United States v. Sapp

Senior Judge COX

delivered the opinion of the Court.

Pursuant to his pleas, appellant was convicted by a general court-martial of possessing depictions of sexually explicit conduct by minors, in violation of 18 USC § 2252(a)(4)(A).1 The military judge sentenced him to a bad-conduct discharge, confinement for 8 months, total forfeitures, and reduction to E-1. The convening authority approved the sentence as adjudged. In an unpublished opinion, 1998 WL 1037815, the Court of Criminal Appeals affirmed in part. It held that appellant’s plea was improvident with respect to a violation of 18 USC § 2252(a)(4)(A), because the military judge failed to adequately advise appellant of the elements necessary for a conviction of violating the statute, but it determined that áppellant’s plea nevertheless was “provident to a lesser-included offense of service-discrediting conduct under clause 2 of Article 134.” Unpub. op. at 4. It modified the findings and concluded, after conducting a reassessment, that the approved sentence was unaffected *91by the minor modification made to the specification. Id. at 5.

This Court granted review on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLANT GUILTY OF A LESSER-INCLUDED OFFENSE UNDER ARTICLE 134, CLAUSE 2, AFTER THE COURT FOUND APPELLANT’S PLEA OF GUILTY IMPROVIDENT TO AN ARTICLE 134, CLAUSE 3, OFFENSE AS APPELLANT DID NOT ADMIT ALL THE ESSENTIAL ELEMENTS TO THE LESSER-INCLUDED OFFENSE.

Concluding that the Court of Criminal Appeals did not err by affirming appellant’s conviction under Article 134, clause 2, we affirm.

At trial, appellant pleaded guilty to the following specification:

In that SENIOR AIRMAN TIMOTHY D. SAPP, United States Air Force, 5th Munitions Squadron, Minot Air Force Base, North Dakota, did, at Minot Air Force Base, North Dakota, on or about 30 January 1996, wrongfully and knowingly possess three or more visual depictions, each of which depicted minors engaging in sexually explicit conduct, in violation of 18 USC § 2252(a)(4)(A).

At the time of the offense, 18 USC § 2252(a)(4)(A) prohibited the knowing possession of “3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of minors engaged in sexually explicit conduct.

While conducting the providence inquiry, the military judge mistakenly “tracked the language of the specification rather than” the language of the statute. Unpub. op. at 4. As a result, appellant was asked if he possessed “three or more visual depictions ... of minors engaging in sexually explicit conduct.” The military judge did not advise appellant that the statute required that the visual depictions be contained in at least three separate “matters.” Instead, he advised that it is a criminal offense under the statute to “knowingly possess any matters which contain visual depictions if those visual depictions involve the use of a minor engaged in sexually explicit conduct.”

During his providence inquiry, appellant admitted that he used an internet browser to download an entire newsgroup that contained depictions of sexually explicit conduct by minors. Initially, all the images he obtained were “dumped ... into one directory” within his hard drive. After viewing some of the images, he sorted them “according to the content” and placed them in separate computer files entitled “sex,” “stories,” and “nudes.” While discussing his guilty plea with the military judge, appellant admitted that he had stored and maintained some 188 sexually explicit images of minor children in his personal computer at his on-base residence. He also admitted that possession of such depictions of sexually explicit conduct by minors constituted service-discrediting conduct.

Because appellant’s responses during the providence inquiry indicated that all of the images that he possessed were located on a single computer disc, the Court of Criminal Appeals concluded that the military judge had failed to properly explain all of the elements required for a violation of the federal statute. United States v. Care, 18 USCMA 535, 40 CMR 247 (1969).

In affirming the conviction of a lesser-included offense, the Court of Criminal Appeals modified the specification to read as follows:

In that SENIOR AIRMAN TIMOTHY D. SAPP, United States Air Force, did, at Minot Air Force Base, North Dakota, on or about 30 January 1996, wrongfully and knowingly possess three or more visual depictions of minors engaging in sexually explicit conduct.

Unpub. op. at 5.

We are satisfied that the Court of Criminal Appeals correctly concluded that appellant’s guilty plea was sufficient to support his conviction of service-discrediting conduct under Article 134. Conduct is punishable under Article 134 if it prejudices “good order and discipline in the armed forces” (clause 1), or *92if it is “of a nature to bring discredit upon the armed forces” (clause 2), or if it is a crime or offense not capital (clause 3). The three clauses do not create separate offenses. Instead, they provide alternative ways of proving the criminal nature of the charged misconduct.

It is clear from reading Article 134 that conduct which violates no specific statute may still be an offense thereunder if it is found to be prejudicial to good order and discipline or if it is of a nature to bring discredit upon the armed forces. See United States v. Williams, 17 MJ 207, 215-16 (CMA 1984); United States v. Mayo, 12 MJ 286, 289 (CMA 1982); United States v. Long, 2 USCMA 60, 6 CMR 60 (1952). We have no doubt that the knowing possession of images depicting sexually explicit conduct by minors, when determined to be service-discrediting conduct, is a violation of Article 134.

Appellant pleaded guilty to a specification charging the possession of three or more images of sexually explicit conduct by minors, as a violation of Article 134. In addition to admitting that he violated 18 USC § 2252(a)(4)(A), he admitted during the providence inquiry that the conduct was service discrediting.

Article 59(b), UCMJ, 10 USC § 859(b), provides: “Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.” That is exactly what the Court of Criminal Appeals did in this case, and properly so.

The removal of any reference to a violation of a federal statute from the specification did not alter the essential nature of the offense. By charging a violation of the federal statute, the Government was not required to prove either the prejudicial or discrediting nature of the conduct to make it a criminal offense.2 However, appellant’s admissions, during the providence inquiry, that the conduct was of a nature to bring discredit upon the armed forces were sufficient to establish an Article 134 violation, even though one of the essential elements necessary for a violation of the statute was not admitted.

In United States v. Bivins, 49 MJ 328, 332-33 (1998), this Court upheld a decision by the Court of Criminal Appeals which affirmed a lesser-included offense of dereliction of duty after that court determined that the original charge of violating a lawful general order could not be sustained. There were three reasons we did so. The first was that the appellant had been “placed on notice that he was charged with a violation of Article 92,” UCMJ, 10 USC § 892. The second was that the appellant had “admitted all of the elements of dereliction of duty in his providence inquiry.” The third reason was that the offense of “dereliction of duty is an offense ‘closely related’ to violating a lawful general order.”

The same three reasons we applied in Bivins are applicable to this case. Here, appellant was placed on notice that he was charged with a violation of Article 134. Appellant admitted all of the elements necessary for his conviction under Article 134 when he admitted that he had committed the acts charged and that his conduct was service discrediting. Finally, the offense of service-discrediting conduct is an offense “closely related” to violating the federal statute, under the facts of this case. Both offenses are charged under Article 134, and appellant clearly understood the nature of the prohibited conduct.

For all these reasons, we uphold appellant’s conviction of service-discrediting conduct under Article 134.3

*93The decision of the United States Air Force Court of Criminal Appeals is affirmed,

. The violation of the federal statute was charged under the Crimes and Offenses Not Capital Clause of Article 134, Uniform Code of Military Justice, 10 USC § 934.

. In United States v. Foster, 40 MJ 140, 143 (CMA 1994), we noted that the elements of prejudice to good order and discipline and discredit to the armed forces are implicit in every enumerated offense under the Uniform Code of Military Justice.

. We disagree with the dissent's suggestion that the present case is in the same posture as United States v. Falk, 50 MJ 385 (1999). In the present case, the Court of Criminal Appeals was able to affirm the findings with respect to a lesser-included offense because the court concluded that the military judge conducted an adequate providence inquiry covering the elements of the lesser-included offense. We agree with the court below. By contrast, in Falk the adequacy of the guilty-plea inquiry as to the offense charged was *93at issue; a lesser offense was not at issue at the lower court or before our Court.

The dissent also suggests that we should reverse the lower court’s holding in the present case and reinstate the findings of the court-martial as to the greater offense. We note that the Government acquiesced in the lower court’s decision and did not appeal the ruling below on findings. We decline to take the unusual and unwarranted step of reinstating findings absent a government appeal.