

   
   
   
   U.S. v. Sapp



UNITED STATES, Appellee
V.
Timothy D. SAPP, Senior Airman
U. S. Air Force, Appellant
 
No. 99-0260
Crim. App. No. 32641
 
United States Court of Appeals for the Armed
Forces
Argued November 9, 1999
Decided June 9, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed an opinion concurring in part and dissenting in part.

Counsel
For Appellant: Captain Michael J. Apol
(argued); Lieutenant Colonel Jeanne M. Rueth (on brief); Colonel
Douglas H. Kohrt and Major Carol L. Hubbard.
For Appellee: Captain Christa S. Cothrel
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald
A. Rogers (on brief); Major Michael E. Savage, USAFR.
Military Judge: Dennis E. Kansala
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION
 
Senior Judge COX delivered the opinion of the
Court.
Pursuant to his pleas, appellant was convicted
by a general court-martial of possessing depictions of sexually explicit
conduct by minors, in violation of 18 USC § 2252(a)(4)(A).1
The military judge sentenced him to a bad-conduct discharge, confinement
for 8 months, total forfeitures, and reduction to E-1. The convening authority
approved the sentence as adjudged. In an unpublished opinion, the Court
of Criminal Appeals affirmed in part. It held that appellants plea was
improvident with respect to a violation of 18 USC § 2252(a)(4)(A),
because the military judge failed to adequately advise appellant of the
elements necessary for a conviction of violating the statute, but it determined
that appellants plea nevertheless was "provident to a lesser-included
offense of service-discrediting conduct under clause 2 of Article 134."
Unpub. op. at 4. It modified the findings and concluded, after conducting
a reassessment, that the approved sentence was unaffected by the minor
modification made to the specification. Id. at 5.
This Court granted review on the following
issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED IN FINDING APPELLANT GUILTY OF A LESSER-INCLUDED OFFENSE UNDER ARTICLE
134, CLAUSE 2, AFTER THE COURT FOUND APPELLANTS PLEA OF GUILTY IMPROVIDENT
TO AN ARTICLE 134, CLAUSE 3, OFFENSE AS APPELLANT DID NOT ADMIT ALL THE
ESSENTIAL ELEMENTS TO THE LESSER-INCLUDED OFFENSE.

Concluding that the Court of Criminal Appeals
did not err by affirming appellants conviction under Article 134, clause
2, we affirm.
At trial, appellant pleaded guilty to the following
specification:

In that SENIOR AIRMAN TIMOTHY D. SAPP, United
States Air Force, 5th Munitions Squadron, Minot Air Force Base,
North Dakota, did, at Minot Air Force Base, North Dakota, on or about 30
January 1996, wrongfully and knowingly possess three or more visual depictions,
each of which depicted minors engaging in sexually explicit conduct, in
violation of 18 USC § 2252(a)(4)(A).

At the time of the offense, 18 USC § 2252(a)(4)(A)
prohibited the knowing possession of "3 or more books, magazines, periodicals,
films, video tapes, or other matter which contain any visual depiction"
of minors engaged in sexually explicit conduct.
While conducting the providence inquiry, the
military judge mistakenly "tracked the language of the specification rather
than" the language of the statute. Unpub. op. at 4. As a result, appellant
was asked if he possessed "three or more visual depictions . . . of minors
engaging in sexually explicit conduct." The military judge did not advise
appellant that the statute required that the visual depictions be contained
in at least three separate "matters." Instead, he advised that it is a
criminal offense under the statute to "knowingly possess any matters which
contain visual depictions if those visual depictions involve the use of
a minor engaged in sexually explicit conduct."
During his providence inquiry, appellant admitted
that he used an internet browser to download an entire newsgroup that contained
depictions of sexually explicit conduct by minors. Initially, all the images
he obtained were "dumped . . . into one directory" within his hard drive.
After viewing some of the images, he sorted them "according to the content"
and placed them in separate computer files entitled "sex," "stories," and
"nudes." While discussing his guilty plea with the military judge, appellant
admitted that he had stored and maintained some 188 sexually explicit images
of minor children in his personal computer at his on-base residence. He
also admitted that possession of such depictions of sexually explicit conduct
by minors constituted service-discrediting conduct.
Because appellants responses during the providence
inquiry indicated that all of the images that he possessed were located
on a single computer disc, the Court of Criminal Appeals concluded that
the military judge had failed to properly explain all of the elements required
for a violation of the federal statute. United States v. Care, 18
USCMA 535, 40 CMR 247 (1969).
In affirming the conviction of a lesser-included
offense, the Court of Criminal Appeals modified the specification to read
as follows:

In that SENIOR AIRMAN TIMOTHY D. SAPP, United
States Air Force, did, at Minot Air Force Base, North Dakota, on or about
30 January 1996, wrongfully and knowingly possess three or more visual
depictions of minors engaging in sexually explicit conduct.

Unpub. op. at 5.
We are satisfied that the Court of Criminal
Appeals correctly concluded that appellants guilty plea was sufficient
to support his conviction of service-discrediting conduct under Article
134. Conduct is punishable under Article 134 if it prejudices "good order
and discipline in the armed forces" (clause 1), or if it is "of a nature
to bring discredit upon the armed forces" (clause 2), or if it is a crime
or offense not capital (clause 3). The three clauses do not create separate
offenses. Instead, they provide alternative ways of proving the criminal
nature of the charged misconduct.
It is clear from reading Article 134 that conduct
which violates no specific statute may still be an offense thereunder if
it is found to be prejudicial to good order and discipline or if it is
of a nature to bring discredit upon the armed forces. See United
States v. Williams, 17 MJ 207, 215-16 (CMA 1984); United States
v. Mayo, 12 MJ 286, 289 (CMA 1982); United States v. Long, 2
USCMA 60, 6 CMR 60 (1952). We have no doubt that the knowing possession
of images depicting sexually explicit conduct by minors, when determined
to be service-discrediting conduct, is a violation of Article 134.
Appellant pleaded guilty to a specification
charging the possession of three or more images of sexually explicit conduct
by minors, as a violation or Article 134. In addition to admitting that
he violated 18 USC § 2252(a)(4)(A), he admitted during the providence
inquiry that the conduct was service discrediting.
Article 59(b), UCMJ, 10 USC § 859(b),
provides: "Any reviewing authority with the power to approve or affirm
a finding of guilty may approve or affirm, instead, so much of the finding
as includes a lesser included offense." That is exactly what the Court
of Criminal Appeals did in this case, and properly so.
The removal of any reference to a violation
of a federal statute from the specification did not alter the essential
nature of the offense. By charging a violation of the federal statute,
the Government was not required to prove either the prejudicial or discrediting
nature of the conduct to make it a criminal offense.2
However, appellants admissions, during the providence inquiry, that the
conduct was of a nature to bring discredit upon the armed forces were sufficient
to establish an Article 134 violation, even though one of the essential
elements necessary for a violation of the statute was not admitted.
In United States v. Bivins, 49 MJ 328,
332-33 (1998), this Court upheld a decision by the Court of Criminal Appeals
which affirmed a lesser-included offense of dereliction of duty after that
court determined that the original charge of violating a lawful general
order could not be sustained. There were three reasons we did so. The first
was that the appellant had been "placed on notice that he was charged with
a violation of Article 92," UCMJ, 10 USC § 892. The second was that
the appellant had "admitted all of the elements of dereliction of duty
in his providence inquiry." The third reason was that the offense of "dereliction
of duty is an offense 'closely related' to violating a lawful general order."
The same three reasons we applied in Bivins
are applicable to this case. Here, appellant was placed on notice that
he was charged with a violation of Article 134. Appellant admitted all
of the elements necessary for his conviction under Article 134 when he
admitted that he had committed the acts charged and that his conduct was
service discrediting. Finally, the offense of service-discrediting conduct
is an offense "closely related" to violating the federal statute, under
the facts of this case. Both offenses are charged under Article 134, and
appellant clearly understood the nature of the prohibited conduct.
For all these reasons, we uphold appellants
conviction of service-discrediting conduct under Article 134.3
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 The violation
of the federal statute was charged under the Crimes and Offenses Not Capital
Clause of Article 134, Uniform Code of Military Justice, 10 USC §
934.
2
In United States v. Foster, 40 MJ 140, 143 (CMA 1994), we noted
that the elements of prejudice to good order and discipline and discredit
to the armed forces are implicit in every enumerated offense under the
Uniform Code of Military Justice.
3
We disagree with the dissent's suggestion that the present case is in the
same posture as United States v. Falk, 50 MJ 385 (1999). In the
present case, the Court of Criminal Appeals was able to affirm the findings
with respect to a lesser-included offense because the court concluded that
the military judge conducted an adequate providence inquiry covering the
elements of the lesser-included offense. We agree with the court below.
By contrast, in Falk the adequacy of the guilty-plea inquiry as
to the offense charged was at issue; a lesser offense was not at issue
at the lower court or before our Court.
The dissent also
suggests that we should reverse the lower court's holding in the present
case and reinstate the findings of the court-martial as to the greater
offense. We note that the Government acquiesced in the lower court's decision
and did not appeal the ruling below on findings. We decline to take the
unusual and unwarranted step of reinstating findings absent a government
appeal.


SULLIVAN, Judge (concurring in part and dissenting
in part):
Naturally, I agree with the majority's affirming
of Senior Airman Sapps conviction for a violation of Article 134 (service-discrediting
conduct) by his act of storing and maintaining 188 sexually explicit images
of minor children in more than three separate files on his personal computer
in his government housing unit on a military post. This crime is similar
to what Airman First Class Falk did in a case we heard and decided last
Term. United States v. Falk, 50 MJ 385 (1999). There I stated:

Possession of 126 computer images of child
pornography, lasciviously organized into four directories on a personal
computer, in government housing on a military post, is per se
service discrediting conduct in my view. Affirmance of his conviction for
this conduct under Article 134 is warranted. . . .

United States v. Falk, 50 MJ at 394 (Sullivan,
J., dissenting).
However, it remains a puzzle to me why Sapp's
conviction is affirmed today and yet Falk's conviction was reversed for
essentially the same conduct. I don't understand why my position in dissent,
with regard to affirming a lesser-included offense under Article 134, in
United States v. Falk, supra, is now the majority view of
this Court. How can the law be applied so unequally?
Moreover, I strongly disagree with the majoritys
acceptance of the lower appellate court's holding that Sapp's guilty plea
to a violation of the child pornography law, 18 USC § 2252, should
not stand. I do not agree that Sapp's admissions were legally insufficient.
I adhere to my prior stated view in my dissent in United States v. Falk,
supra, that the conduct of storing visual depictions of child pornography
in over 126 computer files organized into four directories on a computer
violated 18 USC § 2252.
I further note that other recent decisions
of other U.S. courts of appeals would easily support a conviction under
18 USC § 2252, in the circumstances of child pornography on multiple
computer files on a single computer. See United States v. Vig,
167 F.3d 443, 448 (8th Cir.), cert. denied, 120 S.Ct.
146, 314 (1999); United States v. Hockings, 129 F.3d 1069 (9th
Cir. 1997); see also United States v. Demerritt, 196
F.3d 138 (2d Cir. 1999); United States v. Fellows, 157
F.3d 1197, 1201 (9th Cir. 1998), cert. denied,
120 S.Ct. 133 (1999); United States v. Hall, 142 F.3d 988, 998 (7th
Cir. 1998). In my view, the Governments extensive argument on the validity
of the original guilty plea (Government Final Brief at 13-20) hardly constitutes
acquiescence to the lower court decision.
As a final point, I want to clear up the confusion
that may appear in this area of the law of our Court. United States
v. Falk, supra, was published on May 28, 1999, but a confusing
order was issued on September 30, 1999, modifying in part the majority
opinion. I attach the order to this opinion as an appendix. In my view,
Section IIB (50 MJ at 390-92) was the only part of the majority opinion
that was withdrawn by the September 30th order; therefore, the
rest of the majority opinion as well as the two dissents in Falk
remain in effect.

APPENDIX
-- Falk Order
[Appendix in PDF format -- requires
Adobe Acrobat
Reader]


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