UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          ALDYKIEWICZ, SALUSSOLIA, and WALKER
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                         Sergeant CHRISTOPHER S. GILBERT
                             United States Army, Appellant

                                       ARMY 20190766

                               Headquarters, Eighth Army
                             Robert L. Shuck, Military Judge
                     Colonel Dean L. Whitford, Staff Judge Advocate


For Appellant: Major Benjamin A. Accinelli, JA; Captain Jason X. Hamilton, JA.

For Appellee: Pursuant to A.C.C.A. Rule 17.4, no response filed.


                                          31 July 2020

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WALKER, Judge:

       While appellant’s attempts to persuade a teenage victim to send him nude
“selfies” may have constituted the offense of solicitation, they did not amount to the
offense of attempt to possess child pornography. 1 For reasons discussed below, we
find a substantial basis in law and fact to question the providence of appellant’s plea


1
 A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of one specification each of attempt to possess child
pornography, sexual abuse of a child, and possession of child pornography, in
violation of Articles 80, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 880, 920b, 934 [UCMJ]. The convening authority approved the adjudged
sentence to a bad-conduct discharge, confinement for nine months, forfeiture of all
pay and allowances, and reduction to the grade of E-1. This case is now before this
court pursuant to Article 66, UCMJ.
GILBERT—ARMY 20190766

to The Specification of Charge I. Accordingly, we set aside appellant’s conviction
of attempted possession of child pornography and reassess his sentence.

                                  BACKGROUND

                    A. Appellant Requests Nude “Selfies” from MN

       Appellant met Miss MN online playing the video game “Fortnite” on 28 May
2018. Using the voice chat feature in the game, MN told appellant she was thirteen
years old and appellant told her he was twenty-two. The two traded Instagram
account names and began exchanging private messages through the Instagram text
messaging feature. MN would borrow her step-mother’s cell phone in order to
exchange messages with appellant.

       In the messages, appellant engaged in inappropriate sexual conversations with
MN and repeatedly asked her to send him a “selfie,” including a nude “selfie”
(pictures taken of oneself) through Instagram. When MN denied appellant’s requests
for photos, appellant sent her a digital video and photos of his penis in an attempt to
persuade her to reciprocate. MN eventually said she would send appellant a picture
over the weekend when her parents were gone and she was home alone, but
suggested that it may not be a nude photo but rather, a photo of her breasts. When
MN inquired as to why appellant would be mad if she did not send him an unclothed
photo of herself, appellant replied, “. . . I mean it’s only fair you like seeing me
naked so I should be able to see some of you.”

       On 1 June 2018, MN’s step-mother intercepted messages that were sexual in
nature from appellant to MN. MN’s father reported the messages to local law
enforcement, who conducted an investigation including a download of the Instagram
messages between appellant and MN. 2

                  B. The Military Judge Is Not Convinced Appellant’s
                Requests Constitute Attempts to Possess Child Pornography

       During appellant’s guilty plea providency inquiry, the military judge
expressed concern over whether appellant’s description of his actions toward MN
met the definition of attempt to possess child pornography, as charged by the
government. Appellant explained, “My request to see her naked was a substantial
step and a direct movement toward what I hoped would result in [MN] actually



2
 The police department also seized appellant’s phone and upon searching it,
discovered the material which was the basis for the possession of child pornography
specification of which appellant was convicted.



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sending me, not only a nude image of herself, but an image where she was actually
touching her breast or vagina.”

       The military judge asked appellant whether he actually asked MN to send him
a picture of her touching her breasts or vagina. Appellant replied that he had not,
but likely would have, had MN’s parents not intervened when they did.

       The military judge then defined the categories of “sexually explicit conduct”
to appellant. He specifically asked appellant whether he had requested MN send him
photos of herself engaged in any of the categories of sexually explicit conduct: (a)
sexual intercourse or sodomy; (b) bestiality; (c) masturbation; (d) sadistic or
masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any
person. Appellant provided that he had not specifically asked MN to send him
pictures of herself engaged in any of the categories of sexually explicit conduct.
Appellant explained he was initially only asking MN to send a picture of herself so
he could see what she looked like, though he was “intending” for their message
exchange to escalate to MN sending him an image of herself masturbating.

       The military judge explained to appellant “not every picture of a nude
underage person constitutes child pornography.” Before taking an extended break to
allow the parties to confer, the military judge concluded, “I’m not convinced based
on reading the stipulation of fact that the accused was intending to possess sexually
explicit photographs of [MN]. And that he was in fact only wish—desiring to
possess nude selfies, and I don’t think that meets the definition of child pornography
without anything else.”

       In an attempt to provide further context, the government entered into evidence
the complete exchange of Instagram messages between appellant and MN. Appellant
then explained each of the messages to the military judge and his intent behind them.
Appellant admitted that his intent was to first get MN to send a selfie and then
something more explicit to which he could masturbate. Finally, the military judge
asked appellant, “What would’ve been sufficient for you to meet that requirement?”
Appellant replied, “Your honor, it would be a nude image of her depicting her
breasts without clothes on or her either exposing her vagina or her with her panties
on, touching her vagina.” The military judge asked appellant why the image he
ultimately desired to receive would have been lascivious, based on the factors
provided in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).

       Appellant explained that an image such as that which he desired from MN
would have been lascivious “because it would be designed to get [him] sexually
excited,” and would have suggested “sexual willingness to engage in sexual
activity.”




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      Before finally accepting appellant’s plea, the military judge asked appellant
what prevented him from actually committing the offense of possession of child
pornography with regard to MN. Appellant replied that MN never sent him any
images of herself and then her parents intervened.

                             LAW AND DISCUSSION

       Asking a minor child to share naked pictures of herself and hoping the images
will contain sexually explicit conduct does not satisfy the elements of the offense of
attempted possession of child pornography. We conclude the military judge abused
his discretion by accepting appellant’s guilty plea to the offense of attempted
possession of child pornography.

                                 A. Standard of Review

       The military judge at a guilty plea is “charged with determining whether there
is an adequate basis in law and fact to support the plea before accepting it.” United
States v. Inabinette, 66 M.J. 320, 321-322 (C.A.A.F. 2008) (citations omitted). We
review a judge’s decision to accept a guilty plea for abuse of discretion. United
States v. Weekes, 71 M.J. 44, 46 (C.A.A.F. 2012) (citing Inabinette, 66 M.J. at 321.
A military judge abuses his discretion if he accepts a guilty plea “without an
adequate factual basis to support it” or if he accepts a guilty plea based upon “an
erroneous view of the law.” Id. (citation omitted).

       In reviewing a military judge’s decision to accept a guilty plea, “appellate
courts apply a substantial basis test: Does the record as a whole show a substantial
basis in law and fact for questioning the guilty plea?” Inabinette, 66 M.J. at 322
(internal quotations and citations omitted). “If an accused’s admissions in the plea
inquiry do not establish each of the elements of the charged offense, the guilty plea
must be set aside.” Weekes, 71 M.J. at 46 (citing United States v. Gosselin, 62 M.J.
349, 352-53) (C.A.A.F. 2006)).

                        B. The Definition of Child Pornography

       As the military judge aptly explained to appellant, “not every picture of a
nude underage person constitutes child pornography.” “‘Child pornography’ means
material that contains either an obscene visual depiction of a minor engaging in
sexually explicit conduct or a visual depiction of a minor engaging in sexually
explicit conduct.” Manual for Courts-Martial, United States (2016 ed.) [MCM], pt.
IV, ¶ 68b.c.(1). “Sexually explicit conduct means actual or simulated: (a) sexual
intercourse or sodomy . . .; (b) bestiality; (c) masturbation; (d) sadomasochistic or
masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any
person.” MCM, pt. IV, ¶ 68b.c.(7).




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       In United States v, Roderick, our superior court adopted the six “Dost factors”
developed by the Southern District of California for determining when an image
constitutes a “lascivious exhibition” of the genitals or pubic area. 62 M.J. 425, 430
(C.A.A.F. 2006)(citing United States v. Dost, 636 F. Supp. at 828, 832 (S.D. Cal.
1986(C.A.A.F. 2006). The non-exclusive list of the “Dost factors” are:

             (1) whether the focal point of the visual depiction is on
             the child's genitalia or pubic area;

             (2) whether the setting of the visual depiction is sexually
             suggestive, i.e. in a place or pose generally associated
             with sexual activity;

             (3) whether the child is depicted in an unnatural pose, or
             in inappropriate attire, considering the age of the child;

             (4) whether the child is fully or partially clothed, or nude;

             (5) whether the visual depiction suggests sexual coyness
             or a willingness to engage in sexual activity;

             (6) whether the visual depiction is intended or designed to
             elicit a sexual response in the viewer.

Id. at 429. If an image of a child does not depict the genitals or pubic
area, that ends the “lascivious exhibition” analysis as such a depiction
is a prerequisite to the application of the Dost factors. Id. at 430.

       Since the military court system adopted the Dost factors, courts have analyzed
material on a case-by-case basis to determine whether it meets the definition of
lascivious exhibition of the genitals or pubic area. Such an analysis is a highly fact-
specific determination with legal consequences. See United States v. Piolunek, 74
M.J. 107, 108 (“Whether any given image does or does not display the genitals or
pubic region is a question of fact, albeit one with legal consequences.”) We are not
prohibited from considering evidence outside the four corners of the image(s) in
question when making a determination as to whether an image constitutes child
pornography. United States v. Updegrove, ARMY 20160166, 2017 CCA LEXIS 36,
at *7 (23 Jan. 2017) (mem. op.) (discussing Roderick, 62 M.J. 425). The “objective
facts surrounding the image’s creation may be considered.” Id.

       However, in appellant’s case, we have no images to analyze, and instead only
the objective facts surrounding appellant’s requests for a hypothetical image that
was never produced, let alone possessed. There is no application of the Dost factors
or analysis to perform. While we may consider objective facts surrounding an



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image’s creation, we cannot wholly substitute such facts for an analysis of the
material in question. It seems the military judge was satisfied that appellant’s
request for any selfie, with the goal of eventually convincing MN to send him an
image of herself containing a lascivious exhibition of her genitals or engaging in
masturbation was sufficient. We disagree and find the military judge abused his
discretion in accepting appellant’s plea on that basis. By appellant’s own admission,
MN hinted she might send him a photo of her breasts, which would not meet the
prerequisite of genital or pubic area depiction to even begin an analysis of whether
the photo would constitute child pornography. As we cannot be sure what type of
image MN might have sent appellant had her parents not intervened (or if she would
have sent him anything), we turn our analysis toward appellant’s actions in
attempting to procure photos from MN.

                     C. Attempt Offenses and the Substantial Step

       “[A]n act, done with specific intent to commit an offense under this chapter,
amounting to more than mere preparation and tending, even though failing, to effect
its commission, is an attempt to commit that offense.” UCMJ art, 80. The statute
specifically requires that an offense of attempt must include the specific intent to
commit the offense coupled with “an overt act that directly tends to accomplish the
unlawful purpose.” MCM, pt. IV, ¶ 4c.(1). The overt act must go beyond mere
preparation, which may consist of “devising or arranging the means or measures
necessary for the commission of the offense.” MCM, pt. IV, ¶ 4c.(2).

       In United States v. Winckelmann, our Superior Court drew the “elusive line
separating mere preparation from a substantial step.” 70 M.J. 403, 407 (C.A.A.F.
2011) (internal quotation marks and citations omitted). The court relied on federal
cases that defined a “substantial step” as “more than mere preparation but less than
the last act necessary before actual commission of the crime.” United States v. Hale,
78 M.J. 268, 272 (C.A.A.F. 2019) (citing Winckelmann, 70 M.J. 403). Quoting the
9th Circuit, the Winckelmann court stated the substantial step must “unequivocally
demonstrate[e] that the crime will take place unless interrupted by independent
circumstances.” 70 M.J. 407. (quoting United States v. Goetzke, 494 F.3d. 1231,
1237 (9th Cir. 2007)(citations omitted)).

       In the context of attempted child enticement cases where an accused has not
traveled to meet the target child victim and the interactions occurred over the
internet, “courts analyze the factual sufficiency of the requisite substantial step
using a case-by-case approach.” Winckelmann, 70 M.J. at 407. Where an accused
has not actually met the child victim or engaged in “concrete conversations” making
plans to do so, courts have still found “defendants have taken a substantial step
toward enticement of a minor where there is a course of more nebulous conduct,
characterized as ‘grooming’ the victim.” Id. at 408. We likewise consider
appellant’s overall grooming actions toward MN in analyzing whether his strictly



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online message exchanges with her amounted to an attempt to possess child
pornography.

                         D. Hoping is Not a Substantial Step

       Appellant’s hope and desire that MN would eventually send him a photo of
herself that constituted child pornography, despite not having requested such a
photograph, was nothing more than mere preparation. As our Superior Court
recognized, "preparation consists of devising or arranging the means or measures
necessary for the omission of the offense; the attempt is the direct movement toward
the commission after preparations are made.” United States v. Schoof, 37 M.J. 96,
103 (C.M.A. 1993)(internal quotation omitted)). In the context of a guilty plea, our
Superior Court further commented:

             Quite simply, where an accused pleads guilty and during
             the providence inquiry admits that he went beyond mere
             preparation and points to a particular action that satisfies
             himself on this point, it is neither legally nor logically
             well-founded to say that actions that may be ambiguous on
             this point fall short of the line ‘as a matter of law’ so as to
             be substantially inconsistent with the guilty plea.

Schoof, 37 M.J. at 103. We acknowledge that we are bound to accept an appellant’s
guilty plea explanation of his substantial step toward the commission of his target
offense. However, in this case, appellant’s actions toward MN simply did not
amount to more than mere preparation and hoping.

       Though appellant explained his desire to escalate the message exchanges with
MN, he never actually asked MN to send him an image of herself engaged in
sexually explicit conduct. Appellant’s honest admission at his providence inquiry
that he had hoped MN would eventually send him a picture of herself masturbating
or touching her breasts or vagina does not constitute a substantial step toward
possession of child pornography.

       “When a charge against a servicemember may implicate both criminal and
constitutionally protected conduct, the distinction between what is permitted and
what is prohibited constitutes a matter of ‘critical significance.’” United States v,
Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011) (quoting United States v. O'Connor, 58
M.J. 450, 453 (C.A.A.F. 2003)). The military judge’s initial instinct was correct:
appellant asking thirteen-year-old MN for nude “selfies” did not constitute an
attempt to possess child pornography. When the military judge tried to discuss with
appellant his understanding of the critical distinction between permissible and
prohibited behavior, appellant’s responses evidenced a belief that his conduct was
prohibited because he intended to eventually persuade MN to send him photos that



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would sexually excite him and satisfy his masturbatory preferences. The military
judge accepted this context as a substitute for appellant taking a substantial step
toward possession of material that would actually meet the definition of child
pornography.

       But appellant’s hope that MN would eventually send him a photo of herself
engaged in sexually explicit conduct (such as masturbation) did not change the
nature of his actions toward MN. Appellant had inappropriate sexual conversations
with MN, sexually abused her by sharing images and videos of his penis with her,
and asked her to send him nude pictures of herself. He admitted that it was all
preparatory work toward his ultimate goal of procuring photos that might have met
the legal definition of child pornography. But he never actually asked or instructed
MN to send him material that would constitute child pornography. Desiring images
of MN to aid in his masturbation did not transform his preparation into a substantial
step toward commission of the target offense of possession of child pornography.

       In United States v. Moon, our Superior Court reversed a conviction of
“knowingly possess[ing] multiple images of nude minors and persons appearing to
be nude minors, which possession was to the prejudice of good order and discipline
in the armed forces and was of a nature likely to bring discredit upon the armed
forces,” charged in violation of Article 134, UCMJ, but not as a possession of child
pornography offense. 73 M.J. 382 (C.A.A.F. 2014). The military judge in Moon
attempted to have the accused explain why the images he possessed were prohibited,
rather than constitutionally protected such as nude images of children in works of
art. Id. at 388-89. The appellant admitted he possessed the nude images of minors
to satisfy his own sexual gratification and that was the reason the nude images of
children, not amounting to actual child pornography, were not protected under the
First Amendment and their possession was criminal. Id. at 389. Reversing the
conviction, the court clarified that the military judge’s statement of the law was
incorrect: “possession of images for one’s sexual gratification does not itself remove
such images from First Amendment protection. If it did, ‘a sexual deviant’s quirks
could turn a Sears catalog into pornography.’” Id. (quoting United States v.
Amirault, 173 F.3d 28, 34 (1st Cir. 1999)).

       As our Superior Court did in Moon, we similarly conclude that
notwithstanding appellant’s anticipated sexual arousal to the nude “selfies” he
wanted MN to send to him, the military judge misapplied the law and failed to
clearly distinguish prohibited from protected conduct. The closest appellant came to
possessing child pornography of MN was hoping for it. We do not find his general
request for nude “selfies” of MN to be a substantial step toward the offense of
possession of child pornography, as images of nude minors are not per se child
pornography. We therefore set aside appellant’s conviction of attempt to possess
child pornography.



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