             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                          v.

                            Senior Airman KENNETH W. LAMBERT II
                                      United States Air Force

                                                   ACM 38291

                                               24 February 2014

            Sentence adjudged 11 December 2012 by GCM convened at Joint Base
            Langley-Eustis, Virginia. Military Judge: Joshua E. Kastenberg (sitting
            alone).

            Approved Sentence: Dishonorable discharge, confinement for 10 months,
            forfeiture of all pay and allowances, and reduction to E-1.

            Appellate Counsel for the Appellant: Lieutenant Colonel Maria A. Fried.

            Appellate Counsel for the United States: Colonel Don M. Christensen;
            Captain Thomas J. Alford; and Gerald R. Bruce, Esquire.

                                                       Before

                                     ORR, HARNEY, and SANTORO
                                       Appellate Military Judges

                                         OPINION OF THE COURT

                         This opinion is subject to editorial correction before final release.

SANTORO, Judge:

       A military judge sitting alone as a general court-martial convicted the appellant,
pursuant to his pleas, of three specifications of possession of visual depictions of children
under 18 years of age engaged in sexually-explicit conduct (hereafter “child
pornography”) and one specification of communicating indecent language, in violation of
Article 134, UCMJ, 10 U.S.C. § 934.1 The adjudged and approved sentence consisted of


1
 The appellant initially pled guilty to one specification alleging the wrongful distribution of child pornography.
However, after conducting the inquiry required by United States v. Care, 40 C.M.R. 247 (C.M.A. 1969), the military
a dishonorable discharge, confinement for 10 months, forfeiture of all pay and
allowances, and reduction to E-1.

       Before us, the appellant asserts: (1) His plea to communicating indecent language
was improvident; (2) A new post-trial action is required; (3) The military judge abused
his discretion by failing to provide a remedy for a violation of 18 U.S.C. § 3509(m);
(4) His sentence is inappropriately severe; and (5) The specifications fail to state offenses
because the terminal elements were charged, and findings entered, in the disjunctive. We
disagree and affirm the findings and sentence.

                                                Background

       Between January and March 2010, the appellant used a peer-to-peer file sharing
service called LimeWire to locate and download child pornography. He also had his
LimeWire account configured to allow other users to download files from his computer.
The appellant came to the attention of law enforcement when an undercover FBI agent
downloaded child pornography from the appellant’s LimeWire account.

       During the investigation that followed, agents seized and analyzed the appellant’s
computer and various media. The analysis uncovered, and the appellant stipulated at trial
to possessing, a total of nine images and one video recording of child pornography.
Media analysis also uncovered a 27 February 2010 online chat between the appellant and
someone using the screen name “w00dy222.” The appellant and w00dy222 engaged in
graphic descriptions of adults engaging in sexual intercourse with children, including a
discussion about the rape of an 8-year-old girl.

        Additional facts relevant to the disposition of the assigned errors are below.

                                          Providence of the Plea

       The appellant challenges the providence of his plea to communicating indecent
language on three bases: (1) The communication was between two consenting adults
during a private Internet chat; (2) The appellant fabricated the conversation to excite user
“w00dy222”; and (3) The appellant did not admit sufficient facts to establish his conduct
was prejudicial to good order and discipline or of a nature to bring discredit upon the
armed forces.

       “[W]e review a military judge’s decision to accept a guilty plea for an abuse of
discretion and questions of law arising from the guilty plea de novo.” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). See also United States v. Eberle,


judge rejected his plea to that offense and found him guilty of possession of visual depictions of children under
18 years of age engaged in sexually-explicit conduct.


                                                       2                                            ACM 38291
44 M.J. 374, 375 (C.A.A.F. 1996). “In doing so, we apply the substantial basis test,
looking at whether there is something in the record of trial, with regard to the factual
basis or the law, that would raise a substantial question regarding the appellant’s guilty
plea.” Inabinette, 66 M.J. at 322. To assist our review, we consider the appellant’s
providence inquiry with the trial judge and apply all reasonable inferences therefrom.
United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007). This is an area in which the
military judge is entitled to much deference. Inabinette, 66 M.J. at 322 (citing
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)). A military judge abuses his
discretion when accepting a plea if he does not ensure the accused provides an adequate
factual basis to support the plea during the providence inquiry. See United States v. Care,
40 C.M.R. 247 (C.M.A. 1969).

        The conduct at issue was charged as a violation of Article 134, UCMJ. This
article has two elements: “(1) That the accused did or failed to do certain acts” (in this
case, communicate indecent language orally or in writing to another person); and
“(2) That, under the circumstances, the accused’s conduct was to the prejudice of good
order and discipline in the armed forces or was of a nature to bring discredit upon the
armed forces.” Manual for Courts-Martial, United States (MCM), Part IV, ¶ 60.b.
(2008 ed.). The conduct alleged was that the appellant, in writing, communicated the
following indecent language in an online chat discussion about sex with an 8-year-old
girl at a party: “[K]enny put the head of his [****] in, Ithink [sic] like atleast [sic] 6 or 7
guys [******] her” and “she was smiling or moaning the hole [sic] time.”

       We first address the appellant’s argument that private consensual speech, even if
indecent, is protected. Twenty years ago our superior court considered and rejected the
argument that indecent language communicated between consenting adults was
constitutionally protected in United States v. Moore, 38 M.J. 490, 492-93 (C.M.A. 1994).
Without referencing this precedent that squarely addresses the issue, the appellant instead
urges us to reject his plea by citing United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008)
and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).

      In Wilcox, our superior court considered whether wrongfully advocating anti-
government and disloyal statements, encouraging participation in extremist groups, and
advocating racial intolerance could properly be considered conduct prejudicial to good
order and discipline or service discrediting. Although the Wilcox Court found the
conviction in that case could not stand, the decision turned on whether the appellant’s
speech was connected to the military mission or military environment and did not involve
indecent language.2 66 M.J. at 449-51. However, even in Wilcox, the Court reiterated


2
    Indecent language is defined as:

           [T]hat which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense,
           because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought.


                                                         3                                            ACM 38291
that not all speech is protected: “[S]ome speech—e.g., dangerous speech, obscenity, or
fighting words—is not protected by the First Amendment, regardless of the military or
civilian status of the speaker.” Id. at 447 (emphasis added).

       Marcum applied the Supreme Court’s holding in Lawrence v. Texas, 539 U.S. 558
(2003) to the military. Both Lawrence and Marcum were about conduct, not speech:
“[W]hether the petitioners were free as adults to engage in the private conduct in the
exercise of their liberty.” Marcum, 60 M.J. at 203 (quoting Lawrence, 539 U.S. at 564)
(internal quotation marks omitted). We see nothing either in Lawrence or Marcum to
suggest that either is intended to address the bounds of free speech.

      Thus, we conclude that the appellant’s argument, rejected by Moore, finds no new
support from Lawrence, Wilcox, or Marcum.

       We next consider the appellant’s argument that because he fabricated the
conversation “to excite” w00dy222, his plea was improvident. The definition of indecent
language does not require the uttered words to be true. An offense turns on whether the
words were grossly offensive or shocked the moral sense. The appellant’s assertion that
he chose the words he did, whether truthful or not, to sexually excite the recipient fits
squarely within the definition of indecent language: “Language is indecent if it tends
reasonably to corrupt morals or incite libidinous thoughts.” MCM, Part IV, ¶ 89.c.

       Finally, the appellant argues that he did not admit facts sufficient to establish his
conduct as being prejudicial to good order and discipline or service discrediting. Before
accepting the appellant’s plea, the military judge properly advised him of the requirement
that his conduct be prejudicial to good order and discipline or service discrediting and
correctly defined those terms. The appellant admitted under oath, both in a stipulation of
fact and under questioning by the military judge, that his conduct was service
discrediting. He told the military judge, “If anyone had found out that I was having this
conversation or talking about the things that were mentioned and knew that I was in the
Air Force [that individual] would definitely look upon the Air Force badly.” He also
replied in the affirmative when asked by the military judge whether his conduct was
prejudicial to good order and discipline or service discrediting. We are satisfied that the
appellant’s plea is provident. See United States v. Phillips, 70 M.J. 161, 163 (C.A.A.F.
2011) (public need not actually be aware of the conduct for it to be service discrediting).




        Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The
        language must violate community standards.

Manual for Courts-Martial, United States, Part IV, ¶ 89.c. (2008 ed.). During the providence inquiry, the military
judge advised the appellant of this definition of indecent language.


                                                        4                                            ACM 38291
                                               Post-Trial Action

       The appellant next contends that a new post-trial action is warranted because the
court-martial order (CMO) erroneously indicates that the appellant was convicted of
distributing child pornography.

       There are two CMOs in the record of trial, both dated 1 March 2013. One CMO
erroneously states the appellant was convicted of wrongful distribution of child
pornography when, as indicated above, the military judge rejected the appellant’s plea to
that offense and instead accepted a plea of guilty to possession of child pornography.
The other correctly states the findings of the court-martial. In its reply brief, the
Government attached a copy of the second, accurate, CMO and argued it appeared to be
the actual, official, CMO. However, the CMO that reflects the court-martial’s findings
does not comport with Air Force Instruction 51-201, Administration of Military Justice,
¶ 10.10 (6 June 2013), which requires language identifying it as a corrected copy of the
original and appropriate markings to indicated any deleted and added matters. Therefore,
we order the completion of a corrected CMO.

       That does not resolve the issue, however, as the appellant also asserts that had the
convening authority been correctly advised that he had not been convicted of distribution,
but rather possession, of child pornography, the convening authority might have been
more inclined to grant clemency. We recognize that the convening authority is the
appellant’s best hope for clemency relief. United States v. Bono, 26 M.J. 240, 243 n.3
(C.M.A. 1988) (citing United States v. Wilson, 26 C.M.R. 3, 6 (C.M.A. 1958)).

       Prior to taking action on the case (and prior to the publication of the CMO), the
convening authority received the advice of his staff judge advocate (SJA), which
contained an Air Force Form 1359 (hereinafter “Report of Trial”). The Report of Trial
accurately reflected the court-martial’s findings and neither the Report of Trial nor the
SJA’s advice made any mention of a distribution conviction. Moreover, the defense
clemency submission made clear that the appellant was only convicted of “possession of
child pornography and communicating indecent language.” We find no prejudice to the
appellant and decline to order any remedy beyond the publication of a corrected CMO.

                                     Violation of 18 U.S.C. § 3509(m)3

       During the investigation into the appellant’s conduct, the Government attempted
to recover images from the appellant’s computer media. Military investigators sent two
of the appellant’s hard drives suspected of containing child pornography to a civilian
laboratory with expertise in data recovery. The civilian laboratory recovered data from


3
    As amended by Adam Walsh Child Protection Safety Act of 2006, Pub. L. No. 109-248, § 504, 120 Stat. 587, 629.


                                                         5                                           ACM 38291
the drives, identified the files suspected of containing contraband, and returned the
evidence to the military.

        The appellant avers that the use of the civilian laboratory, coupled with the
Government’s subsequent rejection of the appellant’s request for a duplicate copy of the
evidence for his own analysis, violated 18 U.S.C. § 3509(m). At trial, although the
appellant moved to suppress the affected evidence, he entered unconditional guilty pleas
prior to the military judge’s ruling on the motion.

       Before us, the appellant renews his assertion that the Government’s conduct
violated this section and asks us to exercise our supervisory power4 both to deter future
Government misconduct and provide him relief. Unlike his motion at trial, before us the
appellant asks for no specific relief; he merely asks that we “provide for an appropriate
remedy to deter future violations.”

         Section 3509(m) of Title 18, United States Code, states:

         (m) Prohibition on reproduction of child pornography.--

            (1) In any criminal proceeding, any property or material that constitutes
            child pornography (as defined by section 2256 of this title) shall remain
            in the care, custody, and control of either the Government or the court.

            (2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal
            Procedure, a court shall deny, in any criminal proceeding, any request by
            the defendant to copy, photograph, duplicate, or otherwise reproduce any
            property or material that constitutes child pornography (as defined by
            section 2256 of this title), so long as the Government makes the property
            or material reasonably available to the defendant.

            (B) For the purposes of subparagraph (A), property or material shall be
            deemed to be reasonably available to the defendant if the Government
            provides ample opportunity for inspection, viewing, and examination at a
            Government facility of the property or material by the defendant, his or
            her attorney, and any individual the defendant may seek to qualify to
            furnish expert testimony at trial.
4
  The parties dispute the basis and scope of a military court’s supervisory power. The appellant argues that our
superior court has noted such a “supervisory power” exists but, as the basis for this assertion, cites to a footnote in a
concurring opinion, which itself cites not to the holding of a military court but rather an appellate brief.
United States v. Leak, 61 M.J. 234, 250 n.6 (C.A.A.F. 2005) (Gierke, C.J., concurring in part and dissenting in part).
For its part, the Government erroneously cited a concurring opinion as the holding of our superior court in
United States v. Fulton, 55 M.J. 88, 90 (C.A.A.F. 2001) (Crawford, C.J., concurring). Our resolution of this issue
on other grounds makes unnecessary further discussion of whether, and to what extent, we may exercise general
supervisory power over the military justice system.


                                                           6                                               ACM 38291
       The appellant’s unconditional guilty plea waives appellate challenge to a trial
judge’s ruling on a motion to suppress. Rule for Courts-Martial 910(j). See
United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) (“An unconditional plea of
guilty waives all nonjurisdictional defects at earlier stages of the proceedings.”);
United States v. Hinojosa, 33 M.J. 353 (C.M.A. 1991) (an unconditional guilty plea
forecloses appellate relief from an unsuccessful suppression motion). Although the
appellant argues the affected specification would ultimately have been dismissed had the
military judge granted his motion to suppress, the appellant nonetheless decided to enter
his guilty plea prior to the judge’s ruling. The entry of the guilty plea mooted the issue
and the trial judge never ruled on the motion.5

        Because we find the appellant’s unconditional guilty plea extinguished his ability
to raise this issue on appeal, we need not address the applicability 18 U.S.C. § 3509(m)
nor any remedies that may exist due to potential a violation of that section.

                                               Sentence Severity

       The appellant next argues that his sentence to a dishonorable discharge was
inappropriately severe.      This Court reviews sentence appropriateness de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006); United States v. Baier, 60 M.J. 382,
383-84 (C.A.A.F. 2005). We “may affirm only such findings of guilty and the sentence
or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). We assess sentence appropriateness by considering the appellant, his
record of service the nature and seriousness of the offenses, and all matters contained in
the record of trial. United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006),
aff’d, 65 M.J. 35 (2007). See also United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982).

        After reviewing the evidence and giving individualized consideration to the
appellant and his record of service, as well as to the nature of the charges and record of
trial, we conclude that a dishonorable discharge is not inappropriately severe.

                                         Failure to State an Offense

       All four specifications to which the appellant pled guilty alleged that the conduct
was “to the prejudice of good order and discipline in the armed forces or of a nature to
bring discredit upon the armed forces.” (emphasis added). The military judge entered
findings consistent with the charged language. The appellant argues that because the
5
 After entry of pleas, but before the pleas were accepted, the military judge told the parties that had he ruled on the
defense motion, he would have denied relief. Even after this statement, the appellant made no effort to withdraw his
unconditional plea in favor of a conditional plea.


                                                          7                                               ACM 38291
nature of the conduct was charged in the disjunctive (using the word “or”) and the
findings of guilt were also in the disjunctive, the specifications fail to state offenses.

        While the appellant’s unconditional guilty plea does not waive appellate review of
whether a specification states an offense, our superior court has held that when an
Article 134, UCMJ, specification fails to allege the terminal element (i.e., whether the
conduct was prejudicial or discrediting), the error is not structural but rather should be
tested for prejudice. United States v. Gaskins, 72 M.J. 225, 234 (C.A.A.F. 2013).

       The appellant was on notice of the Government’s theories of criminality. He
admitted, both in a stipulation of fact and during the providence inquiry, that his conduct
with respect to each child pornography specification was both prejudicial to good order
and discipline and service discrediting. With respect to the indecent language
specification, the appellant admitted in a stipulation of fact that his conduct was service
discrediting and responded in the affirmative when asked by the military judge whether
his conduct was prejudicial or service discrediting. We therefore conclude that any errors
in the Article 134, UCMJ, specifications were cured. Gaskins, 72 M.J. at 235.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            8                                    ACM 38291
