UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                BURTON, HAGLER, and FLEMING
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                           Captain CHRISTOPHER S. BERGER
                              United States Army, Appellant

                                        ARMY 20170232

                           Headquarters, 2d Infantry Division
                        Christopher T. Fredrikson, Military Judge
                   Colonel Timothy P. Hayes, Jr., Staff Judge Advocate

For Appellant: Major Todd W. Simpson, JA; Captain Zachary A. Gray, JA (on
brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Virginia Tinsley, JA; Captain Jeremy Watford, JA (on brief).

                                          20 March 2019

                                    ---------------------------------
                                    MEMORANDUM OPINION
                                    ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .

HAGLER, Judge:

      In a single assignment of error, appellant challenges his guilty plea to
conspiracy to commit sexual assault of a child. 1 At the time of his trial in 2017,
appellant was a 41-year-old Captain serving in the Republic of Korea. The charges

1
 In accordance with his pleas, appellant was found guilty by a military judge, sitting
as a general court-martial, of conspiracy to commit sexual assault of a child, conduct
unbecoming an officer, and seven specifications of conduct related to child
pornography, in violations of Articles 81, 133, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 933, and 934 [UCMJ]. The military judge sentenced
appellant to a dismissal and confinement for three years. Pursuant to a pretrial
agreement, the convening authority approved a sentence of a dismissal and
confinement for eighteen months. We review the case under Article 66, UCMJ.
BERGER—ARMY 20170232

stem from appellant’s online activity over several years, from early 2012 through
late 2015, during which he solicited, received, possessed, and viewed child
pornography. As part of this activity, appellant conspired with “Imelda,” 2 a woman
in the Philippines, who agreed to supply him with children for sexual activity.
Although we discuss appellant’s assigned error, our review ultimately finds no
substantial basis to question any of his guilty pleas.

                              LAW AND DISCUSSION

       The crime of conspiracy under Article 81, UCMJ, has two key elements: (1)
that the accused entered an agreement with one or more persons to commit an
offense under the UCMJ; and (2) that, while the agreement continued to exist, and
while the accused remained a party to the agreement, the accused or at least one of
the co-conspirators performed an overt act for the purpose of bringing about the
object of the conspiracy. Manual for Courts-Martial, United States (2016 ed.)
[MCM], pt. IV. ¶ 5.b.(1).

       Appellant contends neither element was satisfied by the facts elicited during
his providence inquiry; thus, he argues, the military judge abused his discretion by
accepting appellant’s plea to the conspiracy charge. Specifically, appellant argues
the agreement was conditional, not complete, and no overt act was performed in
furtherance of the conspiracy. We disagree on both points and conclude the
military judge had a sufficient factual basis to find appellant guilty of conspiracy.

                          Agreement to Commit an Offense

       During providency, appellant testified he contacted “Imelda” via Yahoo
Messenger chat and expressed interest in meeting minors for sex. In sum, he said
they discussed what the children would do and their ages, cost, locations to meet, his
plans to travel to the Philippines, and how he could contact Imelda. The military
judge conducted an extensive colloquy with appellant, to include the following:

             MJ: And, you said that you entered into an agreement
             [with Imelda]. What was the agreement?

             Appellant: The agreement was that if I went to the
             Philippines, that we would meet up and the possibility – or


2
 With the military judge’s permission, appellant referred to the charged co-
conspirator as “Imelda,” as he found her full username, “imeldangtulala,” difficult to
handle. We concur and will do the same throughout this opinion.




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BERGER—ARMY 20170232

         to have sex with a minor, with one of her – two of her
         girls.

         MJ: Okay. So, was the agreement that you were going to
         go to the Philippines and meet her and have sex with two
         of the children that she would provide?

         Appellant: Yes, sir.

         ....

         MJ: Okay. Did you specifically ask to have sex with two
         girls between the ages of 12 and 15?

         Appellant: Yes, sir.

         MJ: Did you plan on actually having sexual intercourse?
         And, I use the word, “sexual intercourse,” by placing your
         penis into their vulvas, was that your intent?

         Appellant: Yes, sir.

         MJ: And, was that the agreement that you had?

         Appellant: Yes, sir.

         ....

         MJ: Did you agree on a location?

         Appellant: Yes, sir, her house

         MJ: So, did you intend to go to her house and have sex
         with the two children?

         Appellant: If the opportunity arose, sir.

         MJ: What do you mean by “if the opportunity arose?”

         Appellant: If – if I was able to get away from the family
         that I was visiting.




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BERGER—ARMY 20170232

      Apparently concerned by the conditional nature of some of appellant’s words,
the military judge followed up by questioning appellant further on the existence of
an agreement with Imelda:

             MJ: So, Captain Berger, one might argue that you had an
             agreement to contact [Imelda], but you hadn’t solidified
             the agreement to actually have sex with the children.
             What is your response to that? Did you actually have an
             agreement to have sex with the children or did you just
             have an agreement to contact [Imelda] if you decided that
             you wanted to have sex with children?

             Appellant: Sir, after reading what I wrote, and it has been
             a while since I actually wrote it, I would think that the
             agreement to call would mean that I was free and therefore
             had the ability to meet. And so, if I would’ve called, it
             would have been to meet to have sex with the girls.

       Taken as a whole, appellant’s testimony reveals that only his ability and
opportunity to carry out the agreement were in question, not his resolve to do so or
the agreement itself.

      In determining whether an agreement existed, the military judge was also able
to consider the stipulation of fact and the chat transcripts, which were admitted
pursuant to the stipulation of fact. 3 In addition to addressing the elements of the
charged conspiracy, the stipulation includes statements consistent with appellant’s
providence inquiry:

             [Paragraph] 12. . . . In these chats, [appellant] talked
             about upcoming trips to the Philippines and asked if the
             sellers had children that he could meet to have sex with.
             [Appellant] and respective seller then discussed ages of
             the children, what they would do, how sexually
             experienced the children were, and how much money
             [appellant] would have to pay for the experience . . . . In
             chats with [Imelda], [appellant] went so far as to obtain
             [Imelda’s] cell phone number and Viber contact

3
  In response to the military judge, appellant confirmed the statements in the
stipulation were true, and he was the author of the chats attributed to his username,
“digthis75.” We have made no attempt to modify language as it appeared in the chat
transcripts.




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BERGER—ARMY 20170232

             information (cell phone application for communicating
             similar to Kakao chat and Facebook Messenger) and
             determined locations where they could meet once he
             arrived in Manila.

       During their chat sessions in December 2014 and January 2015, appellant and
Imelda discussed the ages of the children, what acts they would perform, and the
cost. Along with extensive dialogue about images of the children and payment,
appellant mentioned he would be traveling to the Philippines in March 2015 and
asked, “so tell me how it works i mean where do we meet when i am there.”
Imelda said she would meet him in the airport and then return to her house, where
“the girls will wait in bed.”

        Within the chats, appellant also specifically inquired about a nine-year-old
girl, asking, “Well what does the 9 offer” and “what ages fuck,” to which Imelda
indicated that the nine, twelve, and fifteen year-olds would have sex. About a month
later, appellant again asked, “what ages can have sex,” and Imelda answered, “u cn
choose . . . what age u like.” Appellant replied, “10.” Although the negotiations for
a prospective March meeting apparently fell through, these discussions provide
unmistakable context for their subsequent agreement.

       On 12 October 2015, appellant renewed his chat sessions with Imelda. When
she offered two girls, ages thirteen and fifteen, “for meet real and fucking show
here,” along with “lots of nude pics . . . and vids also,” appellant responded, “I just
want to meet.” 4 Imelda replied, “ok.” Over the next five minutes, the following
exchange ensued:

             Appellant: Where in phill [Philippines]

             Imelda: manila

             Appellant: how do we meet

             Imelda: up to u

             Appellant: Price also

             Imelda: 300 $


4
  In a colloquy with the military judge, appellant stated that “meet in real” means to
meet in person. Appellant further clarified that by “meet,” he meant he was “going
to have sex” with the girls.




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BERGER—ARMY 20170232

             Appellant: what do I get for that

             Imelda: suck fuck

             Imelda: all

             Appellant: How many will you have for me

             Imelda: many up to you

             Appellant: Ok how do I meet you there

             Imelda: we meet in airport?

             Appellant: Hmm how about phone when I get to hotel

             Imelda: heres my phone number

       We find an agreement was complete when both appellant and Imelda gave
their “ok” to the proposal. Even though some details were yet to be ironed out (e.g.,
the number of children, the length of time he would spend with them, the exact
location in Manila, how appellant and Imelda would link up), they were in
agreement that he would meet with children she provided for sexual acts. Their
chats confirm appellant’s providency testimony and show this was not a hypothetical
or conditional agreement. All that remained was execution—for appellant to contact
Imelda when he arrived in the Philippines.

                                     Overt Acts

      Immediately following the chat exchange above, Imelda provided her phone
number. After confirming it was her Viber contact number and that she had the
Viber application, appellant replied, “added you.” Less than one month later, on 5
November 2015, appellant traveled from Korea to the Philippines. Appellant’s
statements during the providence inquiry confirm these facts:

             I asked for her phone number and her Viber number,
             which she gave both to me and I added them. Viber is,
             again, a video chat and text message service where you
             can call people around the world using a cell phone, a
             smart phone, anything like that. So, I added her to Viber
             and then I, on the date specified, I traveled to the
             Philippines, Your Honor.




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BERGER—ARMY 20170232

       In our view, each of these acts by appellant—requesting Imelda’s phone
number, adding her as a Viber contact, and traveling to the Philippines—committed
while he was a party to the agreement, satisfies the requirements of an overt act
under Article 81, UCMJ. They are independent of the agreement and clearly show
the plan was in the execution phase. Appellant does not contest that he committed
these acts but argues they are not sufficient as overt acts, primarily because he
traveled to the Philippines for an independent, legitimate purpose: to visit his wife
and her family. We are not persuaded by this argument.

      At trial, appellant’s trial defense counsel maintained, and we concur, that
appellant’s trip to the Philippines could have multiple purposes. 5 Appellant admitted
one of these was to have sex with children, as agreed with Imelda, and his testimony
confirms this purpose. The military judge questioned appellant about what he did to
ensure he could accomplish the object of the conspiracy, and appellant replied:

              Appellant: So, sir, I looked for times, possible times that
              I could get away. And then, I also had [Imelda’s] phone
              number or Viber number to contact her.

              MJ: So, you said you looked for times to get away. What
              do you mean by that?

              Appellant: I looked for times when the family would be
              busy and they might not notice that I was gone or to make
              – or – or a way to make a plausible excuse to get away for
              a couple hours.
              ....

              MJ: Was one of the purposes of traveling to the
              Philippines to have sex with two minor children?

              Appellant: Yes, sir.

      We find appellant went to the Philippines not only to visit family, but also
with an illicit purpose—to carry out the object of his agreement with Imelda. He
knew of this purpose the month before his travel, and he actively looked for
opportunities to fulfill it after his arrival, even as he visited with family. Nothing

5
 See, e.g., United States v. Choat, 21 C.M.R. 313, 317 (C.M.A. 1956) (“The overt
act need not itself be a crime; on the contrary, it can be an entirely innocent act . . . .
All that is required is that the overt act be a manifestation that the conspiracy is at
work.”) (citations and internal quotation marks omitted).




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BERGER—ARMY 20170232

in the record suggests he abandoned his illicit purpose or withdrew from the
conspiracy before he traveled. Appellant’s statements reinforce what his actions
make manifest: despite one legitimate purpose for his travel, the conspiracy was at
work.

       As noted above, during the course of his guilty plea appellant made a few
statements that, standing alone and without the context of the full record, might have
undermined his providency to the elements of conspiracy. In response, the military
judge thoroughly questioned appellant concerning these statements, relevant portions
of the stipulation of fact, and the chat transcripts. By doing so, the military judge
promptly addressed and resolved any potential issues that might have been
inconsistent with appellant’s guilty plea.

      After considering all the evidence in the record, we find no substantial basis
to question appellant’s plea to the conspiracy charge, and we are convinced of the
providence of his pleas to each offense as charged in the specifications.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge BURTON and Judge FLEMING concur.

                                          FOR
                                          FOR THE
                                              THE COURT:
                                                  COURT:




                                          MALCOLM H. SQUIRES, JR.
                                          MALCOLM H. SQUIRES, JR.
                                          Clerk of Court
                                          Clerk of Court




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