UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              YOB, GALLAGHER, and KRAUSS
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                         Master Sergeant MARK S. ASHLEY
                           United States Army, Appellant

                                      ARMY 20120566

        Headquarters, United States Army Training Center and Fort Jackson
                        Gregory B. Batdorff, Military Judge
            Colonel Mark W. Seitsinger, Staff Judge Advocate (pretrial)
Lieutenant Colonel Eric K. Stafford, Acting Staff Judge Advocate (recommendation)
            Colonel Steven B. Weir, Staff Judge Advocate (addendu m)


For Appellant: Captain Robert A. Feldmeier, JA; Captain Matthew M. Jones, JA (on
brief).

For Appellee: Major Robert A. Rodrigues, JA (on brief) .


                                         31 July 2013

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

YOB, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of indecent conduct, indecent exposure, indecent language,
attempted enticement of a minor to engage in unlawful sexual activity in violation of
18 U.S.C. § 2422(b), enticement of a minor to produce child pornography in
violation of 18 U.S.C. § 2251, distribution of child pornography, and unauth orized
wear of the Combat Infantryman’s Badge, in violation of Articles 120 and 134
Uniform Code of Military Justice, 10 U.S.C. § 920, 934 (2006) [hereinafter UCMJ].
The military judge sentenced appellant to a dishonorable discharge, confinement for
eight years, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the
ASHLEY — ARMY 20120566

convening authority approved forty-eight months confinement and the remainder of
the adjudged sentence.

       This case is before this court for review under Article 66, UCMJ. Appellant
raises several matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) and no other assignments of error. We have considered appellant’s Grostefon
matters and find that they are without merit. Although not raised by appellant, we
find Specifications 1 and 2 of Charge I are multiplicious. We also find that
Specifications 1 and 2 of Charge II constitute an unreasonable multiplication of
charges. In light of this, we will take appropriate action in our decretal paragraph
below.

                                      FACTS

       In December 2010, appellant initiated contact with thirteen year old RW, via
MySpace a social networking internet site. Duri ng their initial conversation,
appellant asked RW if she was “ready for an older man to take care of [her.]”
Despite RW telling appellant that she was thirteen, appellant maintained regular
contact with RW. A short time afterwards, RW and appellant started communicating
via mobile phone text messaging where the conversations turned decidedly sexual in
nature.

       Over approximately a five week period, appellant engaged in several sexually
charged conversations with RW. Appellant repeatedly asked RW to send him nude
pictures, resulting in RW sending appellant two images of herself engaged in
sexually explicit conduct. Appellant later sent these two pictures to another
individual who ultimately reported his conduct to law enforcement. At another
point, appellant also asked RW to take a photo of herself masturbating with a
hairbrush, but RW did not comply with this particula r request. During this time
period, appellant also told RW that he wanted to go to her house to have sex, that he
wanted to kidnap and impregnate her, and that he wanted to “do [her] with [a] friend
at the same time.” Appellant also sent RW two pictures of his erect penis with his
mobile phone.

       During the providence inquiry, appellant readily admitted that he transmitted
pictures of his erect penis to RW, indecently exposed his penis to RW, engaged in
indecent language with RW, and attempted to persuade, induce, or entice RW to
engage in unlawful sexual activity under § 2322(b), pursuant to clause 3 of Article
134, UCMJ. Specifically, appellant admitted that he intended to follow through with
the sexual acts that he communicated to RW and described his conduct as a
substantial step toward completing the plan. Before findings, the military judge
ruled that the indecent conduct and indecent exposure specifications (Specifications

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ASHLEY — ARMY 20120566

1 and 2, Charge I) constituted an unreasonable multiplication of cha rges for
sentencing. Likewise, the military judge ruled that the specifications for indecent
language and attempt to entice RW were an unreasonable multiplication of charges
for sentencing (Specifications 1 and 2, Charge II) and merged the two specificati ons
for sentencing.

                                      DISCUSSION

        The prohibition against multiplicity is rooted in the constitutional and
statutory restrictions against Double Jeopardy. United States v. Campbell, 71 M.J.
19, 23 (C.A.A.F. 2012). “[A]ppellate consideration of multiplicity claims is effectively
waived by unconditional guilty pleas, except where the record shows that the challenged
offenses are ‘facially duplicative.’” United States v. St. John, __ M.J. __, 2013 WL
3187165, (Army Ct. Crim. App. 24 June 2011) (citing United States v. Lloyd, 46 M.J. 19,
23 (C.A.A.F. 1997). See also United States v. Craig, 68 M.J. 399, 400 (C.A.A.F. 2010); United
States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009). Facially duplicative means the factual
components of the charged offenses are the same. St. John, __ M.J. __, 2013 WL 3187165, at
*2 (citations omitted). This court considers the factual conduct alleged in each
specification and the providence inquiry conducted by the military judge in making
this determination. United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004).
Whether multiple specifications are facially duplicative is a question of law
reviewed de novo. United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004).

       This court analyzes whether offenses are multiplicious by determining
whether each offense charged requires proof of an element the other does not. United
States v. Teeters, 37 M.J. 370, 377 (C.M.A. 1993); Blockburger v. United States, 284
U.S. 299, 304 (1932). If not, the offenses are multiplicious. Teeters, 37 M.J. at
377; Blockburger, 284 U.S. at 304.

       We find that the specifications for indecent exposure and indecent act are
facially duplicative. It is clear that both sets of conduct alleged in the two separate
specifications are exactly the same. Here, appellant stands convicted of committing
an indecent act by sending one or more digital photographs of an erect penis to RW
by means of a cellular telephone. In almost the exact same fashion, appellant also
stands convicted of committing an indecent exposure by exposing his erect penis to
RW by means of digital photograph, transmitted via cellular telephone. 1



1
 Furthermore, the stipulation of fact uses the same set of facts to describe both
specifications.


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ASHLEY — ARMY 20120566

       In light of the facial duplicity of these specifications, we look to the elemental
test described in Teeters and Blockburger to determine multiplicity. As presently
alleged, the specification for the indecent act does not require proof of an additional
element not found in the specification for the indecent exposure. Conversely, proof
of indecent exposure requires proof that the exposure was intentional and that it was
made at a place where the conduct could reasonably be expected to be viewed by
people other than members of the accused’s family or household, which ar e not
required for indecent act. Since only one specification contains an element that
requires proof of additional facts, we hold these specifications to be multiplicious.
Our determination that these offenses are multiplicious necessarily results in
dismissal of the indecent exposure specification wh ich constitutes the multiplied
offense. Campbell, 71 M.J. at 23; Rule for Courts-Martial [hereinafter R.C.M.] 1003
(c)(1)(C). In any event, regardless of our multiplicity determination, the two
specifications cannot support separate finding as they also constitute an
unreasonable multiplication of charges for findings as well as sentencing.

       We also set aside the findings for indecent language in Specification 1,
Charge II. Pursuant to Rule for Courts–Martial 307(c)(4), “[w]hat is substantially
one transaction should not be made the basis for an unreasonable multiplication of
charges against one person.” This principle is well established in military law. See,
e.g., United States v. Redenius, 4 U.S.C.M.A. 161, 15 C.M.R. 161 (1954). We
consider five factors to determine whether charges have been unreasonably
multiplied:

             (1) Did the accused object at trial that there was an
                 unreasonable multiplication of charges and/or
                 specifications?;

             (2) Is each charge and specification aimed at distinctly
                 separate criminal acts?;

             (3) Does the number of charges and specifications
                 misrepresent or exaggerate the appellant's
                 criminality?;

             (4) Does the number of charges and specifications
                 [unreasonably] increase [the] appellant's punitive
                 exposure?;

             (5) Is there any evidence of prosecutorial overreaching or
                 abuse in the drafting of the charges?


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ASHLEY — ARMY 20120566

United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal citation and
quotation marks omitted)

       In the same vein as Charge I and its Specifications, Charge II and its
Specifications encompass a single set of conduct. During trial, the military judge
noted, and the parties agreed, that all of the indecent language alleged in
Specification 1 of Charge II was a subset of the language and actions that appellant
used to attempt to persuade, induce, or entice RW to engage in sexual activity.
Although the military judge considered these specifications an unreasonable
multiplication of charges for sentencing, we further find that the specifications are
likewise an unreasonable multiplication of charges for findings. Given that
appellant’s admitted indecent language was identical and a subset of the very same
language supporting the attempted enticement charge, the balance of the second,
third, and fourth, Quiroz factors heavily outweigh the other factors, and result in a
finding that these two specifications constitute an unreasonable multiplication of
charges.

                                    CONCLUSION

       The findings of guilty of Specification 2 of Charge I and Specification 1 of
Charge II are set aside and dismissed. The remaining findings of guilty are
AFFIRMED. We find no significant change in the sentencing landscape as a result
of setting aside and dismissing these specifications. Reassessing the sentence on the
basis of the error noted, the entire record, and in acc ordance with the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63
M.J. 40 (C.A.A.F. 2006), the court affirms the sentence. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are ordered restored. See Articles 58b(c) &
75(a), UCMJ.

      Judge GALLAGHER concurs.

KRAUSS, Judge, concurring in part and in the result:

      I write separately to address the maximum punishment ap propriate for
conviction of a violation of 18 U.S.C. § 2422(b) under Article 134 clause 3 in light
of United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013) and United States v. Schell,
71 M.J. 574 (Army Ct. Crim. App. 2012).

       When the government prosecutes a Title 18 offense under Clause 3, Article
134, UCMJ, the maximum punishment for that offense is fixed by application of
R.C.M. 1003(c)(1)(B). If, as in this case, 18 U.S.C. § 2422(b) is closely related to
an offense listed in the Manual for Court -Martial, the maximum punishment for the
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ASHLEY — ARMY 20120566

offense listed in the Manual for Courts -Martial applies. If not, the maximum listed
for the offense under Title 18 applies. See United States v. Middleton, 12
U.S.C.M.A. 54, 30 C.M.R. 54 (1960); United States v. Tenney, 60 M.J. 838, 843
(N.M. Ct. Crim. App. 2005); R.C.M. 1003(c)(1)(B).

        In Schell, our superior court joined other circuits in a judicial expansio n of
liability under 18 U.S.C. § 2422(b). Indeed, Schell broadens liability under this
statute beyond that of the court’s previous decisions and possibly that of any other
jurisdiction. It is necessary to address how far we have come in order to resolve the
nature of this offense, as it is now interpreted in our jurisdiction, and, therefore, the
maximum punishment appropriate for this offense.

       The Schell decision first rejects any requirement that an accused intend illegal
sexual activity occur to be criminally liable for attempting to persuade entice or
induce a minor to engage in illegal sexual activity. Schell, 72 M.J. at __. But cf.
United States v. Brooks, 60 M.J. 495, 498 (C.A.A.F. 2005) (guilt predicated on
accused’s intent that illegal sexual activity occur); United States v. Lundy, 676 F.3d
444, 450–51 (5th Cir. 2012) (accused must intend and take substantial step toward
bringing about or engaging in sexual activity); United States v. Knope, 655 F.3d 647,
660–-61 (7th Cir. 2011) (accused must intend and take substantial step toward
bringing about or engaging in sexual activity); United States v. Shinn, 681 F.3d 924,
930–31 (8th Cir. 2012); United States v. Kowalski, 69 M.J. 705 (C.G. Ct .Crim.
App. 2010); M ANUAL OF M ODEL C RIM . J URY I NSTRUCTIONS FOR THE D IST . C OURTS
OF THE E IGHTH C IRCUIT § 6.18.2422B (2013 ed.) (accused must intend sexual
activity occur as a result of attempt to persuade a minor to engage in illegal sex) .

       Though our superior court previously rejected the requirement that a
substantial step toward sexual activity be complete before liability perfects under
§ 2422(b), it did so premised on a case where necessary distinction between “hot
air” and enticement to engage in illegal sex relies on the demonstrated intent that the
sexual activity occur. United States v. Winckelmann, 70 M.J. 403, 407–08 (C.A.A.F.
2011) (citing United States v. Gladish, 536 F.3d 646, 649 (7th Cir. 2008). See also
United States v. Taylor, 640 F.3d 255, 259–60 (7th Cir. 2011) (contemplating
conviction under § 2422(b) as including intent that sexual activity involving
physical contact occur). After Schell, it seems, application of the substantial step
element no longer makes such a distinction.

       Our superior court also declined to adopt the definition of intent, employed
by a number of other jurisdictions, that require proof tha t the accused intended to
obtain the minor’s assent to illegal sexual activity to be criminally liable under §
2422(b). See United States v. Berk, 652 F.3d 132 (1st Cir. 2011); United States v.
Douglas, 626 F.3d 161 (2d Cir. 2010); United States v. Fugit, 703 F.3d 248 (4th Cir.

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ASHLEY — ARMY 20120566

2012); United States v. Berg, 640 F.3d 239 (7th Cir. 2011) (deviating from Judge
Posner’s approach in Gladish and Taylor); United States v. Goetzke, 494 F.3d 1231
(9th Cir. 2007); United States v. Sumner, No. 12-14557, 2013 WL 3287237 (11th
Cir. July 1, 2013).

      In those cases requiring an intent that sexual activity occur, a § 2422(b)
offense is complete when illegal sexual activity occurs: a child persuaded, enticed,
induced or coerced to engage in illegal sexual activity means th e child engaged in
sexual activity. For example, a child induced to engage in an act of prostitution
means that the child engaged in an act of prostitution. Efforts to induce a minor to
engage in illegal sexual activity that fail because of an independen t or intervening
cause constitute an attempted § 2422(b) offense. See, e.g., United States v. Young,
613 F.3d 735 (8th Cir. 2010). See also Brooks 60 M.J. at 499.

      In cases where the “minor’s assent” definition of intent is applied, a § 2422(b)
offense is complete when the minor agrees to engage in illegal sexual activity.
When the minor refuses, you have an attempt. Goetzke 494 F.3d at 1237. 2

       Rather than define the intent element of this offense, our Court of Appeals
offers definition of the words persuade, induce and entice and regards them as
interchangeable. Schell, 72 M.J. __ n.1. However Schell employs these words in a
fashion contrary to their traditional meanings under the UCMJ. For example, the
definition of entice includes “[t]o lure” and “to wrongfully solicit (a person) to do
something.” Id. (internal quotation marks omitted). Wrongful solicitation under
Articles 82 and 134, UCMJ, require the solicitor intend the solicited offense actually
occur. United States v. Gladue, 67 M.J. 311, 316 (C.A.A.F. 2009); United States v.
Mitchell, 15 M.J. 214, (C.M.A. 1983); Manual for Courts-Martial, United States
(2008 ed.) [hereinafter MCM], pt. IV, ¶¶ 6 & 105. Similarly, under the crime of
kidnapping, “‘[i]nveigle’ means to lure, lead astray, or entice by false
representations or other deceitful means. For example, a person who entices another
to ride in a car with a false promise to take the person to a certain designation has
inveigled the passenger into the car.” United States v. Blocker, 32 M.J. 281, 285
(C.M.A. 1991) (quoting MCM, pt. IV, ¶ 92.c.(1). When you intend to inveigle
someone you don’t intend to merely alter their attitude about getting into the car.
For the same offense, “decoy means to entice or lure by means of so me fraud, trick,
or temptation. For example, one who lures a child into a trap with candy has



2
 Of course, in either case, an undercover agent posing as a minor renders the effort
an attempt.


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ASHLEY — ARMY 20120566

decoyed the child.” Id. The idea of the crime of attempted kidnapping, of course, is
to punish those who try to get the child into the trap.

       On their face, it might appear that the offenses of patronizing and pandering
prostitution under Article 134, UCMJ, are closely related to § 2422(b) as both can
also be accomplished by inducement or enticement. However, each of those offenses
contemplates an actual act of prostitution as the intended objective that is
prerequisite to guilt. See United States v. Miller, 47 M.J. 352, 356–57 (C.A.A.F.
1997); MCM, pt. IV, ¶ 97.

        Schell removes any requirement that the supposed objective of persuasion,
that is prostitution or other illegal sexual activity, be intended for purposes of
§ 2422(b) under Article 134, UCMJ. Illustrative of the consequence is the fact that
it will therefore no longer be necessary for our courts to entertain any defense
involving innocent explanation for the act of enticement such as fantasy, or prank or
some sort of innocent curiosity. Cf. Brooks 60 M.J. at 499 (court entertained and
debunked appellant’s assertion that he didn’t intend a minor actually engage in
illegal sexual activity but rather only intended to discover if his friends were playing
a prank on him). This reduces the intent required to that merely of intending to utter
speech in some fashion that can be styled as persuasion on the subject of illegal sex.
As such, it is now, in the wake of Schell, akin to the crimes of indecent liberty with
a child and indecent language. See, e.g., United States v. White, 62 M.J. 639, 642–
43 (N.M. Ct. Crim. App. 2006) (indecent language completed by communication of
sexually themed messages without any intent that sexual acts occur) (citing United
States v. Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998)); MCM, pt. IV, ¶¶ 45.a.(j), 45.a.
(t)(11), 89.

       It is interesting to note that where the United States Congress failed to affix a
five year maximum sentence to sexually explicit communication with a minor for the
purposes of engaging in sexual activity with the minor, a soldier now, by judicial
decision, may be subject to life in prison for decidedly less serious conduct. See
United States v. Schell, 71 M.J. 574, 580–81 (Army Ct. Crim. App. 2012). Judge
Posner, upon study of the subject, found “nothing in the 1998 amendment [to §
2422(b)] or its discussion by members of Congress to suggest a legislative purpose
of subjecting less serious sexual misconduct (misconduct involving no physical
contact) to the draconian penalties in subsection (b).” Taylor, 640 F.3d at 258
(discussing the sexual activity that is object of the persuasion).

        Recognizing the limited use that legislative history and failed amendments
may provide the judicial interpretation of statutes, they can inform our decision.
Schell, 72 M.J. at __; United States v. Bennitt 72 M.J. 266, 269–71 (C.A.A.F. 2013)
It is unjust to subject an accused to greater punishment for a less serious offense

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ASHLEY — ARMY 20120566

than those otherwise necessarily implicated. Miller, 47 M.J. at 356-57. The Rules
for Courts-Martial prevent such injustice by requiring the lesser punishment of
closely related offenses. R.C.M. 1003(c)(B)(i).

       In this case we have an honest accused speaking plain English when admitting
that he intended to persuade a minor to engage in illegal sexual activity, in other
words he was actually trying to get the girl to have sex with him. No need for
doublethink to affirm this conviction. However, the maximum punishment must be
fixed by the nature of the offense under R.C.M. 1003 not the nature of the accused’s
particular admissions. Here, appellant’s acts committing the § 2422(b) offense
constituted his commission of the indecent language offense. Indecent language is
not a lesser included offense to the § 2422(b) offense. Indeed, arguably, § 2422(b),
as now interpreted in the military, requires a less culpable intent than indecent
language which requires an accused intend to corrupt morals or incite libidinous
thoughts and use language calculated to do that. Brinson, 49 M.J. at 364. In any
event, indecent language is now closely related to § 2422(b) and the maximum
punishment of two years for communicating such language to a minor is the
appropriate maximum punishment for the § 2422(b) offense rather than life in
prison. 3 See Tenney, 60 M.J. at 843.

       Though the maximum appellant should have faced is therefore significantly
less than life, it remains to include the possibility of confinement for 57 years and 6
months. Considering “all of the circumstances of the case presented by the record”,
including the terms of appellant’s pretrial agreement, I find that, under the
circumstances of this case, misapprehension of the maximum punishment did not
affect appellant’s plea of guilty. See United States v. Poole, 26 M.J. 272, 274
(C.M.A. 1988); United States v. Dawkins, 51 M.J. 601, 605 (Army Ct. Crim. App.
1999).

                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




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

3
 This calculation, as well as resolution of preemption que stions, may change for
offenses committed after June 2012. See Articles 120b(c) & (h)(5), 10 U.S.C.
§ 920b (2012).


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