              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39608
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                     Steven A. MCDANIEL Jr.
          Airman First Class (E-3), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 8 July 2020
                         ________________________

Military Judge: Mark F. Rosenow.
Approved sentence: Bad-conduct discharge and reduction to E-1. Sen-
tence adjudged 31 August 2018 by GCM convened at Kadena Air Base,
Japan.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Lieutenant Colonel G. Matt Osborn,
USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Judge POSCH and Judge KEY joined.
                         ________________________

                PUBLISHED OPINION OF THE COURT
                         ________________________

J. JOHNSON, Chief Judge:
    A general court-martial composed of officer members found Appellant
guilty, contrary to his pleas, of one specification of communicating indecent
language in violation of Article 134, Uniform Code of Military Justice (UCMJ),
                   United States v. McDaniel, No. ACM 39608


10 U.S.C. § 934. 1,2 The court-martial sentenced Appellant to a bad-conduct dis-
charge and reduction to the grade of E-1. The convening authority approved
the adjudged sentence.
    On appeal, Appellant personally raises a single issue pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): whether the military judge
erred by denying the Defense’s motion to dismiss Charge II and its Specifica-
tion for failure to state an offense. We find no error, and we affirm the findings
and sentence.

                                 I. BACKGROUND
    Appellant was stationed on Kadena Air Base (AB), Okinawa, Japan, when
on 30 December 2017 he responded to an online personal advertisement for the
Okinawa geographic region. The advertisement was entitled “Taboo, Incest –
w4m,” and read, “Hey I’m looking for a buddy to fool around with me and my
kids. I’m not looking for anything long term just need this soon. If you’re into
young hit me up . . . .” Appellant responded, “”Im 20 i want to hear more about
this.”
    So began Appellant’s communications with “J,” who portrayed herself to be
the civilian spouse of a Navy servicemember who was living on Kadena AB
with her two children, a 13-year-old daughter and an 11-year-old son. Appel-
lant continued to exchange messages with “J” over the course of approximately
four weeks. Appellant asked a number of questions and made comments re-
lated to making plans to meet with “J” in order to engage in and observe sexual
acts with her children. These messages included, inter alia, a suggestion that
Appellant could engage in sexual acts with “J’s” daughter while “J” engaged in
sexual acts with her son, and then they could “switch;” inquiring whether “J”
had previously engaged in sexual acts with her son and whether she had seen
him masturbate; stating that Appellant would enjoy watching “J” engage in
sexual intercourse with her son; and expressing concern that “J’s” daughter
was old enough to become pregnant and asking whether he could ejaculate in
the daughter’s mouth.
   In reality, “J” was a false persona created by Special Agent (SA) JT, an
agent of the Naval Criminal Investigative Service (NCIS) stationed on Oki-
nawa. SA JT posted the online advertisement and conducted the correspond-
ence with Appellant as a member of an NCIS element focusing on crimes


1All references in this opinion to the Uniform Code of Military Justice (UCMJ) are to
the Manual for Courts-Martial, United States (2016 ed.).
2The court-martial found Appellant not guilty of one specification of attempted sexual
assault of a child in violation of Article 80, UCMJ, 10 U.S.C. § 880.


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                     United States v. McDaniel, No. ACM 39608


against children. In the course of their correspondence, Appellant identified
himself as an Airman and sent “J” a photo of his head and shoulders.
    Eventually, after Appellant informed “J” that he had tested negative for
sexually transmitted diseases, Appellant and “J” made plans for him to come
to her residence on Appellant’s day off, 26 January 2018. “J” explained her
spouse was on temporary duty away from Okinawa at the time. After some
hesitation and delay, on the evening of 26 January 2018 Appellant arrived at
the residence “J” identified, where he was arrested in the front yard by a joint-
service team of law enforcement agents.
    Appellant was tried for one charge and specification of attempted sexual
assault of a child (Charge I) and one charge and specification of communicating
indecent language (Charge II), in violation of Articles 80 and 134, UCMJ, re-
spectively. The Specification of Charge II alleged that Appellant communicated
to “J” in writing “certain indecent language” that was “of a nature to bring
discredit upon the armed forces,” and recited verbatim from a number of spe-
cific messages Appellant had sent “J.”
    Before trial, the Defense moved to dismiss Charge II and its Specification
claiming it “fail[ed] to state an offense that brings this consensual conduct out-
side the due process liberty interests recognized by the Supreme Court in Law-
rence v. Texas.” 3 The Government opposed the motion, contending that the
Fourteenth Amendment 4 due process privacy interests addressed in Lawrence
do not extend to private conversations, and that obscene speech is not protected
by the First Amendment. 5 At a hearing on the motion, the Defense called Dr.
MD to testify as an expert in “forensic research psychology.” Dr. MD testified
regarding her research and knowledge of “sexting,” which she described as the
“internet-based exchange” of “sexual based material” consisting of “words” or
“pictures,” “typically over phones or computers.” Dr. MD testified that sexting
is “sexual behavior” that can “build intimacy” between the participants, and
further testified that various studies indicated between 40 percent and 80 per-
cent of young adults reported that they had “sexted.”
   After receiving arguments from counsel, the military judge issued oral and
written rulings denying the motion to dismiss. Citing precedent from the




3   539 U.S. 558 (2003).
4   U.S. CONST. amend. XIV.
5   U.S. CONST. amend. I.




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                   United States v. McDaniel, No. ACM 39608


United States Court of Military Appeals and several decisions of this court, 6
the military judge concluded that “it is settled that indecent language privately
communicated even between consenting adults is not constitutionally pro-
tected.”
   The court-martial found Appellant not guilty of the attempted sexual as-
sault of “J’s” daughter alleged in the Specification of Charge I, but guilty of
communicating indecent language as alleged in the Specification of Charge II.

                                   II. DISCUSSION
A. Law
   “The constitutionality of an act of Congress is a question of law that we
review de novo.” United States v. Ali, 71 M.J. 256, 265 (C.A.A.F. 2012) (citing
United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005)). “Where . . . an appel-
lant argues that a statute is ‘unconstitutional as applied, we conduct a fact-
specific inquiry.’” Id. (citations omitted).
    As charged in this case, the elements of the offense of communicating inde-
cent language in violation of Article 134, UCMJ, included that on the dates and
at the location alleged, (1) Appellant communicated to “J” certain language in
writing; (2) that the language was indecent; and (3) that under the circum-
stances Appellant’s conduct was of a nature to bring discredit upon the armed
forces. See Manual for Courts-Martial, United States (2016 ed.) (MCM), pt. IV,
¶ 89.b. “‘Indecent’ language is that which is grossly offensive to modesty, de-
cency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or
disgusting nature, or its tendency to incite lustful thought. Language is inde-
cent if it tends reasonably to corrupt morals or incite libidinous thoughts.”
MCM, pt. IV, ¶ 89.c. The indecency of a communication depends on “the context
in which it is made.” United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010)
(citation omitted).
   The United States Court of Appeals for the Armed Forces (CAAF) “has long
held that ‘indecent’ is synonymous with obscene.” United States v. Meakin, 78
M.J. 396, 401 (C.A.A.F. 2019) (citing United States v. Moore, 38 M.J. 490, 492
(C.M.A. 1994)). “It is well-settled law that obscenity is not speech protected by

6United States v. Moore, 38 M.J. 490, 492 (C.M.A. 1994); United States v. Gill, 40 M.J.
835 (A.F.C.M.R. 1994); United States v. Meakin, No. ACM 38968, 2017 CCA LEXIS
476 (A.F. Ct. Crim. App. 14 Jul. 2017) (unpub. op.), aff’d, 78 M.J. 396 (C.A.A.F. 2019);
United States v. Lambert, No. ACM 38291, 2014 CCA LEXIS 101 (A.F. Ct. Crim. App.
24 Feb. 2014) (unpub. op.); United States v. Garrigan, No. ACM 37920, 2013 CCA
LEXIS 118 (A.F. Ct. Crim. App. 15 Feb. 2013) (per curiam) (unpub. op.).




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                    United States v. McDaniel, No. ACM 39608


the First Amendment, regardless of the military or civilian status of the
‘speaker.’” Id. (citing United States v. Williams, 553 U.S. 285, 288 (2008);
United States v. Wilcox, 66 M.J. 442, 447 (C.A.A.F. 2008)).
    In Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme
Court described “a fundamental liberty interest to form intimate, meaningful,
and personal bonds that manifest themselves through sexual conduct,” that is
protected by the Due Process Clause of the Fourteenth Amendment. Meakin,
78 M.J. at 403 (citing Lawrence, 539 U.S. at 567). The Fifth Amendment 7 Due
Process Clause provides equivalent protections in the military justice system.
See id. at 401 n.4. However, the CAAF has “reject[ed] [the] argument that dis-
tributing or transmitting obscenity that encourages, describes, and revels in
the sexual exploitation of children over the internet falls within the fundamen-
tal liberty interest recognized in Lawrence.” Id. at 403.
B. Analysis
    Appellant personally asserts the military judge erred by denying the de-
fense motion to dismiss because sexting, “even about activity that would be
illegal if actually acted upon,” is conduct within a constitutionally protected
liberty interest as defined by the Supreme Court in Lawrence. Appellant con-
tends that two consenting adults—which was what he perceived his relation-
ship with “J” to be—are “absolutely permitted to engage in private, sexually
explicit communications.” He cites Dr. MD’s testimony regarding the preva-
lence of sexting and her description of it as sexual behavior that builds inti-
macy between the participants. Appellant characterizes the “act of sending pri-
vate sexual desires” as a “personal intimac[y]” comparable to constitutionally
protected activities involving family, marriage, motherhood, procreating, and
child rearing. Appellant faults the military judge for relying on two un-
published decisions wherein this court upheld convictions for communicating
indecent language, noting that both cases involved guilty pleas and were thus
subject to a different standard of review and featured relatively little develop-
ment of the underlying facts. United States v. Lambert, No. ACM 38291, 2014
CCA LEXIS 101 (A.F. Ct. Crim. App. 24 Feb. 2014) (unpub. op.); United States
v. Garrigan, No. ACM 37920, 2013 CCA LEXIS 118 (A.F. Ct. Crim. App. 15
Feb. 2013) (per curiam) (unpub. op.).
    Even more damaging to Appellant’s position than these unpublished opin-
ions is the CAAF’s rejection of a similar argument in Meakin, 78 M.J. at 403.
In Meakin, the appellant—an officer—used a pseudonym to “engage[ ] in a se-
ries of online conversations where he described in lurid detail the abuse, mo-
lestation, and rape of children with individuals through email, chat rooms, and


7   U.S. CONST. amend. V.


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                 United States v. McDaniel, No. ACM 39608


instant messaging.” Id. at 398. The appellant was convicted of numerous spec-
ifications of conduct unbecoming an officer in violation of Article 133, UCMJ,
10 U.S.C. § 933. Id. One of the appellant’s arguments on appeal at the CAAF
was that his convictions were legally insufficient because his private commu-
nications were protected by the fundamental liberty interest the Supreme
Court identified in Lawrence. Id. at 402–03 (citations omitted). However, the
CAAF firmly rejected this attempt “to place distributing or transmitting ob-
scenity to individuals whose true names [the appellant] did not even know and
whom he had not met, on par with the liberty interest and fundamental right
to form intimate, meaningful, and personal bonds that manifest themselves
through sexual conduct described in Lawrence,” noting that “Lawrence did not
purport to include any and all behavior touching on sex within its purview
. . . .” Id. at 403 (citation omitted).
    Appellant seeks to distinguish Meakin on the basis that it involved convic-
tions for conduct unbecoming an officer in violation of Article 133, UCMJ, ra-
ther than communicating indecent language in violation of Article 134, UCMJ.
Appellant cites extensively from the CAAF’s opinion, which describes the his-
torical tradition of holding officers “to a higher standard of behavior.” Id. at
404 (citing Parker v. Levy, 417 U.S. 733, 743–45 (1974); William Winthrop,
Military Law and Precedents 711 (2d ed., Government Printing Office 1920)
(1895)). We are not persuaded. The portion of the opinion in Meakin that Ap-
pellant cites does not address the constitutional liberty interest from Lawrence
at issue in the instant case, but an alternative defense argument—that even if
the communications in Meakin were not constitutionally protected, the convic-
tions were nonetheless legally insufficient because the charged communica-
tions were unconnected to the military mission. Id. at 403–05. The significance
of the CAAF’s opinion in Meakin is plain: communicating indecent language
that “encourages, describes, and revels in the sexual exploitation of children”
falls outside the liberty interest the Supreme Court recognized in Lawrence,
even if the receiver is believed to be a willing adult recipient of the communi-
cation. Id. at 403.
    We recognize that an “as applied” constitutional challenge to a statute is a
fact-specific inquiry, and that the indecency of a communication depends on
the context in which it was made. See Ali, 71 M.J. at 265 (citations omitted);
Green, 68 M.J. at 270 (citation omitted). However, we conclude that the cir-
cumstances of Appellant’s conviction involve no constitutional infirmity with
respect to either due process or protected speech. The fact that Appellant’s
communications were made in light of the prospect of actually meeting “J” and
her children, in order to observe and engage in actual acts of child sexual
abuse, makes them no less indecent or obscene. Similarly, the fact that “J,” far
from being an intimate partner of Appellant, was someone he had never met,



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                  United States v. McDaniel, No. ACM 39608


and knew only through responding to an advertisement for child sexual abuse,
does not strengthen Appellant’s position.
   We conclude the military judge did not abuse his discretion by denying the
defense motion to dismiss.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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