United States v. O'Connor , 58 M.J. 450 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellee
V.
Barry O’CONNOR, Senior Airman
U.S. Air Force, Appellant
No. 01-0403
Crim. App. No. 33671
United States Court of Appeals for the Armed Forces
Argued February 25, 2003
Decided July 9, 2003
ERDMANN, J., delivered the opinion of the Court, in which GIERKE,
EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a separate
dissenting opinion.
Counsel
For Appellant: Major Jefferson B. Brown (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, and Captain Kyle R.
Jacobson (on brief); Colonel James R. Wise and Lieutenant
Colonel Timothy W. Murphy.
For Appellee: Captain C. Taylor Smith (argued); Lieutenant
Colonel Lance B. Sigmon and Lieutenant Colonel LeEllen
Coacher (on brief); Major Linette I. Romer.
Amicus Curiae: Nita Farahany (law student)(argued); James
Coleman, Esq. (supervising attorney), and Randall Cook (law
student)(on brief) - For the Duke University School of Law.
Military Judge: Bruce T. Brown
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. O’Connor, No. 01-0403/AF
Judge ERDMANN delivered the opinion of the Court.
Appellant, Senior Airman Barry O'Connor, United States Air
Force, was tried by general court-martial at Hurlburt Field,
Florida. Pursuant to his pleas, he was convicted of two
specifications of forcible sodomy of a female under 16 years of
age and four specifications of indecent acts or indecent
liberties with the same victim, in violation of Articles 125 and
134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§ 925 and 934 (2000). Also pursuant to his pleas, he was
convicted of one specification of obstructing justice and two
specifications of receiving and possessing child pornography, all
violations of Article 134.
The military judge sentenced Appellant to a dishonorable
discharge, sixteen years’ confinement and reduction to E-1.
Consistent with a pretrial agreement, the convening authority
reduced the confinement to twelve years and approved the balance
of the sentence. On January 25, 2001, the Air Force Court of
Criminal Appeals affirmed the findings and sentence in an
unpublished opinion.
On July 19, 2001, we granted Appellant's petition for review
on the following issue:
WHETHER APPELLANT'S CONVICTIONS UNDER SPECIFICATIONS 2 AND 3
OF ADDITIONAL CHARGE II MUST BE SET ASIDE BECAUSE THE
DEFINITIONS OF CHILD PORNOGRAPHY USED TO SUPPORT THOSE
CONVICTIONS ARE UNCONSTITUTIONALLY VAGUE AND OVERBROAD.
On September 6, 2001, we issued an order summarily affirming
Appellant's conviction and sentence in light of our decision in
United States v. James, 55 M.J. 297 (C.A.A.F. 2001). In James,
we upheld the constitutionality of the definition of child
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pornography upon which Appellant's conviction was based, a view
consistent with the majority of other federal courts of appeals
that had considered the issue. 55 M.J. at 299.
Appellant then sought review of his child pornography
conviction by the Supreme Court. On April 22, 2002, the Supreme
Court granted Appellant's petition for writ of certiorari,
vacated our earlier judgment and remanded it to us for further
consideration in light of its decision in Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002).
This matter is before us again because the Supreme Court
determined that certain portions of the federal statute
underlying Appellant's conviction are unconstitutional. On
August 20, 2002, we ordered the parties to submit supplemental
briefs on the following issue:1
WHETHER THE FINDINGS OF GUILTY OF SPECIFICATIONS 2 AND 3 OF
ADDITIONAL CHARGE II CAN BE AFFIRMED IN LIGHT OF ASHCROFT V.
FREE SPEECH COALITION.
For the reasons set forth below, we set aside the findings of
guilty to Specifications 2 and 3 of Additional Charge II and
remand Appellant's case for appropriate action.
BACKGROUND
In connection with their investigation of the other charges
in this matter, agents of the Air Force Office of Special
Investigations secured various items of computer media belonging
to Appellant. Analysis by the Department of Defense Forensic
Laboratory disclosed over 6,500 files of suspected child
1
Argument was heard in this case at the Duke University School of Law,
Durham, North Carolina, as part of this Court’s Project Outreach. See United
States v. Mahoney, __ M.J. __, __ n.1 (2003).
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pornographic images contained on that media, many of which were
duplicates.
Further analysis of the computer media disclosed numerous
instances where Appellant's computer had downloaded suspected
child pornographic images from the Internet and several instances
where it had posted such images to the Internet. Appellant
explained that he had taken certain steps to set up a file
exchange structure through the Internet that allowed his computer
to receive and download the images. Samples of the images
(approximately fifty-nine) were admitted into evidence in
accordance with Appellant's stipulation of fact. Appellant's
receipt and possession of the images described above formed the
basis for his conviction under specifications 2 and 3 of
Additional Charge II, which alleges a violation of Article 134.
Conduct is punishable under Article 134 if it prejudices
"good order and discipline in the armed forces" [clause 1], if it
is "of a nature to bring discredit upon the armed forces" [clause
2], or if it is a crime or offense not capital [clause 3]. The
three clauses do not create separate offenses, but rather provide
alternative ways of proving the criminal nature of the charged
misconduct. United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F.
2002).
In this case, Appellant's possession and receipt of child
pornographic images was charged as a "clause 3" offense under
Article 134, with the "crime or offense not capital" being a
violation of the Child Pornography Prevention Act of 1996 (CPPA),
18 U.S.C. §§ 2251-2260 (2000). In other words, it was the
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alleged violation of that federal law that gave rise to the
Article 134 charge.
The CPPA prohibits, inter alia, the knowing receipt and
knowing possession of child pornography that has been transported
in interstate or foreign commerce, including by computer. See 18
U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B). The term "child
pornography" for purposes of those offenses is defined in 18
U.S.C. § 2256(8) as follows:
any visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct, where --
(A) the production of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct;
(B) such visual depiction is, or appears to be, of
a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created,
adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner
that conveys the impression that the material is or
contains a visual depiction of a minor engaging in
sexually explicit conduct.
In Free Speech Coalition, the Supreme Court determined that
certain portions of the § 2256(8) definition are
unconstitutional, specifically the "or appears to be" language of
§ 2256(8)(B), and the entirety of § 2256(8)(D). 535 U.S. at 256,
258.2 In striking the former, the Court specifically discussed
the distinction between "virtual" child pornography and "actual"
pornography and concluded that the rationales for restricting
2
The Supreme Court did not consider the 18 U.S.C. § 2256(8)(C) (2000)
definition, which it described as "computer morphing" -- a process where
innocent pictures of real children are altered so that the children appear to
be engaged in sexual activity. This form of "child pornography" remains
subject to criminal sanction. See Ashcroft v. Free Speech Coalition, 535 U.S.
234, 242 (2002).
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pornographic materials involving actual children do not extend to
computer-generated simulations or images. Id. at 249-56.
The Supreme Court concluded that the First Amendment
prohibits any prosecution under the CPPA based on "virtual" child
pornography. We must now determine whether Appellant's
conviction for possessing and receiving child pornography can be
sustained in light of that ruling.
DISCUSSION
A. The Providence of Appellant's Plea under Article 134,
Clause 3.
Appellant's conviction is based on his plea of guilty to
violating those portions of the CPPA prohibiting the knowing
receipt and possession of child pornography that has been
transported in interstate or foreign commerce, including by
computer. See 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B). For us to
set aside a finding based upon a guilty plea on appellate review,
the record of trial must show a substantial basis in law and fact
for questioning the guilty plea. United States v. Jordan, 57
M.J. 236, 238 (C.A.A.F. 2002)(citing United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991)). The inquiry, then, is whether the
Supreme Court's decision in Free Speech Coalition creates a
substantial basis in law and fact for questioning Appellant's
plea. We conclude that it does.
For a guilty plea to be provident, the accused must be
convinced of, and be able to describe, all of the facts necessary
to establish guilt. Rule for Courts-Martial 910(e) discussion.
In order to establish an adequate factual predicate for a guilty
plea, the military judge must elicit "factual circumstances as
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revealed by the accused himself [that] objectively support that
plea[.]" Jordan, 57 M.J. at 238 (quoting United States v.
Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996)).
Prior to Free Speech Coalition, knowing possession and
receipt of images of child pornography, virtual or actual, was
sufficient to establish one of the factual predicates for a plea
of guilty under the CPPA. The "virtual" or "actual" character of
the images was not, in and of itself, a factual predicate to a
guilty plea -- criminal liability could arise under either
circumstance.
It is no longer enough, however, to knowingly possess,
receive or distribute visual depictions that "appear to be" of a
minor engaging in sexually explicit conduct. In the wake of Free
Speech Coalition, the relevant provisions of 18 U.S.C. § 2256(8)
require that the visual depiction be of an actual minor engaging
in sexually explicit conduct. The "actual" character of the
visual depictions is now a factual predicate to any plea of
guilty under the CPPA.
In order to find Appellant's plea provident, his plea
inquiry and the balance of the record must objectively support
the existence of this factual predicate. We conclude that they
do not. During his providence inquiry, the military judge
utilized the pre-Free Speech Coalition provisions of 18 U.S.C. §
2256(8) to explain the definition of "child pornography" to
Appellant. When asked after that explanation to describe why he
believed the materials at issue were "child pornography,"
Appellant indicated that "the occupants in the pictures appeared
to be under the age of 18." (Emphasis added.) It was against
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that backdrop that Appellant made his subsequent acknowledgements
and admissions concerning his possession and receipt of "child
pornography."
The military judge's use of the pre-Free Speech Coalition
definition of "child pornography" properly reflected the law at
the time of trial. His failure to inquire into the "actual"
versus "virtual" distinction was perfectly understandable --it
had no factual significance to the offenses under the law as it
stood at that time. As outlined above, however, it now has
critical significance. Through no fault of the military judge or
the parties, the record before us contains no discussion or
acknowledgement on the part of Appellant (or anyone) concerning
the now-critical distinction between actual and virtual images.
In James, we held that the CPPA definitions were
constitutional but acknowledged in dicta that, even if the CPPA
were narrowly construed to exclude "virtual" images, the record
and providence inquiry in that particular case "'objectively
support[ed]' appellant's guilty pleas to possessing and
transporting child pornography depicting actual minors." 55 M.J.
at 301. Our analysis of this issue, however, is now shaped by
the landscape created by the Supreme Court in Free Speech
Coalition. The most prominent feature of that landscape is the
distinction between "actual" and "virtual" images, and it is
unclear from the providence inquiry and record here whether
Appellant was pleading guilty to possession of virtual or actual
child pornography.
Congress has recently taken action in response to the
Supreme Court's decision in Free Speech Coalition by including a
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category of "virtually indistinguishable" images in the CPPA
definitions. See Prosecutorial Remedies and Other Tools to End
the Exploitation of Children Today Act of 2003, Pub. L. No. 108-
21, § 502, 117 Stat. 650, 678-679 (2003).3 The effect and
constitutionality of that recent action remain to be assessed in
future cases.
For present purposes, however, a provident guilty plea to a
violation of the CPPA provisions at issue here must reflect that
an accused has violated those portions of the statute upheld by
the Supreme Court. In light of that, and in the absence of any
discussion or focus in the record before us regarding the
"actual" character of the images, we cannot view Appellant's plea
of guilty to violations of the CPPA as provident.
B. The Providence of Appellant's Plea under Article 134,
Clause 2.
Our determination that Appellant's plea is improvident as to
a violation of the CPPA does not end our inquiry. We have
recognized in the past that an improvident plea to a CPPA-based
clause 3 offense under Article 134 may be upheld as a provident
plea to a lesser-included offense under clause 2 of Article 134.
See e.g., United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000);
Sapp, 53 M.J. at 92.
As in this case, the guilty pleas in Sapp and Augustine were
entered to a violation of Article 134, clause 3, based on
3
That action was motivated by Congress' recognition of the practical
consequences flowing from the distinction drawn by the Supreme Court.
Prosecutorial Remedies and Other Tools to End the Exploitation of Children
Today Act of 2003, Pub. L. No. 108-21, § 501, 117 Stat. 676-678 (congressional
findings regarding state of technology and difficulty in distinguishing
virtual from actual images).
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possession of child pornography in violation of the CPPA. As in
this case, the guilty pleas were found to be improvident as to
the clause 3 offense in light of certain requirements under the
CPPA that were not established in the record. In those cases,
however, we concluded that the guilty pleas were provident as to
the lesser-included offense of engaging in "conduct of a nature
to bring discredit upon the armed forces" under clause 2 and
upheld the convictions under Article 134. Augustine, 53 M.J. at
96; Sapp, 53 M.J. at 92.
The question before this Court is whether that same
conclusion can be reached here. For the reasons outlined below,
we conclude that it cannot. Both Sapp and Augustine involved
discussions between the accused and the military judge during the
providence inquiry concerning the service-discrediting character
of their actions in possessing images of child pornography.
Sapp, 53 M.J. at 91 (accused admitted during providence inquiry
that possession of images constituted service-discrediting
conduct); Augustine, 53 M.J. at 96 (accused admitted during
providence inquiry that his conduct "was of a nature to bring
discredit upon the armed forces).
Although Appellant stipulated to the service-discrediting
character of his conduct in the present case there was no
discussion of that element by either Appellant or the military
judge during his plea inquiry. It is the absence of any
discussion of the service-discrediting character of Appellant's
conduct during the providence inquiry coupled with the impact of
the Supreme Court's decision in Free Speech Coalition that gives
us pause. The Supreme Court has now extended a cloak of First
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Amendment protection to certain depictions of minors engaging in
sexually explicit conduct. Accordingly, the question of whether
or not the possession of such visual depictions can be viewed as
service discrediting now has a constitutional dimension that was
not at issue in Sapp or Augustine.
Essential to our holding in Sapp was the recognition that
the providence inquiry there demonstrated that the accused
"clearly understood the nature of the prohibited conduct." 53
M.J. at 92. In the wake of Free Speech Coalition, the "virtual"
or "actual" status of the images at issue has constitutional
significance. That constitutional significance may, in turn,
bear on "the nature of the prohibited conduct", i.e., its
service-discrediting character.
Appellant's plea inquiry was focused on the question of
whether or not his conduct violated the CPPA, not the question of
whether or not, under the circumstances, his conduct was of a
nature to bring discredit upon the armed forces. As such, there
was no specific discussion with Appellant concerning the service-
discrediting character of his conduct, much less any
constitutional implications his conduct may or may not have had.
In the absence of any conscious discussion regarding those
issues, the record here does not demonstrate that Appellant
"clearly understood the nature of the prohibited conduct." See
id. Accordingly, we cannot view Appellant's plea as provident to
the lesser-included offense of service-discrediting conduct under
clause 2 of Article 134.
That same absence of focus in the record also prevents us
from engaging in any broad inquiry concerning the degree to which
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the First Amendment protections extended to virtual images by the
Supreme Court carry over into the realm of military justice.
Accordingly, we do not address the question of whether, in the
wake of Free Speech Coalition, the possession, receipt or
distribution of images of minors engaging in sexually explicit
conduct (regardless of their status as "actual" or "virtual") can
constitute conduct of a nature to bring discredit upon the armed
forces for purposes of clause 2 of Article 134.
We have long recognized that the First Amendment rights of
civilians and members of the armed forces are not necessarily
coextensive. United States v. Brown, 45 M.J. 389, 396 (C.A.A.F.
1996). At the same time, however, we must ensure that the
connection between any conduct protected by the First Amendment
and its effect in the military environment be closely examined.
Id. The absence of any discussion in Appellant's plea inquiry or
any other record development concerning the service-discrediting
character of his conduct precludes us from engaging in that
"close examination" in the present case.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Specifications 2 and 3 of
Additional Charge II and as to sentence, but is affirmed in all
other respects. The findings of guilty of Specifications 2 and 3
of Additional Charge II and the sentence are set aside. The
record of trial is returned to the Judge Advocate General of the
Air Force for remand to the Court of Criminal Appeals. That
court may either dismiss Specifications 2 and 3 of Additional
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United States v. O’Connor, No. 01-0403/AF
Charge II and reassess the sentence, or it may order a rehearing.
Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000) will apply.
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CRAWFORD, Chief Judge (dissenting):
I would affirm the decision of the court below on several
grounds. First, Appellant waived the issue by failing to
challenge the constitutionality of the statute at trial.
Second, the factual circumstances of the record objectively
support Appellant's guilty plea to possessing and transporting
child pornography depicting actual minors. Moreover,
Appellant’s guilty plea to Additional Charge II, Specifications
2 and 3, was provident to the lesser-included offense of conduct
prejudicial to good order and discipline or of a nature to bring
discredit upon the armed forces. For these reasons, I respect-
fully dissent.
A. Appellant Waived the Issue.
“A criminal defendant may knowingly and voluntarily waive
many of the most fundamental protections afforded by the
Constitution.” United States v. Mezzanatto, 513 U.S. 197, 201
(1995). In fact, “[t]hat constitutional questions which are
nonjurisdictional must be asserted at trial to preserve them for
appeal is a well settled doctrine[.]” United States v. Hoskins,
406 F.2d 72, 74 (7th Cir. 1969)(citing Head v. New Mexico Board,
374 U.S. 424, 432 n.12 (1963); Glidden Co. v. Zdanok, 370 U.S.
530 (1962); Wong Tai v. United States, 273 U.S. 77 (1927); Cox
v. City of Freeman, 321 F.2d 887 (8th Cir. 1963); Werner v.
Hearst Publishing Co., 297 F.2d 145 (9th Cir. 1961); Rubin v.
United States v. O’Connor, No. 01-0403/AF
United States, 289 F.2d 195 (5th Cir. 1961); Evangelical
Lutheran Church v. Stanolind Oil & Gas Co., 251 F.2d 412 (8th
Cir. 1958); Keyes v. Madsen, 179 F.2d 40 (D.C. Cir. 1949), cert.
denied, 339 U.S. 928 (1950); Wabash Ry. Co. v. City of St.
Louis, 64 F.2d 921 (8th Cir. 1933)). Moreover, “[t]he rule is
well established and of long standing that an exception [to a
charge], to be of any avail, must be taken at the trial.”
Johnson v. Garber, 73 F. 523, 526 (6th Cir. 1896)(quoting United
States v. Carey, 110 U.S. 51, 52 (1884)).
When Appellant learned of his charge under Article 134,
clause [3], for violating the Child Pornography Prevention Act
(CPPA), 18 U.S.C. § 2252A (2000), he neither took exception to
the charge generally, nor alleged that the basis for the charge
-- the CPPA -- was unconstitutionally vague and overbroad. In
so doing, Appellant cannot now be afforded relief on the very
grounds he himself failed to raise, and therefore waived.
B. The Record Supports Appellant's Guilty Plea to
Possessing and Transporting Child Pornography Depicting
Actual Minors.
Even if waiver is not applicable, Appellant’s guilty plea
was provident to violating the CPPA, as interpreted by the
Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002).
In Free Speech Coalition, the Court in effect held that to
violate the CPPA, one must knowingly receive and possess child
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pornography, transported in interstate or foreign commerce,
where such pornography is comprised of visual depictions of
actual minors. Thus, the accused’s knowledge that the
pornography involves actual minors is an element of the offense
that must be established. In a contested case, the Government
must demonstrate this knowledge beyond a reasonable doubt to
prove the accused committed the crime. In a non-contested case,
such as this one, the court must only verify this knowledge to
sustain the providence of the guilty plea.
When evaluating the providence of a guilty plea, “[r]ather
than focusing on a technical listing of the elements of an
offense, this Court looks at the context of the entire record to
determine whether an accused is aware of the elements, either
explicitly or inferentially.” United States v. Redlinski, 58
M.J. 117, 119 (C.A.A.F. 2002)(emphasis added). “[T]here need
only be ‘factual circumstances’ on the record ‘which
“objectively” support’ the guilty pleas, i.e., that actual
minors were in appellant’s pictures.” United States v. James,
55 M.J. 297, 300 (C.A.A.F. 2001)(quoting United States v.
Shearer, 44 M.J. 330, 334 (C.A.A.F. 1996)).
In James, this Court considered the following colloquy in
evaluating the providence of the appellant’s guilty plea to
violating the pre-Free Speech Coalition CPPA:
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United States v. O’Connor, No. 01-0403/AF
Q. The term “child pornography” [under the CPPA] means
any visual depiction . . . involv[ing] the use of a
minor engaging in sexual [sic] explicit conduct. Such
visual depiction is or appears to be of a minor
engaging in sexually explicit conduct[.]
. . . .
Q. Now, why do you believe that - as far as describes
those files - why you believe the files to be
described as child pornography?
A. Well, they depicted young females under the age of
eighteen, which as you stated, that they, uh, they are
minors. I believe that the pictures depicted minors
under the age of eighteen and at least four contained
minors engaged in sexual activity.
. . . .
Q. Do you believe that one of those persons involved
in that conduct was a minor?
A. I believe the person in the picture was under
eighteen, yes, sir.
55 M.J. at 299, 301 (emphasis added). The Court noted that
through these words, the appellant “admitted that actual minors
were in the charged pictures” and that these admissions were
“amply supported by the pictures themselves.” Id. at 300-01.
The Court then concluded that “the factual circumstances
reflected in the record ‘objectively support’ [the] appellant's
guilty pleas to possessing and transporting child pornography
depicting actual minors.” Id. at 301 (emphasis added). In
short, although the appellant did not supply the adjectives
“real” or “actual,” and although the judge defined “pornography”
in pre-Free Speech Coalition terms, this Court inferred from the
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United States v. O’Connor, No. 01-0403/AF
language the appellant did use -- “young females” and “minors” -
- that the images involved actual minors. See Redlinski, 58
M.J. at 119 (noting that providence may be confirmed by the
record inferentially).
In the present case, when the military judge questioned
Appellant regarding the exact act he committed, the following
exchange occurred:
Q. So you did in fact receive child pornography
through your computer?
A. Yes, sir, I did.
Q. How did you know that?
A. Some of it was very obvious, Your Honor.
Q. Can you explain how it was very obvious?
A. Young, undeveloped, female children.
Q. How were they depicted?
A. Posing, engaged in sexual acts of intercourse
and sodomy.
(Emphasis added.)
The descriptive terminology Appellant used -- that those
depicted were “young, undeveloped, female children” -- was very
similar to the terminology in James, particularly given the near
equivalency in meaning of the words “minor” and “child.” See
Black’s Law Dictionary 1011 (7th ed. 1999)(defining “minor” as
“[a] person who has not reached full legal age; a child or
juvenile”)(emphasis added). Moreover, as in James, the pictures
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United States v. O’Connor, No. 01-0403/AF
attached to the record in this case amply support Appellant’s
awareness that the images involved actual minors.
Finally, the Department of Defense Forensic Laboratory
uncovered over 6,500 files of child pornography on Appellant’s
computer, approximately 59 of which were admitted into evidence.
Given the staggering number of files, probability and common
sense certainly dictate that among those files were at least
three images of actual children. See 18 U.S.C. § 2252A(d)
(2000)(noting that liability requires possession of at least
three proscribed images). Thus, this Court should infer from
the record Appellant’s knowledge that at least three of the
images were of actual children. See Redlinski, 58 M.J. at 119;
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)(noting
that in resolving many questions courts may draw reasonable
inferences from the evidence of record).
In short, the factual circumstances of the record
objectively support Appellant's guilty plea to possessing and
transporting child pornography depicting actual minors.
C. Appellant’s Plea was also Provident to the Lesser-
Included Offense of Conduct Prejudicial to Good Order
and Discipline or of a Nature to Bring Discredit Upon
the Armed Forces.
Notwithstanding the providence of Appellant’s guilty plea
to possessing and transporting child pornography depicting
actual minors, in violation of the CPPA, the same plea was
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United States v. O’Connor, No. 01-0403/AF
provident to the lesser-included offense of conduct prejudicial
to good order and discipline or of a nature to bring discredit
upon the armed forces.
Article 134, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. § 934 (2000), punishes
[1] all disorders and neglects to the prejudice of
good order and discipline in the armed forces, [2] all
conduct of a nature to bring discredit upon the armed
forces, and [3] crimes and offenses not capital, of
which persons subject to this chapter may be guilty[.]
In United States v. Foster, 40 M.J. 140, 143 (C.M.A. 1994), this
Court held that each offense charged under the UCMJ “per se is
either prejudicial to good order and discipline or brings
discredit to the armed forces.” Thus, conduct violating any
enumerated Article, or Article 134, clause [3], per se also
violates Article 134, clause [1] or clause [2]. United States
v. Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000). Accordingly, an
accused charged under Article 134, clause [3], is on notice that
Article 134, clause [1] or clause [2], is a lesser-included
offense of the principal clause [3] charge. Id. In short,
included within Appellant’s charge under Article 134, clause
[3], was the lesser-included offense of conduct prejudicial to
good order and discipline or of a nature to bring discredit upon
the armed forces, under Article 134, clauses [1] and [2]. This
Court may therefore affirm so much of the finding as includes
this lesser-included offense. Article 59(b), UCMJ, 10 U.S.C.
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§ 859(b) (2002) (“Any reviewing authority with the power to
approve or affirm a finding of guilty may approve or affirm,
instead, so much of the finding as includes a lesser included
offense.”).
In evaluating the providence of Appellant’s guilty plea to
this lesser-included offense, “this Court looks at the context
of the entire record to determine whether [Appellant was] aware
of the elements, either explicitly or inferentially.”
Redlinski, 58 M.J. at 119 (emphasis added). Such awareness “may
be satisfied by the ‘factual statement,’ the ‘stipulation,’ or
‘representation’ by counsel that the offense was committed.”
Id. at 120 (Crawford, C.J., dissenting)(quoting Henderson v.
Morgan, 426 U.S. 637, 646 (1976))(emphasis added).
Appellant’s ten page stipulation of fact contains 33
paragraphs and hyperlinks to each of the 6,508 image files that
resulted in Appellant’s charge under Article 134. Four times in
the stipulation, Appellant acknowledged that knowingly
downloading and electronically storing these very images was
conduct “to the prejudice of good order and discipline in the
armed forces and was of a nature to bring discredit upon the
armed forces.” This admission is binding as fact upon the
parties and the court-martial, unless and until it is withdrawn
or stricken from the record. United States v. Gerlach, 16
C.M.A. 383, 385, 37 C.M.R. 3, 5 (1966); Rule for Courts-Martial
8
United States v. O’Connor, No. 01-0403/AF
811(e). In short, Appellant’s explicit admissions, coupled with
the detailed descriptions and hyperlink references, objectively
support his guilty plea to the lesser-included offense of
conduct prejudicial to good order and discipline or of a nature
to bring discredit upon the armed forces.
The majority is troubled by “the absence of any discussion
of the service-discrediting character of Appellant’s conduct
during the providence inquiry coupled with the impact of the
Supreme Court’s decision in Free Speech Coalition[.]” __ M.J.
at (10). While these factors initially gave me pause as well,
after much reflection, I am even more convinced of the
providence of Appellant’s guilty plea to the lesser-included
offense.
First, because Appellant stipulated that his conduct was
prejudicial to good order and discipline and of a nature to
bring discredit upon the armed forces, and because the court-
martial is bound by that stipulation, the lack of a discussion
during the providence inquiry of the prejudicial and service-
discrediting character of Appellant’s conduct does not preclude
a finding that the plea was provident. The stipulation alone,
which was neither withdrawn nor stricken from the record, left
no doubt that Appellant fully and intelligently understood his
conduct to be prejudicial to good order and discipline and of a
nature to bring discredit upon the armed forces. See Henderson
9
United States v. O’Connor, No. 01-0403/AF
v. Morgan, 426 U.S. at 646 (acknowledging that a stipulation
“can serve as a substitute for either a finding after trial, or
a voluntary admission, that [an appellant] had the requisite
[mental state]”).
Moreover, the Supreme Court’s decision in Free Speech
Coalition impacts only the providence of Appellant’s plea to the
violation of Article 134, clause [3], which refers to
Appellant’s violation of the CPPA. The providence of
Appellant’s admission to violating the CPPA is distinct from the
providence of his admission to conduct prejudicial to good order
and discipline and of a nature to bring discredit upon the armed
forces. Certainly, knowing possession of images such as those
that formed the basis of Appellant’s conviction -- whether the
minors depicted in the images are actual minors or merely
“virtual” minors -- is to the prejudice of good order and
discipline, as well as service-discrediting. See Manual for
Courts-Martial, United States (2002 ed.) Part IV, para. 60.c.(2)
- (3). Thus, notwithstanding Free Speech Coalition, Appellant’s
plea remains provident for the lesser-included offense of
conduct prejudicial to good order and discipline or of a nature
to bring discredit upon the armed forces. As evidenced by the
stipulation, Appellant clearly understood that what he did was
prejudicial to good order and discipline, as well as service-
10
United States v. O’Connor, No. 01-0403/AF
discrediting, regardless of whether he clearly understood that
the images were of actual children.
In sum, Appellant’s plea supports the charge and
specification of possessing and transporting child pornography
depicting actual minors. Moreover, the plea supports at least a
finding of guilty as to the lesser-included offense.
For these reasons, I respectfully dissent from the majority
opinion.
11