nearby, no corroborating messages were found on
Appellant’s phone. This suggests the members were only willing to convict when fo-
rensic evidence corroborated witness testimony.
32
United States v. Ozbirn, No. ACM 39556
We do not condone trial counsel’s failure to disclose specifically-requested
discovery regarding the credibility of a key government witness, but we are
convinced this error was harmless beyond a reasonable doubt under the facts
presented here, and no relief is warranted under Article 46, UCMJ, or Brady.
H. Post-Trial Delay
Appellant was sentenced on 11 May 2018. The convening authority took
action on 18 September 2018, 130 days later. Appellant’s case was initially
docketed with this court on 16 October 2018. Appellant filed his initial as-
signments of error on 14 May 2019 after requesting and receiving four en-
largements of time. The Government filed its answer on 24 June 2019, and
Appellant submitted a reply brief on 1 July 2019. This opinion is issued 18
months and 15 days after Appellant’s case was initially docketed with this
court.
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citing Rodriguez, 60 M.J. at 246; United
States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003)). In Moreno, CAAF estab-
lished a presumption of facially unreasonable delay when the convening au-
thority does not take action within 120 days of sentencing, and when the
Court of Criminal Appeals does not render a decision within 18 months of
docketing. 63 M.J. at 142. Where there is such a delay, we examine the four
factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his
right to a timely review; and (4) prejudice to the appellant. Moreno, 63 M.J.
at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v.
United States, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No single factor is required
for finding a due process violation and the absence of a given factor will not
prevent such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533).
However, where an appellant has not shown prejudice from the delay,
there is no due process violation unless the delay is so egregious as to “ad-
versely affect the public’s perception of the fairness and integrity of the mili-
tary justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
2006). In Moreno, the CAAF identified three types of cognizable prejudice for
purposes of an Appellant’s due process right to timely post-trial review: (1)
oppressive incarceration; (2) anxiety and concern; and (3) impairment of the
appellant’s ability to present a defense at a rehearing. 63 M.J. at 138–39 (ci-
tations omitted). In this case, we find no oppressive incarceration because
Appellant’s appeal has not resulted in any reduction in his term of confine-
ment. Similarly, where the appeal does not result in a rehearing on findings
or sentence, Appellant’s ability to present a defense at a rehearing is not im-
paired. Id. at 140. As for anxiety and concern, the CAAF has explained “the
33
United States v. Ozbirn, No. ACM 39556
appropriate test for the military justice system is to require an appellant to
show particularized anxiety or concern that is distinguishable from the nor-
mal anxiety experienced by prisoners awaiting an appellate decision.” Id. We
discern no such particularized anxiety in Appellant’s case.
Where, as here, there is no qualifying prejudice from the delay, there is no
due process violation unless the delay is so egregious as to “adversely affect
the public’s perception of the fairness and integrity of the military justice sys-
tem.” Toohey, 63 M.J. at 362. We do not find such egregious delays here. With
regard to the delay in the convening authority’s action, we note the Defense
sought and was granted a delay in order to submit Appellant’s clemency mat-
ters. Trial defense counsel submitted clemency matters 13 days after the
original due date, which accounts for the presumptively unreasonable 10-day
delay beyond the 120-day Moreno standard. 18
With regard to appellate review, the delay in issuing the court’s opinion
exceeded the 18-month Moreno standard by 15 days. The record of trial is
substantial, including over 900 pages of transcript and many exhibits. More-
over, Appellant has raised numerous issues, the careful consideration of
which has resulted in a lengthy and split opinion from the court. On the
whole, we do not find the delay so egregious as to adversely affect the per-
ceived fairness and integrity of the military justice system. Id.
Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered whether relief for excessive post-trial delay is appropriate even in the
absence of a due process violation. See United States v. Tardif, 57 M.J. 219,
225 (C.A.A.F. 2002). After considering the factors enumerated in United
States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264
(C.A.A.F. 2016), we conclude it is not.
I. Sentence Reassessment
Based upon our decision to except the words “on divers occasions” from
Specifications 1 and 2, the two specifications alleging attempted sexual
abuse, we consider the reassessment of Appellant’s sentence.
Under Article 59(a), UCMJ, 10 U.S.C. § 859(a), a court-martial sentence
may not be held incorrect by virtue of legal error “unless the error materially
prejudices the substantial rights of the accused.” If we can conclude that an
adjudged sentence would have been at least a certain severity, absent any
error, “then a sentence of that severity or less will be free of the prejudicial
18 Appellant’s brief noted the delay between sentencing and action, but Appellant
elected “not [to] raise this separately as an assignment of error.”
34
United States v. Ozbirn, No. ACM 39556
effects of error; and the demands of Article 59(a) will be met.” United States
v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
In deciding whether to reassess a sentence or return a case for a re-
hearing, we consider the totality of the circumstances, including the following
factors: (1) “Dramatic changes in the penalty landscape and exposure;” (2)
“Whether an appellant chose sentencing by members or a military judge
alone;” (3) “Whether the nature of the remaining offenses capture[s] the gra-
vamen of criminal conduct included within the original offenses and . . .
whether significant or aggravating circumstances addressed at the court-
martial remain admissible and relevant to the remaining offenses;” and (4)
“Whether the remaining offenses are of the type that judges of the courts of
criminal appeals should have the experience and familiarity with to reliably
determine what sentence would have been imposed at trial.” United States v.
Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013) (citations omitted). We may
only reassess a sentence if we “confidently can discern the extent of the er-
ror’s effect on the sentencing authority’s decision.” United States v. King, 50
M.J. 686, 688 (A.F. Ct. Crim. App. 1999) (en banc) (quoting United States v.
Reed, 33 M.J. 98, 99 (C.M.A. 1991)).
Based upon the principles set out above, we conclude we can reassess Ap-
pellant’s sentence in light of the modifications to Specifications 1 and 2. Ap-
pellant remains convicted of the same offenses; the only modification is that
the erroneous assertion that he sent the indecent communications to “Febes”
and “Jodie” “on divers occasions” has been removed. The evidence supporting
the offenses for which Appellant was convicted and sentenced has not
changed. The maximum imposable sentence has not changed. We reassess
Appellant’s sentence, and conclude the court members would have imposed
the same sentence had the error not occurred.
III. CONCLUSION
The findings of guilty to Specifications 1 and 2 of the Charge are modified
by excepting the words “on divers occasions.” The excepted words are SET
ASIDE and DISMISSED WITH PREJUDICE. The remaining findings and
the sentence, as reassessed, are AFFIRMED. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c).
KEY, Judge (concurring in part and dissenting in part):
I agree with my esteemed colleagues in the majority with their resolution
of the issues raised by Appellant with the exception of the holding that Appel-
lant’s conviction for attempted receipt of child pornography is legally and fac-
tually sufficient, which I respectfully dissent from.
35
United States v. Ozbirn, No. ACM 39556
Appellant indisputably asked for “naked” pictures, but just as indisputa-
bly, that is all he asked for. In my view, this is inadequate to support a con-
viction which required the Government to prove Appellant specifically in-
tended to receive material which meets the legal definition of child pornogra-
phy, and I would set aside Appellant’s conviction for this offense.
The law of this land is that nudity, without more, is protected by the First
Amendment to the United States Constitution. 1 New York v. Ferber, 458 U.S.
747, 765 n.18 (1982); United States v. Moon, 73 M.J. 382, 387 (C.A.A.F. 2014).
In order to remove material from the protection of the First Amendment, the
prohibited conduct must be “adequately defined” and “suitably limited and
described” in the applicable statute. Ferber, 458 U.S. at 764. While the Gov-
ernment may prohibit child pornography without running afoul of the First
Amendment, laws purporting to prohibit such material are invalid when they
operate to prohibit a substantial amount of protected speech. Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 256–58 (2002). Because of these principles,
child pornography has been specifically defined in state and federal statutes,
as well as the Uniform Code of Military Justice (UCMJ), with no small
amount of litigation over the precise meaning of the terms contained within
them. With this backdrop and the very real risk of encroaching upon consti-
tutionally-protected free speech, we are obligated to precisely apply the rele-
vant law and legal principles.
The Government’s theory in this case was that Appellant sought to obtain
images which depicted “actual or simulated lascivious exhibition of the geni-
tals or pubic area of any person.” 2 Assuming that an image contains a visual
depiction of a child, the first step in determining whether the image is child
pornography under the Government’s theory here is to determine whether
the genitals or pubic area of any person is exhibited. See, e.g., United States v.
Piolunek, 72 M.J. 830, 836 (A.F. Ct. Crim. App. 2015), aff’d 74 M.J. 107
(C.A.A.F. 2015) (“If the images do not depict the genital or pubic area, we
stop our analysis”); United States v. Roderick, 62 M.J. 425, 430 (C.A.A.F.
2006) (depiction of the genitals or pubic area is a prerequisite to further anal-
ysis).
Even when the genitals or pubic area is exhibited in an image, “this exhi-
bition must be lascivious.” Piolunek, 72 M.J. at 836 (quoting United States v.
1 U.S. CONST. amend. I.
2Trial counsel asked the military judge to omit portions of the standard instructions
on child pornography dealing with actual or simulated sexual intercourse, sodomy,
bestiality, masturbation, sadistic or masochistic abuse.
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United States v. Ozbirn, No. ACM 39556
Horn, 187 F.3d 781, 789 (8th Cir. 1999)). Mere nudity is inadequate to prove
that an image is lascivious. 3 Without a lascivious exhibition, the conflation of
pictures of nude children with illegal child pornography impermissibly crimi-
nalizes legal, if not constitutionally protected, material. See, e.g., United
States v. Moon, 73 M.J. 382, 387 (C.A.A.F. 2014) (possession of images of
nude minors that are neither obscene nor child pornography implicates the
First Amendment’s protections) (citing United States v. Barberi, 71 M.J. 127,
130–31 (C.A.A.F. 2012), rev’d on other grounds, United States v. Piolunek, 74
M.J. 107 (C.A.A.F. 2015)) (additional citations omitted).
In this case, Appellant asked for “naked” pictures without further elabo-
ration. Unlike cases in which an accused has specifically requested photo-
graphs of a child’s genitals 4 or depicting a child engaged in sexual acts such
as masturbation, 5 Appellant made no request for images which would meet
the legal definition of child pornography under the UCMJ, and none of the
people he was messaging suggested they would send such images.
There are many ways to depict the nude human body, and a photograph
of a naked child does not necessarily mean the child’s genitals are visible at
all, much less displayed in such a way as to amount to a “lascivious exhibi-
tion,” as required by the law. An image which is less than obscene, or which
does not include the exhibition of genitals or a pubic area, or which includes
such exhibition which is not lascivious, fails to meet the definition of child
pornography.
Appellant did not request any particular pose or vantage point or that the
pictures include any of the girls’ genital areas. He similarly did not ask for
pictures to be composed of in such a way to render them “obscene,” an addi-
tional criteria required due to the manner which Appellant was charged. The
3 See, e.g., United States v. Miller, 940 F.3d 371, 376 (7th Cir. 2019); United States v.
Hill, 459 F.3d 966, 970 (9th Cir. 2006); United States v. Grimes, 244 F.3d 375, 381–82
(5th Cir. 2001); United States v. Amirault, 173 F.3d 28, 33 (1st Cir. 1999); United
States v. Villard, 885 F.2d 117, 124 (3rd Cir. 1989).
4 See, e.g., United States v. Jennings, No. 201700241, 2019 CCA LEXIS 42, at *5
(N.M. Ct. Crim. App. 4 Feb. 2019) (unpub. op.), rev. denied, 79 M.J. 202 (C.A.A.F.
2019); United States v. Johnston, No. ACM 39075, 2017 CCA LEXIS 715, at *2 (A.F.
Ct. Crim. App. 16 Nov. 2017) (unpub. op.), rev. denied, 77 M.J. 312 (C.A.A.F. 2018)
(Appellant requested “sexy” pictures and a photograph of the vagina of a person he
believed to be 14-years old).
5See, e.g., United States v. Burmeister, ARMY 20170065, 2018 CCA LEXIS 215, at *2
(A. Ct. Crim. App. 26 Apr. 2018) (unpub. op.) (per curiam), rev. denied, 78 M.J. 50
(C.A.A.F. 2018).
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United States v. Ozbirn, No. ACM 39556
majority argues circumstantial evidence, such as Appellant’s explicitly sexual
nature conversations with the “girls” and his asking “Febes” if he could take
naked pictures when he met her for the purpose of having sexual intercourse,
permits the inference that the pictures he intended to receive with his re-
quests for “naked pictures” were pictures containing a lascivious exhibition of
the genitals or pubic area. I am unable to make that leap. The closest the ev-
idence comes to suggesting Appellant sought a picture of anyone’s genitals or
pubic area is when he offered to show “Jessica” “a d*ck” if she would send
him a naked picture. 6 Yet nowhere in his conversation with “Jessica” does
Appellant suggest what should or should not be depicted in the picture he
asked her to send, other than that it be “naked.” Appellant’s messages with
the other two “girls” do not even go so far as the “d*ck” offer.
In one prior case, this court found a request for “nude pics” amounted to
attempting to persuade, induce, entice, or coerce a minor to create child por-
nography. United States v. Payne, No. ACM 37594, 2013 CCA LEXIS 18 (A.F.
Ct. Crim. App. 17 Jan. 2013) (unpub. op.), aff’d, 73 M.J. 19 (C.A.A.F. 2013).
There, we determined Staff Sergeant (SSgt) Payne was seeking child pornog-
raphy despite a generic request for “nude” pictures, in part because he had
already sent the agent he was conversing with “photographs of his erect pe-
nis, as well as a video depiction of himself masturbating,” which we conclud-
ed “provided . . . examples of the types of images he had in mind.” 2013 CCA
LEXIS 18 at *12. Sending a graphic video of a person masturbating along
with pictures of an erect penis arguably provide greater context for the type
of images SSgt Payne was seeking in return. Here, we have less, as Appellant
sent no such pictures or videos. Our decision in Payne seems to have pushed
the bounds of the concept of inferring specific intent to its outer limits, be-
yond which lies only speculation.
In the context of this case, where Appellant was having graphic conversa-
tions about sexual conduct with people held out to be young girls, Appellant’s
requests for naked pictures were validly included in the specifications alleg-
ing attempted sexual abuse. I cannot conclude, however, that Appellant’s re-
quests amounted to an attempt to receive child pornography in the absence of
evidence he was seeking images that would meet the legal definition of that
contraband material. Had Appellant been conversing with an actual child or
perhaps a like-minded adult, it is entirely possible he would have received
pictures qualifying as child pornography. He very well may have hoped to re-
6 Notably, the members acquitted Appellant of the specification alleging he attempt-
ed to sexually abuse “Jessica” by communicating that language, and they purported
to except “Jessica” out of the attempted receipt of child pornography specification.
38
United States v. Ozbirn, No. ACM 39556
ceive images that would so qualify, but there is simply no evidence this was
the case. Without evidence Appellant specifically intended to obtain not just a
picture of a nude child, but one that included both the lascivious exhibition of
the genitals or pubic area and which was obscene, Appellant cannot be con-
victed of attempted receipt of child pornography.
Under these circumstances, even viewing the evidence in the light most
favorable to the Prosecution, I would conclude no rational trier of fact could
find the essential elements of this crime beyond a reasonable doubt. Similar-
ly, I am unconvinced the Government proved this offense beyond a reasona-
ble doubt. I would set aside Appellant’s conviction of attempted receipt of
child pornography as being both legally and factually insufficient.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
39