UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                           CAMPANELLA, PENLAND, and WOLFE
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Private E1 SEAN D. THOMAS
                             United States Army, Appellant

                                      ARMY 20150205

         Headquarters, United States Army Maneuver Center of Excellence
                    Christopher T. Fredrikson, Military Judge
                Colonel Charles C. Poché, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Captain Heather L. Tregle,
JA; Captain Katherine L. DePaul, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A. G. Courie III,
JA; Major Steven J. Collins, JA; Major Anne C. Hsieh, JA (on brief).


                                     9 September 2016

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       Appellant asked a child to take nude photos of herself masturbating and send
them to him. In this appeal we address whether it is a crime to solicit a child to
commit the offense of producing child pornography. We determine it is, and
therefore affirm appellant’s convictions.

       Appellant pleaded guilty to, and was convicted of, two specifications of
committing a lewd act with a child, receiving child pornography, and soliciting a
child to produce and distribute child pornography, in violation of Articles 120b and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 934 (2012) [hereinafter
UCMJ]. The military judge sitting as general court-martial sentenced appellant to a
bad-conduct discharge and ten months of confinement. The convening authority
approved the sentence as adjudged.
THOMAS—ARMY 20150205


       On appeal, appellant assigns two errors. First, appellant argues Specification
4 of Charge II (soliciting a child to produced child pornography) fails to state an
offense because one cannot solicit the victim of a crime to commit the offense.
Second, appellant argues the military judge erred in merging the two solicitation
specifications for sentencing but not findings.

                                   BACKGROUND

      As part of his guilty plea appellant stipulated to all the relevant facts:

       In the summer of 2014, appellant began communicating with a fifteen-year-
old girl over a variety of cell phone applications including “MeetMe.” From the
beginning, she told him that she was fifteen and asked whether that was “ok?”
Appellant responded “yes” and said that she could be his “pet.”

        Almost immediately after learning her age appellant demanded she send
pictures of her “playin with [her]self.” She initially demurred and said she was
busy. Appellant then responded “Nope I want u to send now and I’m the master.”
In case his intent was unclear, appellant then demanded “a pic of you playin with
that tight pu**y” and “I wanna see you out [sic] a toy deep in that pu**y.” The
child complied and sent a picture and video of her inserting a lotion bottle into her
vagina. Appellant would later send pictures of his erect penis to the child.

       Appellant also tried to arrange a meeting with the girl saying they could meet
“one weekend but u gotta earn it pet.” She responded “yes sir.” Appellant then
specifically discussed her losing her virginity to him.

       A few days later the child’s mother reported appellant to the MeetMe
administrators who then forwarded her concerns to law enforcement. She also had
her daughter’s MeetMe account deleted. Nonetheless appellant continued to contact
the child over Snapchat and requested and received more nude pictures of the girl’s
breasts and genitalia while she posed provocatively and performed sexually explicit
acts.

                              LAW AND DISCUSSION

                    A. Solicitation to Produce Child Pornography

       Appellant asserts the military judge abused his discretion in accepting his plea
to the offense of soliciting the production of child pornography.

       As an initial matter, we note that the government made an interesting charging
decision. Solicitation is an inchoate offense. The facts surrounding this case, to
include appellant’s statements in the providence inquiry, establish that appellant
aided and abetted the commission of the offenses to their completion. See Article
77, UCMJ (“Any person punishable under this chapter who . . . commits an offense .

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. .or aids, abets, counsels, commands, or procures its commission . . . is a
principal.”). In other words, under the government’s charging decision, the offenses
were committed when appellant asked (i.e. counseled) the child to create and send
him pictures and videos of her masturbating irrespective of whether she followed
through. Thus, while we determine as a matter of law that the solicitation
specification states an offense, the charging decision here created unnecessary
complexities in the case and our affirmance of the charge should not be taken as an
invitation for imitation.

                                      1. Waiver

         “An unconditional guilty plea generally waives all defects which are neither
jurisdictional nor a deprivation of due process of law.” United States v. Schweitzer,
68 M.J. 133, 136 (C.A.A.F. 2009) (citation and internal quotations marks omitted).
That is, if the failure to state an offense is waivable, then a guilty plea waives the
error on appeal. 1 United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (“When
. . . an appellant intentionally waives a known right at trial, it is extinguished and
may not be raised on appeal.”).

       Until recently, the failure to state an offense was not waivable. “A charge or
specification shall be dismissed at any stage of the proceedings if . . . [t]he
specification fails to state an offense.” Rule for Courts-Martial [hereinafter R.C.M.]


1
 We have often noted that the both the Manual for Courts-Martial and case law have
used the terms “waiver” and “forfeiture” with imprecision. In other words, the
manual often refers to an accused “waiving” a right when in fact principles of
forfeiture apply. This distinction was clarified in the CAAF’s seminal case of
Gladue as follows:

             The granted issue arises out of the failure of military
             courts to consistently distinguish between the terms
             “waiver” and “forfeiture.”

             Waiver is different from forfeiture. Whereas forfeiture is
             the failure to make the timely assertion of a right, waiver
             is the intentional relinquishment or abandonment of a
             known right. The distinction between the terms is
             important. If an appellant has forfeited a right by failing
             to raise it at trial, we review for plain error. When, on the
             other hand, an appellant intentionally waives a known
             right at trial, it is extinguished and may not be raised on
             appeal.

Gladue, 67 M.J. at 313 (internal citations and quotations omitted). However, here it
appears the Schweitzer court meant “waiver” to mean “waiver” especially given that
it was decided only a few months after the court’s opinion in Gladue.
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907(b)(1)(B), MCM (2012). The Schweitzer court even noted as much. Schweitzer,
68 M.J. at 136 (citing United States v. Boyett, 42 M.J. 150, 152 (C.A.A.F. 1995),
which in turn cited R.C.M. 907(b)).

       However, the President has recently modified R.C.M. 907(b) to provide that
failure to state an offense is waivable. See Executive Order 13730, 81 Fed. Reg.
33,336 (20 May 2016). These amendments took effect as of the date of this order
limited by the language that “[n]othing in these amendments shall be construed to . .
. invalidate any nonjudicial punishment proceeding, restraint, investigation, referral
of charges, trial in which arraignment occurred, or other action begun prior to the
effective date of this order.”

       Accordingly, we must decide whether the recent amendment to R.C.M. 907
affects the disposition of this case. Our superior court, interpreting similar language
in an Executive Order, held that it “divided military procedure in several phases,”
and “that if one divisible step had been completed under previous regulations, it was
valid and effective.” United States v. Nichols, 2 C.M.A. 27, 6 C.M.R. 27, 32
(C.M.A. 1952). It explained:

             Stated particularly, if an investigation has been held, that
             step has been taken and the new system shall not
             invalidate that much of the proceeding nor require that the
             offense be re-investigated; that if a trial has reached the
             point of arraignment, it shall be completed under the old
             procedure without interference by the new . . . . In a sense,
             the President set a cut-off date and he declared that acts
             accomplished or steps taken prior to that time were
             validated. He further declared that after the cut-off date
             the new procedure was to be controlling on those steps
             which had not been commenced prior to that date. . . . The
             result of these provisions, we believe, is to separate the
             court-martial process . . . into successive phases or
             principal steps, and to permit the completion with the old
             system’s finality of any phase initially undertaken prior to
             the effective date of the Act on which the new procedure
             is based. However, as to stages not begun by this date, the
             provisions of the new scheme are to apply. . . .

Id. (emphasis altered) (citations and internal quotation marks omitted); see also
United States v. Roberts, 75 M.J. 696, 700 (N.M. Ct. Crim. App. 2016) (“Our
superior court, interpreting similar language in an Executive Order, held that it
‘divided military procedure in several phases,’ and ‘that if one divisible step had
been completed under previous regulations, it was valid and effective.’”) (citing
Nichols).

Thus, under the terms of Executive Order 13730, the changes to R.C.M. 907 become

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THOMAS—ARMY 20150205


effective any time there is a new “phase” or “step” in the court-martial process. 2 An
appeal is certainly a separate “phase” or “step” from the trial itself, and therefore the
changes to R.C.M. 907 would be effective for new appeals. 3 The question therefore
becomes, when did the appeal phase begin? We determine that the appellate phase
began when the case was docketed for appeal on 20 August 2015, not when the case
became “at issue” when the court received all relevant briefs. Therefore, we shall
not consider the recent amendment to R.C.M. 907 in deciding this case and
determine that any failure to state an offense was not waivable error.

                                      2. Analysis

      The standard for determining whether a specification states an offense is
whether the specification alleges “every element” of the offense either expressly or
by implication, so as give the accused notice and protect him against double
jeopardy. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006); United States
v. Dear, 40 M.J. 196, 197 (C.M.A. 1994); R.C.M. 307(c)(3). The question of
whether a specification states an offense is a question of law, which this court
reviews de novo. Crafter, 64 M.J. at 211 (citations omitted).

       Both parties rely on United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010). In
Sutton, the accused was charged with soliciting a child to commit indecent liberties.
The Court of Appeals for the Armed Forces determined that “[b]ecause [the child]
cannot commit the offense of indecent liberties with a child on herself, the
specification fails to state an offense.” Sutton, 68 M.J. at 459. Similarly, and by
way of example, one who points a gun at a stranger and demands money has not
committed the offense of solicitation to commit robbery.

       Thus, we must determine whether a child can commit the offense of producing
child pornography. We answer this question affirmatively. This is not to say, of
course, that one should charge children with such crimes; especially when they are
committed at the behest of adults. The child in this case was, and remains, a victim
of appellant’s offenses. Two considerations cause us to reach this result.

      First, child pornography is contraband, it is illegal to possess. Manual for
Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 68b. As


2
 The President’s implementation guidance also contains an exception (not relevant
here) for any amendment to the rules that makes “punishable any act done or omitted
prior to the effective date of this order . . . .”
3
  An exception would be the law of the case doctrine. See Arizona v. California, 460
U.S. 605, 618 (1983) (In general, the law-of-the-case doctrine “posits that when a
court decides upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.”)(Emphasis added.); see also United
States v. Carter, 490 F.3d 641, 644 (8th Cir. 2007). However, as this issue was
never raised at trial, there was no decision that would trigger this doctrine.
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THOMAS—ARMY 20150205


promulgated by the President there is no exception that allows a child to produce
child pornography. Id. Certainly, for example, if an adult asks one child to take
sexually explicit photos of a second child, it is no defense to say that they are both
children. Nor is there an exception when a single child takes pictures of him or
herself. The plain language of the offense has no exception that would allow
children to produce and distribute child pornography, even when the images are of
themselves.

       Second, to the extent that our sister courts have addressed the issue, they
appear to have reached a similar conclusion. The Navy-Marine Court of Criminal
Appeals analyzed a similar offense in light of Sutton and found no error in United
States v. Ashworth, NMCCA 201500028, 2015 CCA LEXIS 373 (N.M. Ct. Crim.
App. 2015)(per curiam).

       Appellant also argues that legislative history of the offense weighs in favor of
setting aside his guilty plea to this offense. Appellant’s syllogism is as follows:
The child pornography offenses were created to protect children. If the offense is
created to protect children, then the child cannot be guilty of committing the
offense. If a child cannot be guilty of committing the offense, then appellant cannot
be guilty of soliciting the child to commit the offense. Therefore, we must set aside
appellant’s guilty plea to soliciting the production of child pornography. Of course,
it takes some chutzpah to argue that because child pornography offenses protect
children from sexual exploitation, we should set aside appellant guilty plea to
soliciting the sexual exploitation of a child. Regardless, we need not definitively
address the legislative history of the child pornography offenses as we find the plain
language of the offense to be clear. United States v. Nerad, 69 M.J. 138, 140
(C.A.A.F. 2010).

       Finally, we note appellant’s comprehensive plea inquiry pursuant to United
States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). The inquiry into his
pleas was explicit. Appellant admitted, repeatedly, that he specifically intended that
the child commit the offense of producing and distributing child pornography. He
further admitted that the child knew she was committing a crime in sending child
pornography to him, and that she knew it was wrong. In light of these admissions,
we find no basis in law or fact to question appellant’s plea.

                     B. Unreasonable Multiplication of Charges

       In his second assignment of error, appellant asserts that the military judge
abused his discretion in not merging the solicitation offenses for findings. We
disagree with appellant’s framing of the issue. Appellant’s plea of guilty, especially
when part of a negotiated pretrial agreement, waived the issue of whether any of the
specifications was unreasonably multiplied. Schweitzer, 68 M.J. at 136. Unless the
offenses are “facially duplicative” a guilty plea waives any claim that the offenses
are unreasonably multiplied. Id. (citing United States v. Pauling, 60 M.J. 91, 94
(C.A.A.F. 2004)). “By pleading guilty, an accused does more than admit that he did

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THOMAS—ARMY 20150205


the various acts alleged in a specification; ‘he is admitting guilt of a substantive
crime.’” United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009) (citing United
States v. Broce, 488 U.S. 563, 570 (1989)).

      In our view, the issue is not whether the military judge erred. Any error was
waived by appellant and “extinguished.” Gladue, 67 M.J. at 313. Rather, the issue
on appeal is whether we should exercise our “awesome, plenary de novo power of
review” to notice waived and forfeited error. Nerad, 69 at 141-42, 144, 146-47.

       In United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001), our superior
court made clear that courts of criminal appeals are “well within [their] authority to
determine the circumstances, if any, under which [they] would apply waiver or
forfeiture” to issues of unreasonable multiplication of charges. (Emphasis added.).
That is, while we have “awesome, plenary, de novo power” to recognize waived and
forfeited issues, such recognition is not required, and is certainly not always wise.

       Appellant agreed to plead guilty to these specific offenses in exchange for a
pretrial agreement that reduced his punitive exposure by 98% (from forty-five years
to twelve months). 4 Nothing in this record persuades us that we should exercise our
discretionary authority to disturb that which appellant specifically negotiated.

                                    CONCLUSION

         The findings of guilty and sentence are AFFIRMED.

         Senior Judge CAMPANELLA and Judge PENLAND concur.
                                         FOR THE
                                         FOR THE COURT:
                                                 COURT:



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




4
    That appellant was sentenced to only ten months does not alter our reasoning.
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