United States v. Hays

UNITED STATES, Appellee

v.

Michael B. HAYS, Specialist
U.S. Army, Appellant

No. 04-0264
Crim. App. No. 20001100

United States Court of Appeals for the Armed Forces

Argued March 2, 2005

Decided September 30, 2005

EFFRON, J., delivered the opinion of the Court, an opinion with
respect to Issues I and II, in which GIERKE, C.J., and CRAWFORD
and BAKER, JJ., joined, and an opinion with respect to Issue IV,
in which BAKER and ERDMANN, JJ., joined. In view of the Court’s
disposition of Issue IV, it did not reach Issue III. ERDMANN,
J., filed a dissenting opinion on Issues I and II. GIERKE,
C.J., filed an opinion concurring in the result on Issue IV.
CRAWFORD, J., filed a dissenting opinion on Issue IV.

Counsel

For Appellant: Captain Charles L. Pritchard Jr. (argued);
Lieutenant Colonel Mark Tellitocci and Major Allyson G. Lambert
(on brief); Colonel Mark Cremin, Colonel Robert Teetsel, and
Captain Terri J. Erisman.

For Appellee: Captain Flor M. Suarez (argued); Colonel Steven
Salata, Lieutenant Colonel Mark Johnson, and Lieutenant Colonel
Theresa A. Gallagher (on brief); Lieutenant Colonel Margaret B.
Baines.

Military Judge: Donna M. Wright

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hays, No. 04-0264/AR

Judge EFFRON delivered the opinion of the Court.

At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to mixed pleas,

of disobeying a superior officer (two specifications); violating

a general regulation; violating the Child Pornography Prevention

Act (CPPA), 18 U.S.C. § 2252A (2000) (four specifications);

soliciting another to rape a child; and false swearing, in

violation of Articles 90, 92, and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 890, 892, 934 (2000), respectively.

The adjudged sentence included a dishonorable discharge,

confinement for ten years, total forfeiture of pay and

allowances, and reduction to the lowest enlisted grade. The

convening authority approved the sentence and granted Appellant

ninety-nine days of confinement credit.

In an unpublished opinion, the United States Army Court of

Criminal Appeals disapproved the finding of guilty for

soliciting the rape of a child but approved a finding of guilty

to the lesser offense of soliciting another person to commit the

offense of carnal knowledge. The court affirmed the remaining

findings of guilt, reassessed the sentence, and affirmed only so

much of the sentence as provided for a dishonorable discharge,

confinement for 114 months, total forfeiture of pay and

allowances, and reduction to the lowest enlisted grade. United

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States v. Hays, No. ARMY 20001100 (A. Ct. Crim. App. Jan. 22,

2004).

On Appellant’s petition, we granted review of the following

four issues:

I. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED IN AFFIRMING A FINDING OF
GUILTY OF SOLICITATION OF CARNAL KNOWLEDGE
WHERE: (1) THE COURT USED AN OVERBROAD
DEFINITION OF SOLICITATION; AND (2) THE
EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT
A FINDING THAT APPELLANT SOLICITED “JOHN
D___” TO COMMIT CARNAL KNOWLEDGE BECAUSE
APPELLANT’S ACTS DID NOT AMOUNT TO
SOLICITATION.

II. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED IN AFFIRMING A CONVICTION OF
SOLICITATION OF CARNAL KNOWLEDGE WHERE: (1)
THE COURT RELIED ON ERRONEOUSLY INTRODUCED
EVIDENCE OF UNCHARGED MISCONDUCT; (2) THE
COURT RELIED ON IMPROPER EXPERT TESTIMONY
WHICH WAS UNHELPFUL AND AMOUNTED TO
INADMISSIBLE PROFILE EVIDENCE AND LEGAL
OPINIONS; AND (3) THE COURT MISTAKENLY
DETERMINED THAT THE COMBINED IMPACT OF THE
ERRONEOUSLY ADMITTED EXHIBITS AND THE
IMPROPER EXPERT TESTIMONY WOULD NOT HAVE
CHANGED THE MILITARY JUDGE’S DETERMINATION
OF GUILT AT TRIAL.

III. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED IN FINDING THAT APPELLANT’S
PLEAS OF GUILTY TO [CHILD PORNOGRAPHY
OFFENSES UNDER] SPECIFICATIONS 1, 2, 3, AND
4 OF CHARGE IV WERE PROVIDENT WHERE: (1) THE
MILITARY JUDGE’S DEFINITION OF CHILD
PORNOGRAPHY INCLUDED COMPUTER-GENERATED
IMAGES, A DEFINITION THE SUPREME COURT FOUND
UNCONSTITUTIONAL; AND (2) THE MILITARY JUDGE
DID NOT CONDUCT AN ADEQUATE PROVIDENCE
INQUIRY AS REQUIRED BY UNITED STATES v.
CARE, 18 C.M.A. 535, 40 C.M.R. 247 (1969),
AND ITS PROGENY TO ESTABLISH THAT APPELLANT

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United States v. Hays, No. 04-0264/AR

BELIEVED THE IMAGES WERE PRODUCED USING REAL
CHILDREN.

IV. WHETHER THE FINDINGS OF GUILTY TO
DISTRIBUTION, RECEIPT, AND POSSESSION OF
CHILD PORNOGRAPHY IN VIOLATION OF 18 U.S.C.
§§ 2252A(a)(1)-(2), (2), AND (5)(a),
RESPECTIVELY, MUST BE SET ASIDE BECAUSE
THOSE STATUTES DO NOT APPLY TO CONDUCT
ENGAGED IN OUTSIDE THE TERRITORIAL LIMITS OF
THE UNITED STATES WHEN CHARGED UNDER CLAUSE
3 OF ARTICLE 134, UCMJ.

For the reasons set forth below, we affirm the decision of the

Court of Criminal Appeals, subject to modification of the child

pornography convictions as set forth in the decretal paragraph.

I. BACKGROUND

While investigating suspected child pornography offenses,

an agent of the Army’s Criminal Investigation Division (CID)

searched the e-mail accounts of a soldier stationed in Korea.

In the course of the search, one of the accounts received an

online message from a person identified as “P[ ]13.” The agent

entered into an online conversation with “P[ ]13.” During the

online conversation, “P[ ]13” expressed an interest in sexually

explicit pictures of girls between the ages of four and eight.

As the search of the initial suspect’s e-mail accounts

continued, “P[ ]13” sent two more e-mails with attachments

containing sexually explicit photographs of children and adults.

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United States v. Hays, No. 04-0264/AR

Based on information in the e-mails, CID identified

Appellant, who was stationed in Germany, as “P[ ]13.” CID then

searched Appellant’s e-mail accounts and U.S. Government-owned

computers in the library on Vilseck Air Base in Germany. CID

also collected discs located in Appellant’s household goods.

The information obtained from these searches provided the

primary evidence for the charges at issue in the present appeal.

II. SOLICITATION TO COMMIT
CARNAL KNOWLEDGE (ISSUES I AND II)

Appellant was prosecuted under Article 134, UCMJ, for

soliciting JD to rape a nine-year-old child. The offense has

three elements:

(1) That the accused solicited or advised a
certain person or persons to commit a
certain offense under the code other than
one of the four offenses named in Article
82;

(2) That the accused did so with the intent
that the offense actually be committed; and

(3) That, 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.

Manual for Courts-Martial, United States (2002 ed.) (MCM), pt.

IV, ¶ 105.b.

At trial, the prosecution introduced e-mails that were sent

and received by Appellant discussing the exchange of child

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United States v. Hays, No. 04-0264/AR

pornography and pictures. Some of the e-mails included pictures

of children and adults exposed and engaged in sexually explicit

behavior. The charge of solicitation to commit rape was based

primarily on an e-mail message in which Appellant wrote the

following to JD, a person apparently known to Appellant only

over the internet:

I was hoping that you would send me some
more good pix before I left . . . . I hope
that everything is working out with your 9
yo. Have you f***** her yet? If so, [d]o
you have pix? . . . Man you are not going to
believe it when I adopt that little girl and
send you pix of me and her as I promised. I
am going to do everything to her that you
can imagine. And you will be the first to
see, I promise you that much. I hope that
you can find it in your heart to send me
more pix as you have in the past week or so.
If you send me more pix, I will be eternally
grateful, and reward you greatly. Please
send me more!!

The court below concluded that this statement did not

establish Appellant’s intent that JD commit rape by force, but

that it was factually sufficient to prove the lesser included

offense of soliciting JD to commit the offense of carnal

knowledge. In Issues I and II, Appellant raises four challenges

to the solicitation conviction, as modified by the court below:

(1) whether the court employed an improper definition of

solicitation; (2) whether the evidence was legally sufficient;

(3) whether uncharged misconduct was improperly admitted into

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evidence; and (4) whether the testimony of a Government expert

witness was improperly admitted into evidence.

A. LEGAL DEFINITION OF SOLICITATION

After discussing the elements of solicitation, the court

below stated: “Solicitation includes ‘any use of words or other

device by which a person is requested, urged, advised,

counseled, tempted, commanded or otherwise enticed or incited to

commit a crime.’” Hays, slip. op. at 11 (citing Rollin M.

Perkins & Ronald N. Boyce, Criminal Law 647 (3d ed. 1982), and

United States v. Hubbs, 20 M.J. 909, 910 (A.C.M.R. 1985)).

Appellant argues that this statement includes conduct that would

not otherwise have been criminal under the MCM. The

interpretation of “solicitation” under Article 134 is a question

of law, which we review de novo. See, e.g., United States v.

Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002).

According to the MCM, “Any act or conduct which reasonably

may be construed as a serious request or advice to commit [a

crime under the Code] may constitute solicitation.” Pt. IV, ¶

6.c.2. This Court has further described solicitation under

Article 134 as “an express or implicit invitation to join in a

criminal plan.” United States v. Williams, 52 M.J. 218, 220

(C.A.A.F. 2000).

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The word “request” means “to ask for” and “invite” means

“to offer an incentive or inducement to: entice . . . to

request formally.” Webster’s Third New International Dictionary

of the English Language, Unabridged 1929, 1190 (3d ed. 1981).

These words are synonymous with the words in the treatise cited

by the Army court. The court supplemented the quotation from

the criminal law treatise by quoting the “serious request”

language from the MCM. Hays, slip. op. at 11 (“Any writing that

may be reasonably construed as a ‘serious request or advice’ to

commit rape may constitute solicitation. MCM, 1998, Part IV,

para. 6c(2).”). In that context, we do not interpret the

language in the Army court’s opinion as broadening the

definition of solicitation to include conduct that would not

otherwise be criminal. By quoting the synonymous terms from the

criminal law treatise, the Army court merely offered additional

explanation as to what constitutes a “serious request” in

accordance with the established definition of solicitation.

B. LEGAL SUFFICIENCY OF THE EVIDENCE

Legal sufficiency is a question of law, which we review de

novo. United States v. Riley, 58 M.J. 305, 311 (C.A.A.F. 2003).

The test 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

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reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)).

The elements of solicitation require proof that Appellant

“solicited or advised a certain person or persons to commit” the

offense of carnal knowledge -- sexual intercourse with non-

spouse under the age of sixteen -- and that Appellant “did so

with the intent that the offense actually be committed.” MCM,

pt. IV, ¶ 105.b (solicitation); id. pt. IV, ¶ 45.b.2 (carnal

knowledge). Appellant contends that the query in his e-mail was

not a serious request because it was simply a question that “did

not seek any action on [JD’s] part.”

The evidence demonstrates that Appellant’s inquiry into

whether JD had engaged in sexual intercourse with the nine-year-

old girl was followed immediately by a request for pictures of

such an encounter. In the same e-mail, Appellant offered JD a

quid pro quo. He described his intention to adopt a little girl

and promised to send JD pictures of engaging the girl in every

sexual activity “that [JD] can imagine.” He then said that if

JD sent pictures, Appellant would be “eternally grateful, and

[would] reward [JD] greatly.”

In order to fulfill Appellant’s request, it would have been

necessary for JD to engage in an act of sexual intercourse with

a nine-year-old girl. Considering the context of the e-mail --

particularly the repeated urging for JD to send pictures of him

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engaging in sexual intercourse with the young girl, as well as

the quid pro quo contained in the same e-mail -- and viewing the

evidence in the light most favorable to the Government, a

reasonable factfinder could have found that the inquiry

constituted a serious request for JD to commit carnal knowledge

with the girl. Under these circumstances, a reasonable

factfinder could infer from the tone and language of the e-mail

that Appellant solicited JD to commit carnal knowledge with the

intent that the offense actually be committed.

Appellant further contends that even if his words

constituted a serious request to commit carnal knowledge, JD was

predisposed and would have committed the offense in the absence

of Appellant’s request. In Appellant’s view, JD’s

predisposition absolved Appellant of legal responsibility for

what otherwise might have been a criminal solicitation. As

support for this argument, Appellant relies upon a decision by

the Army Court of Criminal Appeals describing solicitation as

“seeking to induce conduct by another that that person was not

already predisposed to do . . . .” United States v. Dean, 44

M.J. 683, 685 (A. Ct. Crim. App. 1996). Appellant acknowledges

that the Army court in the present case appears to have

abandoned the predisposition limitation. Neither the UCMJ nor

the MCM precludes a conviction for solicitation simply because

the object of the solicitation may be predisposed towards

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committing the crime. Because there may be cases in which a

solicitation transforms predisposition into action, we reject

Appellant’s invitation to adopt the predisposition limitation

set forth in Dean.

C. UNCHARGED MISCONDUCT

1. Background

Appellant contends that the solicitation conviction was

tainted by the improper introduction of uncharged misconduct

evidence. See Military Rule of Evidence (M.R.E.) 404(b). The

evidence at issue includes an e-mail from Appellant containing

images of minors engaging in sexually explicit conduct; pictures

of adults engaging in bestiality; requests from Appellant for

pictures and video of children engaging in sexual activity with

adults, including additional discussions with JD about the nine-

year-old girl; responses to such requests; and an e-mail to

multiple recipients stating that if they did not send “preteen

hardcore pix,” he would remove them from his trading list.

Defense counsel objected that each of the items was

irrelevant, and that specific items were unduly prejudicial or

contained inadmissible character evidence. See M.R.E. 401-04.

The prosecution responded that the e-mails and pictures

constituted relevant evidence of Appellant’s intent at the time

of the solicitation. See M.R.E. 404(b). The military judge

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overruled the objections and admitted the exhibits into

evidence.

In the present appeal, Appellant challenges the

admissibility of each of these exhibits under the limitations on

the use of uncharged misconduct in M.R.E. 404. Appellant

contends that the prosecution improperly used these exhibits “in

an effort to show that appellant was a bad man with an unnatural

sexual attraction to children.”

We review a military judge’s ruling to admit or exclude

evidence for an abuse of discretion. United States v. Grant, 56

M.J. 410, 413 (C.A.A.F. 2002). Under M.R.E. 404(b), “Evidence

of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity

therewith.” Such evidence may be admissible for other purposes,

such as “proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.”

M.R.E. 404(b). The admissibility of uncharged misconduct

evidence is analyzed under the three-pronged test of United

States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989): (1) Does

the evidence reasonably support a finding by the court members

that Appellant committed the prior crimes, wrongs, or acts?; (2)

What fact of consequence is made more or less probable by the

existence of the evidence?; and (3) Is the probative value of

the evidence substantially outweighed by the danger of unfair

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United States v. Hays, No. 04-0264/AR

prejudice? The evidence is inadmissible if it fails any one of

these three tests. United States v. Humpherys, 57 M.J. 83, 91

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

The Government, noting that the defense objected to most of

the exhibits on relevance grounds rather than under M.R.E. 404,

contends that we should review for plain error because defense

counsel’s objections did not preserve the uncharged misconduct

issue. We note, however, that under the Reynolds three-prong

test for analyzing uncharged misconduct under M.R.E. 404, two of

the three prongs involve relevance and undue prejudice under

M.R.E. 401 and M.R.E. 403. For purposes of the present appeal,

we shall assume without deciding that defense counsel’s

objections sufficiently preserved the issue of uncharged

misconduct on appeal.

2. Discussion

The first prong of the Reynolds test asks whether the

factfinder could reasonably find by a preponderance of the

evidence that the misconduct occurred -- sending and receiving

e-mails discussing the exchange of child pornography and

pictures containing sexually explicit images of children and

adults. The exhibits at issue were sent and received by “P[

]13,” and evidence introduced at trial showed that Appellant was

“P[ ]13.” This is sufficient evidence from which a reasonable

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United States v. Hays, No. 04-0264/AR

factfinder could conclude that Appellant sent and received the

e-mails and pictures.

Under the second Reynolds prong, the evidence must make

some fact of consequence more or less probable. It is not

sufficient, however, to introduce the evidence as evidence of

Appellant’s character to prove that he acted in conformity

therewith. M.R.E. 404(a); United States v. Robles-Ramos, 47

M.J. 474 (C.A.A.F. 1998). The Government contends that the

exhibits were relevant to show Appellant’s intent to solicit JD

to commit carnal knowledge. See M.R.E. 404(b). Appellant

responds that the exhibits do not prove or disprove Appellant’s

intent to commit carnal knowledge. According to Appellant, the

exhibits only establish that Appellant enjoyed viewing child

pornography, which was not a fact in controversy.

When considering whether uncharged misconduct constitutes

admissible evidence of intent under M.R.E. 404(b), we consider

“whether Appellant’s state of mind in the commission of both the

charged and uncharged acts was sufficiently similar to make the

evidence of the prior acts relevant on the intent element of the

charged offenses.” United States v. McDonald, 59 M.J. 426, 430

(C.A.A.F. 2004). “Extrinsic acts evidence may be critical to

the establishment of the truth as to a disputed issue,

especially when that issue involves the actor’s state of mind

and the only means of ascertaining that mental state is by

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drawing inferences from conduct.” United States v. Tanksley, 54

M.J. 169, 176 (C.A.A.F. 2000) (quoting Huddleston v. United

States, 485 U.S. 681, 685 (1988)).

The critical issue with respect to the solicitation charge

in the present case was whether Appellant intended to ask JD to

engage in carnal knowledge with a child so that Appellant could

receive pictures of the activity. In that context, evidence of

Appellant’s intent is reflected in the exhibits describing his

desire to engage in sexual activities with young girls, as well

as through the exhibits showing that Appellant pressured a woman

identified as “[PD]” to send him a videotape of her boyfriend’s

sexual activities with her minor daughter, and that Appellant

communicated with JD about the nine-year-old girl on other

occasions. In addition, the exhibits were relevant as

reflecting Appellant’s motive for making the request of JD. See

2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence § 404.22[3] (Joseph M. McLaughlin ed., 2d ed. 2005).

The third Reynolds prong, employs the balancing test under

the M.R.E. 403: whether the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice.

Although the pictures and language in the e-mails were

offensive, that is the nature of much of the evidence in cases

involving child pornography. See United States v. Garot, 801

F.2d 1241, 1247 (10th Cir. 1986) (noting that defendants in

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child pornography cases unavoidably risk the introduction of

evidence that would offend an average juror). In light of the

nature of the offense and the other evidence admitted, the

prejudicial impact of these exhibits did not substantially

outweigh their probative value in demonstrating Appellant’s

intent and motive to solicit JD. See United States v. Acton, 38

M.J. 330, 334 (C.M.A. 1993) (explaining that any prejudicial

impact due to the “shocking nature” of a pornographic video

depicting incest was diminished because the same conduct was

already before the court members).

Furthermore, this trial was before a military judge sitting

alone, and the record reflects that the military judge engaged

in a balancing analysis under M.R.E. 403. In that context, if

evidence is admitted for a limited purpose, we presume a

military judge will consider it only for that purpose. See

United States v. Stinson, 34 M.J. 233, 239 (C.M.A. 1992); United

States v. Ray, 26 M.J. 468, 471 (C.M.A. 1988).

D. EXPERT TESTIMONY

In support of the solicitation charge, the prosecution

relied on the testimony of Kenneth Lanning, an agent of the

Federal Bureau of Investigation, and assigned to the National

Center for the Analysis of Violent Crime. Mr. Lanning testified

as an expert in the behavioral aspects of sexual victimization

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of children. Appellant challenges Mr. Lanning’s testimony on

two grounds: first, that it consisted of conclusions on the

ultimate issue; and second, that it constituted inadmissible

profile evidence.

1. Testimony on the ultimate issue

Mr. Lanning explained the significance of the exhibit that

contained the alleged solicitation by stating that the e-mail

was “attempting to entice the individual, encourage the

individual to do that, by indicating that he will do a similar

thing with a child and possibly send that individual pictures of

that.” Defense counsel objected that the testimony “goes to the

ultimate issue of intent. I don’t think the expert can give his

opinion that this is actually a solicitation.” The military

judge disagreed, stating: “I don’t think that’s what he did.

He’s giving his opinion on what the language of that particular

e-mail suggests and I think he can -- that’s his interpretation.

I think that’s legitimate and I think that’s within the scope of

his expertise as an expert.”

We review a military judge’s decision to admit expert

testimony for an abuse of discretion. See United States v.

Billings, 61 M.J. 163, 166 (C.A.A.F. 2005). M.R.E. 702 provides

that a witness qualified as an expert may testify as to

scientific, technical, or other specialized knowledge if it will

assist the factfinder in understanding the evidence or

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determining a fact at issue. M.R.E. 704 adds, “Testimony in the

form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be

decided by the trier of fact.” This rule, however, does not

permit the expert to express an opinion on the “ultimate issue”

of a case. See United States v. Anderson, 51 M.J. 145, 151

(C.A.A.F. 1999).

An expert opinion interpreting a document does not

necessarily constitute an ultimate opinion on the intent of the

document’s author. Although Mr. Lanning used words associated

with the concept of solicitation, such as “entice” and

“encourage,” he did not provide an opinion on the ultimate issue

in this case -- whether Appellant’s actions amounted to

solicitation as a matter of law. His testimony, for example,

left it for the factfinder to determine whether the language in

the e-mail amounted to a serious request.

A military judge, who is presumed to know and understand

the law, is capable of distinguishing between the evidentiary

value of such an opinion and the military judge’s

responsibility, as factfinder, to determine the ultimate issue

of intent. See Ray, 26 M.J. at 471. In this case, the military

judge stated that she viewed Mr. Lanning’s testimony as simply

providing his opinion on the language of the e-mail, an area

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within his expertise. In the context of a judge-alone trial,

admission of this expert testimony was not erroneous.

The present case is distinguishable from United States v.

Byrd, 60 M.J. 4 (C.A.A.F. 2004), where we held that, under

M.R.E. 701, the military judge erred by allowing the appellant’s

wife, a lay witness, to testify as to her opinion of the

appellant’s meaning in various passages of letters he wrote to

her. In contrast to the wife of the appellant in Byrd, Mr.

Lanning, who was accepted by the court as an expert, had a basis

of knowledge for his testimony opining on the meaning of

Appellant’s e-mail correspondence. Appellant did not allege at

trial, and has not contended on appeal, that Mr. Lanning’s

testimony was outside the scope of his expertise. As an expert

with specialized knowledge in the field of the behavioral

aspects of the sexual victimization of children, Mr. Lanning was

qualified to speak to the strategies employed by sexual

predators to encourage other individuals to commit sexual

offenses against children and to offer his opinion as to whether

this e-mail could be viewed as part of such a strategy.

2. Profile Evidence

“Profile evidence is evidence that presents a

‘characteristic profile’ of an offender, such as a pedophile or

child abuser, and then places the accused’s personal

characteristics within that profile as proof of guilt.” United

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States v. Traum, 60 M.J. 226, 234 (C.A.A.F. 2004) (citing United

States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998)). As we

noted in United States v. Banks, 36 M.J. 150, 161 (C.M.A. 1992):

“Generally, use of any characteristic ‘profile’ as evidence of

guilt or innocence in criminal trials is improper.”

At trial, defense counsel did not object to any of Mr.

Lanning’s expert testimony as constituting improper profile

evidence. On appeal, however, Appellant asserts that his

testimony amounted to profile evidence. Appellant interprets

Mr. Lanning’s testimony as beginning with a description of the

typical behavior and fantasies of a generalized group -- those

who use computers to view child pornography. According to

Appellant, Mr. Lanning then applied these general

characteristics to Appellant to reach the conclusion that

Appellant “wanted this rape of the 9 year old girl.” Appellant

summarizes Mr. Lanning’s testimony as stating that Appellant fit

the typical behavior patterns of a group, and because members of

that group typically desire to view pictures with a “first

person account,” Appellant therefore intended that JD rape the

girl.

In the absence of objection at trial, we apply the plain

error test of United States v. Powell, 49 M.J. 460, 463-65

(C.A.A.F. 1998). Appellant has the burden of demonstrating that

there was an error, that the error was plain or obvious, and

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that the error materially prejudiced Appellant’s substantial

rights. Under Powell, we need not assess whether there was an

error if any error would not have materially prejudiced

Appellant’s substantial rights.

As we noted in United States v. Robbins:

When the issue of plain error involves a
judge-alone trial, an appellant faces a
particularly high hurdle. A military judge
is presumed to know the law and apply it
correctly, is presumed capable of filtering
out inadmissible evidence, and is presumed
not to have relied on such evidence on the
question of guilt or innocence. As a
result, plain error before a military judge
sitting alone is rare indeed.

52 M.J. 455, 457 (C.A.A.F. 2000) (citations omitted).

In this judge-alone trial, the military judge stated that

she understood Mr. Lanning’s testimony as simply interpreting

the language of the e-mail. In that context, even if the

testimony included profile evidence, there was no prejudice to

Appellant because the military judge did not treat the testimony

as profile evidence or give it any prejudicial weight in that

regard. See id. at 458; United States v. Talbert, 33 M.J. 244,

247 n* (C.M.A. 1991).

III. CHILD PORNOGRAPHY (ISSUES III AND IV)

Appellant pled guilty to the charged offenses of

distributing, receiving, possessing, and soliciting others to

21
United States v. Hays, No. 04-0264/AR

distribute and receive child pornography in violation of the

CPPA, under clause 3 of Article 134, UCMJ. On appeal, Appellant

asserts that his pleas were improvident because: (1) the statute

under which he was convicted has no extraterritorial

application; and (2) the military judge employed a definition of

child pornography that subsequently was determined to be

unconstitutional. In a challenge to the providence of a plea,

the appellant carries the burden of showing that the record of

trial demonstrates a substantial basis in law and fact for

questioning the plea. See United States v. O’Connor, 58 M.J.

450, 453 (C.A.A.F. 2003).

A. EXTRATERRITORIALITY

Appellant engaged in the conduct underlying the CPPA-based

charges in Germany. In United States v. Martinelli, 61 M.J.

___, ___ (2-3) (C.A.A.F. 2005), we held that the CPPA has no

extraterritorial application and found that Martinelli’s guilty

pleas to the CCPA-based offenses for conduct occurring in

Germany were improvident. We reached a different conclusion in

Martinelli with respect to one specification charging that

Martinelli used e-mail to send child pornography over the

Internet, citing a stipulation accompanying the plea

acknowledging that the pertinent e-mails were sent through the

United States. Id. at ___ (26-29). In the present case,

22
United States v. Hays, No. 04-0264/AR

Appellant did not enter into such a stipulation.1 Under these

circumstances, the plea was improvident. Accordingly, we need

not address the question of whether the military judge employed

an unconstitutional definition during the plea inquiry.

B. LESSER INCLUDED OFFENSES

The determination that Appellant’s pleas to violating the

CPPA were improvident does not end this Court’s inquiry. See,

e.g., Martinelli, 61 M.J. at ___ (35-40), United States v.

Reeves, ___ M.J. ___, ___ (16-20) (C.A.A.F. 2005). An

improvident plea to an offense of a CPPA violation charged under

clause 3 of Article 134 may be upheld on a proper record as a

provident plea to a lesser included offense under the first two

clauses of Article 134. United States v. Mason, 60 M.J. 15, 19-

20 (C.A.A.F. 2004). As explained in Reeves, “[T]he providence

inquiry must reflect that the accused ‘clearly understood the

nature of the prohibited conduct.’” ___ M.J. at ___ (19)

(quoting United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000)).

1
Because the Government chose to charge these offenses as
occurring solely within Germany, we need not address whether
Appellant’s use of United States-based internet services would
amount to domestic conduct for purposes of the CPPA. We also
need not determine whether the evidence demonstrates that a
relevant portion of Appellant’s conduct occurred in the United
States for purposes of the CPPA.

23
United States v. Hays, No. 04-0264/AR

Prior to questioning Appellant on the four CPPA-based

violations, the military judge focused Appellant’s attention on

the specification of Charge III. This specification alleged

that Appellant had “on divers occasions between on or about 20

September 1999 and on or about 4 March 2000” violated a specific

provision of the Joint Ethics Regulation, a Department of

Defense lawful general regulation, “by wrongfully receiving,

viewing, and distributing child pornography and bestiality via

the internet, using government computers.” It is clear from the

whole of the providence inquiry that the same conduct underlying

this charge also was at the heart of the CPPA-based offenses,

and that Appellant was fully aware of this interrelationship.

Accordingly, it is appropriate to consider the totality of the

inquiry to determine whether Appellant “clearly understood the

nature of the prohibited conduct” as being a violation of clause

1 or clause 2 of Article 134. See Reeves, ___ M.J. at ___ (19).

For purposes of this appeal, we shall assume, without deciding,

that the plea inquiry did not implicate Appellant’s First

Amendment rights. Compare Martinelli, 61 M.J. at ___ (37)

(requiring a “more precise articulation of the servicemember’s

understanding” when the accused’s First Amendment rights are

implicated), with Reeves, ___ M.J. at ___ (18-19) (applying the

standard when the servicemember’s constitutional rights are not

at issue). The military judge explained to Appellant, “A

24
United States v. Hays, No. 04-0264/AR

general regulation is lawful if it is reasonably necessary to

safeguard and protect the morale, discipline, and usefulness of

the members of the command and is directly connected with the

maintenance of good order in the services.” Appellant

acknowledged this advice and admitted that the elements of the

regulation offense, as explained by the military judge,

accurately described his conduct. Importantly, for purposes of

this appeal, the military judge asked Appellant during the

inquiry into the regulation offense, “Do you believe by using

these computers to access child pornography that reflected

adversely on the Department of Defense?” Appellant responded,

“Yes, ma’am, I do.”

The military judge also questioned Appellant on each of the

four CPPA-based violations (specifications 1, 2, 3, and 4 of

Charge IV). With regard to the first three specifications

(distribution and receipt of child pornography “on divers

occasions between on or about 20 September 1999 and on or about

4 March 2000” and possession of child pornography “on or about 5

January 2000”), the military judge did not expressly discuss

with Appellant whether he believed his 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.”

Article 134, UCMJ.

25
United States v. Hays, No. 04-0264/AR

During the inquiry regarding the first two CPPA-based

specifications, Appellant admitted that he used Government

computers at Vilseck Library on the local military installation

to distribute and receive child pornography via his e-mail

account -- the same activities on the same Government computers

that Appellant indicated were involved in his violation of the

lawful general regulation. Similarly, he stated that the

computer discs of child pornography that he was charged with

possessing had been downloaded from these same Government

computers. He agreed that his conduct in receiving,

distributing, and possessing child pornography was “wrongful.”

In connection with the inquiry into Appellant’s guilty plea to

the last CPPA-based specification, soliciting others to

distribute and receive child pornography, Appellant left no

doubt on the record as to his awareness of the impact of his

conduct on the image of the armed forces:

MJ: And you believe in doing that, your
conduct was either prejudicial to good order
and discipline in the Armed Forces or was of
a nature to bring discredit upon the Armed
Forces?

ACC: I felt it was bringing discredit upon
the Armed Forces, ma’am.

MJ: Okay. Do you think if people outside
the military knew that a soldier was doing
this, it might tend to make them think less
of soldiers in the military?

ACC: It may, ma’am.

26
United States v. Hays, No. 04-0264/AR

MJ: Well, do you think it would tend to --
well, let me ask you this, do you think that
if people knew -- if civilians knew that you
were sending out email requesting others to
send and receive child pornography, do you
think that tends to make them think less of
people in the military?

ACC: Yes, ma’am.

The plea inquiry, as a whole, includes a critical component

that was absent in the inquiries conducted in Reeves. Appellant

admitted that his conduct was service-discrediting and why. See

United States v. Augustine, 53 M.J. 95, 96 (C.A.A.F. 2000);

Sapp, 53 M.J. at 92. The record shows that Appellant was

convinced of the facts predicate to a conviction under clause 2

of Article 134, and that there was a sufficient factual basis

for guilty pleas to the lesser included offenses under these

specifications. See Rule for Courts-Martial 910(e). Under the

facts of this case, Appellant admitted that he was using

Government computers to carry out his conduct.

In that light, we conclude under Reeves that this record

reflects an appropriate discussion of the character of the

conduct at issue as service-discrediting and demonstrates that

the accused “clearly understood the nature of the prohibited

conduct” as being a violation of clause 2, apart from how it may

or may not have met the elements of the separate criminal

statute underlying the clause 3 charge. ___ M.J. at ___ (19).

27
United States v. Hays, No. 04-0264/AR

Accordingly, in our decretal paragraph we direct amendment of

these specifications to replace the references to the CPPA with

references to service-discrediting conduct. Our approval of

these does not alter the essential nature of these offenses. As

a result, there was no prejudice as to his sentence, so a

sentence rehearing is unwarranted. See Augustine, 53 M.J. at

96; Mason, 60 M.J. at 20 (affirming the sentence).

IV. CONCLUSION

The decision of the United States Army Court of Criminal

Appeals is affirmed, except that specifications 1-4 of Charge IV

are amended in each instance by deleting the words “in violation

of the Child Pornography Prevention Act, 18 U.S.C.” and the

respective section designations, and inserting the words

“conduct which was service-discrediting.”

28
United States v. Hays, 04-0264/AR

ERDMANN, Judge, (concurring in part and dissenting in

part):

In United States v. Martinelli, 61 M.J. __ (C.A.A.F. 2005),

we determined that the Child Pornography Prevention Act (CPPA)

has no extraterritorial application. Under the factual

circumstances presented in this case, I agree with the

majority’s conclusion that Hays’ guilty pleas to the four CPPA-

based specifications were improvident on that basis. I

therefore concur with the majority in regard to Issue IV.

As noted in Martinelli, an improvident plea to a CPPA-based

offense may, under certain circumstances, be upheld as provident

to a lesser included offense under clauses 1 or 2 of Article

134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2000).

Under this rationale, the majority affirms all four CPPA-based

specifications under clause 2 of Article 134. I also concur

with the result reached by the majority in this regard.

I dissent, however, to the majority’s resolution of Issues

I and II. Hays’ acts were not legally sufficient to constitute

solicitation of another to commit carnal knowledge. Further,

the military judge abused her discretion by admitting evidence

of Hays’ uncharged misconduct and in admitting Agent Lanning’s

testimony. I would therefore reverse the Army Court of Criminal

Appeals on those issues and would dismiss the specification

alleging solicitation of another to commit carnal knowledge.
United States v. Hays, 04-0264/AR

I. Solicitation Charge

Definition of “Solicitation”

The majority accepts the Army Court of Criminal Appeals’

definition of solicitation as “‘any . . . words or other device

by which a person is requested, urged, advised, counseled,

tempted, commanded or otherwise enticed or incited to commit a

crime.’” United States v. Hays, No. ARMY 20001100, (A. Ct.

Crim. App. Jan. 22, 2004) slip. op. at 11 (citation omitted).

This goes well beyond the definition of solicitation found in

the Manual for Courts-Martial, United States (2002 ed.)(MCM),

and the prior definition adopted by this court. The President

has defined solicitation as a “serious request or advice” to

commit a crime. MCM, pt. IV, ¶ 6c.2. This court has further

explained the term to mean an “express or implicit invitation to

join a criminal plan.” United States v. Williams, 52 M.J. 218,

220 (C.A.A.F. 2000).

The Army Court of Criminal Appeals has not felt constrained

by these relatively straightforward definitions. In a series of

opinions the Army court has adopted a number of terms to expand

the definition of “solicitation”.1 In this case the Army court

adopted a number of these terms, i.e., “requested, urged,

1
See United States v. Seeloff, 15 M.J. 978 (A.C.M.R.
1983)(using “induce,” “entice” and “influence”); United States
v. Hubbs, 20 M.J. 909 (A.C.M.R. 1985) (using “counsel,” “tempt,”
“command,” “incite,” “request,” “urge” and “advise”).

2
United States v. Hays, 04-0264/AR

advised, counseled, tempted, commanded or otherwise enticed or

incited.” Hays, slip. op. at 11.

The majority finds that these terms are synonymous with the

term “request” and since the Army court also referenced the MCM

requirement of a “serious request”, the terms merely offered

additional explanation.2 The term “serious request or advice” is

not such a unique term that it needs such extensive

supplementation. The question for the factfinder is whether the

language in question constituted a serious request or advice to

commit an offense. The difficulty in using a laundry list of

additional terms to further define “solicitation” is that it is

likely to give the impression to members that solicitation is

broader than defined by the President.

I would prefer to stay with the MCM definition that

solicitation is a serious request or advice to commit an

offense. However, even if I were to accept the majority’s

definition, there is not sufficient evidence to affirm Hays’

conviction.

Legal Sufficiency of the Solicitation Charge

The test for legal sufficiency is whether “considering the

evidence in a light most favorable to the prosecution, a

reasonable fact-finder could have found all the essential

2
One must wonder if Hays’ conduct constituted a “serious
request”, what is the need for the additional terms?

3
United States v. Hays, 04-0264/AR

elements beyond a reasonable doubt.” United States v. Walters,

58 M.J. 391, 395 (C.A.A.F. 2003). The elements that the

Government had to prove in this charge were (1) that Hays made a

serious request to Davis, (2) asking Davis to have sexual

intercourse with a person under the age of sixteen (other than

his spouse), (3) that Hays intended for Davis to agree to his

request and to actually commit the crime they were discussing,

and (4) that Hays’ conduct was prejudicial to good order and

discipline or was of a nature to bring discredit to the armed

forces. MCM, pt. IV, ¶ 105.b.

The e-mail that provides the basis for the solicitation

charge, states:

I hope that everything is working out with your 9 yo.
Have you f***** her yet? If so, [d]o you have pix?
Does your wife know that you do this type of stuff to
little girls? Man you are not going to believe it
when I adopt that little girl and send you a pix of me
and her as I promised. I am going to do everything to
her that you can imagine. And you will be the first
to see, I promise you that much. I hope that you can
find it in your heart to send me more pix as you have
in the past week or so. If you send me more pix, I
will be eternally grateful, and reward you greatly.
Please send me more!!

The language of the e-mail reveals only that Hays seriously

requested sexually explicit photographs of young girls.

Although Hays initially appears to have been talking about a

particular young girl, who may or may not have existed, the

evidence is simply not sufficient to establish that Hays was

4
United States v. Hays, 04-0264/AR

seriously requesting Davis to commit sexual acts with the girl.

As the e-mail does constitute a serious request for images of

child pornography, a solicitation charge to that offense would

be legally sufficient.

There is no question that sexual crimes against minors and

the area of child pornography encompass a variety of despicable

crimes for which society has justifiably proscribed serious

penalties. We should not, however, allow our disgust for Hays’

actions color our judgment in evaluating the legal sufficiency

of the charges. To conclude that Hays’ e-mail was a “serious

request or advice” for Davis to have sexual intercourse with a

specific young girl is a stretch that the evidence simply does

not support. Accordingly, I would reverse Hays’ conviction for

solicitation of another to commit carnal knowledge because the

evidence against him was legally insufficient.

II. Evidentiary Challenges

Uncharged Misconduct

Evidence of “other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show

action in conformity therewith.” Military Rule of Evidence

(M.R.E.) 404(b). As explained by the Supreme Court, the law

seeks to prevent a finder of fact from concluding that an

accused acted criminally in a specific instance simply because

the accused is a bad or evil person:

5
United States v. Hays, 04-0264/AR

The State may not show defendant’s prior trouble with the
law, specific criminal acts, or ill name among his
neighbors, even though such facts might logically be
persuasive that he is by propensity a probable perpetrator
of the crime. The inquiry is not rejected because
character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overpersuade them as
to prejudge one with a bad general record and deny him a
fair opportunity to defend against a particular charge.
The overriding policy of excluding such evidence, despite
its admitted probative value, is the practical experience
that its disallowance tends to prevent confusion of issues,
unfair surprise and undue prejudice.

Michelson v. United States, 335 U.S. 469, 475-76 (1948)

(footnotes omitted); see also United States v. Humpherys, 57

M.J. 83, 90 (C.A.A.F. 2002) (“‘[E]vidence which is offered

simply to prove that an accused is a bad person is not

admissible’ under Mil.R.Evid. 404(b), Manual for Courts-Martial,

United States (2000 ed.).”). Character evidence such as

information that Hays sent out many e-mails asking for sexually

explicit pictures of children, that he received responses to

these e-mails, that he kept many of the responses in his inbox

and that the images attached to these responses are offensive,

is admissible only if it meets the three-prong test set out in

United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989):

1. Does the evidence reasonably support a finding that
appellant committed prior crimes, wrongs or acts?

2. What “fact of consequence” is made more or less
probable by the existence of the evidence?

3. Is the probative value of the evidence substantially
outweighed by the danger of unfair prejudice?

6
United States v. Hays, 04-0264/AR

As the majority properly notes, the first prong of Reynolds is

satisfied because there was sufficient evidence from which the

factfinder could conclude that Hays actually sent and received

the e-mails in question.

The more difficult question is whether the military judge

abused her discretion by concluding that the second and third

prongs of Reynolds were also satisfied. The military judge and

the majority conclude that the other e-mails and images satisfy

M.R.E. 404(b) and the second prong because they were relevant to

show Hays’ intent to solicit Davis to commit carnal knowledge.

But, as with the “solicitation” e-mail, the only fact that is

made more or less probable by the existence of the other e-mails

in Hays’ account is the fact that Hays requested, collected, and

viewed child pornography and that he was involved with a group

of other individuals who shared the same interests. The

existence of other vulgar and sometimes illegal e-mails in Hays’

inbox does not make it more or less likely that Hays intended to

seriously request an individual he knew only by e-mail address

to have sexual intercourse with a particular girl under the age

of sixteen. The military judge’s conclusion that Hays’ e-mail

activities made it more likely that he intended to solicit Davis

lacks both a factual and legal basis and is erroneous.

Similarly, the “other wrongs” evidence in question cannot

satisfy the third prong of Reynolds. The language and tone of

7
United States v. Hays, 04-0264/AR

Hays’ e-mails, as well as the frequency of his requests for

pornography and the nature of the images he received, which

included bestiality and violent images, were prejudicial. The

prosecution offered into evidence at least twenty-three exhibits

consisting of e-mail messages asking for child pornography and

multiple pornographic images. As discussed above, these e-mails

and images have no probative value with respect to Hays’ intent

to commit the crime with which he is charged. Accordingly,

their prejudicial effect outweighs any probative value, and they

should not have been admitted.

Agent Lanning’s Testimony

Hays challenged the admission of Agent Lanning’s testimony

as impermissible profile evidence and also as testimony as to

the ultimate legal issue, i.e., whether Hays solicited Davis to

commit a crime. An expert may testify if his “scientific,

technical, or other specialized knowledge will assist the trier

of fact to understand the evidence . . . .” M.R.E. 702. An

expert may offer opinions, but he may not state legal opinions.

United States v. Benedict, 27 M.J. 253, 259 (C.M.A. 1988); see

also MCM, Analysis of the Military Rules of Evidence A22-50.

Lanning testified that Hays wanted to “entice the

individual, encourage the individual to [rape the child]” and

that “he [Hays] wanted this rape of the 9 year old girl and what

he, essentially, wanted was photographs of that rape.”

8
United States v. Hays, 04-0264/AR

According to the definition of solicitation used by the military

judge, this testimony went to the ultimate issue in this case.

Lanning was not only offering expert testimony as to what the e-

mail from Hays to Davis meant, he also offered his opinion on

why Hays sent the e-mail –- the very question to be decided by

the finder of fact.

If Lanning was put on the stand merely to interpret the

language of the e-mail, as the majority asserts, it is unclear

why he was qualified as an expert. The e-mail is written in

English, it is not written in code, and it does not discuss any

technology or other specialized areas of knowledge for which

expert interpretation would be necessary. The e-mail is a

document that speaks for itself, and Lanning did not have any

specialized skills that were needed to interpret it. See United

States v. Houser, 36 M.J. 392, 398 (C.M.A. 1993) (expert

testimony not needed where factfinder is “qualified without such

testimony ‘to determine intelligently and to the best possible

degree the particular issue.’” (citations omitted)); see also

United States v. Billings, 61 M.J. 163, 170 (C.A.A.F. 2005)

(Erdmann, J., concurring in part and in the result) (testimony

of jeweler not necessary to educate members about

characteristics of watch depicted in advertisement).

Lanning crossed the line between providing permissible

expert testimony to testifying on the ultimate issue in the

9
United States v. Hays, 04-0264/AR

solicitation charge –- that Hays intended to request Davis to

rape the minor girl. This is inappropriate expert testimony.

See United States v. Anderson, 51 M.J. 145, 151 (C.A.A.F. 1999)

(recognizing that an expert may not express an opinion on the

“ultimate issue”). Accordingly, Lanning’s testimony should have

been excluded as well and I therefore dissent from the

majority’s holding on Issues I and II.

10
United States v. Hays, 04-0238/AR

GIERKE, Chief Judge (concurring in the result):

I join the majority regarding Issues I and II. Regarding

Issue IV, I share the result of the majority but not its

analysis. As I explained in Martinelli,1 I believe that the

Child Pornography Prevention Act (CPPA) applies

extraterritorially. Thus, I do not agree with the majority that

Appellant’s pleas to the CPPA-based offenses for conduct

occurring in Germany were improvident based on an absence of

extraterritorial application of the CPPA. Rather, I would

conclude that Appellant’s pleas to the CPPA-based specifications

were improvident because the military judge used an

unconstitutional definition of “child pornography” during the

providence inquiry.2 Accordingly, I agree with the majority’s

result that the Army Court’s decision should be affirmed, and

that specifications 1 through 4 of Charge IV should be amended by

deleting reference to the CPPA and adding the phrase, “conduct

which was service discrediting.”

1
See United States v. Martinelli, 61 M.J. __, __ (C.A.A.F.
2005)(Gierke, C.J., concurring in part and dissenting in part).
2
See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002);
United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003).
United States v. Hays, No. 04-0264/AR

CRAWFORD, Judge (concurring in part and dissenting in

part):

I concur in the majority’s disposition of Issues I and II

and in the affirmation of Appellant’s sentence; however, I

respectfully dissent from the majority’s treatment of Issue IV.

In addition to the rationale provided in my dissenting

opinions in United States v. O’Connor, 58 M.J. 450, 455-59

(C.A.A.F. 2003) (Crawford, C.J., dissenting), and United States

v. Martinelli, 61 M.J. __, __ (C.A.A.F. 2005) (Crawford, J.,

dissenting), my dissent in this case is based on the specific

factual aspects of Appellant’s case, briefly discussed below.

APPLICATION OF 18 U.S.C. § 2252A

Because a domestic application of the Child Pornography

Prevention Act has been clearly established by the evidence in

this case, the question of extraterritorial application of 18

U.S.C. § 2252A need not be addressed.

Prosecution Exhibits 4 and 17 consist of e-mails to or from

Appellant with either attached or embedded photographic images

of child pornography. Several of these carry the “banner” of

“Yahoo! Mail” or “MSN Hotmail,” both of which are United States

corporations whose electronic mail servers are in the United

States. Id. See Martinelli, 61 M.J. at __ (2) (Crawford, J.,

dissenting); United States v. Kimler, 335 F.3d 1132, 1135 n.2

(10th Cir. 2003)( “In order to send and receive email messages
United States v. Hays, No. 04-0264/AR

using Hotmail, one must access the Hotmail servers, which are

located in Mountain View, California, at www.hotmail.com.”);

United States v. Bach, 400 F.3d 622, 625 (8th Cir. 2005).

By maintaining accounts with “Hotmail” and “Yahoo! Mail,”

Appellant was effectively renting electronic “space” on servers

located in the United States, on which he could store images of

child pornography -- images that he could remotely receive,

transmit, or reproduce at will, regardless of his own location

at the time. On each such occasion, Appellant was “reaching

into” the United States to commit a crime. See United States v.

Moncini, 882 F.2d 401 (9th Cir. 1989).

APPELLANT’S ACKNOWLEDGMENT OF ACTUAL CHILDREN

The military judge in this case did not include the

language struck down by the Supreme Court in Ashcroft v. Free

Speech Coalition, 535 U.S. 234 (2002), when she explained the

applicable elements and definitions to Appellant. Appellant’s

plea sufficiently demonstrates his conviction that the images

were of “actual” children.

The record of Appellant’s Care inquiry* leaves no doubt

whatsoever that Appellant admitted to trafficking in

pornographic images of actual children:

MJ: Now, tell me what these pictures were of, that
you received.

*
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).

2
United States v. Hays, No. 04-0264/AR

ACC: They were pictures of children -- pictures of
adults and children in sexual acts or children
and children in sexual acts.

MJ: So it was either children with adults -- children
engaging in sexual acts with adults and children
engaged in sexual acts with other children,
correct?

ACC: Yes, ma’am.

MJ: So, basically, two different categories?

ACC: Yes, ma’am.

MJ: And when you say “sexual acts” do you mean there
was oral to genital or genital to genital
contact?

ACC: Oral to genital penetration, anal penetration,
genital to genital.

MJ: Okay. And do you believe these pictures were of
sexually explicit conduct?

ACC: Yes, ma’am, I do.

MJ: And when you say “children,” do you mean children
under the age of 18?

ACC: Yes, ma’am.

. . . .

MJ: Did you know what images you were sending out?

ACC: Yes, I did, ma’am.

MJ: So you knew these images were of sexually
explicit conduct involving minors?

ACC: Yes, ma’am, I did.

. . . .

3
United States v. Hays, No. 04-0264/AR

MJ: And these computer discs, you believe, contained
images of the same type of child pornography
you’ve described to me previously?

ACC: Yes, ma’am.

MJ: In other words, child/child sexual acts and
child/adult sexual acts?

ACC: Yes, ma’am.

. . . .

MJ: And what would you ask them?

ACC: I would ask them to send me sexual photographs of
young girls between certain ages.

MJ: Like what ages?

ACC: Between three years old and twelve.

. . . .

Based on the prosecution exhibits, and the plea inquiry, I

dissent from the majority’s holding as to Issue IV.

4