              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       JULIEN L. BRONDEAU
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201400140
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 5 November 2013.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: LCDR Dillon J. Ambrose, JAGC, USN.
For Appellee: LT Ian D. MacLean, JAGC, USN.

                          23 September 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of attempting to commit a lewd act on a child
under the age of twelve, one specification of possessing child
pornography, one specification of distributing child
pornography, one specification of soliciting the taking of
indecent liberties with a child under the age of sixteen, two
specifications of soliciting lewd acts upon a child under the
age of sixteen, and one specification of soliciting the
commission of a lewd act upon a child under the age of twelve,
in violation of Articles 80 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 880 and 934. The military judge sentenced
the appellant to reduction to pay grade E-1, forfeiture of all
pay and allowances, confinement for 10 years, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged. Pursuant to a pretrial agreement, the CA suspended
all confinement in excess of 60 months.

     In his three assignments of error (AOEs), the appellant
contends that: first, his pleas to Specifications 9
(solicitation to take indecent liberties with a child) and 10
(solicitation to commit a lewd act upon a child) of Charge II
were improvident where there was no evidence presented that an
actual person was solicited; second, his pleas to Specifications
9, 10, 12 (solicitation to commit a lewd act upon a child) and
13 (solicitation to commit a lewd act upon a child) of Charge II
were improvident where there was no evidence presented that the
person solicited knew the conduct was wrongful; and, third, his
pleas to Specifications 9, 10, 12 and 13 of Charge II were
improvident where the person solicited could not commit an
offense under the UCMJ. We disagree with all three AOEs.

     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                           Background

     Utilizing Craigslist.com, a public classified
advertisements website, the appellant posted requests seeking
men and women willing to engage in sexual activity in the
presence of their children. These requests were viewable by
anyone accessing the website and not aimed at any specific
person.

     The appellant also used an online chat room to communicate
with a purported father of two young girls. He requested that
the man send him video of his daughters engaging in sexual
misconduct.



                                2
     While the appellant did receive responses to some of his
postings seeking a sexual encounter in the presence of a child,
on only one occasion did contact move beyond on-line
communication. This event involved an undercover Naval Criminal
Investigative Service (NCIS) agent portraying a mother with a
child under the age of twelve. After meeting with the agent and
agreeing to engage in sexual activity in the presence of the
agent’s purported child, the appellant travelled to what he
believed was the agent’s home. He was apprehended upon arrival.

     Except for the specification alleging solicitation of the
NCIS agent, the appellant was charged in each relevant
specification with soliciting an “unknown person.”

                 The Providence of the Appellant’s Guilty Plea

     We review a military judge’s decision to accept a guilty
plea for an abuse of discretion.1 A military judge is afforded
“significant deference” in accepting a guilty plea, and there
must be a “substantial basis” in law or fact for us to question
his decision.2

1.     An Actual Person Solicited

     Included in the first element of the offense of
solicitation is that an “accused. . . solicited. . . a certain
person or persons.”3 In Specifications 9 and 10 of Charge II,
this element is alleged as the appellant soliciting “an unknown
person.” The appellant testified that the recipient of his
requests “could be anybody,”4 agreeing that the Craigslist
advertisements were “accessible to the public.”5

     The appellant argues, without citing authority, that, if no
one read his online advertisements, no solicitation occurred.
We need not speculate, however, as the record makes clear that
unknown persons did both read and respond to the advertisements.
First, the appellant testified that the postings throughout the
periods covered by the two specifications were substantially
1
    United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996).
2
    United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
3
    MANUAL FOR COURT-MARTIAL, UNITED STATES (2012 ed.), PART IV, ¶ 105b(1),
4
    Record at 49.
5
    Id. at 50.


                                            3
similar, in that they sought a mother willing to have sex in the
presence of her young children. Second, when asked if anyone
had responded to the advertisements, he replied, “Yes, sir, some
people have,”6 and “people . . . answered before [the NCIS agent
did].”7

     These statements, taken together and in context of the
entire plea inquiry, sufficiently establish this first element
of solicitation, as “the factual circumstances as revealed by
the accused himself objectively support [the] plea.”8 When the
appellant entered an unconditional plea of guilty, he
“relinquished his right to contest the prosecution’s theory on
appeal . . . unless the record discloses matter inconsistent
with the plea.”9 We find no such inconsistency.

2.      Knowledge that Conduct is Criminal

     During the plea inquiry, the military judge did not ask the
appellant whether he believed the persons he solicited knew that
the requested conduct was wrongful. Given the circumstances of
the advertisements, we find such a line of questioning to be
unnecessary. These were not facially innocent requests.10 The
posts consisted of requests to engage in sexual activity with a
man or woman while his or her young children observed, with the
appellant offering to pay for the experience. He also requested
a man provide video of his young daughters engaging in sexual
activity. The appellant admitted under oath that these
requested acts would be indecent conduct in that they amount to
a “form of immorality relating to sexual impurity that is
grossly vulgar, obscene, or repugnant to common propriety and
tends to excite sexual desire or deprave morals with respect to
sexual relations.”11



6
     Id. at 52.
7
     Id. at 53.
8
  United States v. Ferguson, 68 M.J. 431, 434 (C.A.A.F. 2010) (quoting United
States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (additional citation
and internal quotation marks omitted)).
9
     Id. at 435 (citing Article 45(a), UCMJ) (internal citation omitted).
10
  See United States v. Higgins, 40 M.J. 67, 68-69 (C.M.A. 1994); United
States v. Oakley, 23 C.M.R. 197, 199 (C.M.A. 1957).
11
     Record at 28; see also Record at 64.


                                            4
     We do not find it possible the appellant could have
believed the persons he solicited did not understand he was
asking them to engage in a criminal act. Accordingly, the
military judge did not abuse his discretion in accepting the
appellant’s pleas without inquiring on this point.

3.   Capable of Committing Offenses under the Code

     In his third AOE, the appellant claims that only persons
subject to the UCMJ can be solicited under Article 134. In
seeking to distinguish case law holding that solicitation of
civilians can constitute a violation of Article 134,12 he cites
United States v. Sutton, 68 M.J. 455 (C.A.A.F 2010). He is
mistaken. In Sutton, the United States Court of Appeals for the
Armed Forces held that it was not legally possible for a child
to be solicited to commit indecent liberties with herself. This
holding was based not on the lack of UCMJ jurisdiction over the
child, but on the fact that the person solicited to commit the
underlying offense is also the victim of that offense; indecent
acts or liberties with a child requires two persons - both an
accused and a child.

     Here, it was certainly legally possible for the persons
solicited to commit a lewd act upon a child. The solicited
person’s status as someone not subject to the UCMJ is
irrelevant. “[T]he solicitation of another person to commit an
offense which, if committed by one subject to the UCMJ, would be
punishable under the UCMJ, is an offense cognizable under
Article 134.” United States v. Robertson, 17 M.J. 846, 850
(NMCMR 1984).

                                 Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court



12
  United States v. Harris, No. 9901587, 2003 CCA LEXIS 269, unpublished op.
(N.M.Ct.Crim.App. 26 Nov 2003); United States v. Conway, 40 M.J. 859, 862-63
(A.F.C.M.R. 1994).
                                      5
