                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                    Kent D. IRVIN, Master Sergeant
                       U.S. Air Force, Appellant

                               No. 03-0224

                          Crim. App. No. 34756


       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
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

                                  Counsel

For Appellant: Major Andrew S. Williams (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea and Captain Diane M.
Paskey (on brief).

For Appellee: Captain Michelle M. Lindo (argued); Colonel
LeEllen Coacher and Lieutenant Colonel Robert V. Combs (on
brief).

Military Judge:    Thomas W. Pittman


  This opinion is subject to editorial correction before final publication.
United States v. Irvin, No. 03-0224/AF

     Judge ERDMANN delivered the opinion of the Court.

     Master Sergeant Kent D. Irvin entered a guilty plea and was

convicted by a general court-martial of wrongfully and knowingly

possessing visual depictions of minors engaging in sexually

explicit conduct in violation of clauses 1 and 2 of Article 134,

Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 934 (2000).

He was sentenced by a panel of officer and enlisted members to a

bad-conduct discharge, confinement for one year and reduction to

the lowest enlisted grade.

     Although not raised by Irvin as part of his appeal, the Air

Force Court of Criminal Appeals assessed the providence of his

guilty plea in light of the Supreme Court's decision in Ashcroft

v. Free Speech Coalition, 535 U.S. 234 (2002).   After concluding

that Free Speech Coalition did not affect Irvin's guilty plea,

the Court of Criminal Appeals affirmed the conviction and

sentence.

     Irvin petitioned this Court for review of his case without

assigning any specific errors in the proceedings below.    In

April 2003, we specified the following issue for review:

     WHETHER APPELLANT'S PLEAS OF GUILTY TO POSSESSING
     CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134,
     UCMJ, SHOULD BE SET ASIDE IN LIGHT OF ASHCROFT v.
     FREE SPEECH COALITION, 122 S.Ct. 1389 (2002).

In November 2003, we specified a second and more narrowly

defined issue for review:




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United States v. Irvin, No. 03-0224/AF

     WHETHER THE POSSESSION OF VISUAL DEPICTIONS OF MINORS
     ENGAGING IN SEXUALLY EXPLICIT CONDUCT CAN SERVE AS THE
     BASIS FOR A CONVICTION 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).

After reviewing both issues, we conclude that Irvin's guilty

plea is provident and is not affected by Free Speech Coalition

or our decision in O'Connor.

                             DISCUSSION

     A.    Standard of Review

     The case is focused solely on the providence of Irvin's

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)).

     B.    The Providence Inquiry and Record of Trial

     At the time of the offense in question, Irvin was attached

to a NATO AWACS squadron at Geilenkirchen Air Base, Germany.

The visual depictions that form the basis for his conviction

were lawfully seized from his off-base residence in Hearen,

Germany, in late August 2000 by agents of the Air Force Office

of Special Investigations.

     Prior to accepting the plea, the military judge advised

Irvin of the "elements" of the offense with which he was

charged:


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United States v. Irvin, No. 03-0224/AF

          (1) That, at or near, Geilenkirchen NATO Air Base,
     Germany, on divers occasions between on or about 2 January
     2000 and on or about 29 August 2000, [Irvin] wrongfully and
     knowingly possessed visual depictions of minors engaging in
     sexually explicit conduct.

          (2) That under the circumstances, [Irvin's] conduct
     was to the prejudice of good order and discipline, or of a
     nature to bring discredit upon the Armed Forces.

     He further advised Irvin that, while almost any irregular

or improper act on the part of a service member could be

regarded as prejudicial to good order and discipline in some

indirect or remote sense, only those acts where the prejudicial

effect is reasonably direct and palpable are punishable under

Article 134.   See Manual for Courts-Martial, United States (2002

ed.) [MCM], Part IV, para. 60.c.(2)(a).   He provided the same

explanation with respect to the service-discrediting element,

i.e., that almost any irregular or improper act could be

regarded as service discrediting in some direct or remote sense,

but only those acts which tend to bring the service into

disrepute or tend to lower it in the public esteem are

punishable.    Id. at Part IV, para. 60.c.(3).

     The specific "act" that Irvin pleaded guilty to was the

possession of "visual depictions of minors engaging in sexually

explicit conduct."   The military judge explained that particular

element to Irvin and provided him with definitions of "visual

depiction," "minor" and "sexually explicit conduct."




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United States v. Irvin, No. 03-0224/AF

     The specific factual circumstances of Irvin's conduct were

outlined through both a stipulation of fact and an extensive

colloquy with the military judge.    Irvin admitted to downloading

certain images of young girls engaged in sexually explicit

conduct from the Internet to his personal computer at his

residence.   He further admitted to printing some of those images

and to downloading approximately 80 images to various types of

computer storage media.

     Irvin advised the military judge that he knew "that it is

wrong for an older person to look at minors either nude or

partially clothed."   He acknowledged to the military judge that

there was "no doubt in [his] mind" that the individuals in the

images were minors and that there was "no doubt in [his] mind"

that they were engaged in sexually explicit conduct.    Finally,

he also acknowledged that he knew that the visual depictions

"were, in fact, minors engaging in sexually explicit conduct."

     Irvin admitted in his stipulation that his possession of

the images was prejudicial to good order and discipline or

service-discrediting.   He was also specifically asked by the

military judge to explain why his conduct was either prejudicial

to good order and discipline or service-discrediting.   Their

subsequent discussion directly focused on the impact of his

conduct on good order and discipline and on community perception

of the military.



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United States v. Irvin, No. 03-0224/AF

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

     The specified issues ask whether the Supreme Court's

decision in Free Speech Coalition and our subsequent decision in

O'Connor create a substantial basis for questioning Irvin's

guilty plea.    We conclude they do not.

     That conclusion is driven by a critical distinction that

was properly noted by the Court of Criminal Appeals.    Although

both the present situation and O'Connor involve guilty pleas to

charges of possessing certain visual images in violation of

Article 134, the criminal nature of the conduct in each case is

measured by different yardsticks.     In O'Connor the issue

concerned the providence of a guilty plea to a charge of

violating clause 3 of Article 134, i.e., of committing a "crime

or offense not capital."   58 M.J. at 452.   In the present case,

however, Irvin was charged with violating clauses 1 and 2 of

Article 134, i.e., of engaging in conduct prejudicial to good

order and discipline or of a nature to bring discredit upon the

armed forces.

     The criminal nature of the conduct at issue in O'Connor

derived from a violation of the Child Pornography Prevention Act

of 1996 (CPPA), 18 U.S.C. § 2252A (2000).    58 M.J. at 452.   That

separate federal statute was the subject of the Supreme Court's

decision in Free Speech Coalition, where the Court struck down

portions of its definition of "child pornography" as



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United States v. Irvin, No. 03-0224/AF

unconstitutionally overbroad.    Id. (citing Free Speech

Coalition, 535 U.S. at 256, 258).      We did not view O'Connor's

plea to violating that federal statute as provident where the

unconstitutional definition had been used during the plea

colloquy and the record contained no discussion or focus on

those aspects of the statute that had been upheld by the Supreme

Court.   Id. at 454.

     The criminal nature of the conduct in the present case,

however, does not derive from a clause 3, Article 134 charge

specifying a violation of the CPPA.     Irvin was charged under

clauses 1 and 2 of Article 134 with engaging in conduct

prejudicial to good order and discipline or of a nature to bring

discredit to the armed forces by wrongfully and knowingly

possessing "visual depictions of minors engaging in sexually

explicit conduct."     Thus, the providence of his guilty plea must

be assessed against the elements of that offense, not the

elements of the CPPA offense at issue in O'Connor and Free

Speech Coalition.

     Applying that yardstick, we find no substantial basis in

law or fact to question the providence of Irvin's plea. In

advising Irvin of the elements of the clauses 1 and 2 Article

134 offense, the military judge did not make any reference to

the terms struck down as constitutionally overbroad in Free




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United States v. Irvin, No. 03-0224/AF

Speech Coalition.*   The criminal offense that was explained to

Irvin and to which he pleaded guilty did not include a reference

to visual depictions that "appear to be" of a minor engaging in

sexually explicit conduct, or materials that were pandered in a

manner that "conveys the impression" that they include visual

depictions of minors engaging in sexually explicit conduct.   58

M.J. at 452 (describing portions of the CPPA struck down in Free

Speech Coalition).

     The offense that the military judge explained to Irvin and

to which he pleaded guilty was drawn strictly in terms of

"visual depictions of minors engaging in sexually explicit

conduct."   Also, Irvin's explanation to the military judge was

not cast in terms of images that "appeared to be" child

pornography as was the case in O'Connor, but rather in terms of

visual depictions that he knew "were, in fact, minors engaging

in sexually explicit conduct."   It is these critical aspects of

how Irvin's case was charged and pleaded to that avoids any

impact from Free Speech Coalition or our decision in O'Connor.




*
  The military judge’s definition of "visual depiction" consisted
of a blend of the definition of "visual depiction" contained at
18 U.S.C. § 2256(5) (2000) and the opening language from the
definition of "child pornography" at § 2256(8). Similarly, the
definition he gave to Irvin of "sexually explicit conduct" was
drawn from the definition of that term as contained at §
2256(2). None of these definitions were invalidated by Free
Speech Coalition.


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United States v. Irvin, No. 03-0224/AF

     That leaves only the issue of whether a substantial basis

exists for questioning Irvin's plea to either the prejudicial to

good order and discipline or service-discrediting elements of

clauses 1 and 2.   Irvin admitted in his stipulation of fact and

during his colloquy with the military judge to downloading and

possessing the images at issue and agreed that he "knew that the

visual depictions were, in fact, minors engaging in sexually

explicit conduct."   He also admitted in his stipulation and

during his colloquy with the military judge that his conduct was

prejudicial to good order and discipline and service-

discrediting, including responses to a specific request from the

military judge to explain why his conduct met those elements.

     We have in the past affirmed convictions for a lesser-

included offense under clause 2 of Article 134 for the

"possession of images depicting sexually explicit conduct by

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

See also United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000).

Although couched as a primary offense rather than a lesser-

included one, the conduct for which Irvin stands convicted is

cast in terms identical to the conduct at issue in Sapp and

Augustine.   As in those cases, Irvin admitted to and discussed

with the military judge the character of his conduct as service-

discrediting and prejudicial to good order and discipline.

Under these circumstances, the record reflects no substantial



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United States v. Irvin, No. 03-0224/AF

basis in law or fact for questioning the providence of his

guilty plea.

                           CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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