United States v. Hiser ( 2022 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Conner B. HISER, Private First Class
United States Army, Appellant
No. 21-0219
Crim. App. No. 20190325
Argued November 17, 2021—Decided January 13, 2022
Military Judge: Teresa L. Raymond
For Appellant: Captain Carol K. Rim (argued); Daniel S.
Conway, Esq. (on brief); Major Alexander N. Hess and Scott
R. Hockenberry, Esq.
For Appellee: Captain Jennifer A. Sundook (argued); Colo-
nel Steven P. Haight, Lieutenant Colonel Craig Schapira,
Lieutenant Colonel Wayne H. Williams, and Captain A. Ben-
jamin Spencer (on brief); Major Mark T. Robinson and Cap-
tain Christopher K. Wills.
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS, Judge
HARDY, and Senior Judge COX, joined.
_______________
Judge MAGGS delivered the opinion of the Court.
Appellant contends that the military judge abused her dis-
cretion in accepting his guilty plea to three specifications of
wrongfully broadcasting intimate visual images in violation
of Article 117a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 917a (2018). According to Appellant, the providence
inquiry in this case failed to establish that the victim was
“identifiable” and also failed to establish a “connection to a . . .
military environment” as required by Article 117a(a), UCMJ.
The record, however, does not support Appellant’s conten-
tions. Because we see no substantial basis in law or fact for
questioning the plea, we affirm the judgment of the United
States Army Court of Criminal Appeals (ACCA).
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
I. Background
The three Specifications of Charge III allege violations of
Article 117a, UCMJ:
In that Private First Class (E-3) Conner B. Hiser,
U.S. Army, did, at or near Fort Drum, New York, on
or about [May 5, 2018, for Specification 1; May 6,
2018, for Specification 2; and May 9, 2018, for Spec-
ification 3], knowingly, wrongfully, and without the
explicit consent of Specialist [V.G.] broadcast a vis-
ual image of sexually explicit conduct involving Spe-
cialist [V.G.], who was at least 18 years of age when
the visual image was created and is identifiable from
the visual image and from [the] information dis-
played in connection with the visual image, when he
knew or reasonably should have known that the vis-
ual image was made under circumstances in which
Specialist [V.G.] retained a reasonable expectation
of privacy regarding any broadcast of the visual im-
age, and when he knew or reasonably should have
known that the broadcast of the visual image was
likely to cause harassment, intimidation, and emo-
tional distress for Specialist [V.G.], which conduct,
under the circumstances, had a reasonably direct
and palpable connection to a military mission or mil-
itary environment.
Appellant and the Government entered into a stipulation
of fact relevant to the Article 117a, UCMJ, specifications. The
stipulation recounts that Appellant was married to Specialist
(SPC) V.G. at the time of the charged offenses. The stipulation
further provides in relevant part:
14. On 8 April 2018, SPC [V.G.] looked at the Ac-
cused’s phone and noticed that he uploaded a video
to the porn website Pornhub.com (Pornhub). The
video was roughly three minutes long and depicted
SPC [V.G.] and the Accused engaging in sexual in-
tercourse. When SPC [V.G.] confronted the Accused,
he explained that it had been on the internet for a
few days and he posted it to make extra money. SPC
[V.G.] told him to take down the video. The Accused
complied and SPC [V.G.] later confirmed that the
video was removed from the website.
15. On 10 May 2018, SPC [V.G.] was reflecting on
everything that happened in their relationship and
remembered that the Accused had posted a video on
Pornhub without her permission in April 2018. SPC
2
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
[V.G.] had a bad feeling that the Accused might do
that again. She checked Pornhub and saw that the
Accused had wrongfully broadcasted three (3) videos
depicting sexually explicit conduct involving her.
The three videos are different segments of the same
original video. SPC [V.G.] was over 18 years of age
when the original video was created. SPC [V.G.]
consented to the creation of the video on the
condition that the Accused not post, share, or show
the video to any third party. SPC [V.G.] did not
consent, in any way, to the Accused posting these
videos on Pornhub.
16. The Accused knew, or reasonably should have
known, that SPC [V.G.] retained a reasonable expec-
tation of privacy regarding any broadcast of the vid-
eos. The Accused also knew, or reasonably should
have known, that the broadcast of the videos was
likely to cause harassment, intimidation, and emo-
tional distress for SPC [V.G.].
17. . . . The Accused posted all three videos on Porn-
hub using his personal Pornhub profile. The Ac-
cused’s profile name is “cbhiser02” and contains a
picture of the Accused. The video posted on 5 May
2018 is titled “[expletive deleted] my wife,” the video
post on 6 May 2018 is titled “[expletive deleted] my
wife’s [expletive deleted],” and the video posted on 9
May 2018 is titled ‘‘Quickie with the wife.”
18. The video titled “[expletive deleted] my wife” is
approximately one minute and forty[-]three seconds
long and depicts the Accused’s penis penetrating
SPC [V.G.’s] vagina from behind. The video is filmed
from the Accused’s perspective. The video titled “[ex-
pletive deleted] my wife’s [expletive deleted]” is ap-
proximately three minutes long and depicts the Ac-
cused’s penis penetrating SPC [V.G.’s] vagina from
behind. The beginning of the video is filmed from the
Accused’s perspective, later the camera is moved
and the remainder of the video is filmed from under-
neath SPC [V.G.]. The video titled ‘‘Quickie with the
wife’’ is approximately 38 seconds long and depicts
the Accused’s penis penetrating SPC [V.G.’s] vagina
from behind. The video is filmed from the Accused’s
perspective.
19. SPC [V.G.’s] face is not visible in any video. How-
ever, the video titled “[expletive deleted] my wife”
shows SPC [V.G.’s] hair in a military style bun and
3
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
the video titled “quickie with the wife” shows SPC
[V.G.’s] wedding ring on her left ring finger.
20. The Accused posted the videos online “as re-
venge” because he believed SPC [V.G.] might be ro-
mantically involved with members of his unit. The
Accused told [agents of the Criminal Investigation
Command] that he posted the videos “roughly be-
tween 30 April and 5 May 2018.” The Accused’s con-
duct had a reasonably direct and palpable connec-
tion to a military mission or military environment.
In conjunction with the Accused’s profile name,
“cbhiser02” other Soldiers could have reviewed the
video and known SPC [V.G.] was depicted, particu-
larly as her distinctive, military-style bun was visi-
ble. At the time of the offenses, SPC [V.G.’s] legal
[last] name was . . . Hiser. She was, and is, an active
duty Soldier. SPC [V.G.] and PFC Hiser were well-
known as a dual-military couple within the Fort
Drum military environment.
Based on the entirety of the stipulation of fact and Appel-
lant’s answers during the providence inquiry, a military judge
sitting as a general court-martial found Appellant guilty of
the three specifications of wrongfully broadcasting intimate
visual images quoted above, in violation of Article 117a,
UCMJ, 10 U.S.C. § 917a, and also of one specification of dis-
respecting a superior commissioned officer, one specification
of aggravated assault, one specification of assault consum-
mated by a battery, and one specification of communicating a
threat, in violation of Articles 89, 128, and 134, UCMJ, 10
U.S.C. §§ 889, 928, 934 (2018). The military judge sentenced
Appellant to a reduction to the grade of E-1, confinement for
thirty-nine months, and a dishonorable discharge from the
service. In accordance with the terms of the pretrial agree-
ment, the convening authority approved only so much of the
adjudged sentence as provided for a reduction to the grade of
E-1, confinement for three years, and a dishonorable dis-
charge. The ACCA affirmed the findings of guilty and sen-
tence. United States v. Hiser, No. ARMY 20190325 (A. Ct.
Crim. App. Feb. 10, 2021).
We granted review of the following question: “Whether the
military judge abused her discretion by accepting Appellant’s
guilty plea to a violation of Article 117a, UCMJ, when Appel-
lant posted intimate videos of a person under circumstances
4
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
where the person was not readily identifiable and there was
no reasonable connection to the military environment.”
United States v. Hiser, 81 M.J. 302, 303 (C.A.A.F. 2021) (order
granting review).
II. Standards of Review
Three standards of review are relevant to this appeal. One
standard of review applies to the stipulation of fact. Under
Rule for Courts-Martial (R.C.M.) 811(e), “[u]nless properly
withdrawn or ordered stricken from the record, a stipulation
of fact that has been accepted is binding on the court-martial
and may not be contradicted by the parties thereto.” Because
the stipulation of fact quoted above has not been withdrawn
or stricken, we accept the assertions within it as true. See
United States v. Nance, 67 M.J. 362, 363 (C.A.A.F. 2009).
Another standard of review applies to the military judge’s
acceptance of Appellant’s guilty plea. Under R.C.M. 910(e),
“[t]he military judge shall not accept a plea of guilty without
making such inquiry of the accused as shall satisfy the mili-
tary judge that there is a factual basis for the plea.” We re-
view a military judge’s acceptance of a guilty plea for abuse of
discretion. United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991). Applying this standard, we must uphold a guilty plea
unless there is “a ‘substantial basis’ in law and fact for ques-
tioning” the plea. Id.A third standard of review applies to the interpretation of
the terms “identifiable” and “connection to a . . . military en-
vironment” in Article 117a(a), UCMJ. The meaning of these
terms is a question of statutory interpretation. This Court re-
views matters of statutory interpretation de novo. United
States v. Gay, 75 M.J. 264, 267 (C.A.A.F. 2016).
III. Discussion
Congress enacted Article 117a, UCMJ, in 2017 to address
the “[w]rongful broadcast or distribution of intimate visual
images.” 10 U.S.C. § 917a (2018) (enacted by National De-
fense Authorization Act of 2018, Pub. L. No. 115-91, § 533(a),
131 Stat. 1283, 1389 (2017). This prolix provision, which this
Court has not previously interpreted, is complicated. Article
117a(a), UCMJ, describes the prohibited offense in a single
5
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
sentence of more than 300 words.1 For the Article 117a,
UCMJ, specifications charged in this case, four elements are
1 Article 117a(a), UCMJ, provides:
Wrongful broadcast or distribution of intimate visual
images
(a) PROHIBITION.—Any person subject to this
chapter—
(1) who knowingly and wrongfully broadcasts or
distributes an intimate visual image of another per-
son or a visual image of sexually explicit conduct in-
volving a person who—
(A) is at least 18 years of age at the time the
intimate visual image or visual image of sexually
explicit conduct was created;
(B) is identifiable from the intimate visual
image or visual image of sexually explicit con-
duct itself, or from information displayed in con-
nection with the intimate visual image or visual
image of sexually explicit conduct; and
(C) does not explicitly consent to the broad-
cast or distribution of the intimate visual image
or visual image of sexually explicit conduct;
(2) who knows or reasonably should have known
that the intimate visual image or visual image of
sexually explicit conduct was made under
circumstances in which the person depicted in the
intimate visual image or visual image of sexually
explicit conduct retained a reasonable expectation of
privacy regarding any broadcast or distribution of
the intimate visual image or visual image of sexually
explicit conduct;
(3) who knows or reasonably should have known
that the broadcast or distribution of the intimate vis-
ual image or visual image of sexually explicit con-
duct is likely—
(A) to cause harm, harassment, intimidation,
emotional distress, or financial loss for the per-
son depicted in the intimate visual image or vis-
ual image of sexually explicit conduct; or
6
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
relevant. First is that the accused “knowingly and wrongfully
broadcast[ed] . . . a visual image of sexually explicit conduct
involving a person who . . . is identifiable from the . . . visual
image . . . or from information displayed in connection with
the . . . visual image.” Id. § 917a(a)(1)(B) (emphasis added).
Second is that the accused “[knew] or reasonably should have
known that the . . . visual image of sexually explicit conduct
was made under circumstances in which the person depicted
in the . . . visual image of sexually explicit conduct retained a
reasonable expectation of privacy.” Id. § 917a(a)(2). Third is
that the accused “[knew] or reasonably should have known
that the broadcast . . . of the . . . visual image of sexually ex-
plicit conduct is likely . . . to cause harm, harassment, intim-
idation, emotional distress, or financial loss for the person de-
picted.” Id. § 917a(a)(3)(A). Fourth is that the accused’s
“conduct, under the circumstances, had a reasonably direct
and palpable connection to a military mission or military en-
vironment.” Id. § 917a(a)(4) (emphasis added).
This appeal concerns the first and fourth of these ele-
ments. With respect to the first element, Appellant contends
that “in the circumstances captured within the videos appel-
lant [and] his wife are not readily identifiable.” With respect
to the fourth element, Appellant argues that “there was no
reasonable connection to the military environment.” We disa-
gree with both of Appellant’s arguments and conclude that
there is no substantial basis in law and fact for questioning
Appellant’s guilty plea.
(B) to harm substantially the depicted person
with respect to that person’s health, safety, busi-
ness, calling, career, financial condition, reputa-
tion, or personal relationships; and
(4) whose conduct, under the circumstances, had
a reasonably direct and palpable connection to a mil-
itary mission or military environment,
is guilty of wrongful distribution of intimate visual images
or visual images of sexually explicit conduct and shall be
punished as a court-martial may direct.
10 U.S.C. § 917a(a) (2018). Definition of several of these terms ap-
pear in Article 117a(b)(1)–(7). Id. § 917a(b)(1)–(7).
7
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
A. Whether SPC V.G. Was “Identifiable”
Appellant’s first contention is that the military judge
abused her discretion by accepting his guilty plea because
SPC V.G. was not identifiable.2 Appellant asserts that she
was not identifiable because the videos “capture her from her
back side [sic]” and “her face is not shown.” Appellant further
argues that even though SPC V.G.’s wedding ring and hair
bun are visible, they are “not unique nor sufficiently specific”
to make SPC V.G. identifiable. In addition, Appellant con-
tends that SPC V.G. was not identifiable from the information
displayed in connection with the photograph because the vid-
eos used “the general reference to ‘my wife’ in the title (as op-
posed to her name).”
Article 117a(a)(1)(B), UCMJ, requires the victim of a
wrongful broadcast to be “identifiable from the . . . visual im-
age . . . or from information displayed in connection with
the . . . visual image.” Given that this appeal arises from a
guilty plea, we need not settle all possible questions about the
meaning of this provision in order to assess Appellant’s argu-
ment. Instead, based on the applicable standards of review,
we need only determine whether the military judge had a sub-
stantial basis in law and fact for concluding that SPC V.G.
was identifiable. Future contested cases can settle interpre-
tative issues that later might arise.
Based on the stipulation of facts and the providence in-
quiry, we conclude that the military judge did not abuse her
discretion in determining that SPC V.G. was identifiable for
two reasons. First, the military judge had a substantial basis
in fact for concluding that SPC V.G. was identifiable because
SPC V.G. actually recognized herself when she saw the post-
ings and videos. As quoted above, the parties stipulated that
SPC V.G. “checked Pornhub and saw that the Accused had
wrongfully broadcasted three (3) videos depicting sexually ex-
plicit conduct involving her.” See People v. Johnson, 184 Cal.
Rptr. 3d 850, 865 (Cal. Ct. App. 2015) (holding that a victim
2 Although Appellant argues in some instances that SPC V.G.
was not “readily identifiable,” the modifier “readily” does not
appear in the text of Article 117a(a)(1)(B), UCMJ. We therefore
construe Appellant’s argument to mean that his wife was not
“identifiable.”
8
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
was “identifiable” under a similar California statute when the
victim identified herself).
Second, even putting SPC V.G.’s self-recognition aside, the
military judge would have a substantial basis in fact for con-
cluding that SPC V.G. was identifiable from a combination of
the visual images in the videos and the information displayed
in connection with the videos. In posting the videos, Appel-
lant—PFC Conner B. Hiser—adopted the username
“cbhiser02,” which contained his first and middle initials and
his last name. He further included a photograph of his face in
his profile. The titles of the videos described the woman in the
videos as Appellant’s “wife,” who at the time was SPC V.G.
Her last name at the time was also Hiser. Although SPC V.G.
might not have been identifiable solely by her wedding ring
and hair bun, the ring and hair bun were consistent with SPC
V.G.’s usual appearance. They therefore reinforced the con-
clusion that the “wife” of “cbhiser02” depicted in the videos
was SPC V.G.
In reaching the conclusion that the military judge did not
abuse her discretion, we recognize that Appellant has ad-
vanced a specific legal argument about how courts should con-
strue Article 117a(a)(1)(B), UCMJ. Specifically, Appellant
contends that the Court should decide whether a person is
“identifiable” from the perspective of “somebody of the general
public.” Oral Argument at 13:19–13:23, United States v.
Hiser, No. 21-0219 (C.A.A.F. Nov. 17, 2021). Under this view,
if a member of the general public could not identify SPC V.G.
from the videos and information posted with them, then she
is not “identifiable” for the purpose of Article 117a(a)(1)(B),
UCMJ, even if SPC V.G. could identify herself or even if oth-
ers who actually knew SPC V.G. and Appellant could identify
her. The text of Article 117a(a)(1)(B), however, does not sup-
port this proposed construction. Because the article requires
that the person depicted in an image be “identifiable” without
further qualification, it provides no basis for requiring a per-
son to be identifiable by “somebody of the general public.”
Based on all of these considerations, we see no substantial
basis in law or fact for questioning whether Appellant was
identifiable.
9
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
B. Connection to a Military Environment
Article 117a(a)(4), UCMJ, requires that the accused’s
“conduct, under the circumstances, [have] a reasonably direct
and palpable connection to a . . . military environment.” Rely-
ing on our decision in United States v. Wilcox, 66 M.J. 442(C.A.A.F. 2008), Appellant contends that the connection ele-
ment is satisfied only if the broadcasted images at issue were
“directed at servicemembers” or were “likely to reach service-
members.” Oral Argument at 0:48–1:07, United States v.
Hiser, No. 21-0219 (C.A.A.F. Nov. 17, 2021). Appellant con-
tends that here “[t]he only evidence that anyone else even saw
the videos was that SPC VG discovered them when she was
snooping through appellant’s phone.” Appellant further con-
tends that “there is no evidence [soldiers] were aware of, or
would think to look for, appellant’s profile on PornHub.”
We disagree with these contentions for two reasons. First,
and fundamentally, Appellant confuses our review of a guilty
plea with our review of findings following a trial. When an
accused has pleaded guilty, we do not review the “evidence”
for legal sufficiency for the simple reason that there is no ev-
idence when there is no trial. Instead, when the accused
pleads guilty, the military judge shall “mak[e] such inquiry of
the accused as shall satisfy the military judge that there is a
factual basis for the plea.” R.C.M. 910(e). This Court’s task on
review, as explained above, is only to determine from any stip-
ulated facts and from the providence inquiry whether the mil-
itary judge abused his or her discretion in complying with this
rule. In so doing, we simply must determine whether Appel-
lant’s guilty plea has a substantial basis in law and fact.
Second, we disagree with Appellant’s contention that the
requirement of a “connection to a . . . military environment”
in Article 117a(a)(4), UCMJ, is satisfied only if broadcasted
images are “directed at” or “likely to reach” members of the
military. In ordinary language, the word “connection” means
“a coming into or being put in contact.” Webster’s Third New
International Dictionary of the English Language Una-
bridged 481 (1986). Based on this ordinary meaning, we con-
clude that a “connection” may be established if the broad-
casted images actually do reach a servicemember—that is, a
servicemember is “put in contact” with the images—regard-
less of whether the accused specifically directed the images at
10
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
the military and regardless of how likely the images were to
reach the military.3 In this case, the parties stipulated that
SPC V.G. is a member of the military and that the images
reached her. The connection requirement is therefore met.
And this connection could hardly have been more “direct and
palpable” because Appellant posted the videos on the Porn-
hub website, and SPC V.G. soon thereafter found the videos
on the same website.
The Wilcox decision is not controlling on this specific issue.
In Wilcox, the appellant was charged with a violation of Arti-
cle 134, UCMJ, for “wrongfully advocat[ing] anti-government
and disloyal sentiments, and encourag[ing] participation in
extremist organizations while identifying himself as a ‘US
Army Paratrooper’ on an America OnLine [AOL] Profile and
advocat[ing] racial intolerance by counseling and advising in-
dividuals on racist views” when “under the circumstances, the
[appellant’s] conduct was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring dis-
credit to the armed forces.” 66 M.J. at 443–44 (alterations in
original) (internal quotation marks omitted). This Court de-
termined that the evidence was legally insufficient to estab-
lish the “good order and discipline” or “service discrediting”
elements because “no evidence was produced that the profiles
were directed at other members of the military, or that any
military member other than the investigators stumbled upon
them or was likely to do so.” Id. at 451.
This case is distinguishable. Article 117a(a)(1), UCMJ,
unlike Article 134, UCMJ, does not include an element that
the conduct be prejudicial to good order and discipline or that
it discredit the military. In addition, in this case, SPC V.G.
was a member of the military and she actually did find the
videos. Appellant specifically stated he uploaded the video to
embarrass SPC V.G., and recognized that other members of
her command could see them and think “this is degrading to
the U.S. military that Soldiers are uploading this kind of be-
havior and their intimate lives on to social media or the inter-
net.” Appellant stipulated that there was a negative impact
3 We express no opinion on whether a “connection to a . . . mili-
tary environment” may be established in other ways because that
issue is not before this Court.
11
United States v. Hiser, No. 21-0219/AR
Opinion of the Court
on the military community at Fort Drum. Finally, unlike the
investigators in Wilcox who presumably were not affected by
the controversial statements they uncovered, SPC V.G. was
(according to the stipulated facts) “likely” to suffer “emotional
distress” because of the broadcasting of the videos. Under the
plain language of Article 117a(a)(4), UCMJ, nothing more is
needed to establish a “direct and palpable connection to a . . .
military environment.”
C. Other Contentions
We note three other arguments that Appellant has made.
The first argument lacks merit. Appellant contends that a
court-martial cannot use “a single factual basis . . . to satisfy
two elements” of Article 117a(a), UCMJ. Accordingly, Appel-
lant argues, the court-martial could not consider the effects of
the video on SPC V.G. for elements in Article 117a(a)(3),
UCMJ, and also Article 117a(a)(4), UCMJ. We reject this con-
tention. Evidence sometimes may satisfy two elements of an
offense. See, e.g., Pasquantino v. United States, 544 U.S. 349,
355 (2005) (holding that evidence of “[p]etitioners’ smuggling
operation” satisfied two elements of the federal wire fraud
statute).
The second and third arguments are not properly before
this Court. Appellant contends that Article 117a(a), UCMJ,
has “[c]onstitutional implications” that this Court must con-
sider. Citing United States v. Williams, 553 U.S. 285, 304
(2008), and other decisions, he questions whether Article
117a(a), UCMJ, gives persons of ordinary intelligence fair no-
tice of what is prohibited. Appellant also contended at oral
argument that there were some unresolved inconsistencies
between what Appellant stated in the stipulation of fact and
what the videos actually showed when they were introduced
later at sentencing. We decline to reach these arguments be-
cause they are not within the scope of the granted issue and
were not briefed by both parties. See United States v.
Guardado, 77 M.J. 90, 95 n.1 (C.A.A.F. 2017) (declining to ad-
dress an issue outside the scope of the granted issue).
IV. Conclusion
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
12