United States v. Ferguson

UNITED STATES, Appellee

v.

Andrew J. FERGUSON, Airman First Class
U.S. Air Force, Appellant

No. 10-0020
Crim. App. No. 37272

United States Court of Appeals for the Armed Forces

Argued January 25, 2010

Decided March 22, 2010

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, J., joined. ERDMANN, J., filed a separate
dissenting opinion, in which RYAN, J., joined.

Counsel

For Appellant: Major Jennifer J. Raab (argued); Major Shannon
A. Bennett (on brief); Colonel James B. Roan.

For Appellee: Captain Joseph J. Kubler (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief).

Military Judge: John E. Hartsell

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ferguson, No. 10-0020/AF

Judge STUCKY delivered the opinion of the Court.

We granted review to determine whether the military judge

erred by accepting Appellant’s guilty plea to indecent exposure.

We hold that there is no substantial basis in law or fact to

question Appellant’s plea to indecent exposure and affirm the

judgment of the United States Air Force Court of Criminal

Appeals (CCA).

I.

Appellant communicated over the Internet from his on-base

dormitory room with a civilian police officer posing as a

fourteen-year-old boy using the screen name bradnh14. During

their first online conversation, Appellant described what it was

like to have a male ejaculate in his mouth. Later that same

afternoon, Appellant transmitted to bradnh14 six images of

himself nude with an erect penis. In at least one of the

images, Appellant was ejaculating. During other chats over the

next few weeks, Appellant described himself as an E-3 in the

United States Air Force and provided video clips of adult males

engaged in explicit sexual acts. Appellant also sent bradnh14

two digital video clips of Appellant ejaculating. On May 3,

2007, Appellant masturbated and ejaculated in front of his

webcam, intentionally transmitting the images to bradnh14.

Agents from the Air Force Office of Special Investigations

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subsequently seized Appellant’s computer and found several

images of children engaged in sexually explicit acts.

Appellant pled guilty at a general court-martial to

attempting, on divers occasions, to send obscene materials to a

minor via the Internet; on divers occasions communicating

indecent language via the Internet to a person he believed to be

a minor; indecent exposure; and possession of child pornography.

Articles 80 and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 880, 934 (2006). The military judge accepted his

pleas and court members sentenced Appellant to a bad-conduct

discharge, confinement for one year, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade. The

convening authority approved the adjudged sentence.

Appellant submitted his case to the CCA without assignment

of error, but the CCA specified an issue concerning the

providence of Appellant’s guilty plea to indecent exposure.

United States v. Ferguson, No. 37272, 2009 CCA LEXIS 258, at *2,

2009 WL 2212070, at *1 (A.F. Ct. Crim. App. July 15, 2009).

Finding no error, the CCA affirmed the findings and sentence.

Id. at *14-*15, 2009 WL 2212070, at *5.

II.

The indecent exposure specification alleged that Appellant

did . . . between on or about 9 April 2007 and on or
about 3 May 2007, while transmitting images of himself
to an audience on the internet through a computer in

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his dorm room, willfully and wrongfully expose to
public view his naked body, his erect penis, and his
erect penis while masturbating.

The elements of indecent exposure, an offense specifically

delineated by the President under clauses 1 and 2 of Article

134, UCMJ, were:1

(1) That the accused exposed a certain part of the
accused’s body to public view in an indecent manner;

(2) That the exposure was willful and wrongful; and

(3) That, under the circumstances, the accused’s
conduct 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.

Manual for Courts-Martial, United States pt. IV, para. 88.b

(2005 ed.) (MCM); see United States v. Graham, 56 M.J. 266, 267

(C.A.A.F. 2002).

During the plea inquiry, the military judge advised

Appellant of the elements of the offense and the effects of a

guilty plea. Appellant voluntarily admitted under oath that, on

or about April 9, 2007, and on or about May 3, 2007, he

transmitted live images of himself over the Internet,

intentionally exposing his naked body and erect penis while

ejaculating to a person he thought was a fourteen-year-old boy.

1
Congress approved a slightly different offense of indecent
exposure in Article 120(n), UCMJ, effective for all offenses
committed after October 1, 2007. See National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,
div. A., tit. V, § 552(a)(1), 119 Stat. 3136, 3257 (2006);

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Before engaging in this conduct, Appellant asked bradnh14

whether he was alone. Bradnh14 responded that he was alone, but

Appellant later admitted that he “couldn’t have known who was in

the room” and that it could have been more than just bradnh14.

Appellant further admitted that he performed these acts in

public view in an indecent manner, and that it was grossly

vulgar, obscene, repugnant, and tended to incite lust. He

asserted that it was indecent because he “couldn’t have known

who was in the room. So, therefore, it would be a public --

within public view, and the fact that [he] was sending it to a

minor -- that [he] thought was a minor.”

In his stipulation of fact, Appellant admitted that the

Internet transmission could have been intercepted by a third

party, was “public,” and “indecent.” At the request of the

military judge during the plea inquiry, Appellant confirmed the

truth of the contents of the paragraph in which these statements

were made.

III.

A.

A military judge may not accept a guilty plea if it is

“irregular,” the accused “sets up matter inconsistent with the

plea, or if it appears that he has entered the plea of guilty

Manual for Courts-Martial, United States, Analysis of the
Punitive Articles app. 23 at A23-15 (2008 ed.).

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United States v. Ferguson, No. 10-0020/AF

improvidently or through lack of understanding of its meaning

and effect.” Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2006).

The term “improvident” means “‘heedless, unwary, not

circumspect.’” Bryan A. Garner, A Dictionary of Modern Legal

Usage 427 (2d ed. 1995). The term has also been defined as

“[of] or relating to a judgment arrived at by using misleading

information or a mistaken assumption.” Black’s Law Dictionary

826 (9th ed. 2009).2 To prevent the acceptance of improvident

pleas, the military judge is required to make “such inquiry of

the accused as shall satisfy the military judge that there is a

factual basis for the plea.” Rule for Courts-Martial 910(e);

see United States v. Barton, 60 M.J. 62, 66 (C.A.A.F. 2004);

United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002).

In this case, there is nothing in the record to suggest

that Appellant’s pleas were irregularly entered or that he

entered his pleas improvidently or without understanding the

meaning and effect of his pleas. He was represented by counsel,

advised of the elements of the offense and the consequences of

pleading guilty, was carefully questioned by the military judge

about the offense, was given the opportunity to consult with his

counsel and ask the military judge questions before his plea was

accepted, and provided the military judge a factual basis for

2
We understand that counsel and military appellate courts often
use the word “improvident” as a more general term to refer to

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the plea. Therefore, unless Appellant pled guilty to conduct

that was not criminal, we should only review to ensure that he

did not set up matter inconsistent with his plea.

B.

This Court recently characterized its duties in reviewing a

guilty plea conviction:

[W]e 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. In doing
so, we apply the substantial basis test, looking at
whether there is something in the record of trial,
with regard to the factual basis or the law, that
would raise a substantial question regarding the
appellant’s guilty plea.

United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

“By pleading guilty, an accused does more than admit that

he [committed] the various acts alleged in a specification; ‘he

is admitting guilt of a substantive crime.’” United States v.

Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009) (quoting United

States v. Broce, 488 U.S. 563, 570 (1989)). During the plea

inquiry, Appellant admitted under oath each of the elements of

the offense of indecent exposure, including that he exposed

himself to public view. When an accused pleads guilty, there is

no requirement that the government establish the factual

predicate for the plea. United States v. Faircloth, 45 M.J.

172, 174 (C.A.A.F. 1996) (holding that, in a guilty plea case,

any ground for invalidating a guilty plea.

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the Court would not speculate as to the true victim of larceny

with respect to co-payees on a check). “The factual predicate

is sufficiently established if ‘the factual circumstances as

revealed by the accused himself objectively support that plea.’”

Id. (quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A.

1980)). We “will not overturn a military judge’s acceptance of

a guilty plea based on a ‘mere possibility’ of a defense.” Id.

Nor will we “‘speculate post-trial as to the existence of facts

which might invalidate an appellant’s guilty pleas.’” Id.

(quoting United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F.

1995)).

IV.

Appellant asserts that his plea is “improvident”

because the exposure was not in “public view” where it
was done in a private setting; there was no evidence
to suggest a third person was present when the images
were transmitted or that Appellant had any interest in
anyone other than “bradnh14” to view the transmission;
and the undercover detective posing as a teenager was
neither unsuspecting nor uninterested.

In support of his argument, Appellant cites our decisions in

Graham and United States v. Shaffer, 46 M.J. 94 (C.A.A.F. 1997).

Contrary to his pleas, Shaffer was convicted of indecent

exposure by appearing naked in the rear of his garage but seen

by three persons driving by. Shaffer, 46 M.J. at 95-96.

Shaffer claimed that the evidence was not legally sufficient to

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establish that his exposures were willful. Id. at 96. This

Court held that the evidence was legally sufficient.

The offense of indecent exposure does not just apply
to exposures that take place on traditionally public
lands or in traditionally public buildings. The
offense also applies to indecent exposures that occur
in places “so public and open,” including privately-
owned homes, that they are “certain to be observed” by
the general population.

Id. at 97.

Graham was convicted of indecent exposure for calling a

fifteen-year-old babysitter into his bedroom while clothed only

in a towel and allowing the towel to drop to the floor, exposing

his penis to her. Graham, 56 M.J. at 267. Graham claimed his

conviction could not stand because the indecent exposure

occurred in his bedroom, rather than a more public location.

Id. This Court held that the offense did not require proof that

the accused exposed himself in a public place, only that he

exposed himself to public view. Id. at 267-68; see MCM pt. IV,

para. 88.b.(1) (“[t]hat the accused exposed a certain part of

the accused’s body to public view in an indecent manner”).

“‘[P]ublic view’ means ‘in the view of the public,’ and in that

context, ‘public’ is a noun referring to any member of the

public who views the indecent exposure.” Graham, 56 M.J. at

269.

Appellant’s reliance on Shaffer and Graham is misplaced.

First, these appellants pled not guilty and contested the

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government’s theory of the case. Appellant, by contrast, chose

to plead guilty. Second, contrary to Appellant’s contention,

Graham does not hold that when an exposure is done in private

the alleged victim must be unsuspecting and uninterested. In

Graham, we determined that the location of an exposure is

important only to the extent it may affect the proof required to

establish that the exposure was willful. See id. at 268. While

the fact that the exposure occurred in a public place tends to

establish willfulness, such is not the case for exposure in a

nonpublic place, such as a home. Id. As Graham exposed himself

in a nonpublic place, the exposure itself was not sufficient to

establish willfulness; however, the willfulness was established

by the fact that Graham exposed himself to a member of the

public -- the babysitter -- who was unsuspecting and

uninterested, and had no choice but to see him naked. Id. In

the case currently before us, this issue -- whether Appellant’s

acts were willful -- was resolved during the plea inquiry.

Appellant confirmed to the military judge that the decision to

expose himself “was the result of a freely made decision on

[his] part.”

Appellant could have pled not guilty, as Shaffer and Graham

did, and challenged the prosecution’s theory of the

specification. See Campbell, 68 M.J. at 219. Appellant chose

not to. Had he done so, the prosecution would have been

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required to prove beyond a reasonable doubt that Appellant

ejaculated in public view. Then, the issue of whether bradnh14

was alone or with others could have been litigated. Instead,

Appellant pled guilty and admitted that he performed the acts

intentionally, purposefully, and in public view -- in a manner

that could be observed by members of the public, bradnh14, and

others. By doing so, Appellant relinquished his right to

contest the prosecution’s theory on appeal, see Broce, 488 U.S.

at 571, unless the record discloses matter inconsistent with the

plea. Article 45(a), UCMJ. The record does not disclose any

such inconsistent matter. Under the circumstances, the military

judge was not required to further investigate Appellant’s

concession that his conduct was undertaken in public view.

Faircloth, 45 M.J. at 174. The military judge did not abuse his

discretion in accepting Appellant’s guilty plea.

V.

The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.

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ERDMANN, Judge, with whom RYAN, Judge, joins (dissenting):

As I cannot agree with the majority’s conclusion that

Ferguson’s guilty plea to the offense of indecent exposure was

provident, I respectfully dissent. I would reverse the decision

of the United States Air Force Court of Criminal Appeals and set

aside the finding of guilty to Specification 1 of Charge II.

The offense of indecent exposure, particularly in the

Internet age, has been subject to a certain degree of confusion,

as evidenced by the opposite conclusions recently reached by the

United States Navy-Marine Court of Criminal Appeals and the

United States Air Force Court of Criminal Appeals in cases with

strikingly similar factual situations. Compare United States v.

Hockemeyer, No. NMCCA 200800077, 2008 CCA LEXIS 310, 2008 WL

4531999 (N-M. Ct. Crim. App. Sep. 30, 2008), with United States

v. Ferguson, No. ACM 37272, 2009 CCA LEXIS 258, 2009 WL 2212070

(A.F. Ct. Crim. App. Jul. 15, 2009). The offense at issue in

this case, the Article 134, Uniform Code of Military Justice

(UCMJ), offense of indecent exposure, has been replaced by the

revised Article 120, UCMJ, and the elements of the new offense

are different than they were under the Article 134, UCMJ,

offense.1 Even though the impact of the majority and dissenting

1
“Indecent exposure” is now defined as:

Any person subject to this chapter who intentionally
exposes, in an indecent manner, in any place where the
United States v. Ferguson, No. 10-0020/AF

opinions in this case will necessarily be limited, I believe

that the majority opinion has misapplied this court’s decision

in United States v. Graham, 56 M.J. 266 (C.A.A.F. 2002).

“[W]e review a military judge's decision to accept a guilty

plea for an abuse of discretion . . . .” United States v.

Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we

apply the substantial basis test, looking at whether there is

something in the record of trial, with regard to the factual

basis or the law, that would raise a substantial question

regarding the appellant’s guilty plea.” Id. “The providence of

a plea is based not only on the accused’s understanding and

recitation of the factual history of the crime, but also on an

understanding of how the law relates to those facts.” United

States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United

States v. Care, 18 C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51

(1969)). Review of the statutory elements required to establish

an offense is a question of law this court reviews de novo.

United States v. Holbrook, 66 M.J. 31, 32 (C.A.A.F. 2008).

The elements of the offense of indecent exposure, in effect

at the time of this offense, appear deceptively straightforward:

conduct involved may reasonably be expected to be
viewed by people other than members of the actor’s
family or household, the genitalia, anus, buttocks, or
female areola or nipple is guilty of indecent exposure
and shall be punished as a court-martial may direct.

Article 120(n), UCMJ.

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(1) That the accused exposed a certain part of the
accused’s body to public view in an indecent
manner;

(2) That the exposure was willful and wrongful; and

(3) That, under the circumstances, the accused’s
conduct 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.

Manual for Courts-Martial, United States pt. IV, para. 88.b

(2005 ed.) (MCM). The Manual defined “willful” as “an

intentional exposure to public view” and “indecent” as “that

form of immorality relating to sexual impurity which is not only

grossly vulgar, obscene, and repugnant to common propriety, but

tends to excite lust and deprave the morals with respect to

sexual relations.” MCM pt. IV, para. 88.c, para. 90.c.

In a series of opinions this court has further defined the

elements of indecent exposure. For instance, relying primarily

on state court decisions, we have recognized that there are two

different types of indecent exposure: (1) exposure in a public

place; and (2) exposure in a nonpublic place. Graham, 56 M.J.

at 268 (citing United States v. Shaffer, 46 M.J. 94, 97

(C.A.A.F. 1997); United States v. Stackhouse, 16 C.M.A. 479,

481, 37 C.M.R. 99, 100 (1967)). We have further defined “public

view” to mean an exposure that is “in the view of the public”

and “in that context, ‘public’ is a noun referring to any member

of the public who views the indecent exposure.” Graham, 56 M.J.

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at 269. While these criteria are not found in the elements

delineated by the President, it is now well settled that an

indecent exposure can occur in a public location or a nonpublic

location, such as a private home, as long as a member of the

public views the exposure.

In Graham the appellant invited a fifteen-year-old

babysitter into a bedroom and allowed the towel he was wearing

to fall to the floor, thus exposing himself. Id. at 267. This

court found the evidence legally sufficient to satisfy the

elements of the offense of indecent exposure. Id. at 268. The

court noted that the majority of state decisions:

make clear that the focus of this offense is on the
victim, not on the location of the crime, and that the
offense is committed regardless of whether it takes
place in the bedroom or on the street. This is
because the purpose of criminalizing public indecency
“is to protect the public from shocking and
embarrassing displays of sexual activities. A person
need not be in a public place to be a member of the
public.”

Id. at 268-69 (citations omitted).

Ferguson argues that under Graham, when the exposure is

done in a nonpublic location, the focus of the offense is

whether the victim is “unsuspecting” or “uninterested.” The

majority rejects that argument and concludes that “Graham does

not hold that when an exposure is done in private the alleged

victim must be unsuspecting and uninterested.” The opinion goes

on, however, to observe that in Graham “willfulness was

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established by the fact that Graham exposed himself to a member

of the public –- the babysitter -- who was unsuspecting and

uninterested, and had no choice but to see him naked.”2 The

Graham court also relied on the status of the victim in their

analysis of the “indecency” element:

Nor is this case about whether appellant’s exposure
was indecent. He did not expose himself to his spouse
or girlfriend, or to a family member or other person
involved with him in such a way that a given exposure
might not be indecent. Appellant exposed himself to a
fifteen-year-old girl who was completely unrelated to
and uninvolved with him, and who neither invited nor
consented to his conduct.

Id. at 267.

The Graham court considered the status of the victim and

whether that individual consented to the exposure in analyzing

both the “indecency” and “willfulness” elements of indecent

exposure. Id. at 268-69. While not specifically discussed in

that opinion, the status and consent of the victim would also be

relevant to the “wrongful” element. After Graham, it is

difficult to dispute that consideration of a victim’s status

must be included in any analysis of an indecent exposure offense

in a nonpublic location.

2
In discussing the “willful” element in Graham, the court noted
that Graham exposed himself in a nonpublic place, but did so by
inviting the babysitter into the bedroom and allowing his towel
to drop in front of her. “In this way, he made certain that an
unsuspecting and uninterested member of the general population
had no choice but to see him naked.” Graham, 56 M.J. at 268.

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It appears that Ferguson sent a live video transmission of

himself masturbating to bradnh14 via the Yahoo instant messenger

program.3 [B]radnh14 was an undercover New Hampshire police

officer. Prior to the video transmission, Ferguson and bradnh14

had the following chat:

Ferguson: im hard now lol
bradnh14: wow love to see that
Ferguson: lol ya i bet
Ferguson: u want ot
bradnh14: yea
Ferguson: ok
Ferguson u alone?
Bradnh14: yea
Ferguson: k
bradnh14: wow
Ferguson: lol like
bradnh14: love
bradnh14: i am doing it too
Ferguson: nice
bradnh14: wow i am close
bradnh14: wow
Ferguson: lol
bradnh14: hot
Ferguson: tat was good
bradnh14: 4 me 2

While Ferguson admitted during the providence inquiry that it

was possible that someone else might have been able to view the

transmission, there is no evidence in the record that anyone

3
The record does not specifically reflect how the live video
transmission was sent to bradnh14 on May 3, 2007, but the record
does reflect that on April 9, 2007, after establishing contact
with bradnh14 in an Internet chat room, Ferguson sent him images
via the Yahoo instant messenger program. We have previously
recognized that “[m]embers of the public are not generally able
to view e-mails and instant messenger conversations between
individuals . . . .” United States v. Wilcox, 66 M.J. 442, 450,
n.6 (C.A.A.F. 2008).

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other than bradnh14 actually observed the exposure.4 Prior to

sending the video transmission, Ferguson specifically asked

bradnh14 if he was alone and bradnh14 responded that he was.

There is no evidence in the record that contradicts that

statement. The military judge did not explore whether bradnh14

had consented to the exposure and if he had consented, the

possible consequences of that consent to Ferguson’s plea. Here

bradnh14 not only consented to the exposure, he specifically

requested that Ferguson transmit the video image.

While bradnh14 was a member of the public who viewed the

exposure in a nonpublic location, he certainly cannot be

considered “unsuspecting” or “uninterested.” He was a law

enforcement officer conducting an undercover investigation who

specifically invited and consented to the exposure. The facts

as presented here may have constituted the offense of attempted

indecent exposure, but they do not meet the legal requirements

of indecent exposure as defined by the MCM and this court.

While finding Ferguson’s plea provident, the majority also

holds that his guilty plea waived his right to challenge the

prosecution’s theory on appeal, citing United States v. Broce,

4
To adopt a standard that an exposure in a nonpublic location
becomes public if someone “might have observed” the act creates
a standard that is meaningless. Regardless of the location, it
is always possible to speculate that someone might have peeked
into a window or hacked into a private Internet communication to
observe what otherwise would be a private act.

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488 U.S. 563 (1989). However, Broce also notes that “[t]here

are exceptions where on the face of the record the court had no

power to enter the conviction or impose the sentence”5 and “the

plea cannot be truly voluntary unless the defendant possesses an

understanding of the law in relation to the facts.” Id. at 570

(citation and quotation marks omitted); see also Medina, 66 M.J.

at 26. As Ferguson was not advised that the status or consent

of the victim could impact his culpability, he did not possess

the necessary understanding of the law prior to entering his

plea and there is no waiver in this case.

I would therefore conclude that there is an insufficient

factual and legal basis to support Ferguson’s guilty plea to the

offense of indecent exposure. I would set aside the finding of

guilty as to Specification 1 of Charge II and return the case to

the United States Air Force Court of Criminal Appeals for

sentence reassessment.6

5
488 U.S. at 569.
6
Because I would set aside the finding as to Specification 1 of
Charge II, it would be unnecessary to take corrective action
concerning the court-martial order, which incorrectly indicates
that Ferguson was charged with, pled guilty to, and was found
guilty of indecent exposure “on divers occasions.”

8