              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
              M.D. MODZELEWSKI, R.Q. WARD, E.C. PRICE
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                        WARREN J. WHITE
          MISSILE TECHNICIAN FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201300115
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 13 December 2012.
Military Judge: CAPT John Waits, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR M.C. Holifield,
JAGC, USN.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN.

                            31 January 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PRICE, Judge 1:

     A military judge, sitting as a general court-martial,
convicted the appellant in accordance with his pleas of three
specifications of service discrediting behavior in violation of
Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.
The military judge sentenced the appellant to confinement for 14
1
  Judge Price participated in the decision of this case prior to detaching
from the court.
years, total forfeitures, reduction to        pay grade E-1, and a
dishonorable discharge. The convening         authority (CA) approved
the sentence as adjudged and, pursuant        to a pretrial agreement,
suspended all confinement in excess of        48 months.
     The appellant raises three assignments of error: (1) that
the military judge erred when he used a Florida statute to
determine the maximum punishment for a violation of Clause 2 of
Article 134; (2) that the military judge erred by not awarding
credit for illegal pretrial punishment in violation of Article
13, UCMJ; and (3) that the Naval Air Station Jacksonville
Pretrial Confinement Facility (PCF) policy regarding written
profanity violated his First Amendment rights and led to the
introduction of damaging evidence.

     After careful consideration of the record and the briefs of
the parties, including pleadings responsive to the issue
specified by this court, 2 we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
                               I. Background

     The appellant pled guilty to three specifications of
committing acts prohibited under Florida law in violation of
Clause 2 of Article 134. All three specifications related to
his response to an online ad for prostitution, which had been
placed as part of a law enforcement “sting” operation. When the
appellant responded to the ad, he unwittingly began a
correspondence with a police detective, who told him that the
only girl available for sex that night was his “14 year-old
niece.”
     Over the course of approximately five hours, the appellant
sent approximately 59 texts and made three phone calls to the
detective, who held himself out to be the guardian of the child.
During these communications, the appellant initially agreed to
pay $40.00 in exchange for sex with the “niece” that night and
then offered to pay “$1,500” to purchase the niece to
participate in sexual conduct with others in the future. This
2
  We directed the Government to file a brief and afforded the appellant an
opportunity to file a reply in response to the following question: “With
respect to Specifications 1-3 of the Charge, which allege violations of
Article 134, under clause 2, assuming that the military judge erred by using
‛the analogous Florida statutes in determining the maximum punishment
applicable to appellant’s offenses,’ what was the authorized maximum
punishment for each specification under the charge based upon R.C.M.
1003(c)(1)?” Order of 2 Dec 2013 (footnote omitted).
                                      2
solicitation of the detective to transfer control of a minor for
prostitution purposes and the use of a cell phone to do so were
the basis for Specifications 1 and 3 of the Charge, to which the
appellant pled guilty at trial.
     The appellant also drove his car for several hours to reach
the address where the Detective indicated that he and his “14
year-old niece” were located, at which point the appellant was
arrested by Florida law enforcement authorities. At trial, he
pled guilty to “travel for the purpose of engaging in unlawful
sexual conduct with a person he believed to be a child after
using a computer online service and . . . cellular phone, to
solicit and entice [the Detective], a person believed to be a
custodian or guardian of a child to consent to the participation
of the child in sexual conduct, as prohibited by Florida
Statutes section 847.0135(4)(b), which conduct was of a nature
to bring discredit upon the armed forces.” Specification 2 of
the Charge.
     Additional facts necessary to resolve the assigned errors
are included herein.
                         II. Maximum Punishment

     The appellant argues that the military judge erred in
determining the authorized maximum punishment for Specification
2 of the Charge by incorrectly applying the maximum punishment
of a Florida statute. 3 He contends that the maximum punishment

3
  Initially, the appellant’s assigned error was limited to the military
judge’s application of Florida law to determine the maximum punishment for
Specification 2 of the Charge. Appellant’s Brief of 7 Jun 2013 at 11.
However, in response to the issue specified by this court, he now asserts
that Specifications 1 and 3 of the Charge are novel specifications punishable
as general disorders with maximum confinement of four months for each
specification. Appellant’s Reply of 14 Jan 2014 at 4-11 (citing United
States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011)). At trial, the military
judge initially determined the maximum confinement for Specification 1 of the
Charge as 15 years and Specification 3 as 5 years, “based upon Florida
Statutes.” Record at 90. However, after the Government conceded that the
Manual limited confinement in solicitation offenses to 5 years, the military
judge informed the appellant that the maximum confinement “would be 5 years
for Specification 1.” Id. at 93. Prior to arguing on sentence, the trial
defense counsel asserted that Specifications 1 and 3 of the Charge
constituted an unreasonable multiplication of charges for sentencing. Id. at
266-67. The military judge agreed and merged those specifications for
sentencing. Id. at 273-75. He also recalculated the maximum confinement as
20 years - 5 years confinement for the merged Specifications 1 and 3, and 15
years confinement for Specification 2 of the Charge. Id. at 275. We
conclude that the maximum punishment for Specification 1 includes at least
five years confinement, as the charged offense is closely related to an
offense listed in Part IV of the Manual - Soliciting another to commit
                                      3
for that offense included only four months confinement and no
punitive discharge. The Government responds that the military
judge appropriately determined that the maximum punishment
included 15 years confinement and a dishonorable discharge “by
referencing analogous offenses under Florida law.” Government
Answer of 7 Aug 2013 at 10. In response to the issue specified
by this court, the Government argues that even assuming that the
military judge erred by referencing Florida law, the charged
conduct was closely-related to an attempt to commit abusive
sexual contact with a child under Article 120(i), UCMJ (2006),
and that application of RULE FOR COURTS-MARTIAL 1003(c)(1)(B)(i),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) results in the same
maximum punishment as was determined by the military judge.
Government Answer to Specified Issue of 16 Dec 2013 at 12-13.
The appellant replies that Specifications 1-3 of the Charge are
novel specifications each punishable as a general disorder with
maximum authorized confinement of four months for each
specification. Appellant’s Reply of 14 Jan 2014 at 4-11 (citing
United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011)).
     “The maximum punishment authorized for an offense is a
question of law, which we review de novo.” United States v.
Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011) (citations omitted).
“While we review a military judge’s sentencing determination
under an abuse of discretion standard . . . where a military
judge's decision was influenced by an erroneous view of the law,
that decision constitutes an abuse of discretion.” Id.
(citations omitted).
     Consistent with the authority delegated by Congress in
Article 56, UCMJ, the President established offense-based limits
on punishments dependent upon whether the offenses are “listed”
or “not listed” in Part IV of the Manual. R.C.M. 1003(c)(1).
For offenses “not listed in Part IV” of the Manual, the
President established a process for determining offense-based
limits on punishment dependent upon whether the charged offense:
(1) is closely related to or necessarily included in an offense
listed in Part IV of the Manual, and, if not, then (2) whether


Pandering under Article 134. See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), Part IV, ¶¶ 97 and 105; RULE FOR COURTS-MARTIAL 1003(c(1)(B)(i), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). As we conclude the maximum confinement
for Specification 1 was at least 5 years, and the military judge calculated
the same 5 years for the merged Specifications 1 and 3, we need not further
address Specification 3. For the reasons set forth in the Discussion section
of Part II of this opinion, we also conclude that the military judge’s
erroneous methodology in determining the maximum punishment did not prejudice
the appellant.


                                        4
the charged offense is punishable as authorized by the United
States Code or as authorized by custom of the service. R.C.M.
1003(c)(1)(B).
                                 Discussion

     As a preliminary matter, we agree with the appellant’s
contention that the military judge erred in determining the
maximum punishment for Specification 2 of the Charge by
reference to the maximum punishment of a Florida statute. “Acts
in violation of [state law] may be punished [under clause 2 of
Article 134] if they are of a nature to bring discredit upon the
armed forces.” MCM, Part IV, ¶ 60c(3). However, we find no
authority to determine the maximum punishment for a novel
offense alleged under Clause 2 of Article 134 by reference to
state law. 4 See generally Art. 56, UCMJ; R.C.M. 1003(c)(1). We
therefore conclude that the military judge’s determination that
the maximum punishment for Specification 2 of the Charge was
“based upon Florida Statutes” to be an erroneous view of the
law, and thus an abuse of discretion. Record at 90; Beaty, 70
M.J. at 41.
     In order to determine whether the military judge’s error
resulted in prejudice to the appellant, we must first determine
the maximum punishment for this offense. After application of
R.C.M. 1003(c)(1)(B)(i)-(ii), and for the reasons discussed
below, we conclude that the maximum punishment for the offense
alleged in Specification 2 of the Charge includes a dishonorable
discharge and at least 15 years confinement.
     We note that the military judge defined the elements and
key definitions of Specification 2 of the Charge, including the
definition of “sexual conduct,” in accordance with Florida

4
  Although inapplicable here, “. . . when State law becomes Federal law of
local application under . . . the Federal Assimilative Crimes Act [FACA]. .
.” and is alleged under clause 3 of Article 134, the authorized maximum
punishment is “subject to a like punishment [of the assimilated state law].”
MCM, Part IV, ¶ 60c(4)(a) and (c)(ii). Again inapplicable here, the FACA “is
an adoption by Congress of state criminal laws for areas of exclusive or
concurrent federal jurisdiction, provided federal criminal law, including the
UCMJ, has not defined an applicable offense for the misconduct committed.”
Id. at ¶ 60c(4))(c)(ii). As the military judge explained to the appellant,
“[t]here is a way that under Clause 3 [of Article 134] that the government,
the military can actually assimilate state law into a Specification under
Article 134. That is not what has happened in this case, so in this case the
government is basically using Florida Statutes as kind of a framework for the
allegations that they’re making against you, and they’re saying that based on
the fact that you have effectively violated all of the elements of these
Florida Statutes that your conduct has brought discredit upon the Armed
Forces.” Record at 101 (emphasis added).
                                      5
Statute § 847.0135(4)(b) and Clause 2 of Article 134. Record at
105; Appellate Exhibit IX. We also note that the military judge
defined “unlawful sexual conduct” as meaning “actual or
simulated sexual intercourse, deviant sexual intercourse, sexual
bestiality, masturbation or sadomasochistic abuse, actual lewd
exhibition of the genitals, actual physical contact with a
persons clothed or unclothed genitals, pubic area, buttocks or
if such person is a female, breasts, with the intent to arouse
or gratify the sexual desire of either party, or any act or
conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed.” Id. at 106; see
also In re Std. Jury Instructions in Crim. Cases, 6 So. 3d 574,
585-86 (Fla. 2009). This definition incorporates conduct then
defined as a “sexual act” and as “sexual contact” in the UCMJ.
See Arts. 120(t)(1) and (t)(2), UCMJ (2006). 5
     We find the offense alleged in Specification 2 of the
Charge closely related to two separate attempt offenses under
Article 80 and listed in Part IV of the Manual for misconduct
committed during the period 1 October 2007 through 27 June 2012.
Those closely related attempt offenses include aggravated sexual
assault of a child (Article 120(d), UCMJ (2006)), punishable by
20 years confinement, and abusive sexual contact with a child
(Article 120(i), UCMJ (2006)), punishable by 15 years
confinement.
     We will review these two attempts in the aggregate and have
inserted language from the specification into the elements
provided by the Manual to aid discussion. An attempt under
Article 80, UCMJ, requires:
      (1)   That the accused did a certain overt act [“travel for
            the purpose of engaging in unlawful sexual conduct
            with a person he believed to be a child after using a
            computer online service and . . . cellular phone, to
            solicit and entice [the Detective], a person believed
            to be a custodian or guardian of a child to consent to
            the participation of the child in sexual conduct, as
            prohibited by Florida Statutes section 847.0135(4)(b),
            which conduct was of a nature to bring discredit upon
            the armed forces”;
      (2)   That the act was done with specific intent to commit a
            certain offense under the Code [aggravated sexual
            assault of a child, or abusive sexual contact with a
            child];

5
  The appellant stipulated that “sexual conduct” included the act of sexual
intercourse. Prosecution Exhibit 5 at 6-7.
                                      6
      (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 [aggravated sexual
            assault of a child, or abusive sexual contact with a
            child].

MCM, Part IV, ¶ 4b. 6
     At the time of the appellant's conduct, the elements of
aggravated sexual assault of a child who had attained the age of
12 years but not attained the age of 16 years were: (1) That the
accused engaged in a sexual act with a child, and (2) That at
the time of the sexual act, the child had attained the age of 12
years but had not attained the age of 16 years. MCM, App. 28,
¶ 45b(4). Sexual act was defined as “contact between the penis
and the vulva, and for purposes of this subparagraph contact
involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the genital opening of
another by a hand or finger or by any object, with an intent to
abuse, humiliate, harass, or degrade any person or to arouse or
gratify the sexual desire of any person.” Art. 120(t)(1), UCMJ
(2006).
     The relevant elements of abusive sexual contact with a
child were: (1) that the accused engaged in sexual contact with
a child; and, (2) that at the time of the sexual contact the
child had attained the age of 12 but had not attained the age of
16. MCM, App. 28, ¶ 45b(9). Sexual contact was defined as “the
intentional touching, either directly or through the clothing,
of the genitalia, anus, groin, breast, inner thigh, or buttocks
of another person . . . . with an intent to abuse, humiliate, or
degrade any person or to arouse or gratify the sexual desire of
any person.” Art. 120(t)(2), UCMJ (2006).
     The verbiage of Specification 2 of the Charge, the elements
of this offense as stipulated to by the appellant, and the
elements as explained by the military judge demonstrate that
this offense was closely related to two separate attempt
offenses listed in Part IV of the Manual. The maximum
punishment for “the least severe of the listed offenses” –

6
  Although the child’s age was not specified in any of the three
specifications of the charge, we note that the Florida statute’s definition
of a minor, less than 18 years old, is greater than the 16 years of age
required to be punishable under the identified military offenses. However,
we find this distinction of no import in this case, as the appellant
stipulated that he believed the child subject of Specifications 1-3 of the
Charge to be 14 years old. PE 5 at 3, 6.
                                      7
“abusive sexual contact with a child” - includes 15 years
confinement and a dishonorable discharge, the same maximum
punishment the military judge deemed authorized for this
offense. R.C.M. 1003(c)(1)(B)(i).
     Assuming arguendo that the charged offense is not closely-
related to any offense listed in Part IV of the Manual, we
conclude that the conduct is proscribed by a directly analogous
federal statute under 18 U.S.C. 2422(b) which states, in
pertinent part:
     Whoever, using . . . any facility or means of interstate .
     . . commerce, . . . knowingly persuades, induces, entices .
     . . any individual who has not attained the age of 18
     years, to engage in prostitution or any sexual activity for
     which any person can be charged with a criminal offense, or
     attempts to do so, shall be . . . imprisoned not less than
     10 years or for life.
      “To establish an attempt under [18 U.S.C.] § 2422(b), . .
. the Government must prove that an accused: (1) had the intent
to commit the substantive offense; and (2) took a substantial
step toward persuading, inducing, enticing or coercing a minor
to engage in illegal sexual activity.” United States v. Schell,
72 M.J. 339, 344 (C.A.A.F. 2013); see also id. n.2 (citing
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004)
(additional citations omitted)). Here the specification
addresses the appellant’s intent to commit the offense through
travel across Florida after using a computer online service and
cell phone to solicit and entice the person he believed to be
the custodian or guardian of a child to consent to that child’s
participation in unlawful sexual conduct.
     As in Murrell, the alleged misconduct here includes
extended travel after soliciting and enticing the believed
guardian of the child to consent to that child’s participation
in unlawful sexual conduct. Also as in Murrell, that misconduct
constituted a substantial step toward enticing the child to
engage in unlawful sexual activity. Id. at 1288 (Murrell's
objective acts, which included two hours of travel to another
county to meet a minor girl for sex in exchange for money, and
possession of a teddy bear, $300.00 in cash, and a box of
condoms when he arrived at the meeting site, “demonstrate
unequivocally that he intended to influence a young girl into
engaging in unlawful sexual activity and [constitute] a
substantial step toward inducing a minor to engage in illicit
sexual acts, thereby satisfying the second element of criminal
attempt”).

                                8
     In addition, the appellant’s use of a “computer online
service” and “cellular phone” satisfy the “interstate commerce”
requirement of § 2422(b). See United States v. Daniels, 685
F.3d 1237, 1246 (11th Cir. 2012) (“use of a cellular phone is
interstate commerce” (citing United States v. Evans, 476 F.3d
1176, 1180-81 (11th Cir. 2007)), cert. denied, 133 S. Ct. 1240
(2013); United States v. Hornaday, 392 F.3d 1306, 1310-11 (11th
Cir. 2004) (“the internet is an instrumentality of interstate
commerce [and] Congress clearly has the power to regulate the
internet . . . and to prohibit its use for harmful or immoral
purposes regardless of whether those purposes would have a
primarily intrastate impact” (citations omitted)).
     Moreover, and as occurred in this case, an attempted
enticement is punishable where one attempts to induce a minor
through an intermediary who appeared to the defendant to
exercise some degree of control over that minor, even if no
child exists. See United States v. Farley, 607 F.3d 1294, 1325
(11th Cir. 2010) (holding that attempted enticement under 18
U.S.C. § 2422(b) does not require the existence of an actual
child victim and those caught in “sting” operations and charged
under § 2422(b) are subject to the same convictions and
penalties as those who succeed in their crimes).
     Such conduct is punishable by a maximum of life
imprisonment, well in excess of the 15 years confinement the
military judge determined to be the maximum authorized
punishment for Specification 2 of the charge.
     Accordingly, we conclude that the maximum punishment for
the offense alleged in Specification 2 of the Charge includes a
dishonorable discharge and at least 15 years confinement.
Because the maximum punishment determined by the military judge
is less than or equal to the maximum punishment authorized
through proper application of R.C.M. 1003(c)(1), we conclude
that the military judge’s erroneous methodology in determining
the maximum punishment did not prejudice the appellant.
                    III. Pretrial Punishment

     The appellant argues that the military judge erred by
denying him credit for illegal pretrial punishment in violation
of Article 13, UCMJ. In support of his argument, he contends
that “the [Jacksonville] Brig knowingly treated him the same as
post-trial prisoners by calling him ‛prisoner White’ instead of
‛pre-trial prisoner White,’ by acting with indifference
regarding the command’s failure to get him a uniform for six


                                9
weeks, and by having him perform work with post-trial
prisoners.” Appellant’s Brief at 7-8.
     Article 13 prohibits: (1) the intentional imposition of
punishment on an accused before his guilt is established at
trial, i.e., illegal pretrial punishment, and (2) arrest or
pretrial confinement conditions that are more rigorous than
necessary to ensure the accused's presence at trial or to
prevent additional misconduct, i.e., illegal pretrial
confinement. See United States v. Mack, 65 M.J. 108, 110
(C.A.A.F. 2007); United States v. Inong, 58 M.J. 460, 463
(C.A.A.F. 2003). The “punishment prong” of Article 13 focuses
on intent, while the “rigorous circumstances” prong focuses on
the conditions of the pretrial restraint. United States v.
Pryor, 57 M.J. 821, 825 (N.M.Ct.Crim.App. 2003) (citing United
States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997)).
“[A]bsent a showing of an expressed intent to punish, a
particular condition reasonably related to a legitimate and non-
punitive governmental objective, does not, without more, amount
to punishment.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 538-
39 (1979)).
     Whether the conditions of the appellant's pretrial
confinement constituted unlawful pretrial punishment is a mixed
question of law and fact. Id. The burden of proof is on the
appellant to show a violation of Article 13. United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). A military judge's
factual finding that there was no intent to punish is reviewed
under a clearly erroneous standard of review. United States v.
Smith, 53 M.J. 168, 170 (C.A.A.F. 2000). But we review de novo
the military judge’s conclusion that the appellant was not
entitled to any relief under Article 13, UCMJ. Mosby, 56 M.J.
at 310.
     The military judge adopted as his own, the statement of
facts from the Government’s response to the Defense Motion for
Pretrial Confinement Credit. Record at 203-04; AE XII. He also
found additional facts and concluded that the appellant failed
to meet his burden to show that the facts and conditions of
confinement “constituted an intent to punish or that the
conditions of detention were unduly rigorous.” Record at 204.
     Based on our review of the record, we conclude that the
military judge did not err in denying the appellant relief.
          IV. First Amendment and Prosecution Exhibit 1

     The appellant argues that “[t]he [Jacksonville PCF’s]
blanket policy of classifying as contraband ̒curse words’
                               10
written in a private journal violates [his] First Amendment
rights” and led to the subsequent “introduction of dramatically
damaging evidence against him” at trial. Appellant’s Brief at
22. While in pretrial confinement, the appellant made entries
in a journal that included multiple references to sexual conduct
with minor females. The Jacksonville PCF had a policy
prohibiting possession of written materials that included lewd
words and curse words. The appellant’s journal was confiscated
as contraband and several entries were introduced in the
Government’s case in aggravation, over defense objection.
Prosecution Exhibit 1; Record at 226-31. The appellant avers
that the policy and the seizure of his journal violated his
First Amendment rights, and asserts that the court should only
approve 30 months of confinement to cure the effect of this
violation. Appellant’s Brief at 25. We disagree.
     We review a military judge's admission of evidence,
including sentencing evidence admitted in aggravation under
R.C.M. 1001(b)(4), for “an abuse of discretion.” United States
v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009) (citation
omitted). The Court of Appeals for the Armed Forces has found
“state-of-mind/depth-of-problem evidence . . . directly related
to the charged offenses” admissible in aggravation. United
States v. Ciulla, 32 M.J. 186, 187 (C.M.A. 1991) (citations
omitted). “Of course, a rule or other provision of the Manual
for Courts-Martial cannot sanction a violation of Appellant's
constitutional rights.” Stephens, 67 M.J. at 235 (citation
omitted).
     Although the Jacksonville PCF’s policy prohibiting
possession of lewd and profane material, which is not clearly
defined in the record, could implicate the First Amendment and
raise some question as to whether that policy is “‘reasonably
related to legitimate penological interests,’” Thornburgh v.
Abbott, 490 U.S. 401, 404 (1989) (quoting Turner v. Safley, 482
U.S. 78, 89 (1987)), we need not resolve those broad potential
issues here. 7 We conclude that PCF prohibitions on possession of
writings, such as the appellant’s, which include explicit
descriptions of sexual conduct with prepubescent girls are
“reasonably related to legitimate penological interests.” Id.
     We also conclude that the military judge did not abuse his
discretion when, after citing Ciulla, he found Prosecution
Exhibit 1 to be “depth of problem evidence and admissible under

7
  Nor do we address the question of whether violation of a pretrial prisoner’s
First Amendment rights could provide a basis to exclude evidence otherwise
lawfully seized under the Fourth and Fifth Amendments to the Constitution.
                                     11
RCM 1001(b)(4).” Record at 246. We agree that the journal
entries reveal the depth of the appellant's interest in sexual
conduct with girls based upon their age and sexual inexperience
and is proper sentencing evidence in this case. See United
States v. George, 52 M.J. 259, 261 (C.A.A.F. 2000) (evidence of
the depth of an accused's sexual problems is proper
presentencing evidence when the accused was convicted of
communicating indecent language to a 17-year-old girl). Because
this was a trial by military judge alone, the potential for
unfair prejudice was substantially less than it would be in a
trial with members. We are satisfied that the military judge
was able to sort through the evidence, weigh it, and give it the
appropriate weight. See United States v. Cacy, 43 M.J. 214, 218
(C.A.A.F. 1995).
                           Conclusion

     Accordingly, the findings and the sentence, as approved by
the CA, are affirmed.
     Chief Judge MODZELEWSKI and Senior Judge WARD concur.
                                For the Court




                                R.H. TROIDL
                                Clerk of Court




                               12
