United States v. Page ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
HOLIFIELD, LAWRENCE, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Thomas A. PAGE III
Corporal (E-4), U.S. Marine Corps
Appellant
No. 202000069
Decided: 11 February 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Stephen F. Keane
Sentence adjudged 9 January 2020 by a general court-martial con-
vened at Marine Corps Air Station Yuma, Arizona, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, forfeiture of all pay, confinement for six months, and
a bad-conduct discharge.
For Appellant:
Major Brian L. Farrell, USMCR
For Appellee:
Lieutenant Gregory A. Rustico, JAGC, USN
Lieutenant Joshua C. Fiveson, JAGC, USN
_________________________
11 February 2020:
Administrative correction to indicate author and concurring judges.
United States v. Page, NMCCA No. 202000069
Opinion of the Court
Senior Judge HOLIFIELD delivered the opinion of the Court, in which
Judges LAWRENCE and DEERWESTER joined.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
HOLIFIELD, Senior Judge:
Appellant was convicted, pursuant to his pleas, of one specification of
wrongful broadcast of intimate visual images and one specification of abusive
sexual contact in violation of Articles 117a and 120, Uniform Code of Military
Justice [UCMJ], 10 U.S.C. §§ 917a, 920. 1 In two assignments of error [AOEs],
Appellant avers that his guilty plea to wrongfully broadcasting intimate
images was improvident in that (1) information independent of the broadcast-
ing of a photo does not satisfy the element that the victim be identifiable from
“information displayed in connection with the intimate visual image”; and (2)
the term “broadcasting” does not include text messaging a photo to one’s own
phone. We find merit in the first AOE and take action in our decretal
paragraph that moots the second.
I. BACKGROUND
From March to May 2018, Appellant and Corporal Charlie 2 served to-
gether in Okinawa, Japan, and became friends. While participating in an
exercise in South Korea in May 2018, they shared a twelve-man tent. One
night, while Corporal Charlie slept, Appellant took the sleeping man’s
unlocked phone and found on it multiple nude images within a text discus-
sion between Corporal Charlie and Corporal Charlie’s wife. Appellant texted
to himself from Corporal Charlie’s phone one image of what he believed to be
his friend’s genitalia. Appellant deleted the image within days and did not
forward it to anyone.
1 Three specifications of sexual assault were withdrawn and dismissed pursuant
to a plea agreement. A second specification of abusive sexual contact was dismissed
by the military judge as an unreasonable multiplication of charges. R. at 75.
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
2
United States v. Page, NMCCA No. 202000069
Opinion of the Court
Additional facts necessary to resolve the AOEs are addressed below.
II. DISCUSSION
A. Standard of Review
“We review a military judge’s decision to accept a guilty plea for an abuse
of discretion and questions of law arising from the guilty plea de novo.”
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). In challenging
the acceptance of a guilty plea, an appellant must show that the military
judge abused his discretion in accepting the plea despite “a substantial basis
in law or fact to question the plea.” United States v. Phillips, 74 M.J. 20, 22
(C.A.A.F. 2015). “[A]ny ruling based on an erroneous view of the law . . .
constitutes an abuse of discretion.” Inabinette at 322. And “a court shall not
accept a plea of guilty where ‘an accused . . . sets up matter inconsistent with
the plea, or if it appears that he has entered the plea of guilty improvidently
. . . .’ ” United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004)
(alteration in original) (quoting UCMJ art. 45(a)).
B. Whether there is a Substantial Basis in Law or Fact to Question
the Providence of Appellant’s Guilty Plea
During the court’s Care 3 inquiry, the military judge properly advised
Appellant of the elements 4 of the offense charged under Article 117a:
One, that between on or about1 March 2018 and 31 May 2018,
at or near South Korea, you . . . knowingly and wrongfully
broadcast intimate visual images of Corporal [Charlie], United
States Marine Corps;
Two, that Corporal [Charlie] was at least 18 years of age
when the visual images were created;
Three, that Corporal [Charlie] is identifiable from the visu-
al images or from information displayed in connection with the
visual images;
3 See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
4 See Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook,
para. 3-42A-1 (Feb. 29, 2020) [Benchbook]. For consistency’s sake, we will refer to
these elements by the numbers used by the military judge.
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Opinion of the Court
Four, that Corporal [Charlie] did not explicitly consent to
the broadcast of the visual images;
Five, that you knew, or reasonably should have known, that
the visual images were made under circumstances [in] which
Corporal [Charlie] retained a reasonable expectation of privacy
regarding a broadcast of the visual images;
Six, that you knew or reasonably should have known that
the broadcast of the visual images were [sic] likely to cause
harassment and emotional distress for Corporal [Charlie] and
to harm substantially Corporal [Charlie’s] reputation and per-
sonal relationships;
And, seven, that under the circumstances, your conduct had
a reasonably direct and palpable connection to a military mis-
sion or military environment. 5
The military judge also correctly explained to Appellant the definitions
applicable to Article 117a. Notably, the Benchbook does not define or explain
“information displayed in connection with the intimate visual image.”
During the colloquy, Appellant’s responses substantively tracked with the
statements contained in the stipulation of fact, in which he admitted, without
explanation or detail, that each of these elements was met. 6 Regarding the
third element, the stipulation of fact reads simply as follows: “Cpl [Charlie] is
identifiable from the visual images and from information displayed in
connection with the visual images.” 7 When the military judge sought to build
a factual basis to support this conclusory statement, the following discussion
occurred:
MJ: What was contained in the pictures?
ACC: There were nude photographs. sir.
MJ: Nude photographs of him and nude photographs of
her?
ACC: Yes, sir.
5 R. at 26-27.
6 Pros. Ex. 1 at 2-3.
7 Pros. Ex. 1 at 3.
4
United States v. Page, NMCCA No. 202000069
Opinion of the Court
MJ: Okay. And then what did you do?
ACC: I saw the photograph of him, and I sent it to myself,
sir.
MJ: Describe—how many photographs did you send to
yourself?
ACC: Just one, sir.
MJ: Describe the photograph you sent to yourself.
ACC: It was a picture of his genitals.
MJ: Was he in the picture as well?
ACC: No, sir.
MJ: It was just a picture of genitals?
ACC: Yes, sir.
MJ: You couldn’t tell who it was?
ACC: No sir. But after the incident I came up—confessed to
him. He made it clear that it was him. 8
At this point, the military judge rightly recognized that there was a
potential inconsistency between the stipulation of fact, Appellant’s state-
ments, and his pleas regarding whether the person in the picture was
identifiable either from the image itself or from information displayed in
connection with it. So he asked the trial counsel what his theory was on the
issue. The trial counsel responded that the fact the image was part of a text
conversation between the victim and his wife in which the couple was
exchanging nude photos was “information in connection with the message”
that would lead Appellant to believe it was Corporal Charlie’s genitalia in the
picture. 9 The military judge returned to questioning Appellant:
MJ: Okay. So it is just a photograph of Corporal [Charlie’s]
penis and genitalia?
ACC: Yes, sir.
MJ: But there was no picture of him?
8 R. at 33-34.
9 Id.
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United States v. Page, NMCCA No. 202000069
Opinion of the Court
ACC: No, sir.
MJ: But it was taken from his phone?
ACC: Yes, sir.
MJ: And it was sent to his wife?
ACC: Yes, sir.
MJ: And then you actually discussed it with him later?
ACC: Yes, sir.
MJ: And he confirmed that that was a picture of his penis?
ACC: I knew it was his—a picture of—by the way he reacted
to it and that—the fact that it was between him and
his wife. 10
Without indicating how he interpreted the relevant language in Article
117a, the military judge moved on to question Appellant about other
elements of the offense.
1. Statutory Analysis
“Statutory construction begins with a look at the plain language of a
rule.” United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007). In doing so,
“sections of a statute should be construed in connection with one another as ‘a
harmonious whole’ manifesting ‘one general purpose and intent.’ ” United
States v. Quick, 74 M.J. 517, 520 (N-M Ct. Crim. App. 2014) (quoting Norman
J. Singer, Statutes and Statutory Construction § 46:05 (6th ed. 2014)). The
canon against surplusage requires that, “if possible, every word and every
provision is to be given effect and that no word should be ignored or
needlessly be given an interpretation that causes it to duplicate another
provision or to have no consequence.” United States v. Sager, 76 M.J. 158, 161
(C.A.A.F. 2017). Accordingly, in interpreting provisions of the UCMJ, we
“should . . . give meaning to each word of the statute.” Id. (alteration in
original) (internal quotation marks and citation omitted). “[T]he canon
against surplusage is strongest when an interpretation would render
superfluous another part of the same statutory scheme.” Id. (alteration in
original) (quoting Yates v. United States, 574 U.S. 528, 543 (2015)).
10 R. at 34-35.
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Opinion of the Court
First, reading the UCMJ as a cohesive whole, we assume Congress does
not create new articles that achieve the same end or prohibit the same
conduct as do existing articles. Article 117a (“Wrongful broadcast or
distribution of intimate visual images”) criminalizes conduct different from
the only slightly older Article 120c(a) (“Indecent viewing, visual recording, or
broadcasting”). 11 While paragraph (a)(3) of Article 120c refers to broadcast or
distribution, it is only in regard to images created without consent. From its
plain language, Article 117a differs in that its focus is on the harm (physical,
emotional, financial, professional) that the nonconsensual broadcast or
distribution of an intimate image may cause a victim. It does not proscribe
the viewing of said image, and consent regarding the creation of the image is
irrelevant. Rather, the gravamen of Article 117a is transmitting the image in
a way that allows others to identify the person in the picture, either from
information contained in the image itself or displayed in connection with the
image as broadcast.
Second, the sixth element, that the broadcaster or distributor of the image
“knows / should have known” that the distribution will cause such harm to a
victim, implicitly assumes the sender knows who is in the picture—how else
would the sender know whether sending the intimate image will cause the
victim harm? The same is true for the fourth and fifth elements; knowledge of
whether a victim consents to the broadcast or retains a reasonable expecta-
tion of privacy regarding any broadcast requires that the broadcaster know
who is in the picture. If the sender’s ability to identify the victim (implicit in
the fourth, fifth, and sixth elements) is alone sufficient to meet element 3,
element 3 becomes surplusage—as it is a given that the sender knows who is
in the image before sending it.
Similarly, allowing the third element to be satisfied here solely by infor-
mation known by the sender before—and independent of—the actual
broadcast or distribution of the image would render the sixth element a
factual impossibility. If the victim cannot be identified in connection with the
image as broadcast or distributed, the broadcast ipso facto is not “likely to
cause harm” to the victim.
11 Article 117a was enacted by the National Defense Authorization Act [NDAA]
for Fiscal Year 2018, Pub. L. No. 115-91, § 553(a), 131 Stat. 1283 (2017); Article 120c
was enacted by the NDAA for Fiscal Year 2012, Pub. L. No. 112-81, § 541(c), 125
Stat. 1298 (2011).
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Opinion of the Court
Accordingly, we find that “information displayed in connection with the
intimate image” is limited to information that accompanies the picture when
it is broadcast or distributed and is displayed after the broadcast or
distribution occurs. We now examine whether the facts as developed below
support a conviction in light of this limited definition.
2. Factual Analysis
Appellant avers in part that the military judge applied an overly expan-
sive definition of “identifiable . . . from information displayed in connection
with the intimate visual image.” While the military judge recognized a
potential issue regarding the third element, he did not rule on the issue or
make any comments indicating what definition he applied. But, even
assuming he applied the correct definition, the military judge abused his
discretion in accepting the plea despite a substantial basis in fact to question
the plea.
“If an accused ‘sets up matter inconsistent with the plea’ at any time
during the proceeding, the military judge must either resolve the apparent
inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498
(C.A.A.F. 1996) (quoting UCMJ art. 45(a)) (citing Rule for Courts-Martial
910(h)(2)). In this case, the military judge did neither, despite the fact that
Appellant’s and trial counsel’s responses, rather than resolve the inconsisten-
cy, actually underscored it.
It is clear from both Appellant’s responses and trial counsel’s stated
theory of criminality that the only evidence identifying the genitalia in the
image as belonging to Corporal Charlie is: (1) Appellant found the picture on
Corporal Charlie’s phone; (2) Appellant saw that the image was originally
part of a text discussion between Corporal Charlie and his wife; and (3)
Corporal Charlie later stated to Appellant that it was his genitalia in the
image and reacted angrily when informed that Appellant had sent the picture
to himself. There is nothing in the visual image itself that identifies Corporal
Charlie; Appellant specifically stated that he couldn’t tell who it was in the
photo. Had the text message in which the photograph was embedded, along
with its associated words, names, etc., accompanied the image as broadcast,
there may have been sufficient context to specifically identify the genitalia as
that of Corporal Charlie. However, Appellant sent only the image of a male’s
genitalia from one phone to his own. Likewise, there is no evidence in the
record indicating that there was on Appellant’s phone information displayed
8
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Opinion of the Court
in connection with the visual image that identified the genitalia as Corporal
Charlie’s. 12 Thus, any third party viewing the image on Appellant’s phone,
post-broadcast, would be unable to identify whose genitalia are in the picture.
The Government concedes, and we agree, that the conversation Appellant
had with Corporal Charlie after forwarding the image is not information
displayed in connection with the intimate image. 13 Instead, it claims that the
displayed information was “the text message conversation in which it was
found, which identified the Victim as the sender and his wife as the
recipient.” 14 The issue, then, is whether this sole piece of evidence, independ-
ent of the broadcast, tying the image to Corporal Charlie is sufficient to meet
Article 117a’s third element.
Applying the definition explained above, we find it is not. Information
known to the broadcaster but not accompanying the image as broadcast is not
“information displayed in connection with the intimate visual image.” The
facts here simply do not match the elements of Article 117a. Thus, at trial,
there was a substantial basis in fact to question Appellant’s plea—and that
question remains. Accordingly, we will set aside the findings of guilty as to
Charge I and its Specification.
C. Sentence Reassessment
We must next determine whether our “broad discretion” allows us to
reassess Appellant’s sentence instead of ordering a rehearing on sentence.
United States v. Wincklemann, 73 M.J. 11, 12 (C.A.A.F. 2013). In Winckle-
mann, our superior court provided four “illustrative, but not dispositive,”
factors to consider. The factors are:
12 The Government invites us to infer that, “because a text message conversation
identifies the sender,” there was information displayed on Appellant’s phone that
identifies the image as having come from Corporal Charlie’s phone, and that this
information would allow a third party viewer to identify the genitalia in the image as
belonging to Corporal Charlie. Gov’t Br. at 9. We decline to assume away an element
where there is nothing in the record to support this two-step inference. The record
contained no screen shots of the image on Appellant’s phone, nor was there any
discussion on the record describing how the image appeared once on Appellant’s
phone.
13 Id. at 10.
14 Id.
9
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Opinion of the Court
(1) [Whether there are] [d]ramatic 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
the gravamen of criminal conduct included within the original
offenses and, in related manner, whether significant or aggra-
vating 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 experi-
ence and familiarity with to reliably determine what sentence
would have been imposed at trial.
Id. at 15-16 (citations omitted).
While the potential confinement for violating Article 117a was, at seven
years, half the maximum confinement Appellant faced for the two offenses for
which he was sentenced, Appellant’s actual total exposure under the plea
agreement was six months. The military judge awarded the minimum
confinement allowed by the plea agreement: six months for each offense, to be
served concurrently. Accordingly, we do not find there to be a dramatic
change in Appellant’s punitive exposure.
Of the two offenses, the Article 120 was by far the more serious. Appellant
pleaded guilty to fellating a fellow Marine while the latter was incapable of
consenting due to impairment by alcohol. The aggravating circumstances—to
include victimizing and abusing the trust and friendship of a fellow Marine
who is asleep or unconscious—apply to both offenses. And this Court has
experience and is familiar with the range of sentences awarded for such
violations of Article 120. Based on the evidence in the record, we are
confident that, for the Article 120 offense alone, Appellant would have
received a sentence no less than that awarded by the military judge and
reflected in the Entry of Judgment.
Additionally, Rule for Court-Martial 1007 now requires that, except when
sentencing is done by members, the military judge shall specify the term of
confinement, if any, awarded for each offense, and whether the terms of
confinement shall run consecutively or concurrently. As the military judge
sentenced Appellant under the new rule, we know with certainty what
sentence he would have imposed at trial for the remaining offense. And we
find that sentence appropriate.
10
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Opinion of the Court
III. CONCLUSION
The finding of guilty to Article 117a is SET ASIDE and DISMISSED
WITH PREJUDICE. After careful consideration of the record and briefs of
the appellate counsel, we have determined that, following our corrective
action, the remaining approved finding and the sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights remains. UCMJ arts 59, 66. Accordingly, the remaining finding and
sentence in the Entry of Judgment are AFFIRMED.
Judges LAWRENCE and DEERWESTER concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
11