UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                             KRIMBILL, BURTON, and RODRIGUEZ
                                  Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                               Sergeant THOMAS M. ADAMS
                               United States Army, Appellant

                                          ARMY 20130693

                    Headquarters, 1st Infantry Division and Fort Riley
                             J. Harper Cook, Military Judge
                   Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate

For Appellant: Captain Alexander N. Hess, JA; Frank J. Spinner, Esquire (on brief,
supplemental brief, and reply briefs).

For Appellee: Lieutenant Colonel Wayne H. Williams, JA; Major Dustin B. Myrie,
JA; Captain Thomas J. Darmofal, JA (on brief); Colonel Steven P. Haight, JA;
Lieutenant Colonel Wayne H. Williams, JA; Major Dustin B. Myrie, JA (on response
to supplemental brief).

                                             13 July 2020

                      ----------------------------------------------------------------
                       MEMORANDUM OPINION ON FURTHER REVIEW
                      ----------------------------------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       Appellant appeals his several convictions for sexually assaulting and abusing
his minor step-daughter and niece. We write to discuss the following of appellant’s
asserted errors: (1) whether the court-martial lacked jurisdiction over the offenses;
(2) whether double jeopardy barred the government from proceeding with the
charges; (3) whether the statute of limitations expired for Specification 5 of Charge
II; and (4) whether his conviction for production of child pornography is legally and
factually insufficient. 1 We disagree with all assertions, with the exception of the

1
 A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of aggravated sexual assault of a child, six
specifications of indecent liberties with a child, one specification of indecent acts

                                                                                         (continued . . .)
ADAMS—ARMY 20130693

legal and factual sufficiency of appellant’s conviction for production child
pornography, which we set aside and dismiss. 2 We affirm the remaining findings
and reassess the sentence. 3

                                  BACKGROUND

      Appellant was originally tried and convicted for his misconduct in 2013. 4
United States v. Adams, ARMY 20130693, 2017 CCA LEXIS 6 (Army Ct. Crim.

(. . . continued)
with a child, one specification of production of child pornography, one specification
of sodomy, one specification of aggravated sexual abuse of a child, and one
specification of abusive sexual contact with a child, in violation of Articles 120, 125
and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 920, 925 and 934.
The military judge sentenced appellant to a dishonorable discharge, confinement for
forty-three years, total forfeiture of all pay and allowances, and reduction to E-1.
The convening authority approved the adjudged sentence and credited appellant with
2,086 days against his sentence to confinement. Appellant was found not guilty of
the following offenses alleging he sexually assaulted and sexually abused his step-
daughter, niece, and three other children: one specification of aggravated sexual
abuse of a child; two specifications of sodomy of a child; three specifications of
aggravated sexual assault of a child; two specifications of abusive sexual contact of
a child; two specifications of indecent act with a child; and one specification of
possession of child pornography in violation of Articles 120, 125, and 134, UCMJ.
2
 Although appellant claims all of his convictions are legally and factually
insufficient, we only address the legal and factual sufficiency of his conviction for
production of child pornography (Specification 1 of Charge III), and find all other
charges and specifications legally and factually sufficient.
3
  Appellant also raised as an assigned error that his convictions for taking indecent
liberties with HR (Specification 6 of Charge I) and aggravated sexual abuse of HR
(Specification 1 of the Additional Charge) constitute an unreasonable multiplication
of charges (UMC). We have given full and fair consideration to appellant’s claim of
UMC and to the matters raised personally by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they merit neither discussion nor
relief.
4
 In 2013, an enlisted panel convicted appellant, contrary to his pleas, of one
specification of rape of a child, one specification of carnal knowledge, two
specifications of aggravated sexual assault of a child, one specification of
aggravated sexual abuse of a child, two specifications of aggravated sexual contact
with a child, eight specifications of indecent liberties with a child, two

                                                                       (continued . . .)


                                           2
ADAMS—ARMY 20130693

App. 6 Jan. 2017) (mem. op.). This court set aside the findings and sentence due to
a Hills 5 error and authorized a rehearing by the same or a different convening
authority. Adams, 2017 CCA LEXIS 6, at *1, 8.

       Upon remand to the convening authority, the government preferred a second
charge sheet alleging substantively the same charges against appellant on 11 May
2017. On 3 August 2017, the government preferred an additional charge. We will
refer to these charges collectively as the “2017 charges.”

      Thus, by August 2017, appellant was facing both the remanded 2012 charges
and the newly preferred 2017 charges. A comparison of the two sets of charges
revealed three categories of specifications. First, some specifications are
substantially identical in both charge sheets. 6 Second, some specifications differ

(. . . continued)
specifications of sodomy with a child, one specification of producing child
pornography, one specification of possessing child pornography, and one
specification of possessing child erotica, in violation of Articles 120, 125 and 134,
UCMJ. The panel sentenced appellant to a dishonorable discharge, confinement for
life with eligibility for parole, total forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority disapproved the finding of
guilty for possession of child erotica, approved the remaining findings of guilty, and
approved the sentence. Adams, 2017 CCA LEXIS 6 at *1-2.
5
  In United States v. Hills, 75 M.J. 350, 352 (C.A.A.F. 2016), our Superior Court
held it is constitutional error for a military judge to give an instruction to a panel
that permits Military Rule of Evidence [Mil. R. Evid.] 413 to be applied to evidence
of charged sexual misconduct. Our Superior Court’s ruling in Hills also applies to
cases involving Mil. R. Evid. 414. See United States v. Tanner, 63 M.J. 445, 448-49
(C.A.A.F. 2006); United States v. Bonilla, ARMY 20131084, 2016 CCA LEXIS 590,
at *22-23 (Army Ct. Crim. App. 30 Sep. 2016). During appellant’s 2013 court-
martial, the military judge’s instruction to the panel allowed the consideration of
charged misconduct, under Mil. R. Evid. 414, as evidence of appellant’s propensity
to commit the other charged offenses, “even if [the panel] is not convinced beyond a
reasonable doubt that the accused is guilty of those offenses . . . .” Adams, 2017
CCA LEXIS 6, at *3-4.
6
 The first category of identical charges include: Specifications 2, 3, and 4 of
Charge II (indecent liberties with a child in violation of Article 134), and
Specification 1 of Charge IV (sodomy of a child in violation of Article 125). We
note appellant claims Specification 2 of Charge II is a new offense and classifies it
under category 3. Appellant explains that this specification “[c]orresponds to
Specification 3 of Charge II [from the 2012 charge sheet], but the government

                                                                       (continued . . .)


                                           3
ADAMS—ARMY 20130693

only in that the 2017 charge sheet amended the time period when the offense was
committed. 7 For all offenses in the second category, the time period when the
offense was committed was amended from “between on or about 1 October 2007 and
on or about 31 March 2008,” in the 2012 charges to “between on or about 16 July
2008 and on or about 14 August 2008,” in the 2017 charges. The third category
consists of five new specifications preferred in 2017. 8

       A second Article 32, UCMJ, hearing was directed to consider all of the
charges. Both the 2012 and 2017 charges were then forwarded to the convening
authority, who dismissed “without prejudice” the 2012 charges and referred the 2017
charges to a general court-martial. At trial, appellant moved to dismiss the 2017
charges for lack of jurisdiction asserting the convening authority had exceeded the
mandate of this court’s remand. The military judge denied the motion and appellant
petitioned this court to issue a writ of mandamus and a writ of habeas corpus.
Appellant’s writ asserted that further prosecution was barred by the Double Jeopardy
Clause and the court-martial lacked jurisdiction over the charges. This court denied
appellant’s petition. Adams v. Cook, ARMY MISC 20170581, 2018 CCA LEXIS 30
(Army Ct. Crim. App. 23 Jan. 2018) (mem. op.).

      At appellant’s rehearing, appellant was convicted of sexually abusing HP, his
step-daughter, when she was between the ages of nine and ten. On various

(. . . continued)
changed the modality by alleging [appellant] ‘cause[d]’ HR to touch, instead of
‘directing’ HR to touch as alleged in the 2012 charges.” After appellant submitted
his brief to this court, the Court of Appeals for the Armed Forces (CAAF) issued its
decision in United States v. Moore, 79 M.J. 483, 487-88 (C.A.A.F. 2020), which
held that amending the modality of the offense prior to referral does not implicate
the statute of limitations. Thus, we consider Specification 2 of Charge II as an
identical charge under the first category.
7
  The offenses with a differing date range in the second category include:
Specification 1 of Charge I (aggravated sexual assault of a child in violation of
Article 120); Specification 3 of Charge I (indecent liberties with a child in violation
of Article 120); and Specification 1 of Charge III (production of child pornography
in violation of Article 134).
8
  The new offenses in the third category include: Specification 1 of Charge I
(indecent acts with a child in violation of Article 120); Specification 6 of Charge I
(indecent liberties with a child in violation of 120); Specification 5 of Charge II
(indecent liberties with a child in violation of Article 134); Specification 1 of The
Additional Charge (aggravated sexual abuse of a child in violation of 120); and
Specification 3 of The Additional Charge (abusive sexual contact of a child in
violation of 120).



                                           4
ADAMS—ARMY 20130693

occasions, appellant had HP penetrate her vagina with her fingers and a sex toy,
requested she take her shirt off so he could see her breasts, requested she touch
appellant’s penis, and anally penetrated her with his penis.

       Appellant was also convicted of sexually abusing his niece, HR, when she was
thirteen years old. On various occasions, appellant had HR penetrate her vulva with
a sex toy, requested she perform oral sex on him, requested she lift her shirt and
fondled her breasts with both of his hands, requested she take photographs of her
naked breasts, penetrated HR’s vagina with his penis, and on one occasion,
photographed his penis while penetrating HR’s vagina.

                               LAW AND DISCUSSION

                     A. Whether the Court-Martial Lacked Jurisdiction

      Appellant contends the convening authority exceeded the scope of this court’s
remand by dismissing the 2012 charges and referring the 2017 charges, thereby
depriving the court-martial of jurisdiction. We disagree and find that upon remand a
convening authority may take any lawful action regarding the offenses, including
dismissal, amendment of charges, and referral of new charges.

        Jurisdiction is a question of law that this court reviews de novo. United
States v. Nealy, 71 M.J. 73, 75 (C.A.A.F. 2012). Article 66(d), UCMJ, permitted
this court to to set aside the findings and sentence of appellant’s first court-martial
and authorize a rehearing by the same or a different convening authority. In cases
where a rehearing is authorized, “[t]he convening authority may in the convening
authority’s discretion order a rehearing. A rehearing may be ordered as to some or
all of the offenses . . . .” Rule for Courts-Martial [R.C.M.] 1107(e)(2). 9 Further, the
convening authority is authorized to refer additional charges “together with charges
as to which a rehearing has been directed.” R.C.M. 1107(e)(2)(D). 10 We find this


9
  In United States v. Carter, 76 M.J. 293 (C.A.A.F. 2017), the Air Force Court of
Criminal Appeals set aside the findings, but did not authorize a rehearing. Id. at
294. Nonetheless, the convening authority sent the case to be retried. The CAAF
held the convening authority exceeded his authority and the scope of the remand.
Id. at 295-96. In contrast, in appellant’s case this court did authorize a rehearing.
Thus, the convening authority had jurisdiction over the offenses when this court
remanded the case.
10
     Rule for Courts-Martial 810(a)(3) also envisions new charges at a rehearing:

               Combined Rehearings. When a rehearing on sentence is

                                                                        (continued . . .)


                                            5
ADAMS—ARMY 20130693

discretionary language inherently allows for the dismissal of some or all of the
charges, for the referral of additional charges, and for the convening authority to
amend the charges to conform to the evidence. See Moore, 79 M.J. at 486 (citing
United States v. Stout, 2019 CAAF LEXIS 648, at *4 (C.A.A.F. 22 Aug. 19)). This
court stated previously:

             When we authorize a rehearing we see our decision as
             returning the case to the convening authority who, subject
             to rules governing speedy trial, double jeopardy,
             unreasonable multiplication of charges, and other rules,
             may take any lawful action regarding the offenses.
             Dismissal and amendment of charges are among such
             lawful actions. While a rehearing is a continuation of the
             former proceeding, that does not make the charges
             immutable or cause us to construe them as having been
             carved into granite.

Adams, 2018 CCA LEXIS 30 at *11-12 (citing United States v. Von Bergren, 67 M.J.
290, 291 (C.A.A.F. 2009) (noting Von Bergren received a rehearing on an amended
specification and the court did not view the issue as one of jurisdiction, but rather
whether a new Article 32, UCMJ, hearing should have been granted) (internal
quotation marks and citation omitted).

       In sum, this court’s remand “had the effect of vacating the proceedings and
leaving the case as though no trial had been had,” Johnson v. United States, 19
C.M.A. 407, 408, 42 C.M.R. 9, 10 (1970), and “no vestiges of the former court-
martial linger[ed].” Howell v. United States, 75 M.J. 386, 392 (C.A.A.F. 2016). As
such, the convening authority acted within his discretion when he referred new
charges, amended charges, and dismissed charges. Accordingly, the court-martial
had jurisdiction over the 2017 offenses.

                 B. Whether Double Jeopardy Barred the 2017 Charges

        Appellant asserts the Double Jeopardy Clause barred the government from
proceeding with the 2017 charges that were either identical or contained a date range
shift from the 2012 charges (categories 1 and 2). We disagree and find the original

(. . . continued)
               combined with a trial on the merits of one or more
               specifications referred to the court-martial whether or not
               such specifications are being tried for the first time or
               reheard, the trial will proceed on the merits. . . .”

(emphasis added).



                                           6
ADAMS—ARMY 20130693

jeopardy from the 2012 charges continued uninterrupted during the appellate process
and the rehearing on the 2017 charges.

       Whether a successive prosecution is barred by the Double Jeopardy Clause is
a question of law we review de novo. United States v. Campbell, 71 M.J. 19, 26-27
(C.A.A.F. 2012). The Fifth Amendment to the United States Constitution commands
that “[n]o person shall . . . be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V., cl. 2. The Double Jeopardy
Clause consists of three separate constitutional protections. “It protects against a
second prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause does not preclude the government from
retrying an accused whose conviction was set aside due to an error in the
proceedings. Burks v. United States, 437 U.S. 1, 14 (1978).

       In the military justice system, protections against double jeopardy are
provided through operation of Article 44, UCMJ (“former jeopardy”). Burtt v.
Schick, 23 M.J. 140, 142 (C.M.A. 1986). Pursuant to Article 44, jeopardy attaches
after the introduction of evidence. 11 Once jeopardy attaches, an accused “may not be
retried for the same offenses without consent once jeopardy has terminated.” United
States v. Easton, 71 M.J. 168, 172 (C.A.A.F. 2012) (citing Richardson v. United
States, 468 U.S. 317, 325 (1984)). A successful double jeopardy claim has two
temporal components: first, that jeopardy attaches; and second, that it terminates.
Id.

      Jeopardy terminates, and therefore precludes a subsequent court-martial, if
charges are dismissed in the absence of manifest necessity. Easton, 71 M.J. at 172
(C.A.A.F. 2012). The “manifest necessity” standard requires “a ‘high’ degree of
necessity.” Id. at 173 (citing Arizona v. Washington, 434 U.S. 497, 506 (1978)).
“The power ought to be used with the greatest caution, under urgent circumstances,
and for very plain and obvious cases.” Id. (quoting United States v. Perez, 22 U.S.
579, 580 (1824)).

      Appellant contends that the rehearing was a continuation of the first trial. See
United States v. Beatty, 25 M.J. 311, 314 (C.M.A. 1987) (citation omitted). As such,
appellant argues jeopardy attached to the 2012 charges when evidence was admitted
during the first trial, and that jeopardy terminated when the convening authority
dismissed those charges on 4 August 2017. Further, appellant argues the
government lacked any manifest necessity to dismiss the 2012 charges.


11
  In contrast, in civilian trials, jeopardy attaches when the jury is empaneled. See
Crist v. Bretz, 437 U.S. 28, 35 (1978).



                                          7
ADAMS—ARMY 20130693

       We agree with appellant that jeopardy attached to appellant’s convictions for
the category 1 and 2 offenses at the first trial. We also agree that appellant’s
rehearing was a continuation of the first trial. However, under the principle of
continuing jeopardy, jeopardy did not terminate when the convening authority
dismissed the 2012 charges. The original jeopardy continued uninterrupted because
the “successful appeal of a judgment of conviction, on any ground other than the
sufficiency of the evidence to support the verdict, poses no bar to further
prosecution on the same charge.” United States v. Scott, 437 U.S. 82, 90-91 (1978);
see also Burks v. United States, 437 U.S. 1 (1978); United States v. McMurrin, 72
M.J. 697, 704-05 (N.M. Ct. Crim. App. 2013). 12

       In finding that the convening authority’s dismissal did not terminate jeopardy
in appellant’s case, we also consider whether the three constitutional protections
listed in Pearce are implicated. 13 We find they are not. First, appellant was not


12
  The convening authority’s decision to dismiss and re-refer the same charges in
appellant’s case is similar to the Navy-Marine Corps Court of Criminal Appeals’
(NMCCA) dismissal and the convening authority’s re-referral of the same charge in
McMurrin. In McMurrin, the NMCCA set aside and dismissed appellant’s
conviction for negligent homicide, affirmed the remaining findings of guilty, set
aside the sentence, and authorized a rehearing on sentence only. 72 M.J. at 700.
The convening authority referred additional charges to be combined with the
rehearing on sentence, one of which was a charge and specification for negligent
homicide based on the same underlying conduct prosecuted at the first trial. The
NMCCA found that its decision setting aside McMurrin’s negligent homicide
conviction did not terminate jeopardy for that charge. Id. at 704. Instead, the court
found the original jeopardy continued uninterrupted during the appellate process and
the rehearing. Id. Further, the NMCCA noted that its dismissal of McMurrin’s
conviction did not implicate any of the double jeopardy concerns listed in Pearce,
395 U.S. at 717.
13
  Because we find jeopardy never terminated, we need not decide whether the
government lacked manifest necessity to dismiss the 2012 charges. However, we
will briefly address appellant’s reliance on our Superior Court’s decision in Easton,
which we find readily distinguishable. In Easton, the convening authority withdrew
and dismissed charges the day of trial because the government failed to procure
sufficient evidence to convict, which the CAAF found did not constitute manifest
necessity. 71 M.J. at 174. In contrast, in appellant’s case, the government
dismissed the 2012 charges because “[i]n reviewing the evidence, [the government]
believed that the date ranges which [are] reflected on the 2017 charge sheet more
accurately reflect the misconduct committed by [appellant].” Essentially, the
government made changes to the charges and specifications to conform to the

                                                                      (continued . . .)


                                          8
ADAMS—ARMY 20130693

acquitted of any of the specifications in categories 1 and 2. Second, appellant’s
convictions were not final because this court’s decision set aside those findings and
authorized a rehearing. Third, appellant was not subject to multiple punishments
because this court set aside the sentence from appellant’s first trial and appellant has
been credited the time he has served in confinement against his current sentence.

       Accordingly, appellant’s rehearing was not a double jeopardy violation within
the intent of the Fifth Amendment. Appellant’s successful appeal did not preclude
the convening authority from dismissing the 2012 charges, referring those same
charges and amended charges, and re-prosecuting appellant.

                      C. Whether the Statute of Limitations Expired

       Next, we consider appellant’s claim the statute of limitations [SOL] expired
for Specification 5 of Charge II. Appellant claims that as a result of Congress’
retroactive amendment to Article 43, UCMJ, in the National Defense Authorization
Act for 2017 [NDAA 2017], the SOL for Specification 5 of Charge II (indecent
liberties with a child in violation of Article 134, UCMJ) expired in 2010. 14 As we



(. . . continued)
evidence expected to be presented at trial. As our Superior Court recently held in
United States v. Stout, this is an entirely permissible action. 2019 CAAF LEXIS
648, at *4 (holding “[t]he words of Article 34 are clear and unambiguous: before
referral, changes may be made to conform the specifications to the evidence
contained in the report of the Article 32 investigating officer.”).
14
   Appellant also claims the SOL expired for Specifications 2, 3, and 4 of Charge II
(indecent liberties with HP, in violation of Article 134) and Specification 1 of
Charge IV (sodomy of HP in violation of Article 125). Appellant argues the SOL
expired when the convening authority dismissed the 2012 charges. We disagree.
The savings clause of Article 43(g), UCMJ, allows charges to be dismissed and re-
referred within 180 days if the charges are “defective or insufficient for any cause . .
. .” (emphasis added). Although Specification 1 of Charge IV is identical to the
corresponding 2012 charge, we note that Specifications 2, 3, and 4 of Charge II have
slight differences in wording compared to the corresponding 2012 charges. In light
of the CAAF’s decision in Stout, 2019 CAAF LEXIS 648, at *4, holding pre-referral
changes are permissible, we find appellant’s argument regarding these offenses
meritless. See also United States v. Moore, 79 M.J. at 486 (“Nothing in Article 43,
UCMJ, suggests that a charge or specification that was timely when received by the
[Summary Court-Martial Convening Authority] might become untimely if the
convening authority makes changes . . . [t]hat are authorized by Article 34(c),

                                                                        (continued . . .)


                                           9
ADAMS—ARMY 20130693

explain below, we do not find the SOL expired for this offense as it would lead to an
absurd result contrary to Congress’ intent.

       The applicable SOL is a question of law, which we review de novo. United
States v. Mangahas, 77 M.J. 220, 222 (C.A.A.F. 2018) (citing United States v. Lopez
de Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008). An accused is subject to the SOL in
force at the time of the offense. Toussie v. United States, 397 U.S. 112, 115 (1970).
Generally, subsequent amendments do not apply because there is both a presumption
against retroactive legislation, see INS v. St. Cyr, 533 U.S. 289, 316 (2001), and a
presumption in favor of repose, United States v. Habig, 390 U.S. 222, 227 (1968).
“[C]ongressional enactments and administrative rules will not be construed to have
retroactive effect unless their language requires the result.” Bowen v. Georgetown
Univ. Hospital, 488 U.S. 204, 208 (1988).

       Prior to 2003, the SOL for child abuse offenses was five years. UCMJ art.
43(b)(1) (2000 & Supp. II 2003). From 2003 to 2017, Congress amended the SOL
for child abuse offenses three times. The first child abuse specific amendment
occurred in 2003 when Congress amended Article 43(b)(1), UCMJ, to except from
the general five-year SOL certain listed child abuse offenses, including indecent
liberties with a child. NDAA 2004, Pub. L. No. 108-136, § 551, 117 Stat. 1392,
1481 (2003). The 2003 amendment provided that the SOL for these offenses would
expire when the child reached the age of twenty-five years. Id. This was the SOL in
effect at the time appellant committed the offense in Specification 5 of Charge II.

       The second amendment occurred in 2006 when Congress increased the SOL
for child abuse offenses to “the life of the child or within five years after the date on
which the offense was committed, whichever provides a longer period . . . .” NDAA
2006, Pub. L. No. 109-163, §§ 552-53, 119 Stat. 3136, 3264-63 (2006).

       Before we address the third amendment to Article 43, it is important to note
that while Congress expanded the SOL for child abuse offenses, Congress also
expanded Article 120, UCMJ. This expansion included a prohibition against
“indecent liberties with a child” in Article 120(j), UCMJ. 15 The preface to the 2008
Manual for Courts-Marital [MCM] states the offense of indecent acts or liberties
with a child “[w]as removed as it was subsumed into the new Article 120

(. . . continued)
UCMJ.”). Therefore, the government’s decision to dismiss the 2012 charges and
make slight changes pre-referral fits within the savings clause allowing for dismissal
if the charges are “insufficient for any cause.”
15
  See NDAA 2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3258 (2006); see
also United States v. Avery, 79 M.J. 363, 367 (C.A.A.F. 2020) (discussing expansion
of Article 120).



                                           10
ADAMS—ARMY 20130693

provision.” 16 Then, in 2011, Congress substantially revised Article 120, UCMJ, by
creating Article 120b. 17 This new Article 120b included a prohibition against
committing lewd acts upon children. UCMJ art. 120b(c).

       The third amendment to Article 43 occurred with the enactment of the 2017
NDAA which expanded the SOL for child abuse offenses to “the life of the child or
within ten years after the date on which the offense was committed, whichever
provides a longer period . . . .” NDAA 2017, Pub. L. 114-328, § 5225(a), 130 Stat.
2000, 2910 (2016). Congress made this amendment retroactive. Id. at § 5225(f),
130 Stat. at 2910 (“The amendments made by subsections (a), (b), (c), and (d) shall
apply to the prosecution of any offense committed before, on, or after the date of
enactment of this subsection if the applicable limitation period has not yet
expired.”). 18

        The 2017 NDAA also struck indecent liberties from the list of child abuse
offenses in Article 43, UCMJ and inserted “section 920, 920a, 920c, or 930 of this
title (article 120, 120a, 120b, 120c, or 130) . . . .” 19 Consequently, appellant claims
his conviction for Specification 5 of Charge II (indecent liberties with a child under
Article 134, UCMJ) now falls under Article 43(b), which carries a five-year SOL.
We do not believe Congress intended this result.


16
  We note the similarities between the definitions of “indecent” under Article 134
and “lewd act” under Article 120. Under Article 134, “indecent” was defined as that
form of immorality relating to sexual impurity which is not only grossly vulgar,
obscene, and repugnant to common propriety, but tends to excite lust and deprave
the morals with respect to sexual relations.” MCM, pt. IV, ¶90.c. (2002 ed.).
(emphasis added). “Lewd act” includes “any indecent conduct, intentionally done
with or in the presence of a child, including via any communication technology, that
amounts to a form of immorality relating to sexual impurity which is grossly vulgar,
obscene, and repugnant to common propriety, and tends to excite sexual desire or
deprave morals with respect to sexual relations.” UCMJ art. 120b(a)(h)(5)(D);
MCM, pt. IV, ¶45.a.(h)(5)(D) (2012 ed.). (emphasis added).
17
     See NDAA 2012, Pub. L. No. 112-81, § 541, 125 Stat. 1298, 1407-09 (2011).
18
  The 2018 NDAA clarified that the 2017 NDAA amendments to Article 43, UCMJ,
“shall be applied as in effect on December 22, 2016.” See NDAA 2018, Pub. L. No.
115-91, § 531(n)(2), 131 Stat. 1283, 1387 (2017). This clarification has little impact
on appellant’s case as Specification 5 of Charge II was preferred on 11 May 2017,
after the effective date.
19
  See NDAA 2017, Pub. L. 114-328, § 5225(d), 130 Stat. 2000, 2910 (2016) (listing
“conforming amendments”).



                                           11
ADAMS—ARMY 20130693

       As we discern whether Congress intended to reduce the SOL for indecent
liberties with a child to five years and no longer treat the offense as a child abuse
offense, we consider well-established principles of statutory construction. United
States v. McNutt, 62 M.J. 16, 20 n.27 (C.A.A.F. 2005). Statutory construction
begins with a look at the plain language of a rule. United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 241-42 (1989). The plain language will control,
unless use of the plain language would lead to an absurd result. Lamie v. United
States Trustee, 540 U.S. 526, 534 (2004). Going behind the plain language of a
statute in search of a possibly contrary congressional intent is a step to be taken
cautiously.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 75 (1982) (citation and
quotation marks omitted).

        On its face, the plain language of the 2017 NDAA amendment to Article 43
does not appear ambiguous. However, when considered in conjunction with the
legislative history of the statute and the nature of the offense in Specification 5 of
Charge II, we find excluding indecent liberties in violation of Article 134 from the
list of child abuse offenses would lead to an absurd and unintended result. 20 In
Specification 5 of Charge II, appellant was convicted of indecent liberties with a
child by requesting his ten year-old step-daughter remove her shirt so he could look
at her breasts. Not only does common sense dictate that appellant’s conduct
constitutes child abuse, we note this conduct would currently be punishable under
Article 120b, UCMJ, as sexual abuse of a child by indecent conduct, which is
included as an offense constituting child abuse in the 2017 NDAA. 21

20
  See Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) (applying the
absurdity doctrine which permits courts to avoid an absurd application of an
otherwise clear statute); see also Public Citizen v. United States Department of
Justice, 491 U.S. 440 (1989). In Public Citizen, the Supreme Court considered the
meaning of the word “utilize” in the Federal Advisory Committee Act (FACA). Id.
at 443. The Court held the plain language of the statute would extend FACA’s
requirements in a manner that would be contrary to FACA’s legislative intent and
the Court was “[c]onvinced that Congress did not intend that result.” Id. at 453.
Similar to the FACA, the 2017 NDAA’s legislative history, as well as Congress’
previous amendments to Articles 43 and 120, compel us to find that the plain reading
of the statute would limit its application in a manner that Congress did not intend.
21
  The Supreme Court relied on common sense in interpreting a provision of the
Indian Regulatory Gaming Act in Chicksaw Nation v. United States, 534 U.S. 84
(2001). In Chicksaw, the Supreme Court considered a parenthetical in one of the
provisions of the Act which explicitly cross-referenced another chapter exempting
the Choctaw and Chicksaw Nations from paying certain taxes. Id. at 86-87. Despite
the parenthetical’s explicit reference to the exemption, the Court held that “[i]n
context, common sense suggests that the cross-reference is simply a drafting

                                                                        (continued . . .)


                                          12
ADAMS—ARMY 20130693

       The totality of the 2017 NDAA’s legislative history makes Congress’ intent
abundantly clear: Congress intended to increase, not decrease, the SOL for child
abuse offenses and sexual assault offenses. As a starting point, one of the main
purposes of the 2017 NDAA was to implement “[t]he first comprehensive reform of
the Uniform Code of Military Justice in decades.” H. Rep. 114-537, at 5 (4 May
2016) (Comm. Rep.). The stated “rationale” for the bill was “[t]o enhance the rights
of victims . . . .” Id. at 2-5. The Senate report on the bill explicitly states, “[t]he
committee recommends a provision that would amend [Article 43, UCMJ] to extend
the statute of limitations applicable to child abuse offense from the current [five]
years or the life of the child, whichever is longer, to [ten] years or the life of the
child, whichever is longer.” S. Rep. 114-255, at 601 (18 May 2016) (Comm. Rep.);
see also H. Rep. 114-537, at 606 (4 May 2016) (Comm. Rep.) (stating amendment
would increase the SOL for child abuse offenses).

       Notably, in our review of the legislative history, we found no discussion
indicating an intent to no longer consider indecent liberties with a child as a child
abuse offense or reduce the SOL for that offense. Nonetheless, appellant urges this
court to interpret this silence as an affirmative indication of Congress’ intent.
Appellant’s argument is unreasonable when considered in light of the migration of
the child abuse offenses under Article 134 to Article 120b, in conjunction with the
progressive increase in the statute of limitations for child abuse offenses over the
past fifteen years.

       Ultimately, we believe this is one of those rare and exceptional circumstances
where the application of the statute as written would produce a result “demonstrably
at odds with the intentions of its drafters.” Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 571 (1982). In drafting the 2017 NDAA, we do not believe Congress
intended the absurd result of drastically reducing the SOL for indecent liberties with
a child under Article 134, UCMJ, from the life of the child or within ten years after
the date on which the offense was committed, whichever provides a longer period, to




(. . . continued)
mistake, a failure to delete an inappropriate cross-reference in the bill that Congress
later enacted into law. Id. at 91. (emphasis added) (citing Little Six, Inc. v. United
States, 229 F. 3d 1383, 1385 (CA Fed. 2000) (Dyk, J., dissenting from denial of
rehearing en banc) (“The language of the provision has all the earmarks of a simple
mistake in legislative drafting.”). Similarly, we believe the omission of indecent
liberties as a child abuse offense in the 2017 NDAA was a drafting mistake as a
result of the migration of indecent liberties from Article 134 to lewd acts in Article
120b.




                                          13
ADAMS—ARMY 20130693

the pre-2003 period of merely five years. 22 Appellant’s reading of the amendment
would defeat the statutory purpose of the legislation and would lead to a result “so
bizarre that Congress could not have intended it.” Demarest v. Manspeaker, 498
U.S. 184, 190 (1991) (quoting Griffin, 458 U.S. at 575). Accordingly, we find the
statute of limitations for Specification 5 of Charge II has not expired. 23

                            D. Legal and Factual Sufficiency

       Lastly, we address appellant’s claim that his conviction for producing child
pornography (Specification 1 of Charge III) is legally and factually insufficient
because HR only testified that she “saw a flash,” and the photo was not introduced
into evidence. Under the specific circumstances of this case, we agree.

       We review questions of legal and factual sufficiency de novo. UCMJ art.
66(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
legal sufficiency is “whether, considering the evidence in the light most favorable to
the prosecution, any reasonable fact-finder could have found all the essential
elements beyond a reasonable doubt.” United States v. Day, 66 M.J. 172, 173-74
(C.A.A.F. 2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)).
In applying this test, “we are bound to draw every reasonable inference from the


22
  The Supreme Court found the evolution of a statute crucial to its understanding of
Congress’ intent in United States v. X-Citement Video, 513 U.S. 64 (1994). In X-
Citement Video, the Court considered whether the term “knowingly” in the
Protection of Children Against Sexual Exploitation Act modified one of the
subsections of the Act. Id. at 68. The Court acknowledged that the most “natural”
reading of the statute suggests that the term “knowingly” modifies only the
surrounding verbs and therefore would not apply to the subsections. Id. However,
the Court noted the legislative history of the statute evolved over a period of years
and “[c]an be summarized by saying that it persuasively indicates that Congress
intended the term ‘knowingly’ apply to [the subsections].” Id. at 77. The Court
held that interpreting the statute otherwise would produce “positively absurd”
results. Id. at 69. Similarly, we cannot ignore Congress’ firm focus on
criminalizing and extending the SOL for child abuse and sexual assault crimes over
the past two decades. The 2017 NDAA’s obvious legislative history convinces us
that Congress did not intend to exclude indecent liberties with a child from the list
of child abuse offenses.
23
  We note that at the time appellant committed the offense in Specification 5 of
Charge II, he was on notice that the SOL was until HP reached the age of twenty-
five. HP was under the age of twenty-five when the 2017 charges were preferred.
As such, there is no violation of the Ex Post Facto Clause of the Constitution. See
Art. I, § 9, cl. 3; Stogner v. California, 539 U.S. 607, 610 (2003).



                                          14
ADAMS—ARMY 20130693

evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001).

       The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses, [we are] convinced of appellant’s guilt beyond a reasonable doubt.”
United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citation omitted). We
take “a fresh, impartial look at the evidence,” applying “neither a presumption of
innocence nor a presumption of guilt” to “make [our] own independent
determination as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.” United States v. Wheeler, 76 M.J. 564, 568 (quoting
Washington, 57 M.J. at 399).

       As charged in this case, appellant’s conviction for production of child
pornography required the government to prove the following elements: (1) that the
accused knowingly and wrongfully produced child pornography; and (2) that under
the circumstances, the conduct of the accused was of a nature to bring discredit upon
the armed forces. UCMJ art. 134, MCM, pt. IV, ¶60.b. (2005 ed.).

       At trial, HR testified appellant stated he wanted to take a picture “of his penis
going inside [HR’s] vagina.” While in appellant’s bedroom, appellant removed his
pants, laid down on his bed, and told HR to remove her pants and underwear and to
get on top of him. Appellant “proceeded to stick his penis inside of [HR], put his
hands on [HR’s] hips, pulled [HR] down, and then pushed [HR] up a few times.”
HR testified appellant took a picture while using one hand to hold onto her hip and
the other hand to take the picture. When asked how she knew that the camera took
the picture, HR responded, “[t]here was a flash.” HR did not testify that she ever
saw the photo and the photo was not entered into evidence. Law enforcement seized
twenty-three digital devices from appellant’s home, but never recovered the photo.

       We are not convinced beyond a reasonable doubt appellant successfully took a
photo depicting child pornography. To be clear, we are not holding the government
is required to introduce into evidence an alleged photo containing child pornography
to prove the offense. In fact, we find HR’s detailed description of the sex act would
satisfy the six factors developed in United States v. Dost, if captured in a photo. 636
F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812
F.2d 1239 (9th Cir. 1987) (listing factors for determining whether a photo contains a
“lascivious exhibition” constituting child pornography for purposes of Article 134,
UCMJ). Rather, what raises doubt is the lack of any evidence, testimony or
otherwise, confirming the photo was successfully taken and what the photo actually
depicted (not just what appellant intended to capture).

      This case can be contrasted with the Air Force Court of Criminal Appeals’
holding in United States v. Simmons, 2019 CCA LEXIS 156 (A.F. Ct. Crim. App. 9



                                           15
ADAMS—ARMY 20130693

Apr. 19). In Simmons, appellant was convicted of producing child pornography. Id.
at *30-31. At trial, the government did not introduce the video. Id. However, the
victim testified that she viewed the video and described the sexual act depicted in
the video, which satisfied the Dost factors. Id. at *33.

        In appellant’s case, neither HR nor any other person testified they saw the
photo. We are not convinced beyond a reasonable doubt the government proved the
first element of the offense—that appellant successfully took the photo that HR
described. Accordingly, we find the evidence introduced at trial legally and
factually insufficient to support appellant’s conviction for production of child
pornography. We set aside and dismiss Specification 1 of Charge III in the decretal
paragraph.

       We are able to reassess appellant’s sentence in accordance with principles set
forth in United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013) and United
States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). To reassess the sentence, we
must be able to reliably conclude that, in the absence of error, the sentence “would
have been at least of a certain magnitude.” Sales, 22 M.J. at 307-98. First, we
consider that the dismissal of appellant’s conviction for production child
pornography is not a drastic change in the penalty landscape. The maximum
punishment for production of child pornography was thirty years. 24 Meanwhile
appellant remains convicted of aggravated sexual assault of a child, six
specifications of indecent liberties with a child, indecent acts with a child, sodomy
of a child, aggravated sexual abuse of a child, and abusive sexual contact with a
child. The maximum punishment for appellant’s remaining convictions is Life plus
123 years of confinement. As such, dismissing appellant’s conviction for production
of child pornography is not a significant reduction in the maximum punishment.




24
  Appellant was charged to have committed the offense of production of child
pornography between on or about 16 July 2008 and on or about 14 August 2008. In
2008, production of child pornography was not an offense listed under Article 134,
UCMJ. The maximum punishment for an offense charged under Article 134, UCMJ,
clauses 1 and 2, and not otherwise listed in the MCM, pt. IV, may be determined by
reference to the maximum punishment for violation of a federal statute that
proscribes and criminalizes the same criminal conduct and mental state included in
the specification. See United States v. Leonard, 64 M.J. 381, 381-82 (C.A.A.F.
2007). In 2008, the federal statute criminalizing the production of child
pornography provided a sentence of “not less than 15 years nor more than 30 years.”
18 U.S.C. § 2251(e). Applying R.C.M. 1003(c)(1)(B)(ii) (2008 ed.), the maximum
punishment would also include a dishonorable discharge and forfeiture of all pay
and allowances.



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