United States v. Ozbirn ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jacob M. OZBIRN, Airman First Class
United States Air Force, Appellant
No. 20-0286
Crim. App. No. 39556
Argued February 9, 2021—March 23, 2021
Military Judge: John C. Harwood
For Appellant: Captain Alexander A. Navarro (argued); Ma-
jor David A. Schiavone.
For Appellee: Captain Alex B. Coberly (argued); Colonel
Shaun S. Speranza, Lieutenant Colonel Matthew J. Neil,
and Mary Ellen Payne, Esq. (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges OHLSON,
SPARKS, and HARDY, joined.
_______________
Judge MAGGS delivered the opinion of the Court.
The sole assigned issue in this case is “[w]hether the evi-
dence that Appellant asked for ‘naked pictures’ from adults
pretending to be minors is legally sufficient to sustain a con-
viction for attempted receipt of child pornography.” Given the
totality of the circumstances in which Appellant requested
the naked pictures, we answer the question in the affirmative.
We therefore affirm the decision of the United States Air
Force Court of Criminal Appeals (AFCCA). United States v.
Ozbirn, No. ACM 39556, 2020 CCA LEXIS 138, 2020 WL
2114230 (A.F. Ct. Crim. App. May 1, 2020).
I. Background
Contrary to his pleas, a general court-martial composed of
officers found Appellant guilty of two specifications of at-
tempted sexual abuse of a child, one specification of at-
United States v. Ozbirn, No. 20-0286/AF
Opinion of the Court
tempted sexual assault of a child, and one specification of at-
tempted receipt of child pornography, in violation of Article
80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880(2012). The court members sentenced Appellant to a dishon-
orable discharge, confinement for three years, and reduction
to the grade of E–1. The convening authority approved the
sentence as adjudged.
This case concerns the specification of attempted receipt
of child pornography. The specification alleged that:
[Appellant] did, at or near Royal Air Force Milden-
hall, United Kingdom, on divers occasions between
on or about 16 August 2017 and on or about 18 Au-
gust 2017, attempt to knowingly and wrongfully re-
ceive child pornography, to wit: photographs of what
appear to be minors engaging in sexually explicit
conduct, such conduct being to the prejudice of good
order and discipline in the armed forces and of a na-
ture to bring discredit upon the armed forces.
To prove this specification, the Government presented evi-
dence that three adults in the United Kingdom carried out
“sting” operations to identify and catch potential child preda-
tors. These adults created fake profiles of young girls on in-
ternet chatting applications. When members of the public at-
tempted to contact the girls, the adults communicated with
them by sending messages.
These fake profiles attracted Appellant’s attention. On
August 16, 17, and 18, 2017, Appellant exchanged numerous
text messages with the three adults. In these exchanges and
unbeknownst to Appellant, the adults pretended to be young
girls named “Febes,” “Jodie Walsh,” and “Jessica Saunders.”
The messages between Appellant and Febes focused on
sexual topics. Even though Febes told Appellant that she was
only twelve years old, Appellant asked her whether she had
had sex before; he described the feeling of sex; and he repeat-
edly asked to have sex with her. When Febes said that she did
not know whether she wanted to have sex with Appellant, Ap-
pellant responded: “Okay just let me know when you feel like
it and I will show you the ropes and don’t worry I will make
sure that it does not hurt.” Immediately after this statement,
Appellant initiated the following exchanges in which he re-
quested pictures:
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Opinion of the Court
[Appellant:] have you seen naked guys or every [sic]
sent naked pictures? I would have sex with you care-
fully
[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’s messages with the adult who pretended to be
a girl named Jodie were similar. After Jodie told Appellant
that she was thirteen years old, Appellant proposed that they
meet and have sex. He then graphically described various sex-
ual acts that he would perform on her. Appellant told Jodie
that he would “[k]iss you take your clothes off lick you down
there and when you are wet and ready stick my part in you.”
Immediately after making this statement, Appellant began
the following exchange with her:
[Appellant:] Have you ever sent a naked picture to
anyone or seen a guys part?
[Jodie:] No
....
[Appellant:] Can you send me a naked picture?
[Jodie:] No I can’t do that
[Appellant:] Why?
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Opinion of the Court
[Appellant:] It will help
[Appellant:] How about a regular picture with you
holding a peace sign up?
....
[Jodie:] I’m not sending naked pictures of me
[Appellant:] I mean any pictures
[Jodie:] Oh ok
[Jodie:] [Sends clothed photo]
[Appellant:] Yeah I was hoping the naked one would
help but any will do
The messages between Appellant and the adult who pre-
tended to be a girl named “Jessica Saunders” also concerned
sexual topics. After Jessica told Appellant that she was
twelve years old, Appellant proposed that they have sex.
When Jessica expressed concern that having sex would hurt,
Appellant assured her: “It won’t if I go slow and am careful I
won’t hurt you.” When Jessica asked what he meant about
going slow, Appellant responded: “Well my dick has to go in
your vagina during sex so I will put it in slowly.” Some mes-
sages later, Appellant began the following exchange:
[Appellant:] have you every [sic] traded naked pic-
tures before?
[Jessica:] no one has seen me naked
[Appellant:] do you want to see a dick so that you
will know what goes in?
[Jessica] ok
[Appellant:] So you have to send a picture of you na-
ked then you get to see a dick
[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
The court members found Appellant guilty of the specifi-
cation of attempting to receive child pornography. 1 The
1 The court members attempted to qualify its finding of guilt
with the words “except Jessica Saunders.” (The words “Jessica
Saunders,” however, do not appear in the specification as charged.
The AFCCA accordingly concluded that the attempted exception
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AFCCA affirmed, determining that the evidence was legally
and factually sufficient to support the finding of guilt. See
Ozbirn, 2020 CCA LEXIS 138 at *27, 2020 WL 2114230 at
*10. One judge dissented on this point, concluding that the
evidence was both legally and factually insufficient. Id. at
*66, 2020 WL 2114230 at *23 (Key, J., concurring in part and
dissenting in part). The dissenting judge reasoned that “Ap-
pellant made no request for images which would meet the le-
gal definition of child pornography under the UCMJ, and
none of the people he was messaging suggested they would
send such images.” Id. at *69, 2020 WL 2114230 at *25.
II. Analysis
A. Standard of Review
In this appeal, Appellant argues that the evidence is le-
gally insufficient to support the finding that he is guilty of
attempting to receive child pornography. “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)).
B. Essential Elements of the Offense
The parties agree on what the essential elements of the
offense are. An “attempt” is defined as “[a]n act, done with
specific intent to commit an offense under this chapter,
amounting to more than mere preparation and tending, even
though failing, to effect its commission.” Article 80(a), UCMJ.
The President has listed receipt of child pornography as an
offense under Article 134, UCMJ, 10 U.S.C. § 934 (2012).
Manual for Courts-Martial, United States pt. IV, para.
68b.b.(1) (2016 ed.) (MCM). This offense has two elements: (a)
had no legal effect. See Ozbirn, 2020 CCA LEXIS 138 at *27 n.7,
2020 WL 2114230 at *9 n.7 (citing R.C.M. 918(a), (b); United States
v. Nicola, 78 M.J. 223, 226, n.2 (C.A.A.F. 2019).) Appellant asserts
in this appeal that the members sought to find Appellant not guilty
of the attempted receipt of child pornography offense as it relates
to Jessica Saunders. But Appellant does not contest the AFCCA’s
conclusion that the attempted exception was ineffective.
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“[t]hat the accused knowingly and wrongfully . . . received . .
. child pornography”; and (b) “[t]hat, under the circumstances,
the conduct of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.” MCM pt. IV, para. 68b.b.(1).
The term “child pornography” means either “an obscene
visual depiction of a minor engaging in sexually explicit con-
duct” or “a visual depiction of an actual minor engaging in
sexually explicit conduct.” MCM pt. IV, para. 68b.c.(1). The
first of these two definitions is controlling here because the
specification at issue alleged that Appellant attempted to re-
ceive “photographs of what appear to be minors engaging in
sexually explicit conduct,” rather than photographs of actual
minors. (Emphasis added.) The term “sexually explicit con-
duct” means, in relevant part, a “lascivious exhibition of the
genitals or pubic area of any person.” MCM pt. IV, para.
68b.c.(7).(e). Accordingly, the parties agree that the Govern-
ment was required to prove, beyond a reasonable doubt, that
Appellant had a specific intent to receive photographs that
were both “obscene” and that included a “lascivious exhibition
of the genitals or pubic area.”
The paragraphs of the MCM addressing the offense of
child pornography do not define the terms “obscene” or
“lascivious.” MCM pt. IV, para. 68b. The military judge,
however, defined these terms in accordance with the standard
instructions in the Military Judges’ Benchbook. Dep’t of the
Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook, ch. 3, para. 3-68b-1.d. (2020). The military judge
informed the panel:
“Obscene” means that the average person applying
contemporary community standards would find the
visual images depicting minors engaging in sexually
explicit conduct, when taken as a whole, appeal to
the prurient interest in sex and portray sexual con-
duct in a patently offensive way; and that a reason-
able person would not find serious literary, artistic,
political, or scientific value in the visual images de-
picting minors engaging in sexually explicit conduct.
Additionally, the military judge informed the panel: “ ‘Lasciv-
ious’ means exciting sexual desires or marked by lust. Not
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Opinion of the Court
every exposure of the genitals or pubic area constitutes a las-
civious exhibition. Consideration of the overall content of the
visual depiction should be made to determine if it constitutes
a lascivious exhibition.” The military judge also identified fac-
tors for the members to consider in making this determina-
tion. Id. The parties do not contest the correctness of these
definitions.
C. Legal Sufficiency of the Proof of Specific Intent
Appellant contends that the evidence was not legally suf-
ficient to prove beyond a reasonable doubt that he had the
requisite specific intent. Appellant asserts that in his text
messages, he asked for nothing more than “naked pictures.”
Under the definitions above, Appellant contends that naked
pictures are not necessarily obscene and do not necessarily
contain a “lascivious exhibition of the genitals or pubic area.”
See United States v. Roderick, 62 M.J. 425, 429 (C.A.A.F.
2006) (combining a review of the factors listed in United
States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), with an over-
all consideration of the totality of the circumstances in deter-
mining what constitutes child pornography). Appellant em-
phasizes that he did not specifically request pictures of the
girls’ genitals or videos of them masturbating. He asserts that
the “main purpose” of his request for naked photos was not to
obtain child pornography but instead “to verify he was speak-
ing to a real person.” He points out that he specifically re-
quested that Jodie send him a non-pornographic image (“I
mean any pictures”) after she expressly said, “I’m not sending
naked pictures of me.”
The question of what a person specifically intended at a
particular time is a question of what thoughts the person ac-
tually had in his or her head at the time. Because actual mind
reading is impossible, a person’s specific intent generally can
be determined only by the person’s own admissions or by
drawing inferences from the person’s statements and actions
and from the context and circumstances. Inferring a specific
intent may be difficult in some cases, but that is not always
so. As Justice Oliver Wendell Holmes famously recognized,
“even a dog distinguishes between being stumbled over and
being kicked.” Oliver Wendell Holmes Jr., The Common Law
3 (1881).
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In United States v. Webb, 38 M.J. 62, 68 (C.M.A. 1993), the
appellant challenged a finding that he was guilty of “house-
breaking with intent to peep.” He argued that any conclusion
about his specific intent was “pure speculation” given a lack
of “clear evidence” about his purposes. Id. at 68. This Court,
however, rejected the contention. It held that the specific in-
tent required for an offense “ ‘may be inferred from the total-
ity of circumstances’ including ‘the nature, time, or place of’
appellant’s ‘acts before and during’ the crime alleged.” Id. at
69 (quoting Goldman v. Anderson, 625 F.2d 135, 137 (6th Cir.
1980)). There was evidence in the case that the appellant had
“secreted himself in a storage room with a view of the shower
room in the female officers’ billet during the early morning
hours without any apparent lawful purpose” and that he
“knocked down and fled from the female officer who acci-
dentally discovered him.” Id. Based on these circumstances,
the Court determined that this evidence was legally sufficient
to prove the appellant’s specific intent to commit the offense
of peeping. Id.As in Webb, after viewing the evidence in the light most
favorable to the prosecution, we think that a rational fact
finder could infer from the circumstances that Appellant had
the requisite specific intent. Even though Appellant only
asked for “naked pictures,” he made the request in exchanges
of messages that established a context for understanding
those requests. Appellant believed that he was speaking to
minors. In vulgar language, he graphically described very
specific sexual conduct with them. He asked Febes, Jodie, and
Jessica Saunders to engage in sexual relations with him.
Throughout, Appellant’s words evinced a specific focus on
genitalia.
In addition, Appellant offered to send explicit pictures of
his genitals in exchange for the naked photos that he re-
quested. Viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could reasonably infer
that Appellant intended the other half of the proposed bar-
gain to include sexual images of genitalia. See United States
v. Isabella, 918 F.3d 816, 835 (10th Cir. 2019) (concluding
that “suggest[ing] a quid pro quo” involving on one side a pic-
ture of the appellant’s genitalia “suggest[s] to [the other] the
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kinds of photos [the appellant] wanted”). To be sure, other in-
ferences about Appellant’s specific intent might also be possi-
ble. But “in resolving questions of legal sufficiency, we are
bound to draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001).
Finally, we address Appellant’s argument that his main
purpose in asking for naked pictures was not to seek child
pornography but to verify the identities of those with whom
he was chatting. The argument is unavailing for two reasons.
First, a rational fact finder could disbelieve that this was Ap-
pellant’s intent based on all the other evidence cited above.
Second, an intent to verify that he was speaking with real
young girls would not preclude him from also having a specific
intent to seek child pornography from them. See United States
v. Lee, 603 F.3d 904, 918 (11th Cir. 2010) (“A reasonable jury
could have found [the appellant]’s concern for whether Candi
was a law enforcement agent proved that he was interested
in using her minor daughters to produce child pornography,
which is a crime.”) A rational fact finder reasonably could con-
clude that the evidence viewed in the light most favorable to
the Government established that Appellant desired sexual-
ized images of minors that would simultaneously allay any
concerns he had that the people with whom he was texting
were not in fact minors.
In sum, we agree with the AFCCA that a rational fact
finder could conclude from these facts that Appellant had the
specific intent to obtain photographs that were both “obscene”
and that included a “lascivious exhibition of the genitals or
pubic area.” In reaching this conclusion, we do not hold that
naked photographs of persons who appear to be children are
automatically to be considered child pornography or that a re-
quest for such photographs is automatically to be construed
as a request for child pornography. The Government also does
not make any such claims. As described above, and as we have
held in Roderick, not all naked pictures of children are child
pornography. We simply reaffirm what we held in Webb,
namely, that inferences about specific intent depend on the
totality of the circumstances, and those circumstances in this
case are such that a rational finder of fact reasonably could
infer that Appellant had the requisite specific intent.
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D. Legal Sufficiency of Proof of a Substantial Step
Appellant also asserts that the evidence was legally insuf-
ficient for finding him guilty of attempting to commit the of-
fense of receipt of child pornography because there was insuf-
ficient evidence that he took a “substantial step” toward
committing that offense. We decline to consider the merits of
this argument because it is not within the scope of the granted
issue and because Appellant raised the argument for the first
time in his reply brief. See United States v. Phillips, 64 M.J.
410, 414 n.* (C.A.A.F. 2007). This Court “will not revive a for-
feited argument simply because [an appellant] gestures to-
ward it in [his] reply brief.” Republic of Argentina v. NML
Capital, Ltd., 573 U.S. 134, 140 n.2 (2014).
III. Conclusion
The assigned issue is answered in the affirmative. The
decision of the United States Air Force Court of Criminal Ap-
peals is affirmed.
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