(concurring in part and dissenting in part):
Naturally, I agree with the majority’s affirming of Senior Airman Sapp’s conviction for a violation of Article 134 (service-discrediting conduct) by his act of storing and maintaining 188 sexually explicit images of minor children in more than three separate files on his personal computer in his government housing unit on a military post. This crime is similar to what Airman First Class Falk did in a case we heard and decided last Term. United States v. Falk, 50 MJ 385 (1999). There I stated:
Possession of 126 computer images of child pornography, lasciviously organized into four directories on a personal computer, in government housing on a military post, is per se service discrediting conduct in my view. Affirmance of his conviction for this conduct under Article 134 is warranted____
United States v. Falk, 50 MJ at 394 (Sullivan, J., dissenting).
However, it remains a puzzle to me why Sapp’s conviction is affirmed today and yet Falk’s conviction was reversed for essentially the same conduct. I don’t understand why my position in dissent, with regard to affirming a lesser-included offense under Article 134, in United States v. Falk, supra, is now the majority view of this Court. How can the law be applied so unequally?
Moreover, I strongly disagree with the majority’s acceptance of the lower appellate court’s holding that Sapp’s guilty plea to a violation of the child pornography law, 18 USC § 2252, should not stand. I do not agree that Sapp’s admissions were legally insufficient. I adhere to my prior stated view in my dissent in United States v. Falk, supra, that the conduct of storing visual depictions of child pornography in over 126 computer files organized into four directories on a computer violated 18 USC § 2252.
I further note that other recent decisions of other U.S. courts of appeals would easily support a conviction under 18 USC § 2252, in the circumstances of child pornography on multiple computer files on a single computer. See United States v. Vig, 167 F.3d 443, 448 (8th Cir.), cert. denied, — U.S. —, —, 120 S.Ct. 146, 314, 145 L.Ed.2d 125 (1999); United States v. Hockings, 129 F.3d 1069 (9th Cir.1997); see also United States v. Demerritt, 196 F.3d 138 (2d Cir.1999); United States v. Fellows, 157 F.3d 1197, 1201 (9th Cir.1998), cert. denied, — U.S. —, 120 S.Ct. 133, 145 L.Ed.2d 112 (1999); United States v. Hall, 142 F.3d 988, 998 (7th Cir. 1998). In my view, the Government’s extensive argument on the validity of the original guilty plea (Government Final Brief at 13-20) hardly constitutes acquiescence to the lower court decision.
As a final point, I want to clear up the confusion that may appear in this area of the law of our Court. United States v. Falk, supra, was published on May 28, 1999, but a confusing order was issued on September 30, 1999, modifying in part the majority opinion. I attach the order to this opinion as an appendix. In my view, Section IIB (50 MJ at 390-92) was the only part of the majority opinion that was withdrawn by the September 30th order; therefore, the rest of the majority opinion as well as the two dissents in Falk remain in effect.
APPENDIX
United States, Appellee, v. Scott E. Falk (390-84-7252), Appellant.
USCA Dkt. No. 98-0064/AF
Crim.App. No. 32456
*94 ORDER
The United States, appellee, petitioned this Court for reconsideration, citing various precedents relating to the construction of 18 USC § 2252(a). It also appears that the issue of the proper construction of 18 USC § 2252(a) has been raised in other cases presently pending in this Court and can be considered in the disposition of those cases. United States v. Augustine, No. 98-5026, and United States v. Sapp, No. 99-0260.
However, the United States did not cite any new authorities which might warrant reconsideration of this Court’s earlier decision that appellant’s pleas of guilty were improvident and that the findings and sentence based thereon should be set aside. 50 MJ 385, 390 (1999).
Accordingly, it is, by the Court, this 30TH day of September 1999
ORDERED:
That the Petition for Reconsideration as it relates to the construction of 18 USC § 2252(a) is granted and the opinion of the Court is withdrawn insofar as it relates thereto. Reconsideration of the Court’s pri- or decision setting aside the findings and sentence is denied. The Court reserves the issue concerning the proper construction of 18 USC § 2252(a) for further consideration if raised in some other case, or if raised again in this case after further proceedings in the courts below.
AND
That the second sentence of the first paragraph of Part IV is amended to read as follows:
The finding of guilty of specification 1 of Charge I and the sentence are set aside.
AND
That the last sentence of the first paragraph of Part IV is amended to read as follows:
A rehearing on specification 1 of Charge I and the sentence may be ordered.
For the Court,
/s/ Thomas F. Granahan Clerk of the Court