CAAFlog » September 2013 Term » United States v. Payne

CAAF decided the Air Force case of United States v. Payne, No. 13-0245/AF, 73 M.J. 19 (CAAFlog case page) (link to slip op.), on January 6, 2014, finding that the military judge improperly instructed the members on the offense of attempted persuasion of a minor to create child pornography but that the error was harmless beyond a reasonable doubt, affirming the conviction and the decision of the Air Force CCA.

Judge Erdmann writes for a unanimous court.

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.

The facts of the case are that Appellant:

engaged in a series of sexually explicit Internet chats and phone calls with an undercover civilian sheriff’s deputy who Payne believed to be a fourteen-year-old girl named “Marley.” The communications took place over a period of about a month and a half. As a part of those chats, Payne repeatedly asked “Marley” to send him pictures of herself. Some of these requests were for “nude” pictures, while others were more general.

Slip op. at 3. These actions led to the various attempt specifications. “At trial, Payne’s defense to the[se] specifications focused almost exclusively on the defense of entrapment.” Slip op. at 4. Appellant did not contest that he committed the underlying acts. However, his counsel did object to the findings instructions given to the members by the military judge, asserting that:

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. . . .

As I said in the 802 conference, our challenge is this, we have a duty to candor towards a tribunal and to identify any errors and give you a forthright answer, but we also have a competing duty to Staff Sergeant Payne and not to assist the government or even the bench in perfecting elements in charges against him if we think that there’s, perhaps, a right way to do this. And therefore, we simply say that we don’t believe that the court has been able, due to the nature of the pleadings, to properly identify if these are offenses and if so, what those elements would be.

This obstructionism didn’t get a ruling from the judge, but it did lead to the members receiving instructions in which “the government concedes that ‘the military judge did not read the statutory elements of Article 80 [Attempts].'” Slip op. at 6. Appellant was then convicted of three of the four attempt specifications. For reasons unclear in the opinion, the instructions for only one of these three specifications was raised at the CCA and is at issue in the case before CAAF.

Judge Erdmann’s opinion of the court begins with a focus on the defense counsel’s obstructionism (my word) and whether, despite it, the “objection adequately preserved the error [Appellant] now raises on appeal.”Slip op. at 7.

“No,” rules the unanimous CAAF:

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Audio of today’s oral arguments is available at the following links:

United States v. Payne, No. 13-0245/AF (CAAFlog case page): Argument audio.

United States v. Passut, No. 13-0518/AF (CAAFlog case page): Argument audio.

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:

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