UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                          MULLIGAN, FEBBO, and SCHASBERGER
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                     Specialist CHRISTOPHER H. MEREDITH
                           United States Army, Appellant

                                      ARMY 20170178

                     U.S. Army Military District of Washington
                  Daniel G. Brookhart, Military Judge (arraignment)
                       Chad T. Sarchio, Military Judge (trial)
                   Colonel John P. Carrell, Staff Judge Advocate

For Appellant: Lieutenant Tiffany M. Chapman, JA; Captain Joshua B. Fix, JA;
Captain Augustus Turner, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Austin L. Fenwick, JA; Captain Sandra L. Ahinga, JA (on brief).

                                        7 August 2018
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of violating a lawful general regulation,
one specification of communicating a threat, and one specification of violating 18
U.S.C. § 1030(a)(2), in violation of Articles 92 and 134 of the Uniform Code of
Military Justice, 10 U.S.C. §§ 892 and 934 [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for forty-five days,
forfeiture all pay and allowances, and reduction to the grade of E-1. The convening
authority approved the adjudged sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
asserts–and the government concedes–his conviction under Article 134, UCMJ, for
violating 18 U.S.C. § 1030(a)(2) in obtaining a sex video of a subordinate and her
MEREDITH—ARMY 20170178

husband is legally and factually insufficient. 1 We agree and grant relief in our
decretal paragraph. As we are granting relief, the government suggests we remand
this case for a sentence reassessment. We reject that suggestion and, based upon our
relief, reassess the sentence.

                                   BACKGROUND

       In 2015, appellant, then a Sergeant, 2 was assigned as the Non-Commissioned
Officer-in-Charge (NCOIC) at one of the clinics at the Fort Belvoir Community
Hospital, a joint military medical facility. Appellant supervised several Navy junior
enlisted sailors. Appellant also socialized with them off-duty at bars and their
homes.

       Appellant was particularly close to Hospitalman (HN) 3 SS and her husband,
KS. They trusted appellant enough to ask him on occasion to dog-sit and stay at
their apartment while they were away. On one such occasion, appellant contacted
KS to get their computer password in order to watch movies on Netflix. KS gave
appellant the password, thinking appellant would only use it to go on the internet
and to watch Netflix movies. Instead, appellant, without their permission, searched
their private folders on an external hard-drive, located sex videos HN SS and KS had
recorded of themselves, and downloaded copies onto three of appellant’s electronic
devices.

       Appellant also associated off-duty with HN EA, another seaman under his
charge. Hospitalman EA worked with HN SS and knew KS. Appellant attempted to
show one of the purloined sex videos to HN EA, explaining the videos were of the
HN SS and KS engaging in sex acts. Hospitalman EA had no interest in violating
their privacy, declined appellant’s offer, and got up to leave. Appellant grabbed HN
EA’s arm and warned that if HN EA revealed appellant possessed the ill-gotten sex
videos, appellant would “fuck up [HN EA’s] life.” Hospitalman EA interpreted this
as a real threat and became concerned it could negatively impact his career.

       Appellant associated off-duty with a third Navy subordinate, HN TH. In late
April to early May 2015, after drinking together at a barracks barbeque, appellant
and HN TH had sexual intercourse. Appellant recorded the sexual encounter on his


1
 Upon due consideration, we find the matters raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), lack merit.
2
 In 2016, appellant accepted nonjudicial punishment under Article 15, UCMJ, for
making a false official statement and was reduced to the grade of E-4.
3
    A Hospitalman is the Navy’s equivalent grade of an Army Private First Class, E-3.
.


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MEREDITH—ARMY 20170178

phone. 4 Appellant also had sexual intercourse with HN TH on another occasion
when she was on temporary duty at Marine Corps Base Quantico, Virginia.
Afterward, appellant sent HN TH a link to the video that he had of the two of them
engaged in sexual acts. Since he had shown her HN SS’s sex video, HN TH was
concerned he would also show the video he had of them engaging in sexual acts.
Appellant would ask people–in the presence of HN TH–if they wanted “to see
something.”

      Hospitalman TH eventually told HN SS that appellant possessed the sex
videos of HN SS and KS. The Army Criminal Investigation Command (CID)
eventually investigated the allegations. Afterward, appellant was charged with a
number of offenses to include intentionally accessing a computer “without
authorization” and obtaining HN SS’s and KS’s sex videos.

                                   DISCUSSION

      Specification 1 of Charge II alleged appellant violated the Computer Fraud
and Abuse Act (CFAA), 10 U.S.C. § 1030, by obtaining the sex videos from HN
SS’s and KS’s computer. We agree with the parties that the evidence for the Article
134 offense assimilating the CFAA, specifically, 18 U.C.S. § 1030(a)(2), was legally
and factually insufficient. 5 We therefore dismiss this specification in our decretal
paragraph.


4
  The recording was introduced at trial. The military judge acquitted appellant of
the charge under Article 120c, UCMJ, based on this video. The military judge
convicted appellant under Article 92, UCMJ, of violating Army Regulation 600-20,
Personnel-General: Army Command Policy, para. 4-14(c)(2) (6 Nov. 2014), by
having a sexual relationship with HN TH.
5
 As this case demonstrates, the novelty of an assimilative charging decision under
Article 134 often wears off during the course of an appeal. The government alleged
appellant did:

             “intentionally access a computer without authorization
             obtaining information from a protected computer in
             furtherance of committing a criminal offense under Article
             120(c) [sic] of the Uniform Code of Military Justice, 5 in
             violation of 18 U.S. Code Section 1030(a)(2), such
             conduct being to the prejudice of good order and
             discipline in the armed forces.”

(emphasis added).

                                                                     (continued . . .)


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MEREDITH—ARMY 20170178


       Appellant simply asks this court reassess the sentence in light of our dismissal
of Specification 1 of Charge II. In an unusual twist, the government asks us to send
this case back to the convening authority for a sentence rehearing, arguing that the
gravamen of the misconduct of which appellant was found guilty was the violation
of the CFAA and pointing out HN EA and HN TH did not testify about the impact of
the offenses during sentencing. We disagree.

        In accordance with the principles articulated by our superior court in United
States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v.
Sales, 22 M.J. 305 (C.M.A. 1986), we are able to reliably reassess the sentence on
the basis of the error noted and do so after conducting a thorough analysis of the
totality of circumstances presented by appellant’s case.

       First, our decision to dismiss one specification did not dramatically change
the penalty landscape. The maximum sentence to confinement changed from six to
five years. 6 If gauged by punitive exposure, the assimilated Article 134, UCMJ


(. . .continued)
It is clear to us from the record that the facts did not support the charge as drafted.

18 U.S.C. § 1030(a)(2)(C) prohibits an individual from “intentionally access[ing] a
computer without authorization or exceed[ing] authorized access” and thereby
obtaining “information from any protected computer.” (emphasis added). That is,
this provision provides for two different theories of criminal liability. While
“without authorization” is not defined in the CFAA, courts have construed the plain
meaning of the phrase to mean “without permission.” Amphenol Corp. v. Paul, 993
F.Supp. 2d 100, 109 (D. Conn. 2014) (citation omitted). The phrase “exceeds
authorized access,” by contrast, means “to access a computer with authorization and
to use such access to obtain or alter information in the computer that the accesser is
not entitled so to obtain or alter[.]” 18 U.S.C. § 1030(e)(6).

The evidence presented at trial clearly demonstrated KS granted appellant access to
his computer. Appellant, in obtaining the videos, exceeded the access granted.
Appellant did not access HN SS’s and KS’s computer “without authorization.” In
other words, the government chose the wrong theory in pursuing this charge.
6
 The military judge did not discuss with counsel or announce on the record the
maximum punishment based upon the findings of guilty. We calculated the
maximum sentence to confinement at trial to be six years: two years for violating

                                                                         (continued . . .)




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MEREDITH—ARMY 20170178

specification that we dismiss here was the least serious of the offenses committed by
appellant.

       Second, appellant elected to be tried by a military judge. As our superior
court noted in Winckelmann, judges of this court, by logic, are “more likely to be
certain of what a military judge would have done as opposed to members.” 73 M.J.
at 16. This factor becomes more relevant “where charges address service custom,
service discrediting conduct or conduct unbecoming.” Id. Here, the remaining
charges address military-specific offenses, being a violation of a regulation
prohibiting unprofessional relationships and a violation of Article 134 in
communicating a threat, the later asserting both prejudice to good order and
discipline and service discrediting conduct. Assessing this Winckelmann factor, we
determine these charges are squarely within our wheelhouse.

        Third, we disagree with the government that the “gravamen of the misconduct
for which appellant was found guilty is the violation of the CFAA.” The remaining
offenses involved an NCO who threatened one subordinate and violated an Army
regulation by having a sexual, unprofessional relationship with another young
enlisted subordinate. This was a constant theme throughout all of the charges at
trial, to include the violation of the CFAA. The government notes that HN SS and
KS, the victims of the charged CFAA violation, were the only witnesses called by
the government on sentencing. 7 This ignores the underlying conduct–appellant
obtaining the sex videos–was part and parcel of the offense of communicating a
threat to HN EA. For that offense, the fact that the videos were of a co-worker and
her husband contributed to HN EA’s negative reaction when they were presented by
appellant. This reaction, and again, the parties involved in the video, weighed in the
equation of whether appellant’s threat was real and the impact on good order and
discipline and service discrediting nature of appellant’s criminal conduct. In this
regard, the nature of the sex videos obtained from a subordinate co-worker was an
aggravating factor relevant and admissible during findings and on the issue of
sentencing.

      Fourth, the government concedes that this court has extensive experience in
dealing with the remaining offenses of communicating a threat and failure to obey a


(. . . continued)
Article 92, UCMJ; three years for communicating a threat; and one year for the 18
U.S.C. § 1030 offense assimilated under Article 134. A violation of section 18
U.S.C. § 1030(a)(2) is punishable by a fine or a one-year prison term unless certain
aggravating factors apply. See 18 U.S.C. § 1030(c)(2)(A). Although the
government charged the “aggravating factor” of “in furtherance of a criminal
offense,” the military judge effectively dismissed this language before findings.
7
 For sentencing the military judge and this court can consider the testimony of HN
EA and HN TH introduced during findings. See R.C.M. 1001(f)(2)
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MEREDITH—ARMY 20170178

lawful regulation. We also have experience in weighing offenses that ostensibly
involve an abuse of position by an NCO over junior enlisted members and the
caustic effect of such conduct.

       After considering the totality of circumstances, we are confident that based on
the entire record and appellant’s course of conduct, the military judge would have
imposed a sentence of at least a bad-conduct discharge and reduction to the grade of
E-1. Therefore, reassessing the sentence based on the noted error and the remaining
findings of guilty, we will only affirm so much of the sentence as provides for a bad-
conduct discharge and reduction to the grade of E-1. This reassessed sentence is not
only purged of any error but is also appropriate.


                                  CONCLUSION

       Specification 1 of Charge II is SET ASIDE and DISMISSED. The remaining
findings of guilty are AFFIRMED. We AFFIRM only so much of the sentence as
extends to a bad-conduct discharge and reduction to the grade of E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by our decision, are ordered restored.

      Senior Judge MULLIGAN and Judge SCHASBERGER concur.


                                       FOR THE COURT:




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




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