IN THE
CASE OF
UNITED
STATES, Appellee
v.
Kent D.
IRVIN, Master Sergeant
No.
03-0224
Crim. App.
No.
34756
Argued
Decided
ERDMANN,
J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
GIERKE,
EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant:
Major
Andrew S. Williams (argued); Colonel Beverly B. Knott, Major
Terry L. McElyea and Captain Diane
M. Paskey (on brief).
For Appellee: Captain Michelle M. Lindo
(argued); Colonel LeEllen Coacher
and Lieutenant
Colonel Robert V. Combs (on brief).
Military Judge:
Thomas W.
Pittman
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the Court.
Master
Sergeant Kent D. Irvin entered a guilty plea and was convicted by a
general
court-martial of wrongfully and knowingly possessing visual depictions
of
minors engaging in sexually explicit conduct in violation of clauses 1
and 2 of
Article 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 934
(2000). He was sentenced by a panel of
officer and enlisted members to a bad-conduct discharge, confinement
for one
year and reduction to the lowest enlisted grade.
Although
not raised by Irvin as part of his appeal, the Air Force Court of
Criminal
Appeals assessed the providence of his guilty plea in light of the
Supreme
Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S.
234
(2002). After concluding that Free
Speech Coalition did not affect Irvin's guilty plea, the Court of
Criminal
Appeals affirmed the conviction and sentence.
Irvin
petitioned this Court for review of his case without assigning any
specific
errors in the proceedings below. In
April 2003, we specified the following issue for review:
WHETHER APPELLANT'S PLEAS OF GUILTY TO
POSSESSING CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134, UCMJ, SHOULD
BE SET
ASIDE IN LIGHT OF ASHCROFT v. FREE SPEECH COALITION, 122 S.Ct. 1389 (2002).
In November 2003,
we specified a second and more narrowly defined issue for review:
WHETHER
THE POSSESSION OF VISUAL
DEPICTIONS OF MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT CAN SERVE AS
THE
BASIS FOR A CONVICTION 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).
After reviewing
both issues, we conclude that Irvin's guilty plea is provident and is
not
affected by Free Speech Coalition or our decision in O'Connor.
DISCUSSION
A. Standard
of Review
The
case is focused solely on the providence of Irvin's guilty plea. 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)).
B. The
At
the time of the offense in question,
Irvin was attached to a NATO AWACS squadron at Geilenkirchen
Air Base,
Prior
to accepting the plea, the military judge advised Irvin of the
"elements" of the offense with which he was charged:
(1) That,
at or near, Geilenkirchen NATO Air Base,
Germany, on
divers occasions between on or about 2 January 2000 and on or about 29
August 2000,
[Irvin] wrongfully and knowingly possessed visual depictions of minors
engaging
in sexually explicit conduct.
(2) That
under the circumstances, [Irvin's] conduct was to the prejudice of good
order
and discipline, or of a nature to bring discredit upon the Armed Forces.
He
further advised Irvin that, while almost
any irregular or improper act on the part of a service member could be
regarded
as prejudicial to good order and discipline in some indirect or remote
sense,
only those acts where the prejudicial effect is reasonably direct and
palpable
are punishable under Article 134. See
Manual for Courts-Martial,
The
specific "act" that Irvin pleaded guilty to was the possession of
"visual depictions of minors engaging in sexually explicit
conduct." The military judge
explained that particular element to Irvin and provided him with
definitions of
"visual depiction," "minor" and "sexually explicit
conduct."
The
specific factual circumstances of Irvin's conduct were outlined through
both a
stipulation of fact and an extensive colloquy with the military judge. Irvin admitted to downloading certain images
of young girls engaged in sexually explicit conduct from the Internet
to his
personal computer at his residence. He
further admitted to printing some of those images and to downloading
approximately 80 images to various types of computer storage media.
Irvin
advised the military judge that he knew "that it is wrong for an older
person to look at minors either nude or partially clothed." He acknowledged to the military judge that
there was "no doubt in [his] mind" that the individuals in the images
were minors and that there was "no doubt in [his] mind" that they
were engaged in sexually explicit conduct.
Finally, he also acknowledged that he knew that the visual
depictions
"were, in fact, minors engaging in sexually explicit conduct."
Irvin
admitted in his stipulation that his possession of the images was
prejudicial
to good order and discipline or service-discrediting.
He was also specifically asked by the
military judge to explain why his conduct was either prejudicial to
good order
and discipline or service-discrediting.
Their subsequent discussion directly focused on the impact of
his
conduct on good order and discipline and on community perception of the
military.
C. The
Impact of Free Speech Coalition and
O'Connor
The
specified issues ask whether the Supreme Court's decision in Free
Speech
Coalition and our subsequent decision in O'Connor create a
substantial basis for questioning Irvin's guilty plea.
We conclude they do not.
That
conclusion is driven by a critical distinction that was properly noted
by the
Court of Criminal Appeals. Although both
the present situation and O'Connor involve guilty pleas to
charges of
possessing certain visual images in violation of Article 134, the
criminal
nature of the conduct in each case is measured by different yardsticks. In O'Connor the issue concerned the
providence of a guilty plea to a charge of violating clause 3 of
Article 134,
i.e., of committing a "crime or offense not capital."
58 M.J. at 452. In
the present case, however, Irvin was charged
with violating clauses 1 and 2 of Article 134, i.e., of engaging in
conduct
prejudicial to good order and discipline or of a nature to bring
discredit upon
the armed forces.
The
criminal nature of the conduct at issue in O'Connor derived
from a
violation of the Child Pornography Prevention Act of 1996 (CPPA), 18
U.S.C. §
2252A (2000). 58 M.J.
at 452. That separate federal
statute was the subject of the Supreme Court's decision in Free
Speech
Coalition, where the Court struck down portions of its definition
of
"child pornography" as unconstitutionally overbroad.
The
criminal nature of the conduct in the
present case, however, does not derive from a clause 3, Article 134
charge
specifying a violation of the CPPA.
Irvin was charged under clauses 1 and 2 of Article 134 with
engaging in
conduct prejudicial to good order and discipline or of a nature to
bring
discredit to the armed forces by wrongfully and knowingly possessing
"visual depictions of minors engaging in sexually explicit
conduct." Thus, the providence of
his guilty plea must be assessed against the elements of that offense,
not the
elements of the CPPA offense at issue in O'Connor and Free
Speech Coalition.
Applying
that yardstick, we find no
substantial basis in law or fact to question the providence of Irvin's
plea. In
advising Irvin of the elements of the clauses 1 and 2 Article 134
offense, the
military judge did not make any reference to the terms struck down as
constitutionally overbroad in Free Speech Coalition.* The criminal
offense that was explained to
Irvin and to which he pleaded guilty did not include a reference to
visual
depictions that "appear to be" of a minor engaging in sexually explicit
conduct, or materials that were pandered in a manner that "conveys the
impression" that they include visual depictions of minors engaging in
sexually explicit conduct. 58 M.J. at
452 (describing portions of the CPPA struck down in Free Speech
Coalition).
The
offense that the military judge explained to Irvin and to which he
pleaded
guilty was drawn strictly in terms of "visual depictions of minors
engaging in sexually explicit conduct."
Also, Irvin's explanation to the military judge was not cast in
terms of
images that "appeared to be" child pornography as was the case in O'Connor,
but rather in terms of visual depictions that he knew "were, in fact,
minors engaging in sexually explicit conduct." It
is these critical
aspects of how Irvin's case was charged and pleaded to that avoids
any
impact from Free Speech Coalition or our decision in O'Connor.
That
leaves only the issue of whether a
substantial basis exists for questioning Irvin's plea to either
the prejudicial to good order and discipline or service-discrediting
elements
of clauses 1 and 2. Irvin
admitted in his stipulation of fact and during his colloquy with the
military
judge to downloading and possessing the images at issue and agreed that
he
"knew that the visual depictions were, in fact, minors engaging in
sexually explicit conduct." He also
admitted in his stipulation and during his colloquy with the military
judge
that his conduct was prejudicial to good order and discipline and
service-discrediting,
including responses to a specific request from the military judge to
explain
why his conduct met those elements.
We
have in the past affirmed convictions
for a lesser-included offense under clause 2 of Article 134 for the
"possession of images depicting sexually explicit conduct by minors."
CONCLUSION
The
decision of the United States Air Force Court of Criminal Appeals is
affirmed.
*
The military
judge’s definition of "visual depiction" consisted of a blend of the
definition of "visual depiction" contained at 18 U.S.C. § 2256(5)
(2000) and the opening language from the definition of "child
pornography" at § 2256(8).
Similarly, the definition he gave to Irvin of "sexually explicit
conduct" was drawn from the definition of that term as contained at §
2256(2). None of these definitions were
invalidated by Free Speech Coalition.