CAAF will hear oral argument in United States v. Payne, No. 13-0245/AF (CAAFlog case page), on Tuesday, October 8, 2013, at 9:30 a.m. The case involves a single issue:

Whether the military judge improperly instructed the members of the elements for creation of child pornography.

Appellant was convicted contrary to his pleas, by a general court-martial composed of officer members, of attempting to communicate indecent language, attempting to transfer obscene material to a minor, and attempting to persuade, induce, entice, or coerce a minor to create child pornography, all in violation of Article 80, UCMJ, and of two specifications of failure to obey a lawful general regulation by misusing his Government-issued computer in connection with the sex offenses, in violation of Article 92, UCMJ. He was sentenced to confinement for 3 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

From the charges alone the facts are obvious to anyone familiar with this type of case. Appellant was captured by a law enforcement officer pretending to be a minor (in this case a 14 year old girl) on the internet, with whom Appellant engaged in a number of chats. Relevant to this appeal are chats where Appellant asked the “child” to take naked pictures and send them to him. He was charged with a specification that read:

In that [Appellant], United States Air Force, 360th Recruiting Group, McGuire Air Force Base, New Jersey, did, within the continental United States, on divers occasions, from on or about 1 June 2008 to on or about 1 August 2008, wrongfully and knowingly attempt to persuade, induce, entice, or coerce “Marley,” someone he believed was a female 14 years of age, who was, in fact, [LV], an Ulster [County] New York Sheriff’s Office undercover detective, to create child pornography by requesting that “Marley” send nude photos of herself to the said [Appellant], which conduct was prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.

And just as the charges make the facts obvious, the specification makes the issue obvious. The difficult wording of the specification incorporates language from a federal statute (18 U.S.C. § 2251(a), which prohibits “employ[ing], use[ing], persuad[ing], induc[ing], entic[ing], or coerc[ing] any minor to engage in . .  any sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . “) to allege an attempt to commit a novel violation of Clause 1 or 2 of Article 134.

Trial proceeded, with the Government presenting evidence including “the instant messenger chat logs where Appellant made his repeated requests for “Marley” to take nude pictures of herself and send them to him . . . Deputy [V] testified to how she held herself out as an underaged girl and how Appellant initiated all matters of a sexual nature with her including the request for nude photos . . . [and] Appellant’s audio taped confession . . . where he largely corroborated the offenses and evidence against him.” Gov’t Br. at 24.

When the military judge provided findings instructions to the parties and asked for any objections, Civilian Trial Defense Counsel objected:

Regarding your instructions for all four specifications under Charge I, we object to your instructions because we do not believe that the government in its pleadings identified the offenses to which you are listing elements. We believe that based on what trial counsel stated when she read the identity of the elements to us and later to the members in their initial discussion about these findings instructions as you’ve memorialized on the record, and even at present, we believe that these elements are not necessarily a fair parsing of what was pled in each of the four specifications in Charge I.

United States v. Payne, No. 37594, slip op. at 7-8 N.1 (A.F.Ct.Crim.App. Jan 17, 2013) (unpub. op.). The Defense was apparently just being obstructionist, as the Government’s brief asserts that, “defense counsel declined to even tell the judge which specification or what elements were ‘not a . . . fair parsing of what was pled’ because they apparently felt it was not their duty ‘to assist the government or even the bench in perfecting elements’ against Appellant.” Gov’t Br. at 5.

The findings instructions provided to the members tried to bridge the gap between the specification (which alleged an attempt to violate Article 134) and the analogous federal statute on which it was based. The AFCCA nicely explained the elements of an attempt to violate Article 134 in its opinion:

The correct elements of an attempt offense under Article 80, UCMJ, were:

(1) that the accused did a certain overt act,
(2) that the act was done with the specific intent to commit a certain offense under the code,
(3) that the act amounted to more than mere preparation, and
(4) that the act apparently tended to effect the commission of the intended offense.

To constitute an attempt there must be a specific intent to commit the offense accompanied by an overt act which tends to accomplish the unlawful purpose. The elements of a Clause 1 or Clause 2 Article 134, UCMJ, offense are:

(1) that the accused did or failed to do certain acts, and
(2) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline or was a nature to bring discredit upon the armed forces.

Payne, No. 37594, slip op. at 9 (citations and marks omitted) (formatting added). But the instructions given to the members omitted any discussion of surpassing “mere preparation” with what is normally called the “substantial step” that is required for an attempt. The judge merely instructed the members on three elements:

(1) that . . . the accused attempted to persuade, induce, entice, or coerce “Marley,” someone he believed was a female 14 years of age, to commit the offense of creating child pornography, by requesting that she send nude photos of herself to the accused;

(2) that the accused intended that the person he thought was “Marley” actually produce one or more visual depictions of her nude body to send him electronically or through the mail; 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 a nature to bring discredit upon the armed forces.

Payne, No. 37594, slip op. at 8. Despite these unusual instructions to the members, the CCA concluded that “although the military judge’s instructions on attempts lacked some specificity, they included all the required elements and adequately instructed the members to find the necessary predicate facts beyond a reasonable doubt.” Id., slip op. at 10. But Appellant argues otherwise. Among other things, Appellant’s brief points to CAAF’s opinion last term in United States v. Schell, No. 13-5001/AR (Schell II) (opinion) (CAAFlog case page), where a unanimous court affirmed the Army CCA’s reversal of a guilty plea to an attempt to violate 18 U.S.C. § 2422(b) because the military judge failed to include the substantial step element in the plea inquiry. This is pretty clear law that the Government’s brief doesn’t do a great job of distinguishing.

Appellant also argues that the instructions were erroneous in two other ways: First that “the military judge did not adequately define ‘create’ or ‘creation of child pornography’; [and second that] the military judge instructed that a nude picture is enough to constitute creation of child pornography.” App. Br. at 12. The later argument is the more compelling, particularly as the definition of child pornography has been a recurring theme recently (see, for example, the argument preview in United States v. Warner, No. 13-0435/AR) (see also my post for earlier this year discussing an opinion from the NMCCA: Pictures of children without clothes are not necessarily “child pornography”). In this case, “The military judge stated on two occasions that Appellant only had to intend that he get sent a visual depiction of her nude body.” App. Br. at 19. But “a nude picture alone is not child pornography.” App. Br. at 18 (citing Osborne v. Ohio, 495 U.S. 103, 112 (1990) (“depictions of nudity, without more, constitute protected expression”)).

The Government’s brief insists that the military judge properly instructed the members on this point:

the military judge specifically instructed the members that Appellant must have “specifically intended that ‘Marley’ produce visual depictions of a minor engaged in sexually explicit conduct.” She also clarified what “sexually explicit conduct” meant under the law.

Gov’t Br. at 21 (citations to record omitted). The Government’s brief finishes with a discussion of prejudice, and characterizes the Defense’s vague objection to the instructions as a failure to object requiring that CAAF review for plain error. Considering the obstructionist nature of the objection that was made, I’m inclined to agree.

Prosecuting attempts is tricky, and CAAF has to keep revisiting the topic. Last term the court considered Schell, in 2011 it considered Winckelmann and Norwood, in 2009 it considered Garner . . . Now, as CAAF returns to this near-perennial question of how to handle an attempt, it’ll be interesting to see if any of the judges are starting to get frustrated with the continuing difficulty.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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