IN THE
CASE OF
UNITED
STATES, Appellee
v.
Robert L.
MASON, Jr., Major
No.
02-0849
Crim. App.
No.
34394
Argued
Decided
ERDMANN,
J., delivered the opinion of the Court, in which GIERKE, EFFRON, and
BAKER,
JJ., joined. CRAWFORD, C.J., filed a
separate opinion dissenting in part and concurring in part.
Counsel
For Appellant:
Major
Rachel E. Vanlandingham (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea,
and Captain Jennifer K. Martwick
(on brief).
For Appellee: Major Shannon J. Kennedy (argued); Colonel
LeEllen Coacher, Lieutenant Colonel
Robert V.
Combs, Lieutenant Colonel Lance B. Sigmon,
and Captain Lane A. Thurgood (on
brief).
Military Judge:
Thomas G.
Crossan, Jr.
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the Court.
Major
Robert L. Mason, Jr., entered guilty pleas and was convicted by a
general
court-martial of violating a lawful general order, engaging in conduct
unbecoming an officer and a gentleman and knowingly receiving child
pornography
in violation of Articles 92, 133 and 134, Uniform Code of Military
Justice
[UCMJ], 10 U.S.C. §§ 892, 933 and 934 (2000), respectively. He was sentenced by the military judge to a
dismissal, confinement for two years and forfeiture of all pay and
allowances. In accordance with the terms
of a pretrial agreement, the convening authority approved only so much
of the
sentence as provided for dismissal and six months’ confinement.
Mason
assigned several errors in his appeal to the Air Force Court of
Criminal
Appeals, including a claim that his guilty plea to the Article 134
charge was
improvident in light of the Supreme Court's decision in Ashcroft v.
Free
Speech Coalition, 535 U.S. 234 (2002).
The Court of Criminal Appeals reviewed Mason's claims, rejected
all of
them and affirmed his conviction and sentence.
Mason
petitioned this Court for review of the Court of Criminal Appeals'
decision and
we granted review of the following assigned Issue I and specified
review of
Issue II:
I. WHETHER APPELLANT'S PLEAS OF
GUILTY TO OFFENSES UNDER 18 U.S.C. SECTION 2252A WERE INVOLUNTARY
BECAUSE HE
HAD AN INCOMPLETE UNDERSTANDING OF THE OFFENSES WHEN THE MILITARY JUDGE
EXPLAINED THE OFFENSES USING THE UNCONSTITUTIONALLY VAGUE AND OVERBROAD
DEFINITIONS OF CHILD PORNOGRAPHY CONTAINED IN 18 U.S.C. SECTION 2256.
II. IN
THE EVENT THAT APPELLANT'S
GUILTY PLEAS ARE IMPROVIDENT TO CHARGE III AND ITS SPECIFICATION UNDER
CLAUSE 3
OF ARTICLE 134, WHETHER HIS PLEA IS PROVIDENT AS TO A LESSER-INCLUDED
OFFENSE
UNDER CLAUSE 1 OR CLAUSE 2 OF ARTICLE 134 IN LIGHT OF ASHCROFT V.
FREE
SPEECH COALITION, 535 U.S. 234 (2002) AND UNITED STATES V.
O'CONNOR,
58 M.J. 450 (C.A.A.F. 2003).
We hold that while
Mason's guilty plea to the clause 3, Article 134 offense was improvident,
his plea was provident to a lesser-included offense under clauses 1 and
2 of
Article 134.
BACKGROUND
Mason
served as a contracting officer assigned to the Defense Supply Center
Columbus
(DSCC), an arm of the Defense Logistics Agency.
The DSCC routinely handles highly sensitive and classified
procurement
matters, including multi-million dollar contracts.
It is primarily staffed with over 2,500
civilian employees, but is also staffed by a small contingent of
military
members, of which Mason was a part.
The
DSCC monitored its employees' access to the Internet and during the
course of
that general monitoring process, Mason was
identified
as having accessed inappropriate websites.
Subsequent monitoring and investigation disclosed that Mason had
utilized two different DSCC computers to (1) view and/or download from
the
Internet various items with pornographic and obscene images or
language; (2)
participate in teen "chat rooms" and engage in discussions of a
sexual nature; and (3) receive images of child pornography.
Mason
was ultimately charged under Article 92 with three specifications of
violating
a general regulation pertaining to use of government computers, under
Article
133 with one specification for conduct unbecoming an officer and a
gentleman
based on certain activities that he engaged in on the computers1 and under clause 3
of Article 134 with one specification of violating the Child
Pornography Prevention
Act of 1996 (CPPA), 18 U.S.C. § 2252A (2000).2
The
present appeal concerns the providence of Mason's guilty plea to the
Article
134 charge. For this Court to reject a
guilty plea on appellate review, the record of trial must show a
substantial
basis in law and fact for questioning the 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)).
DISCUSSION
A. The
Under
the clause 3 Article 134
specification, Mason was charged with a violation of the CPPA. The military judge explained that the
statutory offense involved the knowing receipt of child pornography
that had
been transported in interstate or foreign commerce and was "assimilated
into the [UCMJ] as another crime or offense not capital" under Article
134. The military judge advised Mason
that the definitions for the CPPA offense were found in 18 U.S.C. §
2256 (2000)
and went on to define numerous terms, specifically including the
alternative
definitions of "child pornography" under §§ 2256(8)(A)-(D):
Child
pornography means 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 for [sic] 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
addition to advising Mason of the
definitional elements of the CPPA offense, the military judge included
what he
termed a “fourth element”:
Fourth
-- and I instruct on this
only in this case if it is determined that your plea is improvident on
the
charged offense, since the crime has been charged as an other crime or
offense
not capital -- such conduct was of a nature to bring discredit upon the
armed
forces or was to the conduct [sic] of good order and discipline in the
armed
forces.
He
went on to specifically ask Mason if he
understood that "fourth element" and why it had been included. After consulting with his defense counsel,
Mason answered in the affirmative and indicated that he understood the
element
required that "his conduct must also be such to bring discredit upon
the
Air Force." The military judge then
further explained to Mason why it had been included:
Now,
it's my position with the
charged offense as it is charged in Charge III,
that
is not an element of the charged offense.
However, in the abundance of caution, I add that as an element
in case
for some reason the appellate courts, if this case goes to the appeals
system,
determines your plea to the. . . [CPPA] charge is improvident, it would
find
that it was service discrediting or armed forces discrediting. That is why I have added that element.
Mason
indicated his understanding as to why
that element had been added, indicated that he had no questions about
any of
the elements and acknowledged that he believed and admitted that the
elements
and definitions he had been given, taken together, correctly described
what he
had done. He explained to the military
judge that he had viewed several pictures of "minors doing lascivious
poses" on his government computers and that he understood the movement
of
those images over the Internet was considered movement through
interstate
commerce. He admitted during his
discussion with the military judge and in his stipulation of fact that
the
images were "child pornography."
He also admitted during his discussion with the military judge
that his
conduct was of a nature to bring discredit upon the armed forces or was
to the
prejudice of good order and discipline.
B. The
Impact of Free Speech Coalition
and O'Connor
The
granted issue asks whether Mason's plea
to the charged offense under clause 3 of Article 134 is provident in
light of
the Supreme Court's decision in Free Speech Coalition and our
subsequent
decision in O'Connor. The
specified issue asks whether, in the event of a negative answer to the
granted
issue, Mason's guilty plea can nonetheless be upheld as provident to a
lesser-included offense under clauses 1 or 2 of Article 134. We turn first to the granted issue.
1. The
As
explained to him by the military judge,
Mason's conduct in receiving "child pornography" was charged as a
"clause 3" offense under Article 134, with the "crime or offense
not capital" being a violation of the CPPA. Thus,
the criminal nature of Mason's conduct,
as charged, derived from violating an independent federal criminal
statute
proscribing the receipt of "child pornography." O'Connor,
58 M.J. at
452.
The
military judge defined the elemental
term "child pornography" to Mason by using portions of its statutory
definition that were later struck down by the Supreme Court in Free
Speech
Coalition. As occurred in O'Connor,
the military judge's explanation to Mason of the elements of the CPPA
offense
utilized terms that were constitutionally overbroad.
The judge’s explanation made specific
reference to visual depictions that "appear to be" of a minor
engaging in sexually explicit conduct and materials that were pandered
in a
manner that "conveys the impression" that they include images of
minors engaging in sexually explicit conduct.
Finally, as was also the case in O'Connor, the record
here
contains no clear focus or discussion on those aspects of the CPPA not
affected
by the Supreme Court's ruling, i.e., "actual" child pornography under
18 U.S.C. §§ 2256(8)(A)-(B) or "computer morphed" images of an
identifiable minor under § 2256(8)(C). O'Connor,
58 M.J. at 452.
Under
our decision in O'Connor, a provident guilty plea to a
violation of the
CPPA must reflect that the accused violated those portions of the
statute not
affected by the Supreme Court's ruling in Free Speech Coalition. 58 M.J. at 454. The absence of any focus on or discussion
concerning
those aspects of the statute in the present record coupled with the use
of the
unconstitutionally overbroad definition during Mason's plea colloquy
render
this case indistinguishable from O'Connor.
Accordingly, we cannot view Mason's plea of
guilty to violating the CPPA, and thus to violating clause 3 of Article
134, as
provident.
2. The
That
conclusion leads us to the specified
issue -- can Mason's guilty plea nonetheless be viewed as provident to
a lesser-included
offense under clauses 1 and/or 2 of Article 134? As
noted in O'Connor, we have
recognized in the past that an improvident plea to a clause 3 offense
based on
a federal child pornography statute may be upheld as a provident plea
to a
lesser-included offense under clause 2 of Article 134.
58 M.J. at 454 (citing United States v.
Augustine, 53 M.J. 95 (C.A.A.F. 2000); United States v. Sapp,
53
M.J. 90 (C.A.A.F. 2000)).
In
O’Connor, we ultimately concluded
that the guilty plea could not be viewed as provident to a
lesser-included
offense under the approach embodied in Sapp and Augustine. While O'Connor had stipulated to the
service-discrediting character of his conduct, there was no discussion
of that
element by the military judge during the plea inquiry.
Both Sapp and Augustine
involved admissions by the accused during the plea inquiry as to the
service-discrediting character of their conduct and we characterized
those
discussions as demonstrating that the accused "clearly understood the
nature
of the prohibited conduct." 58 M.J. at 454 (quoting Sapp, 53 M.J. at 92).
The
plea colloquy in O'Connor was focused solely on "the nature of
the
prohibited conduct" under the CPPA, without any discussion or
acknowledgement of the criminal nature of the conduct deriving
alternatively
(and independently) from its character as service-discrediting or
prejudicial
to good order and discipline. 58 M.J. at 455.
Absent any discussion with the military judge as to how his
conduct
might be criminal under clause 1 or 2 as distinct from criminal under
clause 3,
we could not view O'Connor's guilty plea as provident to a
lesser-included
offense under clause 2.
The
record here is clearly distinguishable
from O'Connor in terms of the discussion between Mason and the
military
judge concerning the character of his conduct as service-discrediting
and
prejudicial to good order and discipline.
The military judge openly explained that those were not elements
of the
"crime or offense not capital" that Mason was charged with under
clause 3 and explained why he was including the additional element. Mason indicated his understanding as to why
the element had been added. In the
context of his explanations that he had viewed pictures of "minors
doing
lascivious poses" and the images of "child pornography" on his
government computer, Mason then went on to affirmatively admit to the
military
judge that his conduct in doing so was both service-discrediting and to
the
prejudice of good order and discipline in the armed forces.
The
record here thus contains what was
missing in O'Connor and was present in both Sapp and Augustine. The plea colloquy between the military judge
and Mason demonstrates that he "clearly understood the nature of the
prohibited conduct" in terms of that conduct being service-discrediting
and prejudicial to good order and discipline.
O'Connor, 58 M.J. at 455. Those clause 1 and clause 2 elements were
explained to him as a basis for finding his conduct criminal apart from
clause
3 and his discussions with and admissions to the military judge were
made in
that context.
Absent
some other distinguishing factor, we
could deem Mason's guilty plea provident as to a lesser-included
offense under
clause 1 and clause 2 under the principles embodied in Sapp and
Augustine. We recognized in O'Connor,
however,
that there is a distinguishing factor at play here: the impact of Free
Speech Coalition and its creation of "a constitutional dimension
that
was not at issue in Sapp or Augustine."
58 M.J. at 454.
That
constitutional dimension flows from
the Supreme Court's extension of First Amendment protection to certain
depictions of minors engaging in sexually explicit conduct, i.e.,
"virtual" as opposed to "actual" images.
In
analyzing this constitutional dimension, the ultimate question is
whether the
status of the images in the present case as "virtual" or
"actual" is of consequence in the context of assessing the providence
of Mason's guilty plea under clauses 1 and 2.
We conclude that it is not. The
receipt or possession of "virtual" child pornography can, like
"actual" child pornography, be service-discrediting or prejudicial to
good order and discipline. Even if we
were to assume that the specific images that serve as the basis for
Mason's
"child pornography" charge are "virtual"
in nature, this still involves a commissioned officer of the United
States Air
Force receiving and viewing such images on a government computer in his
workplace. Under those circumstances,
the distinction between "actual" child pornography and "virtual"
child pornography does not alter the character of Mason's conduct as
service-discrediting or prejudicial to good order and discipline.
Mason
stipulated to a sexual maturity
assessment of the images at issue here as depicting children between
the ages
of 12 and 16. He acknowledged to the
military judge that the images depicted "minors doing lascivious
poses" and constituted "child pornography." While
the issue as to whether the images are
"virtual" or "actual" may have a potentially dispositive
effect in prosecutions under the CPPA in both
civilian and military settings, it is not inherently dispositive
of their impact on the esteem of the armed forces or good order and
discipline. Those are the yardsticks by
which the criminality of conduct under clauses 1 and 2 are measured. As the Supreme Court recognized:
While the
members of the military are not excluded from the protections granted
by the
First Amendment, the different character of the military community and
of the
military mission requires a different application of those protections. The fundamental necessity for obedience, and
the consequent necessity for imposition of discipline, may render
permissible
within the military that which would be constitutionally impermissible
outside
it.
Parker
v. Levy, 417
Accordingly,
we answer the specified Issue II in the affirmative and conclude that
neither Free
Speech Coalition nor our subsequent decision in O'Connor
provide a
substantial basis in law or fact for questioning the providence of
Mason's
guilty plea to a lesser-included offense under clauses 1 and 2 of
Article 134.
CONCLUSION
The
specification of Charge III is amended to read as follows:
In that
MAJOR ROBERT L. MASON, JR.,
United States Air Force, 88th Mission Support Squadron,
Wright-Patterson Air
Force Base, Ohio, did, at or near Defense Supply Center, Columbus,
Ohio, on
divers occasions between on or about 8 July 1998 and on or about 2
November
1999, knowingly receive one or more images of child pornography that
had
been mailed, shipped, or transported in interstate or foreign commerce
by any
means, including by computer, in violation of 18 U.S.C. 2252A.
The decision of the
United States Air Force Court of Criminal Appeals is affirmed as to
Charge III
and its specification as amended, as well as to the remaining Charges
and their
specifications and the sentence.
1 This specification involved
Mason's
conduct in participating in teen chat rooms on the Internet and in
storing,
viewing, displaying, or processing various items on both government
computers,
including pornography, erotic stories containing obscene language and
certain
"thumbnail" images of naked children.
2 This
specification involved a set
of images specifically characterized as "child pornography" and
distinct from the ones referred to in the Article 133 charge.
CRAWFORD,
Chief Judge (dissenting in part and concurring in part):
Because I agree that
Appellant’s plea was provident to a lesser-included offense under
clauses 1 and
2 of Article 134, Uniform Code of Military Justice [hereinafter UCMJ],
10
U.S.C.
First,
Appellant waived the Ashcroft v.
Free Speech Coalition, 535 U.S. 234 (2002), issue by failing to
address it
at trial.
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.
United
States v. O’Connor, 58 M.J.
450, 456 (C.A.A.F. 2003)
(Crawford, C.J., dissenting).
Moreover,
the record establishes Appellant’s understanding
that the pornographic images based
on which he was convicted depicted actual minors.
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 (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:
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 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.”
In
the instant case, Appellant admitted
during the providence inquiry that “[s]everal
of the pictures
[he’s] looked at were child pornography, that is, minors doing
lascivious poses” and that the pictures he viewed on his computer were
“images
of naked children.” Moreover, in
his stipulation of fact, Appellant listed the internet sites from which
he
obtained child pornography. He then
admitted as follows: “All of the images listed directly above and as
attached
to this stipulation of fact depict children who are between the
ages of 12
and 16 according to a sexual maturity assessment.”
The descriptive terminology Appellant used –
“naked children,” “minors,” and “children who are between the ages of
12 and
16” – 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). Finally, as in James and O’Connor,
the pictures attached to the record in this case amply support
Appellant’s
awareness that the images involved actual minors.
For
these reasons, I would hold Appellant’s
plea provident to the clause 3, Article 134 offense.
In any event, I concur in the majority’s
result, as I would also hold Appellant’s plea provident to a
lesser-included
offense under clauses 1 and 2 of Article 134.