                            IN THE CASE OF


                       UNITED STATES, Appellee

                                   v.

                     Robert L. MASON, Jr., Major
                      U.S. Air Force, Appellant

                              No. 02-0849

                         Crim. App. No. 34394


       United States Court of Appeals for the Armed Forces

                         Argued March 2, 2004

                        Decided June 10, 2004

ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
separate opinion dissenting in part and concurring in part.

                                Counsel

For Appellant: Major Rachel E. Vanlandingham (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, and Captain Jennifer
K. Martwick (on brief).

For Appellee: Major Shannon J. Kennedy (argued); Colonel
LeEllen Coacher, Lieutenant Colonel Robert V. Combs, Lieutenant
Colonel Lance B. Sigmon, and Captain Lane A. Thurgood (on
brief).

Military Judge:    Thomas G. Crossan, Jr.


This opinion is subject to editorial correction before final publication.
United States v. Mason, Jr., No. 02-0849/AF

     Judge ERDMANN delivered the opinion of the Court.

     Major Robert L. Mason, Jr., entered guilty pleas and was

convicted by a general court-martial of violating a lawful

general order, engaging in conduct unbecoming an officer and a

gentleman and knowingly receiving child pornography in violation

of Articles 92, 133 and 134, Uniform Code of Military Justice

[UCMJ], 10 U.S.C. §§ 892, 933 and 934 (2000), respectively.    He

was sentenced by the military judge to a dismissal, confinement

for two years and forfeiture of all pay and allowances.   In

accordance with the terms of a pretrial agreement, the convening

authority approved only so much of the sentence as provided for

dismissal and six months’ confinement.

     Mason assigned several errors in his appeal to the Air

Force Court of Criminal Appeals, including a claim that his

guilty plea to the Article 134 charge was improvident in light

of the Supreme Court's decision in Ashcroft v. Free Speech

Coalition, 535 U.S. 234 (2002).   The Court of Criminal Appeals

reviewed Mason's claims, rejected all of them and affirmed his

conviction and sentence.

     Mason petitioned this Court for review of the Court of

Criminal Appeals' decision and we granted review of the

following assigned Issue I and specified review of Issue II:

     I.   WHETHER APPELLANT'S PLEAS OF GUILTY TO OFFENSES UNDER
     18 U.S.C. SECTION 2252A WERE INVOLUNTARY BECAUSE HE HAD AN
     INCOMPLETE UNDERSTANDING OF THE OFFENSES WHEN THE MILITARY
     JUDGE EXPLAINED THE OFFENSES USING THE UNCONSTITUTIONALLY


                                  2
United States v. Mason, Jr., No. 02-0849/AF

     VAGUE AND OVERBROAD DEFINITIONS OF CHILD PORNOGRAPHY
     CONTAINED IN 18 U.S.C. SECTION 2256.

     II. IN THE EVENT THAT APPELLANT'S GUILTY PLEAS ARE
     IMPROVIDENT TO CHARGE III AND ITS SPECIFICATION UNDER
     CLAUSE 3 OF ARTICLE 134, WHETHER HIS PLEA IS PROVIDENT AS
     TO A LESSER-INCLUDED OFFENSE UNDER CLAUSE 1 OR CLAUSE 2 OF
     ARTICLE 134 IN LIGHT OF ASHCROFT V. FREE SPEECH COALITION,
     535 U.S. 234 (2002) AND UNITED STATES V. O'CONNOR, 58 M.J.
     450 (C.A.A.F. 2003).

We hold that while Mason's guilty plea to the clause 3, Article

134 offense was improvident, his plea was provident to a lesser-

included offense under clauses 1 and 2 of Article 134.

                            BACKGROUND

     Mason served as a contracting officer assigned to the

Defense Supply Center Columbus (DSCC), an arm of the Defense

Logistics Agency.   The DSCC routinely handles highly sensitive

and classified procurement matters, including multi-million

dollar contracts.   It is primarily staffed with over 2,500

civilian employees, but is also staffed by a small contingent of

military members, of which Mason was a part.

     The DSCC monitored its employees' access to the Internet

and during the course of that general monitoring process, Mason

was identified as having accessed inappropriate websites.

Subsequent monitoring and investigation disclosed that Mason had

utilized two different DSCC computers to (1) view and/or

download from the Internet various items with pornographic and

obscene images or language; (2) participate in teen "chat rooms"




                                 3
United States v. Mason, Jr., No. 02-0849/AF

and engage in discussions of a sexual nature; and (3) receive

images of child pornography.

     Mason was ultimately charged under Article 92 with three

specifications of violating a general regulation pertaining to

use of government computers, under Article 133 with one

specification for conduct unbecoming an officer and a gentleman

based on certain activities that he engaged in on the computers1

and under clause 3 of Article 134 with one specification of

violating the Child Pornography Prevention Act of 1996 (CPPA),

18 U.S.C. § 2252A (2000).2

     The present appeal concerns the providence of Mason's

guilty plea to the Article 134 charge.   For this Court to reject

a guilty plea on appellate review, the record of trial must show

a substantial basis in law and fact for questioning the plea.

United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)(citing

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).

                               DISCUSSION

     A.   The Providence Inquiry and Record of Trial




1
  This specification involved Mason's conduct in participating in
teen chat rooms on the Internet and in storing, viewing,
displaying, or processing various items on both government
computers, including pornography, erotic stories containing
obscene language and certain "thumbnail" images of naked
children.
2
  This specification involved a set of images specifically
characterized as "child pornography" and distinct from the ones
referred to in the Article 133 charge.

                                 4
United States v. Mason, Jr., No. 02-0849/AF

       Under the clause 3 Article 134 specification, Mason was

charged with a violation of the CPPA.   The military judge

explained that the statutory offense involved the knowing

receipt of child pornography that had been transported in

interstate or foreign commerce and was "assimilated into the

[UCMJ] as another crime or offense not capital" under Article

134.   The military judge advised Mason that the definitions for

the CPPA offense were found in 18 U.S.C. § 2256 (2000) and went

on to define numerous terms, specifically including the

alternative definitions of "child pornography" under §§

2256(8)(A)-(D):

       Child pornography means any visual depiction, including any
       photograph, film, video picture, or computer, or computer
       generated image or picture, whether made or produced by
       electronic, mechanical or other means for [sic] sexually
       explicit conduct where: a) the production of such visual
       depiction involves the use of a minor engaging in sexually
       explicit conduct; b) such visual depiction is or appears to
       be of a minor engaging in sexually explicit conduct; c)
       such visual depiction has been created, adapted or modified
       to appear that an identifiable minor is engaging in
       sexually explicit conduct; or, d) such visual depiction is
       advertised, promoted, presented, described, or distributed
       in such a manner that conveys the impression that the
       material is or contains a visual depiction of a minor
       engaging in sexually explicit conduct.

       In addition to advising Mason of the definitional elements

of the CPPA offense, the military judge included what he termed

a “fourth element”:

       Fourth -- and I instruct on this only in this case if it is
       determined that your plea is improvident on the charged
       offense, since the crime has been charged as an other crime
       or offense not capital -- such conduct was of a nature to


                                  5
United States v. Mason, Jr., No. 02-0849/AF

     bring discredit upon the armed forces or was to the conduct
     [sic] of good order and discipline in the armed forces.

     He went on to specifically ask Mason if he understood that

"fourth element" and why it had been included.   After consulting

with his defense counsel, Mason answered in the affirmative and

indicated that he understood the element required that "his

conduct must also be such to bring discredit upon the Air

Force."   The military judge then further explained to Mason why

it had been included:

     Now, it's my position with the charged offense as it is
     charged in Charge III, that is not an element of the
     charged offense. However, in the abundance of caution, I
     add that as an element in case for some reason the
     appellate courts, if this case goes to the appeals system,
     determines your plea to the. . . [CPPA] charge is
     improvident, it would find that it was service discrediting
     or armed forces discrediting. That is why I have added
     that element.

     Mason indicated his understanding as to why that element

had been added, indicated that he had no questions about any of

the elements and acknowledged that he believed and admitted that

the elements and definitions he had been given, taken together,

correctly described what he had done.   He explained to the

military judge that he had viewed several pictures of "minors

doing lascivious poses" on his government computers and that he

understood the movement of those images over the Internet was

considered movement through interstate commerce.   He admitted

during his discussion with the military judge and in his

stipulation of fact that the images were "child pornography."


                                 6
United States v. Mason, Jr., No. 02-0849/AF

He also admitted during his discussion with the military judge

that his conduct was of a nature to bring discredit upon the

armed forces or was to the prejudice of good order and

discipline.

     B.   The Impact of Free Speech Coalition and O'Connor

     The granted issue asks whether Mason's plea to the charged

offense under clause 3 of Article 134 is provident in light of

the Supreme Court's decision in Free Speech Coalition and our

subsequent decision in O'Connor.       The specified issue asks

whether, in the event of a negative answer to the granted issue,

Mason's guilty plea can nonetheless be upheld as provident to a

lesser-included offense under clauses 1 or 2 of Article 134.      We

turn first to the granted issue.

     1.   The Providence of the Plea Under Clause 3

     As explained to him by the military judge, Mason's conduct

in receiving "child pornography" was charged as a "clause 3"

offense under Article 134, with the "crime or offense not

capital" being a violation of the CPPA.      Thus, the criminal

nature of Mason's conduct, as charged, derived from violating an

independent federal criminal statute proscribing the receipt of

"child pornography."   O'Connor, 58 M.J. at 452.

     The military judge defined the elemental term "child

pornography" to Mason by using portions of its statutory

definition that were later struck down by the Supreme Court in



                                   7
United States v. Mason, Jr., No. 02-0849/AF

Free Speech Coalition.    As occurred in O'Connor, the military

judge's explanation to Mason of the elements of the CPPA offense

utilized terms that were constitutionally overbroad.   The

judge’s explanation made specific reference to visual depictions

that "appear to be" of a minor engaging in sexually explicit

conduct and materials that were pandered in a manner that

"conveys the impression" that they include images of minors

engaging in sexually explicit conduct.   Finally, as was also the

case in O'Connor, the record here contains no clear focus or

discussion on those aspects of the CPPA not affected by the

Supreme Court's ruling, i.e., "actual" child pornography under

18 U.S.C. §§ 2256(8)(A)-(B) or "computer morphed" images of an

identifiable minor under § 2256(8)(C).   O'Connor, 58 M.J. at

452.

       Under our decision in O'Connor, a provident guilty plea to

a violation of the CPPA must reflect that the accused violated

those portions of the statute not affected by the Supreme

Court's ruling in Free Speech Coalition.    58 M.J. at 454.   The

absence of any focus on or discussion concerning those aspects

of the statute in the present record coupled with the use of the

unconstitutionally overbroad definition during Mason's plea

colloquy render this case indistinguishable from O'Connor.

Accordingly, we cannot view Mason's plea of guilty to violating




                                  8
United States v. Mason, Jr., No. 02-0849/AF

the CPPA, and thus to violating clause 3 of Article 134, as

provident.

     2.      The Providence of the Plea Under Clauses 1 and 2

     That conclusion leads us to the specified issue -- can

Mason's guilty plea nonetheless be viewed as provident to a

lesser-included offense under clauses 1 and/or 2 of Article 134?

As noted in O'Connor, we have recognized in the past that an

improvident plea to a clause 3 offense based on a federal child

pornography statute may be upheld as a provident plea to a

lesser-included offense under clause 2 of Article 134.    58 M.J.

at 454 (citing United States v. Augustine, 53 M.J. 95 (C.A.A.F.

2000); United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000)).

     In O’Connor, we ultimately concluded that the guilty plea

could not be viewed as provident to a lesser-included offense

under the approach embodied in Sapp and Augustine.     While

O'Connor had stipulated to the service-discrediting character of

his conduct, there was no discussion of that element by the

military judge during the plea inquiry.    Both Sapp and Augustine

involved admissions by the accused during the plea inquiry as to

the service-discrediting character of their conduct and we

characterized those discussions as demonstrating that the

accused "clearly understood the nature of the prohibited

conduct."    58 M.J. at 454 (quoting Sapp, 53 M.J. at 92).




                                   9
United States v. Mason, Jr., No. 02-0849/AF

     The plea colloquy in O'Connor was focused solely on "the

nature of the prohibited conduct" under the CPPA, without any

discussion or acknowledgement of the criminal nature of the

conduct deriving alternatively (and independently) from its

character as service-discrediting or prejudicial to good order

and discipline.   58 M.J. at 455.    Absent any discussion with the

military judge as to how his conduct might be criminal under

clause 1 or 2 as distinct from criminal under clause 3, we could

not view O'Connor's guilty plea as provident to a lesser-

included offense under clause 2.

     The record here is clearly distinguishable from O'Connor in

terms of the discussion between Mason and the military judge

concerning the character of his conduct as service-discrediting

and prejudicial to good order and discipline.    The military

judge openly explained that those were not elements of the

"crime or offense not capital" that Mason was charged with under

clause 3 and explained why he was including the additional

element.   Mason indicated his understanding as to why the

element had been added.   In the context of his explanations that

he had viewed pictures of "minors doing lascivious poses" and

the images of "child pornography" on his government computer,

Mason then went on to affirmatively admit to the military judge

that his conduct in doing so was both service-discrediting and




                                10
United States v. Mason, Jr., No. 02-0849/AF

to the prejudice of good order and discipline in the armed

forces.

     The record here thus contains what was missing in O'Connor

and was present in both Sapp and Augustine.   The plea colloquy

between the military judge and Mason demonstrates that he

"clearly understood the nature of the prohibited conduct" in

terms of that conduct being service-discrediting and prejudicial

to good order and discipline.   O'Connor, 58 M.J. at 455.    Those

clause 1 and clause 2 elements were explained to him as a basis

for finding his conduct criminal apart from clause 3 and his

discussions with and admissions to the military judge were made

in that context.

     Absent some other distinguishing factor, we could deem

Mason's guilty plea provident as to a lesser-included offense

under clause 1 and clause 2 under the principles embodied in

Sapp and Augustine.   We recognized in O'Connor, however, that

there is a distinguishing factor at play here: the impact of

Free Speech Coalition and its creation of "a constitutional

dimension that was not at issue in Sapp or Augustine."      58 M.J.

at 454.

     That constitutional dimension flows from the Supreme

Court's extension of First Amendment protection to certain

depictions of minors engaging in sexually explicit conduct,

i.e., "virtual" as opposed to "actual" images.   Id. at 454-55.



                                11
United States v. Mason, Jr., No. 02-0849/AF

We expressly acknowledged in O'Connor, but did not answer, the

question as to whether, in the wake of Free Speech Coalition,

the possession, receipt or distribution of images of minors

engaging in sexually explicit conduct (regardless of their

status as "actual" or "virtual") could constitute service-

discrediting conduct for purposes of Article 134.   Id. at 455.

Such inquiry must necessarily be undertaken on a case-by-case

basis.

     In analyzing this constitutional dimension, the ultimate

question is whether the status of the images in the present case

as "virtual" or "actual" is of consequence in the context of

assessing the providence of Mason's guilty plea under clauses 1

and 2.   We conclude that it is not.   The receipt or possession

of "virtual" child pornography can, like "actual" child

pornography, be service-discrediting or prejudicial to good

order and discipline.   Even if we were to assume that the

specific images that serve as the basis for Mason's "child

pornography" charge are "virtual" in nature, this still involves

a commissioned officer of the United States Air Force receiving

and viewing such images on a government computer in his

workplace.   Under those circumstances, the distinction between

"actual" child pornography and "virtual" child pornography does

not alter the character of Mason's conduct as service-

discrediting or prejudicial to good order and discipline.



                                12
United States v. Mason, Jr., No. 02-0849/AF

     Mason stipulated to a sexual maturity assessment of the

images at issue here as depicting children between the ages of

12 and 16.    He acknowledged to the military judge that the

images depicted "minors doing lascivious poses" and constituted

"child pornography."   While the issue as to whether the images

are "virtual" or "actual" may have a potentially dispositive

effect in prosecutions under the CPPA in both civilian and

military settings, it is not inherently dispositive of their

impact on the esteem of the armed forces or good order and

discipline.   Those are the yardsticks by which the criminality

of conduct under clauses 1 and 2 are measured.   As the Supreme

Court recognized:

          While the members of the military are not excluded
     from the protections granted by the First Amendment, the
     different character of the military community and of the
     military mission requires a different application of those
     protections. The fundamental necessity for obedience, and
     the consequent necessity for imposition of discipline, may
     render permissible within the military that which would be
     constitutionally impermissible outside it.

Parker v. Levy, 417 U.S. 733, 758 (1974).    Even assuming the

images at issue here are “virtual,” Mason's conduct in receiving

those images on his government computer can constitutionally be

subjected to criminal sanction under the uniquely military

offenses embodied in clauses 1 and 2 of Article 134.

     Accordingly, we answer the specified Issue II in the

affirmative and conclude that neither Free Speech Coalition nor

our subsequent decision in O'Connor provide a substantial basis


                                 13
United States v. Mason, Jr., No. 02-0849/AF

in law or fact for questioning the providence of Mason's guilty

plea to a lesser-included offense under clauses 1 and 2 of

Article 134.

                           CONCLUSION

     The specification of Charge III is amended to read as

follows:

     In that MAJOR ROBERT L. MASON, JR., United States Air
     Force, 88th Mission Support Squadron, Wright-Patterson Air
     Force Base, Ohio, did, at or near Defense Supply Center,
     Columbus, Ohio, on divers occasions between on or about 8
     July 1998 and on or about 2 November 1999, knowingly
     receive one or more images of child pornography that had
     been mailed, shipped, or transported in interstate or
     foreign commerce by any means, including by computer, in
     violation of 18 U.S.C. 2252A.

The decision of the United States Air Force Court of Criminal

Appeals is affirmed as to Charge III and its specification as

amended, as well as to the remaining Charges and their

specifications and the sentence.




                               14
United States v. Mason, Jr., 02-0849/AF


CRAWFORD, Chief Judge (dissenting in part and concurring in part):

     Because I agree that Appellant’s plea was provident to a

lesser-included offense under clauses 1 and 2 of Article 134,

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.

§ 934 (2000), I concur in the majority’s affirmation of

Appellant’s conviction.   Nevertheless, I disagree that

Appellant’s guilty plea was improvident to the clause 3, Article

134 offense.

     First, Appellant waived the Ashcroft v. Free Speech

Coalition, 535 U.S. 234 (2002), issue by failing to address it

at trial.

     When Appellant learned of his charge under Article
     134, clause [3], for violating the Child Pornography
     Prevention Act (CPPA), 18 U.S.C. § 2252A (2000), he
     neither took exception to the charge generally, nor
     alleged that the basis for the charge – the CPPA – was
     unconstitutionally vague and overbroad. In so doing,
     Appellant cannot now be afforded relief on the very
     grounds he himself failed to raise, and therefore
     waived.

United States v. O’Connor, 58 M.J. 450, 456 (C.A.A.F. 2003)

(Crawford, C.J., dissenting).

     Moreover, the record establishes Appellant’s understanding

that the pornographic images based on which he was convicted

depicted actual minors.

          When evaluating the providence of a guilty plea,
     “[r]ather than focusing on a technical listing of the
     elements of an offense, this Court looks at the
     context of the entire record to determine whether an
     accused is aware of the elements, either explicitly or
United States v. Mason, Jr., 02-0849/AF


     inferentially.” United States v. Redlinski, 58 M.J.
     117 (C.A.A.F. 2002)(emphasis added). “[T]here need
     only be ‘factual circumstances’ on the record ‘which
     “objectively” support’ the guilty pleas, i.e., that
     actual minors were in appellant’s pictures.” United
     States v. James, 55 M.J. 297, 300 (C.A.A.F. 2001)
     (quoting United States v. Shearer, 44 M.J. 330, 334
     (C.A.A.F. 1996)).

          In James, this Court considered the following
     colloquy in evaluating the providence of the
     appellant’s guilty plea to violating the pre-Free
     Speech Coalition CPPA:

          Q. The term “child pornography” [under the CPPA]
          means any visual depiction . . . involv[ing] the
          use of a minor engaging in sexual [sic] explicit
          conduct. Such visual depiction is or appears to
          be of a minor engaging in sexually explicit
          conduct[.]

          . . . .

          Q. Now, why do you believe that - as far as
          describes those files - why you believe the files
          to be described as child pornography?

          A. Well, they depicted young females under the
          age of eighteen, which as you stated, that they,
          uh, they are minors. I believe that the pictures
          depicted minors under the age of eighteen and at
          least four contained minors engaged in sexual
          activity.

          . . . .

          Q. Do you believe that one of those persons
          involved in that conduct was a minor?

          A. I believe the person in the picture was under
          eighteen, yes, sir.

     55 M.J. at 301 (emphasis added). The Court noted that
     through these words, the appellant “admitted that
     actual minors were in the charged pictures” and that
     these admissions were “amply supported by the pictures
     themselves.” Id. at 300-01. The Court then concluded


                                2
United States v. Mason, Jr., 02-0849/AF


     that “the factual circumstances reflected in the
     record ‘objectively support’ appellant's guilty pleas
     to possessing and transporting child pornography
     depicting actual minors.” Id. (emphasis added). In
     short, although the appellant did not supply the
     adjectives “real” or “actual,” and although the judge
     defined “pornography” in pre-Free Speech Coalition
     terms, this Court inferred from the language the
     appellant did use – “young females” and “minors” –
     that the images involved actual minors. See
     Redlinski, 58 M.J. at 117 (noting that providence may
     be confirmed by the record inferentially).

Id. at 456-57.

     In the instant case, Appellant admitted during the

providence inquiry that “[s]everal of the pictures [he’s] looked

at were child pornography, that is, minors doing lascivious

poses” and that the pictures he viewed on his computer were

“images of naked children.”   Moreover, in his stipulation of

fact, Appellant listed the internet sites from which he obtained

child pornography.   He then admitted as follows: “All of the

images listed directly above and as attached to this stipulation

of fact depict children who are between the ages of 12 and 16

according to a sexual maturity assessment.”   The descriptive

terminology Appellant used – “naked children,” “minors,” and

“children who are between the ages of 12 and 16” – was very

similar to the terminology in James, particularly given the near

equivalency in meaning of the words “minor” and “child.”   See

Black’s Law Dictionary 1011 (7th ed. 1999)(defining “minor” as

“[a] person who has not reached full legal age; a child or



                                 3
United States v. Mason, Jr., 02-0849/AF


juvenile”)(emphasis added).   Finally, as in James and O’Connor,

the pictures attached to the record in this case amply support

Appellant’s awareness that the images involved actual minors.

     For these reasons, I would hold Appellant’s plea provident

to the clause 3, Article 134 offense.   In any event, I concur in

the majority’s result, as I would also hold Appellant’s plea

provident to a lesser-included offense under clauses 1 and 2 of

Article 134.




                                 4
