                       UNITED STATES, Appellee

                                    v.

                       Marc R. REEVES, Sergeant
                         U.S. Army, Appellant

                              No. 03-0595

                       Crim. App. No. 20010497

       United States Court of Appeals for the Armed Forces

                       Argued February 23, 2005

                     Decided September 29, 2005

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

                                 Counsel

For Appellant: Captain Karen W. Riddle (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G.
Lambert (on brief); Colonel Robert D. Teetsel and Captain
Gregory M. Kelch.

For Appellee: Captain Mason S. Weiss (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Lieutenant
Colonel Theresa A. Gallagher (on brief); and Captain Janine P.
Felsman.

Amicus Curiae for Appellee: Damian P. Richard (law student)
(argued); Gregory M. Huckabee (supervising attorney) (on brief) –
for the University of South Dakota School of Law.

Military Judge:   Kenneth H. Clevenger

       This opinion is subject to revision before final publication.
     Judge ERDMANN delivered the opinion of the court.1

     Sergeant Marc R. Reeves was convicted of violating certain

provisions of the Child Pornography Prevention Act of 1996

(CPPA),2 charged as a “crime or offense not capital” under the

third clause of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2000).   This is the same statute we

addressed in United States v. O’Connor, 58 M.J. 450 (C.A.A.F.

2003), and more recently United States v. Martinelli, 61 M.J.

___ (C.A.A.F. 2005).   As in Martinelli, the conduct underlying

Reeves’ convictions occurred in Germany.   We granted review of

this case to examine the extraterritorial application of the

CPPA and the effect of that issue on the underlying charges in

this case.

     In Martinelli we considered whether the CPPA had

extraterritorial application and concluded that it did not.

Consistent with Martinelli, we hold that the three sections of

the CPPA under which Reeves was charged do not extend to his

conduct in Germany.    We further hold that none of Reeves’

conduct in Germany continued into the United States.     Thus, none


1
  We heard oral argument in this case at the University of South
Dakota School of Law, Vermillion, South Dakota, as part of this
court’s “Project Outreach.” This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military justice system.
2
  The CPPA consists of §§ 18 U.S.C. 2251, 2252, 2252A,
2260(b)(2000).

                                  2
of Reeves’ conduct falls within the domestic application of the

CPPA.    We also hold that Reeves’ guilty pleas to the CPPA-based

Article 134, clause 3 specifications cannot be deemed provident

as to lesser included offenses under either Article 134, clauses

1 or 2.

                         PROCEDURAL BACKGROUND

        Reeves entered guilty pleas and was convicted by a general

court-martial in April and May of 2001 of violating a lawful

general regulation in violation of Article 92, UCMJ, 10 U.S.C. §

892 (2000), and possessing child pornography, receiving child

pornography, and using a minor to engage in sexually explicit

conduct for the purpose of producing a visual depiction of such

conduct in violation of the CPPA as a “crime or offense not

capital” under clause 3 of Article 134, UCMJ.

        Reeves was sentenced to a dishonorable discharge,

confinement for fifty-six months, forfeiture of $250.00 pay per

month for twelve months, reduction to pay grade E-1, and a

reprimand.    Pursuant to a pretrial agreement, the convening

authority reduced the confinement to thirty-six months and

approved the balance of the sentence.    The United States Army

Court of Criminal Appeals affirmed the findings but deleted a

portion of the reprimand3 and affirmed the remaining sentence.


3
  The Court of Criminal Appeals deleted that portion of the
reprimand that referred to “distributing” child pornography

                                   3
We granted review to determine whether Reeves’ conviction of

possessing, receiving, and producing child pornography, charged

under clause 3 of Article 134, could be upheld in light of

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).4       We

specified five additional issues addressing whether the CPPA had

extraterritorial application.5



because Reeves did not distribute child pornography. United
States v. Reeves, No. ARMY 20010497, slip op. at 2 (A. Ct. Crim.
App. May 30, 2003).
4
  We granted review of the following issue raised by appellate
defense counsel:

             WHETHER THE ARMY COURT OF CRIMINAL APPEALS
             ERRED IN UPHOLDING APPELLANT’S CONVICTION
             UNDER THE CHILD PORNOGRAPHY PROTECTION [sic]
             ACT, 18 U.S.C. § 2251, ET SEQ., DESPITE THE
             SUPREME COURT’S PRONOUNCEMENT THAT THE CPPA
             DEFINITION OF CHILD PORNOGRAPHY IS
             UNCONSTITUTIONAL, ASHCROFT v. FREE SPEECH
             COALITION, 535 U.S. 234 (2002), AND THIS
             COURT’S DECISION THAT ASHCROFT v. FREE
             SPEECH COALITION REQUIRES THAT ACTUAL MINORS
             WERE USED IN PRODUCING THE PORNOGRAPHIC
             IMAGES. SEE UNITED STATES v. O’CONNOR, 58
             M.J. 450 (C.A.A.F. 2003).

United States v. Reeves, 60 M.J. 376-77 (C.A.A.F. 2004)(order).
5
    The specified issues were:

       I.    WHETHER 18 U.S.C. § 2252A(a)(2), WHICH IN PART
             PROSCRIBES KNOWING RECEIPT OF CHILD PORNOGRAPHY
             THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS
             EXTRATERRITORIAL APPLICATION.

       II.   WHETHER 18 U.S.C. § 2252A(a)(5), WHICH PROSCRIBES
             KNOWING POSSESSION OF CHILD PORNOGRAPHY “ON ANY
             LAND OR BUILDING OWNED BY, LEASED TO, OR
             OTHERWISE USED BY OR UNDER THE CONTROL OF THE

                                   4
                         FACTUAL BACKGROUND

     A. Specifications 1 and 2:   Receiving and Possessing Child
        Pornography

     Sergeant Reeves was assigned to the 502d Engineer Company

of the 565th Engineer Battalion located at Pioneer Kaserne, a

United States Army installation, in Hanau, Germany.   He resided

with his family at New Argonner Kaserne, another U.S. Army

installation in Hanau.   On a number of occasions from March to

December 2000, Reeves went to the public library at Pioneer

Kaserne and used the library computers to sign on to the

Internet.




            U.S. GOVERNMENT,” HAS EXTRATERRITORIAL
            APPLICATION.

     III. WHETHER 18 U.S.C. § 2251(a), WHICH IN PART
          PROSCRIBES USING A MINOR TO ENGAGE IN SEXUALLY
          EXPLICIT CONDUCT FOR THE PURPOSE OF PRODUCING A
          VISUAL DEPICTION OF THAT CONDUCT USING MATERIAL
          THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS
          EXTRATERRITORIAL APPLICATION.

     IV.    WHETHER 18 U.S.C. § 2252A(a)(2) IS BEING APPLIED
            DOMESTICALLY OR EXTRATERRITORIALLY WHEN APPLIED
            TO THE ACT OF DOWNLOADING AND RECEIVING CHILD
            PORNOGRAPHY AT A COMPUTER LOCATED IN GERMANY WHEN
            THAT MATERIAL WAS “SENT FROM THE U.S. THROUGH THE
            INTERNET.”

     V.     WHAT EFFECT, IF ANY, IS THERE ON APPELLANT'S
            GUILTY PLEA TO RECEIVING CHILD PORNOGRAPHY IN
            VIOLATION OF 18 U.S.C. § 2252A(a)(2), FROM
            APPELLANT’S ADMISSION DURING THE PROVIDENCE
            INQUIRY THAT THE IMAGES “WERE SENT FROM THE U.S.
            THROUGH THE INTERNET TO ME.”



                                  5
     Once on the Internet, Reeves would enter “teen” chat rooms

where he would communicate with individuals who indicated they

were twelve to fifteen years old.    Reeves received e-mail that

contained digital images, including images of minors “in a state

of nudity involving a lewd exhibition or graphic focus on a

minor’s genitals.”   Reeves also belonged to “e-mail distribution

groups” from which he automatically received child pornography.

Reeves would download and view these images on the library

computers and print them out on the library printers.   After his

conduct was discovered and reported to law enforcement, various

printed images containing child pornography were found in

Reeves’ vehicle and in his quarters.

     Based upon these facts, Reeves was charged with the

following violations of the CPPA under clause 3 of Article 134:

     Specification 1: . . . at or near Hanau, Germany, on land
     used by and under the control of the United States
     Government, to wit: New Argonner Kaserne, between on or
     about 01 March 2000 and 05 December 2000, knowingly and
     wrongfully possess[ed] about 46 computer printouts
     containing child pornography in violation of Title 18 U.S.
     Code § 2252A(a)(5)(A).

     Specification 2: . . . at or near Hanau, Germany, between
     on or about 01 March 2000 and 05 December 2000, knowingly
     and wrongfully receive[d] child pornography that had been
     transported in interstate commerce or foreign commerce by
     means of a computer to wit: downloading electronic files
     containing child pornography from the internet and copying
     said files onto the hard drive of a computer located at the
     Pioneer Library in Hanau, Germany in violation of 18 U.S.
     [Code] § 2252A(a)(2).




                                 6
  B.    Specification 3: Producing a visual depiction of a minor
        engaged in sexually explicit conduct

       The facts underlying this offense occurred in the summer of

2000 when Reeves used a camcorder to videotape “two little

German girls” near the Main River in Hanau, Germany.       (PE 1).

From a distance of about 200 feet, Reeves filmed the girls,

focusing in on their “genital areas”, and focusing in particular

on one of the girls “in a way to see into the little girl’s

shorts” and intending “to satisfy [his] lust.”

       Based upon these facts, Reeves was charged with the

following violation of the CPPA under clause 3 of Article 134:

       Specification 3: at or near Hanau, Germany, on or about
       between May 2000 and August 2000, use[d] a minor to engage
       in sexually explicit conduct for the purpose of producing a
       visual depiction of such conduct using material that had
       been mailed, shipped or transported in interstate commerce
       or foreign commerce in violation of 18 U.S. [Code] §
       2251(a).

                                 DISCUSSION

       A.   Standard of Review

       This case involves a guilty plea.      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)).

Whether Congress intended 18 U.S.C. §§ 2251(a) and 2252A(a)(2)

and (a)(5)(A) to have extraterritorial application is a question



                                     7
of statutory interpretation.     Interpretation of a statute and

its legislative history are questions of law that we review de

novo.    United States v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999);

Martinelli, 61 M.J. at ___ (8).

        B.   The Nature of the Charge under Article 134

        Reeves’ possession, receipt and production of child

pornography were charged as violations of Article 134, UCMJ --

the “General Article.”     Conduct is punishable under Article 134

if it prejudices “good order and discipline in the armed forces”

(clause 1), if it is “of a nature to bring discredit upon the

armed forces” (clause 2), or if it is “a crime or offense not

capital” (clause 3).     O’Connor, 58 M.J. at 452; Martinelli, 61

M.J. at __ (8).     As was the case in both O’Connor and

Martinelli, Reeves’ offenses under Article 134 were specifically

charged as “clause 3” offenses, with 18 U.S.C. §§ 2251(a) and

2252A(a)(2) and (a)(5)(A) serving as the “crimes or offenses not

capital.”

        As in Martinelli, the principal issue that we specified for

review is whether the CPPA applies to Reeves’ conduct in

Germany.     If we find that the CPPA is not applicable to Reeves’

conduct in Germany, we must then consider whether, due to the

nature of his usage of the Internet, his conduct fell within the

domestic application of the CPPA.       Finally, if we find that

Reeves’ pleas were improvident under clause 3 of Article 134, we


                                    8
must determine whether they would be provident to a lesser

included offense under clause 1 or 2 Article 134.

  C.    The Extraterritorial Application of the CPPA

       (1) Extraterritorial Application of § 2252A

       In Martinelli this court determined that § 2252A did not

apply extraterritorially to Martinelli’s conduct in Germany.

Under the rationale of United States v. Bowman, 260 U.S. 94

(1922) and Equal Employment Opportunity Commission v. Arabian

American Oil Co. (Aramco), 499 U.S. 244, 248 (1991), we

concluded that the CPPA is subject to a presumption against

extraterritoriality and that there was nothing in the language

of the statute or the legislative history to overcome this

presumption.   Martinelli, 61 M.J. at __ (25-26).    As a result

there was a substantial basis on which to question the

providence of Martinelli’s guilty plea to the CPPA-based clause

3 offenses resulting from conduct occurring in Germany.

       Reeves’ receipt and possession of child pornography –-

charged under § 2252A –- also occurred in Germany and in that

respect this case is indistinguishable from Martinelli.

Therefore, consistent with our holding in Martinelli, we find

that § 2252A does not have extraterritorial application and is

inapplicable to Reeves’ conduct in Germany.




                                  9
     (2)   Extraterritorial Application of § 2251(a)

     Unlike Martinelli, Reeves was also charged with producing a

visual depiction of sexually explicit conduct by a minor in

violation of § 2251(a).   We have not previously considered the

question of the extraterritorial application of § 2251(a).6

     As with § 2252A, we begin with a presumption against

extraterritoriality.   The Supreme Court has recognized as a

longstanding principle of American law “that legislation of

Congress, unless a contrary intent appears, is meant to apply

only within the territorial jurisdiction of the United States.”

Aramco, 499 U.S. at 248 (quoting Foley Bros. v. Filardo, 336

U.S. 281, 285 (1949)).    As we stated in Martinelli, we must

assume that Congress legislates against the backdrop of this

presumption.   Martinelli, 61 M.J. at ___ (10).   Moreover,

offenses created by the CPPA do not fall within the Bowman

exception to the presumption against extraterritoriality.     Id.

at ___ (12) (citing United States v. Bowman, 260 U.S. at 97-98,

for the proposition that certain “criminal statutes which are,

as a class, . . . enacted because of the right of the government

to defend itself against obstruction, or fraud wherever

perpetrated” are not accorded a presumption of


6
  Section 2251(a) was originally enacted in 1978 as part of the
Protection of Children Against Sexual Exploitation. It was
amended a number of times over the years and in 1996 it was
incorporated into the CPPA.

                                 10
extraterritoriality).    We look next “to see whether ‘language in

the [relevant statute] gives any indication of a congressional

purpose to extend its coverage beyond places over which the

United States has sovereignty or some measure of legislative

control.’”    Aramco, 499 U.S. at 1230 (quoting Foley Bros., 226

U.S. at 285); see also Small v. United States, 125 S. Ct. 1752

(2005).    To answer this question we look at the text of the

statute, its structure and its legislative history.    Martinelli,

61 M.J. at __ (15-16).

     (a)     Text and Structure

     As in Martinelli, the statutory section in question

includes references to “interstate and foreign commerce.”    This

language is “not, in and of [itself], a ‘clear expression’ of

any congressional intention that the acts proscribed by the

statute constitute a federal crime no matter where in the world

they occur.”    Id. at __ (18).   As in Martinelli, we decline to

find congressional intent for extraterritorial application based

solely on the use of the words “interstate and foreign

commerce.”7


7
  Our discussion of Congress’ intent is also informed by an
analysis of the “Territory or Possession of the United States”
language in § 2251. Although this phrase refers to physical
locations outside of the fifty United States, it is not a broad
or all encompassing phrase. The “territories” of the United
States are generally defined as including Guam, the United
States Virgin Islands and American Samoa, as well as the
Commonwealths of Puerto Rico and the Northern Mariana Islands.

                                  11
     In addition, Congress’ intent to limit the reach of

§ 2251(a) is made more clear by reference to § 2260.   In 1994,

Congress adopted § 2260, which specifically targets “[a] person

who, outside the United States, employs, uses, persuades,

induces, entices, or coerces any minor to engage in . . . any

sexually explicit conduct for the purpose of producing any

visual depiction of such conduct . . . .”   Emphasis supplied.

In other words, there is another statutory section that

addresses all of the same acts when such acts are committed

outside of the United States with the intent that the materials

be sent into the United States.    If Congress intended § 2251(a)

to apply extraterritorially, there would have been no need for

§ 2260 because such behavior would already have been

criminalized regardless of whether the accused intended to

import the visual depictions into the United States.




See Daniel H. MacMeekin, The Overseas Territories and
Commonwealths of the United States of America (2000), available
at http://www.macmeekin.com/Library/terr+commonw2.htm. The
United States also asserts sovereignty over, and administers, a
number of small islands which do not have permanent populations.
These islands are often referred to as “possessions”. These
include Howland, Baker, and Jarvis Islands; Kingman Reef; and
Johnson, Palmyra, Wake, and Midway Atolls, all in the Pacific;
and Navassa Island in the Caribbean. Id. Congress’ decision to
use the phrase “Territories and Possessions of the United
States” suggests that Congress wished to limit the statute’s
application rather than to broaden it.


                                  12
       (b)   Legislative History

       Having concluded that the text and structure of § 2251(a)

do not express any clear intent by Congress that the statute

apply extraterritorially, we turn to its legislative history.

We conclude that it too gives no indication that Congress

intended § 2251(a) to apply extraterritorially.   The clear focus

of that legislative history is on the patent evils of child

pornography and the concern that “child pornography and child

prostitution have become highly organized multimillion dollar

industries that operate on a nationwide scale.”   S. Rep. No. 95-

438, at 5 (1977).    Although the history of § 2251(a) contains

extensive discussion of the nationwide problem of child

pornography, it does not discuss issues of extraterritoriality,

much less include any clear expression of congressional intent

in that regard.

  D.     The Domestic Application of the CPPA

       In Martinelli, we also considered whether any of

Martinelli’s conduct could be characterized as domestic conduct

as he had stipulated that all of the e-mails that he sent or

received were routed through servers in the United States.    61

M.J. at ___ (26-27).    We concluded in that case that the act of

“sending” e-mails containing child pornography was a “continuing

offense” because Martinelli’s conduct continued as the e-mail

traveled through the Internet to its destination.   Id. at ___


                                   13
(29).    Because the e-mails in Martinelli traveled through the

United States en route to their destination, we found that the

sending offense occurred in both Germany and the United States

and therefore the CPPA applied domestically to that

specification.    Id.

        We went on to conclude that other specifications, which

charged Martinelli with “receiving child pornography” and

“reproducing child pornography for distribution”, were not

“continuing offenses” as they did not involve any conduct that

started in Germany and continued into the United States.

Therefore, there was no domestic application of the CPPA

available for those offenses.    Here, as in Martinelli, each

specification alleges different conduct and each must be

examined individually.

        Specification 1 (possession):    This specification charged

Reeves with violating 18 U.S.C. § 2252A(a)(5)(A) by possessing

child pornography on land used by and under the control of the

United States Government.    This specification is a “situs” based

possession charge and does not allege movement of child

pornography through the Internet.       The principle of “continuing

jurisdiction” is therefore inapplicable to this specification

and there is no basis for finding a domestic application of the

CPPA.




                                  14
        Specification 2 (receiving):   This specification charged

Reeves with violating 18 U.S.C. § 2252A(a)(2) by receiving child

pornography that had been transported through the Internet.

Reeves admitted during his providence inquiry that the images

were “sent from the U.S. through the Internet to me.”     Had

Reeves been charged with “sending” e-mails containing child

pornography through the Internet, the principle of a “continuing

offense” may have established domestic U.S. application of the

CPPA.    However, Reeves was charged with “receiving”8 e-mails

containing child pornography.    Here, Reeves did not knowingly

receive the images until he accessed the pictures in Germany and

the act of opening the images did not trigger a chain of events

that continued into the United States.     His conduct therefore

can not be subject to a domestic U.S. application of the CPPA.

Martinelli, 61 M.J. at ___ (30).9




8
  The military judge defined “receiving” as “to take into one’s
possession and control or accept custody of . . . .”
9
 With respect to the question of whether all of the email
messages in Reeves’ Excite account were “resident” on Internet
servers located in the United States, Excite.com (which was
operated by At Home or Excite@Home until the company declared
bankruptcy in late 2001) had both domestic and international
operations during the time period in which Reeves was using his
excite.com account to receive child pornography. See At Home
Corporation, Form 10-K, Annual Report for Fiscal Year 2000,
available at
http://www.sec.gov/Archives/edgar/data/1020620/00010128700100149
8/0001012870-01-001498-0001.txt (“We also lease space at smaller
facilities in various locations throughout the

                                  15
       Specification 3 (production):    This specification charged

Reeves with violating 18 U.S.C. § 2251(a) by using a minor to

engage in sexually explicit conduct for the purpose of producing

a visual depiction of such conduct.     Although Reeves admitted

that the camcorder he used to videotape the German girls had

been manufactured in Japan, purchased in the United States and

transported by him to Germany, in videotaping the girls he did

not begin any conduct that continued into the United States.

His conduct occurred entirely in Germany and there can be no

domestic application of the CPPA.      Martinelli, 61 M.J. ___ (29-

30).

       In summary, none of acts identified in the specifications

in Charge II constitute a “continuing offense” and therefore

there can be no domestic application of the CPPA in this case.

       E. The Possibility of Lesser Included Offenses

       The conclusion that Reeves’ guilty pleas are not provident

under clause 3 of Article 134 does not end our inquiry.     We have

recognized in the past that an improvident plea to a CPPA-based

clause 3 offense may, under certain circumstances, be upheld as

a provident plea to a lesser included offense under clause 2 of

Article 134.   See, e.g., United States v. Augustine, 53 M.J. 95


United States as well as in several international locations.”).
Reeves admitted only that images were sent to him from the U.S.
“through the Internet . . . .” The record does not include any
information about where the servers on which his opened and
unopened email messages were located.

                                 16
(C.A.A.F. 2000); United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F.

2000); O’Connor, 58 M.J. at 454–55; United States v. Mason, 60

M.J. 15, 20 (C.A.A.F. 2004); Martinelli, 61 M.J. at __ (35).

The question is whether those circumstances are present in

Reeves’ case.

     Augustine and Sapp were two pre-Free Speech Coalition10

cases where:

     the guilty pleas . . . were entered to a violation of
     Article 134, clause 3, based on possession of child
     pornography in violation of the CPPA. As in this case, the
     guilty pleas were found to be improvident as to the clause
     3 offense in light of certain requirements under the CPPA
     that were not established in the record. In those cases,
     however, we concluded that the guilty pleas were provident
     as to the lesser-included offense of engaging in “conduct
     of a nature to bring discredit upon the armed forces” under
     clause 2 and upheld the convictions under Article 134.
     Augustine, 53 M.J. at 96; Sapp, 53 M.J. at 92.

O’Connor, 58 M.J. at 454.   Sapp and Augustine dealt with the

possibility of a lesser included offense under clause 2 of

Article 134 where a guilty plea to a CPPA-based clause 3 Article

134 charge was found improvident.    In those cases, where no

10
  In Free Speech Coalition the Supreme Court determined that
certain portions of the definition of term “child pornography”
used in § 2252A were unconstitutional, specifically the “or
appears to be” language of § 2256(8)(B) and the entirety of
§2256(8)(D), specifically the “conveys the impression” language.
535 U.S. at 256, 258. Prior to Free Speech Coalition, knowing
possession and receipt of images of child pornography, actual or
virtual, was sufficient to establish one of the factual
predicates for a provident guilty plea under the CPPA.
Following the decision, the actual character of the visual
depictions is a factual predicate to any plea of guilty under
the CPPA therefore requiring an inquiry into the “virtual” or
“actual” nature of the images. O’Connor, 58 M.J. at 453.

                                17
constitutional considerations were involved, we found the pleas

provident to a violation of clause 2 of Article 134.

     After the Free Speech Coalition decision, we explained in

O’Connor, Mason and Martinelli that where the constitutional

rights of a servicemember could come into play, we will apply

closer scrutiny to the providence inquiry before upholding a

plea as provident to a lesser included offense under clause 1 or

2 of Article 134.   See O’Connor, 58 M.J. at 454–55; Mason, 60

M.J. at 19; Martinelli, 61 M.J. at ___ (36-37).   The difference

between our review of a providence inquiry under the

O’Connor/Mason/Martinelli standard and our review under the less

strict Augustine/Sapp standard is a qualitative difference.

“Although the understanding required of the servicemember

remains the same, we require a clearer more precise articulation

of the servicemember’s understanding under O’Connor than we

require in cases where the accused’s First Amendment rights are

not implicated.”    Martinelli, 61 M.J. at ___ (37).

     During Reeves’ providence inquiry the military judge

defined the term “child pornography” for purposes of

Specifications 1 and 2 without utilizing the language determined

to be unconstitutional by the Supreme Court in Free Speech




                                 18
Coalition.11   Specification 3 charged a violation of 18 U.S.C. §

2251(a) which does not contain the term “child pornography”.12

With no constitutional dimension at play in the providence

inquiry, our analysis into the possibility of a lesser included

offense is governed by the principles embodied in Augustine and

Sapp rather than O’Connor, Mason, or Martinelli.

       Nevertheless, the providence inquiry must reflect that the

accused “clearly understood the nature of the prohibited

conduct.”    Sapp, 53 M.J. at 92.    In both Augustine and Sapp the

accused admitted the service discrediting character of his

conduct during the plea inquiry and we characterized those

discussions as demonstrating that the accused “clearly

understood the nature of the prohibited conduct.”     Augustine, 53

M.J. at 96; Sapp, 53 M.J. at 92.

     In this case, however, there is an absence of any inquiry or

discussion of service discrediting conduct or conduct that is

prejudicial to good order and discipline.     The military judge

did not list service discrediting conduct or conduct that is

prejudicial to good order and discipline as an element of any of


11
   Here the military judge did not use the “or appears to be” or
the “conveys the impression” language focused on by the Supreme
Court.
12
   The phrase “engaged in sexually explicit conduct” as found in
§ 2251(a) is defined in § 2256 to be a depiction of “lascivious
exhibition of the genitals.” That term has been held to be
constitutional. United States v. Wiegand, 812 F.2d 1239 (9th
Cir. 1987).

                                    19
the child pornography offenses.    The plea inquiry focused

entirely on the elements of the clause 3 offenses.    Thus, the

providence inquiry simply does not provide a sufficient basis

for determining that Reeves’ pleas are provident to the lesser

included offenses of conduct that is service discrediting or

prejudicial to good order and discipline under clause 1 or 2 of

Article 134.

                              DECISION

     The decision of the United States Army Court of Criminal

Appeals as to Charge II and its specifications and the sentence

is reversed, but is affirmed in all other respects.   The

findings of guilty to Charge II and its specifications and the

sentence are set aside and the record of trial is returned to

the Judge Advocate General of the Army for a rehearing on Charge

II and its specifications and the sentence.13   If a rehearing on

Charge II and its specifications is deemed impracticable, that

charge and those specifications may be dismissed and a rehearing

held on the sentence alone.   Thereafter, the provisions of

Articles 66(b) and 67(a), UCMJ, 10 U.S.C. §§ 866(b), 867(a)

(2002), shall apply.


13
  Because of our decision in this case, the specifications of
Charge II will necessarily have to be amended prior to any
rehearing to allege lesser included offenses of conduct
prejudicial to good order and discipline in the armed forces, or
of a nature to bring discredit upon the armed faces in violation
of clauses 1 and/or 2 of Article 134, UCMJ.

                                  20
United States v. Reeves, No. 03-0595/AR

      GIERKE, Chief Judge (concurring in part and dissenting in

part):

      The bottom line is that I agree with the majority as to both

reasoning and result to affirm only Appellant’s guilty plea to

Charge I and its sole specification.     Therefore, I concur in

part.

      But with respect to the three Child Pornography Prevention

Act (CPPA) offenses all in Charge II, I disagree with the

majority as to either its reasoning (Charge II, specifications 1

and 2) or to both its reasoning and result (Charge II,

specification 3).     So I also respectfully dissent in part.

      The result that I reach is not so different from the

majority, but the judicial path to resolve this case is both

different and important.     As we agree to the disposition as to

Charge I, I focus only on the three specifications under Charge

II.

        In United States v. Martinelli,1 I concluded that the CPPA

has extraterritorial application.     I disagree with the conclusion

that the Congress that enacted the CPPA did not intend it to

apply extraterritorially to reach the actions of a servicemember

when he possesses, receives, and produces child pornography2


1
  61 M.J. __, __ (1-23)(C.A.A.F. 2005) (Gierke, C.J., concurring
in part and dissenting in part).
2
  Section 2252A(a)(2) of Title 18 of the U.S. Code proscribes the
knowing receipt of child pornography, 18 U.S.C. § 2252A(a)(5)
prohibits the knowing possession of child pornography, and 18
U.S.C. § 2251(a) makes it a crime to use a minor to engage in
sexually explicit conduct for the purpose of producing a visual
depiction of that conduct.
United States v. Reeves, No. 03-0595/AR

merely because he is outside the territorial boundaries of the

United States.

     Also as I stated in Martinelli, I do not read the language

in Bowman3 as narrowly as does the majority.4   I believe that to

do so, the majority incorrectly interprets the underlying

rationale of the exception to the presumption against

extraterritoriality and also misevaluates the nature and impact

of the offenses in this case.   Given the limitless boundaries of

cyberspace, child pornography over the Internet is just the type

of offense to which the exception to the presumption against

extraterritoriality should apply.

     And, as I fully discussed in Martinelli,5 interpreting the

plain language of the statute, its legislative history, and the

comprehensiveness of the scheme of the entire statute, I believe

Congress clearly meant the CPPA to reach the acts of a United

States servicemember who possesses and receives child pornography

on a U.S. military base in Germany.   For the same reasons, I

believe Congress intended the statute to reach Appellant’s

offense of involving young German girls in the production of

child pornography that occurred off-base in Germany.

        Additionally, § 2260 clearly pertains to the production

of child pornography with the intent to import that pornography


3
  United States v. Bowman, 260 U.S. 94, 96 (1922).
4
  See Martinelli, 61 M.J. at __, __ (3-11)(Gierke, C.J.,
concurring in part and dissenting in part).
5
  Id. at __ (11-23)(Gierke, C.J., concurring in part and
dissenting in part).



                                 2
United States v. Reeves, No. 03-0595/AR

into the United States.    Under that statute, the Government is

required to prove the additional element of intent to import the

child pornography into the United States in order to prosecute an

accused.   Thus, I am not persuaded by the majority’s argument

that § 2260 eliminates the need to decide if § 2251(a) applies

extraterritorially to cover Appellant’s act of producing a visual

depiction of a minor engaged in sexually explicit conduct.6

Rather, I believe that § 2251(a) reaches Appellant’s CPPA-based

offenses in this case precisely because it does have

extraterritorial application.

    As I conclude that the three CPPA-based specifications under

which Appellant was charged extend to Appellant’s criminal

conduct in Germany, I respectfully dissent in part.    Having

established this point, Appellant’s guilty plea to all three

CPPA-based offenses under Charge II initially appears provident.

But, unlike the majority, I view Appellant’s guilty pleas to the

possessing and receiving pornography (Charge II, specifications 1

and 2) to be improvident in light of the Supreme Court’s decision

in Ashcroft v. Free Speech Coalition.7    This conclusion results

in my agreeing with the majority’s decision to remand the

specifications, but for the different reason I have stated.

    As to specification 3 of Charge II, I disagree with the

majority that Appellant’s guilty plea is provident only to the

lesser included offense.   I view Appellant’s plea to the charged

6
  See United States v. Reeves, 61 M.J. __ (12-13) (C.A.A.F.
2005).


                                  3
United States v. Reeves, No. 03-0595/AR

offense provident because the constitutionally-objectionable

“child pornography” language is not included in that

specification.    Therefore, I would affirm Appellant’s guilty plea

to this offense.

      In summary, I concur with the disposition of Charge I and the

majority’s result in addressing Charge II, specifications 1 and

2.    I dissent from the disposition of Charge II, specification 3.




7
    535 U.S. 234 (2002).


                                  4
United States v. Reeves, 03-0595/AR


       CRAWFORD, Judge (dissenting):

       For the reasons thoroughly explained in United States v.

Martinelli, 61 M.J. __, __ (C.A.A.F. 2005) (Crawford, J.,

dissenting), I respectfully dissent and offer a few additional

comments.

       Like Specialist Martinelli, Appellant was stationed at a

United States military installation in Germany, subscribed to a

web-based e-mail account, and used a public computer to commit

violations of 18 U.S.C. § 2252A, as well as Article 92, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2000).    Unlike

Martinelli, who used an off-post Internet café, Appellant used

U.S. Government-owned computers in the post library to effect

receipt of, as well as to view and print, pornographic images of

actual children.    In addition, Appellant, while among the German

civilian populace near Hanau, used actual German children to

produce a sexually explicit videotape in violation of 18 U.S.C.

§ 2251(a).

                DOMESTIC ASPECT OF APPELLANT’S CRIMES

         Prosecution Exhibit 1, Appellant’s stipulation of fact

(including the documents comprising TAB B) and his responses

during the Care inquiry,1 establish that Appellant had a web-

based e-mail account at Excite.com which afforded him electronic

“space” on Excite.com’s servers in the United States.    Using a

1
    United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
United States v. Reeves, 03-0595/AR


web browser on the library’s computers, Appellant gained access

to his e-mail account which he then used as an address at which

to receive pornographic images, view them, store them, and

download them to the hard drives of the library computers for

printing.   He admitted that these images had been “transported

in interstate or foreign commerce” because “they were sent from

the U.S. through the Internet to me.”2   Appellant’s receipt of

child pornography occurred in the United States, just as it did

on a U.S. military post in Germany.

    APPLICATION OF § 2252A TO OVERSEAS MILITARY INSTALLATIONS

     After printing images of child pornography, using the

library’s printers, Appellant stored numerous images of child

pornography at his family quarters, in his automobile, and his

quarters storage area, all on a U.S. Army Kaserne near Hanau,

Germany.    All of the theories I voiced in Martinelli pertain a

fortiori to Appellant’s possession of child pornography on a

U.S. military installation.

            APPLICATION OF § 2251(a) TO OVERSEAS CONDUCT

     While the jurisdictional theories I advanced in Martinelli

also apply to Appellant’s prosecution under this statute, I must

reject the majority’s attempt to distinguish the jurisdictional

language in this statute from that in § 2260.   The majority

2
  Appellant’s use of “Me” refers to his web-based address on the
servers of Excite.com. Some of these images clearly indicate
that they were routed through commerce repeatedly.

                                  2
United States v. Reeves, 03-0595/AR


contends that territorial application of § 2251(a) was not

intended by Congress because § 2260, with express

extraterritorial application “addresses all of the same acts.”

United States v. Reeves, 61 M.J. __, __ (12) (C.A.A.F. 2005).

Not quite.     First, § 2260 carries with it no requirement that

any of the criminal acts be connected to interstate or foreign

commerce, giving § 2260 far greater breadth.    Second, it is

clear to my reading that § 2260 was enacted not only to expand

the scope of existing prohibitions, but to serve as an emphatic

statement of congressional intent to exercise jurisdiction over

non-U.S. citizens who may produce child pornography in their own

countries for importation into the territory or waters of the

United States.    Even if there is overlap between these statutes,

I believe they have related but different purposes.

                                WAIVER

     Appellant has waived this issue, both as to § 2252A and

§ 2251(a).     See United States v. Martin, 147 F.3d 529, 533 (7th

Cir. 1988).3    In the stipulation of fact, Appellant stipulated

that “there are no impediments to the jurisdiction of the

court.”




3
  “A challenge to the indictment based on the adequacy of the
interstate commerce stipulation had no relation to subject
matter jurisdiction –- the power to adjudicate –- but instead
went only to an alleged failure of proof.”

                                   3
United States v. Reeves, 03-0595/AR


             JURISDICTION UNDER § 2252A BASED ON COMMERCE

       Appellant also stipulated that these images were sent from

or through a site in the United States and that he knowingly

received and transported the pictures “in interstate or foreign

commerce.”    When questioned by the military judge, he said the

images “were sent from the United States through the Internet to

me.”   When the military judge asked Appellant whether he was

satisfied that this amounted to interstate or foreign commerce,

he agreed.

              PROVIDENCE TO CLAUSES (1) AND (2) OFFENSES

       Appellant, a sergeant with a high school diploma, over five

years of active duty, and then serving at his fourth permanent

duty station, pleaded guilty to violating a lawful general

regulation by viewing child pornography.    He admitted to

understanding that the regulation prohibiting viewing of child

pornography was lawful because it was “reasonably necessary to

safeguard and protect the morale, discipline, and usefulness of

the members of the command and is directly connected to the

maintenance of good order and discipline.”    He admitted that his

conduct in viewing child pornography was wrongful and that he

had no legal justification or excuse.    He stipulated to leaving

images of child pornography on the printer at the installation

library where soldiers, civilians, and dependents could find it,

and to taking his very young daughter with him to the library


                                  4
United States v. Reeves, 03-0595/AR


where he would view and print images of child pornography.    He

stipulated to standing on one side of the Main River and, for

between twenty and thirty minutes, training his video camera on

the genital area of two young German girls, while accompanied by

his own young daughter.   All of these images and films he

secreted in his vehicle, quarters, and quarters storage area.

     Even if these were the only facts we had to go on, I would

find it impossible to conclude that Sergeant Reeves did not

understand “the nature of the prohibited conduct.”   Said another

way, how could Sergeant Reeves admit that the Commander of U.S.

Army, Europe, could lawfully prohibit the viewing of child

pornography so as to “promote the morale, discipline, and

usefulness of the members of the command” and that such

prohibition was “directly connected to the maintenance of good

order and discipline” without knowing that using the post

library’s computers and printers to receive, download, and print

child pornography in front of his two and one-half-year-old

daughter and leaving child pornography on the printer for all to

see was prejudicial to good order and discipline?    He could not.

     And it is only the smallest of steps to conclude that, on

this record, Appellant also knew that openly focusing his video

camera, for twenty to thirty minutes on the pubic area of seven-

year-old German national children as they played by a public

river, was equally prejudicial and service discrediting as well.


                                 5
United States v. Reeves, 03-0595/AR


     This record overwhelmingly supports affirmation of a lesser

included offense under either or both clauses (1) and (2) of

Article 134, UCMJ.

                           CONCLUSION

     There is no substantial basis in law or fact to question

the providence of Appellant’s pleas.    Even if the record were

insufficient to uphold Appellant’s pleas to violations of §§

2252A and 2251(a), however, the record strongly supports

conviction for disorders on the same facts.   For all these

reasons, I respectfully dissent.




                                   6
