         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600230
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                  FRANK A. DELLACAMERA III
                Staff Sergeant (E-6), U.S. Marine Corps
                               Appellant
                        _________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
     Convening Authority: Commanding General , Marine Corps
               Installations Pacific, Okinawa, Japan
Staff Judge Advocate’s Recommendation: Lieutenant Colonel Eric J.
                          Peterson, USMC.
 For Appellant: Lieutenant Colonel Richard A. Viczorek, USMCR.
 For Appellee: Major Cory A. Carver, USMC; Lieutenant Megan P.
                       Marinos, JAGC, USN.
                      _________________________

                         Decided 30 March 2017
                         _________________________

Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   CAMPBELL, Senior Judge:

    At an uncontested general court-martial, a military judge convicted the
appellant of attempted sexual assault of a child, attempted sexual abuse of a
child, attempted production of child pornography, absence without leave,
indecent exposure, and soliciting production and distribution of child
pornography—violations of Articles 80, 86, 120c, and 134, Uniform Code of
                   United States v. Dellacamera, No. 201600230


Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 920c, and 934 (2012). The
military judge sentenced the appellant to 48 months’ confinement, reduction
to pay grade E-1, a dishonorable discharge, and a reprimand. The convening
authority (CA) approved the adjudged 48 months’ confinement, reduction to
pay grade E-1, and dishonorable discharge. In accordance with a pretrial
agreement, the CA suspended all confinement in excess of 14 months.

    The appellant raises three assignments of error (AOEs): 1) a dishonorable
discharge is not mandatory for an Article 80, UCMJ, conviction involving an
attempted violation of Article 120b(b), UCMJ; 2) the military judge abused
his discretion in accepting the appellant’s guilty pleas to Charge IV and its
sole specification—solicitation of production and distribution of child
pornography in violation of Article 134, UCMJ; and 3) the military judge
abused his discretion in accepting the appellant’s guilty pleas to Charge I,
Specification 2—attempted sexual abuse of a child in violation of Article 80,
UCMJ—and Charge III and its sole specification—indecent exposure in
violation of Article 120c, UCMJ.1

    We disagree with the first and second AOEs but agree, in part, with the
third. In accordance with our holding in United States v. Uriostegui, 75 M.J.
857 (N-M. Ct. Crim. App. 2016), we find the appellant’s guilty plea to
indecent exposure improvident, set aside that conviction, and analyze for
sentence reassessment below. Ultimately, we conclude the remaining
findings and sentence are correct in law and fact and that no error materially
prejudicial to the appellant’s substantial rights remains. Arts. 59(a) and
66(c), UCMJ.
                                  I. BACKGROUND
    The appellant was a Military Policeman stationed in Okinawa, Japan. On
6 January 2016, he communicated through a web-based instant messaging
application with an individual he believed to be a 14-year-old girl, whose
screen name was “lizzdezz.” Despite her apparent age, the appellant used
sexually explicit language, sent a digital image of another man’s exposed
penis to her, and sent an image of his own naked torso and partially exposed
penis to her. He suggested they meet to engage in oral and vaginal sex, and
requested that she send him nude, sexually explicit photographs of herself.
    In fact, “lizzdezz” was the on-line persona of an undercover Naval
Criminal Investigative Service (NCIS) special agent. “Lizzdezz” repeatedly
refused to provide or take any nude photographs for the appellant, but she
agreed the appellant could photograph her when they met in person that


   1   The AOEs are renumbered from their order in the appellant’s brief.


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afternoon. The appellant then left his Camp Foster office, during normal
business hours, and drove his personal vehicle to Kadena Air Base, where he
expected to visit the 14-year-old girl’s home. He was apprehended instead.
                                    II. DISCUSSION
A. Dishonorable discharge
    Having resolved this issue in United States v. Henegar, 75 M.J. 772 (N-M.
Ct. Crim. App. 2016), rev. denied, 2016 CAAF LEXIS 988 (C.A.A.F. 2016), we
summarily reject the appellant’s first AOE. United States v. Clifton, 35 M.J.
79, 81 (C.M.A. 1992).
B. Solicitation of child pornography
    The appellant now challenges his guilty plea to Charge IV and its sole
specification.2 He argues that because “the person [he] was soliciting these
photographs from was actually an adult undercover NCIS agent,” it was “a
legal impossibility” for his request to actually produce child pornography,
since “the photos would not have involved a minor” had the agent complied.3
    We review a military judge’s acceptance of a guilty plea for an abuse of
discretion, reversing only if the “record shows a substantial basis in law or
fact for questioning the plea.” United States v. Moon, 73 M.J. 382, 386
(C.A.A.F. 2014) (citation omitted).
    Questions of law arising from a guilty plea, including whether there is a
potential defense of impossibility to the elements of an inchoate offense, are
reviewed de novo. See United States v. Roeseler, 55 M.J. 286, 290 (C.A.A.F.
2001) (considering the appellant’s argument that “the military judge erred by
failing to explain the defense of impossibility” before he pleaded guilty to
attempted conspiracy to commit murder).4



   2  That the appellant “did wrongfully solicit the production and distribution of
child pornography, by requesting an individual, who [the appellant] believed had not
attained the age of sixteen years, to take photographs of her genitalia and to send
said photographs to [him], and that said conduct was to the prejudice of good order
and discipline in the armed forces and was of a nature to bring discredit upon the
armed forces.” Charge Sheet.
   3   Appellant’s Brief of 12 Oct 2016 at 8, 18 (emphasis added).
    4 See also United States v. Colon, No. NMCCA 201500385, 2016 CCA LEXIS 257,

at *1-3, unpublished op. (N-M. Ct. Crim. App. 26 Apr 2016) (per curiam) (reviewing
the providence of Colon’s plea to “one specification of attempted sexual assault of a
child and two specifications of attempted sexual abuse of a child” de novo, in light of
his claim that “it was impossible for him to commit the underlying offense since his
intended minor victim was not a minor but an adult law enforcement agent”).


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    In United States v. Thomas, our superior court stated, “the elements of a
criminal attempt are [still] present,” notwithstanding the presence of either
an “impossibility in fact”5 or a “legal impossibility.”6 32 C.M.R. 278, 283
(C.M.A. 1962).7 Consequently, it later affirmed an appellant’s conviction for
attempted conspiracy where he had agreed to assist in the murder of two
named individuals who were, unbeknownst to the appellant, fictitious.
Roeseler, 55 M.J. at 287. “‘Our general rule is that an accused should be
treated in accordance with the facts as he or she supposed them to be.’” Id. at
291 (quoting United States v. Riddle, 44 M.J. 282, 286 (C.A.A.F. 1996))
(additional citation omitted).
    Courts have treated solicitation and impossibility similarly. Soliciting
another to commit an offense requires “[t]hat the accused solicited or advised
a certain person or persons to commit a certain offense under the code” with
“the intent that the offense actually be committed[.]” MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), PART IV, ¶ 105b. “[N]o legal
authority . . . indicates that one may not be convicted of soliciting an
undercover agent to commit an offense.” United States v. Cababa, No. No.
9901417, 2004 CCA LEXIS 235, at *12, unpublished op., (N-M. Ct. Crim.
App. 7 Oct 2004). While the solicitation “recipient must be capable of
committing a separate criminal offense prohibited by the UCMJ[,]” the
criminal act of “solicitation appears to involve nothing more than making a
nefarious request or suggestion[.]” United States v. Ashworth, No. 201500028,
2015 CCA LEXIS 373, at *4, unpublished op. (N-M. Ct. Crim. App. 3 Sep
2015) (per curiam).
   Analyzing solicitation and impossibility outside of the UCMJ context, the
Supreme Court has stated, “an Internet user who solicits child pornography




    5Where “the intended substantive crime is impossible of accomplishment” only
“because of some physical impossibility unknown to the accused”—for instance where
one “attempt[s] to steal from an empty pocket.” Thomas, 32 C.M.R. at 283-84. “All
courts are in agreement that what is usually referred to as ‘factual impossibility’ is no
defense to a charge of attempt.” United States v. Williams, 553 U.S. 285, 300 (2008)
(emphasis added) (citation and internal quotation marks omitted).
    6 Where “the intended act is,” unbeknownst to the accused, “not criminal”
Thomas, 32 C.M.R. at 283. One state, for instance, accepted a legal impossibility
defense where “[a] person accept[ed] goods which he believed to have been stolen, but
which were not ‘stolen’ goods.” Id. (citing People v. Jaffe, 185 N.Y. 497 (1906)).
    7See also Roeseler, 55 M.J. at 291 (“In military justice, impossibility—whether of
law or fact—is no defense in a prosecution for conspiracy or attempt.”) (emphasis
added) (citation and internal quotation marks omitted).


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                  United States v. Dellacamera, No. 201600230


from an undercover agent violates [18 U.S.C. § 2252A(a)(3)(B)],8 even if the
officer possesses no child pornography.” United States v. Williams, 553 U.S.
285, 293 (2008). The Court noted that “[a]s with other inchoate crimes—
attempt and conspiracy, for example—impossibility of completing the crime
because the facts were not as the defendant believed is not a defense” to
“solicitation made unlawful by the Act.” Williams, 553 U.S. at 300.
    In People v. Thousand, the Michigan Supreme Court similarly rejected
Thousand’s claim “that it was ‘legally impossible’ for him to have committed”
solicitation of a minor for sexual acts, where unbeknownst to him he had
actually solicited an adult undercover law enforcement officer. 465 Mich. 149,
166-69 (2001) (finding the lower court “erred to the extent that it relied on
the doctrine of ‘impossibility’ . . . [to] dismiss[] the solicitation charge”). It
reached this conclusion even though “the underlying form of third-degree
criminal sexual conduct charged, [MICH. COMP. LAWS § 750.520d(1)(a)],
required the existence of a person under the age of sixteen.” Id. at 167. Again
emphasizing that “the concept of ‘impossibility’ has no role in the analysis of
this issue,” the Thousand court ultimately dismissed the solicitation of a
minor charge for a different reason: the requested act of having sex with the
defendant would not be “criminal sexual conduct” on the presumed fourteen-
year-old’s part. Id. at 168-69 (also noting “the requested acts might well have
constituted a crime on the defendant’s part,” but “the prosecution was
required to present evidence that defendant requested that another person
perform a criminal act.”).9
    The ultimately dispositive issue in Thousand was also recognized by the
Court of Appeals for the Armed Forces (CAAF) in its United States v. Sutton
holding that a specification alleging Sutton solicited “his step-daughter to
commit the offense of indecent liberties with a child by asking her to lift her
shirt to show him her breasts[,]” failed to state an offense. 68 M.J. 455, 455,
459 (C.A.A.F. 2010) (noting that because the “elements of indecent liberties
with a child clearly contemplate[] two actors,” the step-daughter could not
have “commit[ed] the offense of indecent liberties with a child on herself”—
thus Sutton could not have solicited her to commit indecent liberties). Though
our court has characterized this type of defect in the solicitation specification



    8Authorizing the conviction of one who “solicits . . . including by computer . . . a
visual depiction of an actual minor engaging in sexually explicit conduct[.]”
    9The Thousand court noted that it would have dismissed the solicitation charge,
regardless of “whether we look[ed] at this case as [Thousand] asking [the fictional]
fourteen-year-old ‘Bekka’ to engage in sexual intercourse with him,” or as Thousand
asking the undercover officer to have sexual intercourse with him since in neither
case would the other person be engaged in a criminal act. 45 Mich. at 169.


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                 United States v. Dellacamera, No. 201600230


as a “practical impossibility,”10 we have never viewed Sutton as having
imported defenses of legal or factual impossibility into the law of solicitation.
    During the appellant’s providence inquiry in this case, he explained he
was guilty of soliciting production and distribution of child pornography
because he believed he was communicating with a girl less than 16 years old
when he asked her to create and send him sexually explicit photographs of
herself.11 He has provided no authority which compels us to recognize a
defense of impossibility to his soliciting someone who, unbeknownst to him,
was not a minor. The appellant “ma[de] a nefarious request,” Ashworth, 2015
CCA LEXIS 373, at *4, to a party he believed to be a 14-year-old girl, seriously
intending that she create and send him sexually explicit photographs—a
crime under the UCMJ, as a minor can create child pornography, even by
depicting only himself or herself.
    Guided principally by the CAAF’s directive to treat the appellant “in
accordance with the facts as he . . . supposed them to be,” Roeseler, 55 M.J. at
291 (citations and internal quotation marks omitted); the Supreme Court’s
guidance that factual impossibility is not a defense for solicitation to produce
child pornography under the United States Code; and the Michigan Supreme
Court’s persuasive authority holding that legal impossibility does not apply to
solicitation of a sex act from a minor where the other party was,
unbeknownst to the solicitor, not actually a minor; we hold the appellant’s
mistaken notion regarding the identity of the party he solicited affords him
no defense in military jurisprudence. Even though the adult undercover
agent could produce no child pornography by photographing herself, the
appellant nonetheless engaged in an act of seriously requesting production
and distribution of child pornography. Thus, we find no substantial basis in
law or fact for questioning his guilty plea to Charge IV and its sole
specification.
C. Attempted sexual abuse of a child
   The appellant also challenges the providence of his plea to Charge I,
Specification 2.12 He argues the “photo of his torso and partially exposed


   10 Ashworth, 2015 CCA LEXIS 373, at *13 (noting that “[u]nlike the solicitation
to engage in indecent liberties in Sutton, there is no element of 18 U.S.C. § 2252A
that poses a practical impossibility in this case”).
   11 See also Prosecution Exhibit 1 at 14 (noting that the appellant requested she
“send him pictures of her in the shower; some ‘sexy’ images; and images of her
‘naked, maybe playing with herself a little’”).
   12  That the appellant did “attempt sexual abuse of a child . . . by committing a
lewd act, to wit: intentionally exposing his genitalia with the intent to arouse or
gratify the sexual desire of a person.” Charge Sheet.


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                     United States v. Dellacamera, No. 201600230


penis” that he sent to the individual he believed to be a 14-year-old girl “was
not indecent under the circumstances[.]”13 The appellant cites United States
v. Johnston, in which we noted that “minority of age does not, by itself,
equate to indecency” of exposure. 75 M.J. 563, 568 (N-M. Ct. Crim. App.
2016).
    However, this specification alleges the attempted commission of a “lewd
act” rather than an indecent exposure. A lewd act can include “intentionally
exposing one’s genitalia . . . to a child by any means.” Art. 120b(c)(5)(B),
UCMJ. Unlike the separate Article 120c(c) indecent exposure offense—which
additionally requires that the intentional exposure be committed “in an
indecent manner”—Article 120b(h)(5)(B), UCMJ, requires only that one’s
intentional exposure be done “with an intent to abuse, humiliate, or degrade
any person, or to arouse or gratify the sexual desire of any person[.]”
    Here, the military judge defined “lewd act” consistently with the statute,
without any requirement that the conduct be indecent.14 The military judge
then established that the appellant sent the individual he believed to be a 14-
year-old girl a photograph of his nude penis. When asked if he “did this act
with the intent to arouse or gratify [his] own sexual desire,” the appellant
admitted that he did.15 Consequently, and in accordance with our holding in
Uriostegui, 75 M.J. at 865, we find no substantial basis in law or fact for
questioning the appellant’s guilty plea to the attempted sexual abuse of a
child by committing a lewd act.
D. Indecent exposure
    Having carefully considered the record of trial and the parties’
submissions, we find no cause to distinguish the appellant’s case from our
other holding in Uriostegui, that Congress did not intend to punish the
electronic transmission of an indecent photograph or digital image to an
adult under Article 120c(c), UCMJ. 75 M.J. at 865. Thus, we find a
substantial basis in law to question the providence of the appellant’s plea to
indecent exposure. Additionally, we find the appellant’s actions would be
legally insufficient to support an indecent exposure conviction if a rehearing
was authorized, given the specific facts and circumstances in this case.



   13  Appellant’s Brief at 15. The appellant correctly argues that his sending the
image of another man’s erect penis to an individual he believed to be a 14-year-old
girl does not support the providence of his plea to this attempted violation of Article
120b(c), UCMJ, specification, as drafted—alleging the commission of “a lewd act, to
wit: intentionally exposing his genitalia.” Charge Sheet (emphasis added).
   14   Record at 20; 31-32.
   15   Id. at 32.


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                United States v. Dellacamera, No. 201600230


Consequently, we set aside the indecent exposure conviction and consider the
need for sentence reassessment.
E. Sentence reassessment
    Courts of Criminal Appeals (CCAs) can often “modify sentences ‘more
expeditiously, more intelligently, and more fairly’ than a new court-
martial[.]” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013)
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCAs
“act with broad discretion when reassessing sentences.” Id. We consider the
following “illustrative, but not dispositive, points of analysis . . . when
determining whether to reassess a sentence or order a rehearing” in this case:
   (1) Whether there has been a dramatic change in the penalty landscape or
exposure.
   (2) Whether sentencing was by members or a military judge alone.
    (3) Whether the nature of the remaining offenses captures the gravamen
of criminal conduct included within the original offenses and whether
significant or aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses.
   (4) Whether the remaining offenses are of the type with which appellate
judges should have the experience and familiarity to reliably determine what
sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16. Reassessing a sentence is appropriate only if
we are able to reliably determine that, absent the error, the sentence would
have been at least of a certain magnitude. United States v. Harris, 53 M.J.
86, 88 (C.A.A.F. 2000). A reassessed sentence must not only “be purged of
prejudicial error [but] also must be ‘appropriate’ for the offense involved.”
United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
    Under all the circumstances presented, we find that we can reassess the
sentence, and it is appropriate for us to do so. First, the penalty landscape
has not changed dramatically. The maximum punishment for indecent
exposure includes 12 months’ confinement and a dishonorable discharge.
Setting aside the indecent exposure conviction only reduces the appellant’s
maximum confinement from 76 to 75 years. Second, the appellant elected
sentencing by a military judge, and we are more likely to be certain of what
sentence the military judge, as opposed to members, would have imposed.
Third, we have extensive experience and familiarity with the remaining
offenses, as none present a novel issue in aggravation. Finally, the remaining
offenses capture the gravamen of the criminal conduct at issue, and all the
evidence remains admissible. Indeed, the appellant’s conviction for the
second attempted sexual abuse of a child specification relied on the same
facts used to convict him of indecent exposure. Although charged as both

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                United States v. Dellacamera, No. 201600230


attempted sexual abuse of a child and as indecent exposure, in effect, the
appellant was sentenced based on evidence of a single incident of sending a
picture of his genitalia.
   Taking these facts as a whole, we can confidently and reliably determine
that, absent the error, the military judge would have sentenced the appellant
to at least confinement for 48 months, reduction to pay grade E-1, and a
dishonorable discharge. We also find that sentence to be an appropriate
punishment for the modified convictions and this offender—thus satisfying
the requirement for a reassessed sentence both purged of error and
appropriate. Sales, 22 M.J. at 308.
                               III. CONCLUSION
   The findings of guilty to Charge III and its sole specification are set aside.
The remaining findings and the sentence are affirmed.
   Judge RUGH and Judge HUTCHISON concur.


                                     For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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