

   
   
   
   U.S. v. Falk



In the Case of
UNITED STATES, Appellee
v.
Scott E. FALK, Airman First Class
U. S. Air Force, Appellant
 
No. 98-0064/AF
Crim. App. No. 32456
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued October 6, 1998
Decided May 28, 1999
Opinion partially withdrawn September 30, 1999
(See Appendix at end of document)
EVERETT, S.J., delivered the opinion of
the Court, in which COX, C.J., and GIERKE, J., joined. SULLIVAN and CRAWFORD,
JJ., each filed a dissenting opinion.

Counsel
For Appellant: Colonel Douglas H. Kohrt
(argued); Captain W. Craig Mullen (on brief).
For Appellee: Major Martin J. Hindel
(argued); Colonel Brenda J. Hollis and Lieutenant Colonel Michael
J. Breslin (on brief); Lieutenant Colonel Anthony P. Dattilo,
Major
Ronald A. Rodgers, and Captain Mitchel Neurock.
Military Judge: Donald E. Walsh
 


This opinion is subject
to editorial correction before publication.


Senior Judge EVERETT delivered the opinion
of the Court.
Appellant, Airman First Class Scott E. Falk,
United States Air Force, was tried by military judge alone at a general
court-martial convened at Travis Air Force Base, California, on October
7, 1996. Pursuant to his pleas, Falk was found guilty of 2 specifications
of conspiracy to commit larceny, larceny, making a false claim, larceny
of mail matter, and possessing child pornography, in violation of Articles
81, 121, 132, and 134, Uniform Code of Military Justice, 10 USC §§
881, 921, 932, and 934, respectively. The military judge sentenced Falk
to a dishonorable discharge, confinement for 42 months, total forfeitures,
and reduction to the lowest enlisted grade. The convening authority approved
the sentence, and the Court of Criminal Appeals affirmed the findings and
sentence.
We granted review of these issues:





I
WHETHER APPELLANTS PLEA TO SPECIFICATION
1, CHARGE I, WAS PROVIDENT IN THAT HIS CONDUCT WAS NOT IN VIOLATION OF
18 USC § 2252 BECAUSE HE DID NOT POSSESS THREE OR MORE BOOKS, MAGAZINES,
PERIODICALS, FILMS, VIDEO TAPES, OR OTHER MATTER WHICH CONTAINED ILLEGAL
IMAGES.

II
WHETHER THE APPLICATION OF ARTICLES
57(a) AND 58b, UCMJ, VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED
STATES CONSTITUTION WITH RESPECT TO APPELLANT.




The first issue concerns the child pornography
charge and poses two questions. One is whether appellants guilty plea
was improvident because of the great confusion on the part of all involved
-- including the Article 32 1/
investigating officer, counsel, the military judge, and later, appellate
counsel -- about the statute under which appellant was being tried. The
second question is whether any statute in effect at the time of Falks
alleged misconduct prohibited what he did. To understand and answer the
two questions requires the consideration of several statutes and then an
examination of this cases confusing procedural history.

I
A. STATUTES INVOLVED
Article 134 of the UCMJ prohibits conduct of
a servicemember which is: (a) to the prejudice of good order and discipline
in the armed forces; (b) service discrediting; or (c) a crime under generally
applicable federal penal statutes. Some conduct that falls into one or
both of the first two categories may also be a crime under Title 18 of
the United States Code; and in that event, the conduct is punishable whether
committed by a servicemember or a civilian. Therefore, an accuser in preferring
charges, or trial counsel in prosecuting, may opt to rely on the generally
applicable federal penal statute rather than to proceed under the first
two clauses of Article 134. In that way, there is no need to prove that
the accuseds conduct was contrary to good order and discipline or was
service discrediting.
Title 18 USC contains § 2252, which Congress
enacted in 1978, and which has been subsequently amended from time to time.
At the time of Falks trial and alleged offense, § 2252 provided,
inter
alia, that it was a crime to "knowingly possess 3 or more books, magazines,
periodicals, films, video tapes, or other matter which contain any visual
depiction" of child pornography.2/
Effective on September 30, 1996, Congress added
to Title 18 an additional section, § 2252A, which made it a crime
to "possess[] . . . any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains 3 or more images of child pornography."3/
At the time, no change was made in § 2252(a); instead § 2252A
was a new section added to supplement the existing provisions of Title
18. Presumably, it was designed to encompass some additional means of possessing
child pornography that were not already covered by existing statutes; otherwise,
there would have been no need to add a new section to Title 18. The failure
of some of those involved in this case to recognize that 18 USC §
2252 was supplemented -- rather than replaced or amended -- by the enactment
of § 2252A is one source of the apparent confusion in the review of
this case.

B. PROCEDURAL HISTORY
In the Spring of 1996, the Air Force Office
of Special Investigations (OSI) conducted a criminal investigation of Falk
as a result of larceny allegations. During this investigation, Falks wife
informed the OSI that Falk had stored on the hard drive of his computer
numerous pictures of children engaging in sexually explicit conduct. A
search warrant was executed, and on June 5, 1996, 126 images depicting
minors engaging in various sex acts were downloaded from Falks computer
hard drive. Before downloading the images from Falks computer, investigators
found several computer directories that contained images of child pornography.
Most of these images were filed in a directory entitled "pre-teen." The
minors who were depicted while engaged in child pornography were ages 6
to 16.
Charges were originally preferred against Falk
on July 2, 1996, pursuant to RCM 307, Manual for Courts-Martial, United
States (1995 ed.). At that time, Charge I consisted of a single specification,
which read:



Violation of the UCMJ, Article 134 . . .
Specification: In that AIRMAN FIRST CLASS SCOTT E. FALK, United States
Air Force, 60th Aircraft Generation Squadron, did, at Travis
Air Force Base, California, on or about 5 June 1996, knowingly possess
three or more pictures which contain a visual depiction involving the use
of a minor engaging in sexually explicit conduct and such visual depiction
is of such conduct, on land or a building owned by or otherwise under the
control of the Government of the United States, to wit: 9 Vandenberg Court,
Travis Air Force Base, California.



Presumably, appellant was being charged at that
point with violating one or both of the first two clauses of Article 134,
conduct prejudicial to good order and discipline or service discrediting.
In any event, nothing in the specification referred to § 2252 or to
any other section of Title 18; nor did it in any way allege that the third
clause of Article 134 had been violated.
A little more than 1 month later, on August
14, 1996, a report was submitted by the officer who had conducted the investigation
required by Article 32.4/
As to Charge I, which concerned child pornography, the report recommended
that



Specification 1 of Charge I should make reference
to 18 USC § 2252 as being the specific United States Code which was
allegedly violated by A1C Falk.



A copy of § 2252 was an exhibit to the investigating
officers report, so that anyone reading the report would have ready access
to the statute it cited.
Since Charge II in the original charge sheet
also alleged that Falk violated Article 134, by stealing some credit cards
from the mail, the investigating officer also recommended that



Charge I should consist of two specifications,
the first regarding the possession of child pornography, and the second
specification in violation of Art 134 should be what is currently the specification
of Charge II.



The investigating officers report contained a
section concerned with "elements of the offenses." Among the elements listed
for Charge I - the child pornography charge - were that the conduct be
in violation of either or both of the first two clauses of Article 134.
However, the discussion of the "elements" contained no recommendation that
the specification under Charge I be amended to include allegations that
Falks conduct had been contrary to good order and discipline or service
discrediting; nor did it refer to the reports recommendation or to §
2252.
At some time within the next 12 days, the words
"in violation of § 2252" were added to what had been changed to Specification
1 of Charge I in order to comply with the investigating officers recommendation.
The handwritten modification is initialed "LS," who we assume is Captain
(CPT) Lara R. Stutz, assistant trial counsel.
Then, on August 26, 1996, the staff judge advocate
sent the convening authority a pretrial advice memorandum in accordance
with RCM 406. The memorandum acknowledged the recommendation by the investigating
officer to add § 2252 to the charge sheet. The memorandum also alerted
the convening authority to the fact that the changes had already been made
at the "Wing level," and recommended that,



with regard to the original specification
of Charge I, . . . the word "each" be inserted after the word "which" and
before the word "contain," the words "the production of which involved"
be substituted for the word "involving."



The next day, August 27, 1996, the convening authority
referred the charges in accordance with RCM 601 and approved the foregoing
modifications to the charge sheet. Again, handwritten modifications were
made, but this time by "RD." We can only speculate that "RD" is CPT Robin
Donato, trial counsel in the case. The final version of Specification 1
of Charge I read as follows:



. . . knowingly possess three or more pictures
which contain a visual depiction the production of which involved the use
of a minor engaging in sexually explicit conduct and such visual depiction
is of such conduct, on land or a building owned by or otherwise under the
control of the Government of the United States, to wit: 9 Vandenberg Court,
Travis Air Force Base, California, in violation of 18 USC § 2252.



Sometime around September 4, 1996, defense counsel
received a copy of a document purporting to contain the charges that had
been referred, together with the advice of the staff judge advocate. However,
defense counsels copy of the charge sheet did not include the modifications
directed by the convening authority. On approximately September 26, 1996,
after the Government discovered its error, an accurate copy of the charge
sheet, as it had been modified, was sent to the defense counsel.
When a pretrial session was held pursuant to
RCM 802, the trial counsel described in this manner the history of the
charges on which Falk was to be tried:



Charge I, Specification 1, the change is
striking the word "involving" and adding "the production of which involved"
was made at referral. Adding at the end "in violation of 18 USC 2252."
This change to Charge I, Specification 1, was made to a copy of the charge
sheet based on the recommendation of the Investigating Officer, probably
improperly, Your Honor, by this office when we were preparing the Article
32 package for the numbered Air Force. When the numbered Air Force prepared
the Pretrial Advice for the Convening Authority, they assumed these changes
were made on the original charge sheet and adopted them in their pretrial
advice. Two weeks ago we discovered this change was not made to the original
charge sheet which was served on the Accused on 30 August 1996. Therefore,
I made the pen and ink change and faxed it to Captain Hatch, the Accuseds
Defense Counsel, on 26 September 1996.



Prior to Falks trial, which took place on October
7, 1996, the trial counsel provided the military judge with proposed instructions
on the elements of Specification 1 of Charge I - the specification which
concerns child pornography. These instructions conformed much more to the
language of § 2252A - which had not been enacted at the time of the
alleged crime - than to the language of § 2252.5/
However, attached to the proposed instructions
was a copy of § 2252. During the providence inquiry, the military
judge did not use the language of § 2252 but gave an explanation of
Specification 1, Charge I, in terms that followed the proposed instructions
provided by trial counsel. With that explanation before him, and having
previously entered into a stipulation of fact, Falk entered his plea of
guilty.

II
A. THE PLEA WAS IMPROVIDENT
On appeal, Falk claims that his plea was improvident
because it was based on a misunderstanding of the law as a result of the
military judges misleading explanation and because the facts stipulated
to did not establish guilt under the statute in effect at the time. In
connection with his second contention, Falk emphasizes that he stipulated
to possession of only a single computer containing many images in its hard
drive, and that § 2252A was not enacted until long after charges had
been preferred. The Government not only disputes appellants contention
that his conduct was not a crime under the statute then in effect, but
also insists that his guilty plea waived any rights he might otherwise
have to raise any issue as to the adequacy of the stipulated facts to establish
that an offense had been committed under § 2252. The Court of Criminal
Appeals accepted the Governments view that a waiver had occurred.
We "will not speculate post-trial as to the
existence of facts which might invalidate an appellants guilty pleas."
United
States v. Faircloth, 45 MJ 172, 174 (1996) (quoting United States
v. Johnson, 42 MJ 443, 445 (1995)). However, "[i]n determining the
providence of [an] appellants pleas, it is uncontroverted that an appellate
court must consider the entire record in a case." Johnson,
supra
at 445 (citing United States v. Bester, 42 MJ 75 (1995)).
From the recitation of the events that led
up to Falks plea of guilty, it is apparent that great confusion existed
with respect to the elements that constituted the crime with which Falk
was charged. The military judge advised Falk pursuant to the instructions
proposed by trial counsel; and those instructions, although corresponding
substantially to the allegations of the specification as it had been amended
prior to trial, did not match well with the provisions of § 2252.6/
Obviously, the trial counsel had not noticed the discrepancy when he attached
a copy of § 2252 to the instructions; nor did the military judge when
he gave the instructions - apparently without comparing them with the
language of the statute. Additional confusion arises because, only a week
before trial, § 2252A was enacted, whose provisions fit much more
closely the facts stipulated to by Falk than did the provisions of §
2252. Whether the trial counsel was even aware of the statute so recently
enacted is questionable. However, appellate defense counsel have properly
complained that Falk was convicted under a statute that did not exist at
the time of his alleged offense.
In any event, the picture of confusion that
is painted by
the record leads us to the conclusion that,
in fairness, the plea must be held improvident and the conviction set aside.
Indeed, to hold that the plea was provident could hardly conform with the
premise that an accused who pleads guilty has some understanding of why
the facts he has admitted establish his guilt. Even if the evidence had
been sufficient to establish guilt, that circumstance would not be sufficient
to compel the conclusion that Falks plea was provident.

B. THE STIPULATED FACTS ARE INSUFFICIENT TO
ESTABLISH GUILT
When a guilty plea is held improvident, the
question presents itself whether the Government can thereafter obtain a
conviction in a contested trial. To us, it is apparent from the stipulated
facts that, if a trial were held, the evidence would be insufficient to
establish guilt under § 2252; and for this reason as well, the plea
of guilty was improvident.7/
We reject the Governments contention that
the language of § 2252 embraces the conduct admitted by Falk. In interpreting
§ 2252, we must look first to the plain language of the statute and
construe its provisions in terms of its object and policy, as well as the
provisions of any related statutes, in order to ascertain the intent of
Congress; if the statute is unclear, we look next to the legislative history.
See
United States v. Hockings, 129 F.3d 1069, 1071 (9th Cir.
1997) (citing Northwest Forest Resource Council v. Glickman, 82
F.3d 825, 830 (9th Cir. 1996)); see also United
States v. Scranton, 30 MJ 322, 324 (CMA 1990) (citing Ladner v.
United States, 358 U.S. 169, 173(1958)); Bell v. United States
349 U.S. 81 (1955). In the process, absent evidence to the contrary, the
ordinary meaning of the words used expresses the legislative intent. See,
e.g.,
United
States v. Inthavong, 48 MJ 628, 631 (Army Ct. Crim. App. 1998) (citing
United States v. Easter, 981 F.2d 1549, 1558 (10th Cir.
1992)). The interpretation of a statute and its legislative history is
a question of law to be reviewed de novo.
See Quiban
v. United States Veterans Administration, 724 F.Supp. 993, 1001 (D.D.C.
1989); see also United States v. Hockings, supra
at 1070; United States v. Weatherspoon, 49 MJ 209 (1998).
The Government has made the argument that the
reference in § 2252 to "3 or more books, magazines, periodicals, films,
video tapes, or other matter which contain any visual depiction" makes
criminal Falks possession of 126 images on one computer hard drive.8/
We disagree. A computer hard drive is more analogous to a single "book,"
which contains many chapters, words, and images. 9/
Section 2252 requires the possession of three
or more "matters" which "contain" one or more visual depictions. The word
"contain" suggests that the visual depiction must have some sort of host,
such as a hard copy picture, or a book, or even a computer disk. Therefore,
a person may be convicted under § 2252 for possessing 3 or more photographs,
but may not be convicted for possessing 1 book with 20 pictures of child
pornography in it. Whether Congress foresaw this result, we are unaware.
Perhaps the premise was that someone in possession of 3 pictures, separately
acquired, had a more serious interest in pornography - and so presented
a greater danger to children -- than someone who acquired a single book
or magazine that contained several pornographic pictures. Perhaps §
2252 was worded to prevent the prosecution of someone in unwitting possession
of a single book with many pictures depicting child pornography. In any
event, the language of § 2252 calls for this interpretation.
Furthermore, the legislative history supports
our conclusion because it shows that § 2252A was added to Title 18
in order to clear up the ambiguities and omissions in coverage that arise
from the most obvious construction of § 2252. Congress purpose underlying
§ 2252 was to "prohibit the sexual exploitation of children," in general;
Congress intent in adding § 2252A to Title 18 was because it was
"needed," as reflected in this statement made when the bill which later
became § 2252A was introduced:



This legislation is needed due to technological
advances in the recording, creation, alteration, production, distribution
and transmission of visual images and depictions, particularly through
the use of computers.



S. Rep. No. 358, 104th Cong., 2d Sess.,
1996 WL 506545 at p.9, and in this statement:



Current law prohibits the possession of three
or more books, magazines, periodicals, films, video tapes or other material
which contains any visual depiction of a minor engaging in sexually explicit
conduct. Since a single computer disk is capable of storing hundreds of
child pornographic images, current law effectively permits the possession
of substantial collections of child pornography, a loophole that will be
closed under this section.



Id. at 12.
We do not dispute that, in some cases, "Congress
may amend a statute simply to clarify existing law, to correct a misinterpretation,
or to overrule wrongly decided cases," and that, in turn, "an amendment
to a statute does not necessarily indicate that the unamended statute mean[t]
the opposite." Hockings, 129 F.3d at 1072 (quoting Hawkins v.
United States, 30 F.3d 1077, 1082 (9th Cir. 1994)). We do,
however, disagree with the Governments position that § 2252A was
enacted only for clarification. The language in the legislative history
clearly shows that Congress purpose was to close the "loophole"
through which Falk has fallen. While we have no fondness for "loopholes"
which allow one to avoid responsibility for one's behavior, our system
of law does not allow anyone to be convicted of a crime under a law enacted
after the fact, or to plead guilty to a crime not supported by the admitted
facts.
Even if § 2252 may appear ambiguous and
open to more than one interpretation, we will not expand the scope of this
criminal statute beyond the meaning an average citizen would understand
and attribute to its plain language. See McBoyle v. United States,
283 U.S. 25 (1931). As the Supreme Court has stated:



Although it is not likely that a criminal
will carefully consider the text of the law before he murders or steals,
it is reasonable that a fair warning should be given to the world in language
that the common world will understand, of what the law intends to do if
a certain line is passed. To make the warning fair, so far as possible
the line should be clear.



Id. at 27.
We conclude that a computer hard drive is a
"disk," according to commonly used language, and constitutes a single "matter"
for purposes of § 2252. 10/
Even if many images of pornography are contained in a single hard drive,
§ 2252 has not been violated; and a single hard drive with three or
more images is a single "matter." We hold, therefore, that Falks conduct
is not punishable under § 2252 - even though if the same conduct
had occurred after the enactment of § 2252A, on September 30, 1996,
it would have been punishable under the later statute. For lack of a "substantial
basis" in law, Falks guilty plea must be set aside. See United
States v. Prater, 32 MJ 433, 436 (CMA 1991).

III
Regarding Issue II, we note that all of Falk's
remaining offenses were committed between May and December 1995, well before
the effective date of the amendment to Article 57(a). In addition, his
sentence included total forfeitures, so Article 58b does not apply. See
United States v. Saia, 48 MJ 461 (1998). Thus, appellant is entitled
to relief under United States v. Gorski, 47 MJ 370 (1998).

IV
The decision of the United States Air Force
Court of Criminal Appeals is reversed as to specification 1 of Charge I
and the sentence. The finding of guilty to specification 1 of Charge I
and the sentence are set aside. The record of trial is returned to the
Judge Advocate General of the Air Force. A rehearing on specification 1
of Charge I and the sentence may be ordered.
Execution of the forfeitures and reduction
prior to the date of the convening authority's action are hereby declared
to be without legal effect. Any forfeitures collected prior to that date,
and any pay and allowances withheld because of the premature reduction
in grade, will be restored. This matter is also referred to the Judge Advocate
General of the Air Force for appropriate action.
FOOTNOTES:
1/ Uniform Code of Military
Justice, 10 USC § 832.
2/ 18
USC § 2252(a)(4) made it a crime to
(4) either-

(A) in the special maritime
and territorial jurisdiction of the United States, or on any land or building
owned by, leased to, or otherwise used by or under the control of the Government
of the United States, . . . knowingly possess 3 or more books, magazines,
periodicals, films, video tapes, or other matter which contain any
visual depiction; or


(B) knowingly possess
3 or more books, magazines, periodicals, films, video tapes, or other matter
which contain any visual depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or which was produced
using materials which have been mailed or so shipped or transported, by
any means including by computer, if-



(i) the producing of
such visual depiction involves the use of a minor engaging in sexually
explicit conduct; and




(ii) such visual depiction
is of such conduct.


3/ 18 USC
§ 2252A(a)(5) stated that any person who
(5) either-

(A) in the special maritime
and territorial jurisdiction of the United States, or on any land or building
owned by, leased to, or otherwise used by or under the control of the United
States Government, or in the Indian country (as defined in section 1151),
knowingly possesses any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains 3 or more images of child pornography;
or


(B) knowingly possesses
any book, magazine, periodical, film, videotape, computer disk, or any
other material that contains 3 or more images of child pornography that
has been mailed, or shipped or transported in interstate or foreign commerce
by any means, including by computer, or that was produced using materials
that have been mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer
shall be punished as provided in
subsection (b). Sections 2252(a)(4) and 2252A(a)(5) were both amended on
October 30, 1998, to reduce the number of prohibited images from three
to one. See Pub.L. 105-314, Title II, §§ 202(a)(1) and
203(b)(1), 112 Stat. 2977-78.
4/ During
the Article 32 investigation, the officer originally appointed to conduct
the investigation was replaced, and the report was prepared by the second
officer.
5/ These
proposed instructions were marked as Appellate Exhibit VII and are part
of the record.
6/ The
relevant portion of the instructions reads: "That, on or about 5 June 1996,
at Travis Air Force Base, California, the Accused knowingly possessed three
or more pictures which contain a visual depiction involving the use of
a minor engaging in sexually explicit conduct and such visual depiction
is of such conduct." Falk pleaded guilty to possessing "three or more pictures."
7/ It
is irrelevant how similar the language of § 2252A is to the facts
to which Falk stipulated, because that section had not been enacted at
the time of his misconduct. It is also irrelevant whether or not Falk believed
he was guilty of violating § 2252, as to which the military judge
had given erroneous instructions. Falks guilty plea is improvident because
the military judge instructed him on elements other than those contained
in the statute which he was charged with violating, and therefore, RCM
910(e) simply was not satisfied.
8/ The
Government argues that the Ninth Circuits holding that Grafics Interchange
Format (GIF) files are "visual depictions" under § 2252 is reason
enough for this Court to find that appellants files on his disk were images
under § 2252 as well. See United States v. Hockings,
129 F.3d 1069 (9th Cir. 1997). GIF files are a type of computer
file that stores the data necessary to produce a picture or image for the
viewer using the computer. Id. at 1071. The Government also
points to United States v. Smith, 795 F.2d 841 (9th Cir.
1986), which held that possession of unprocessed film containing pictures
of child pornography was criminal under § 2252 because "the exclusion
of unprocessed film . . . would allow unrestricted interstate commerce
in child pornography so long as the pornography was still in the form of
undeveloped film" and "[s]uch a loophole is inconsistent with congressional
intent." Id. at 846-47.
We disagree. While both cases
address what constitutes "other matter" under § 2252, Falk is not
denying that a computer hard drive or a computer disk would be considered
"other matter." What Falk is arguing is that he did not possess a quantity
of 3 or more "other matters." Neither case cited by the Government addresses
this issue.
9/ Note
that "any visual depiction" is used to mean either one or more image.
10/ Microsofts
computer handbook describes a computer disk as the following: "Just as
a directory is a group of files, a drive, which is always represented by
a drive letter, is a group of directories. Drives are usually associated
with a piece of hardware called a disk. A disk is a flat piece of
metal or plastic on which data is stored. The most common types of disks
are the hard disk, which is inside your computer, and the floppy
disk and
computer disk, which you insert into a slot either
in or next to your computer. . . . Your hard disk, or at least part of
it, is called drive C." Microsoft Windows for Workgroups & MS-DOS,
Users Guide, (1994).
 
 
SULLIVAN, Judge (dissenting):
I would affirm this case. Appellant pleaded
guilty to violating 18 USC § 2252 (1994), as follows:



CHARGE: I VIOLATION OF THE UCMJ,
ARTICLE 134
SPECIFICATION 1:
In that AIRMAN FIRST CLASS SCOTT E. FALK, United
States Air Force, 60th Aircraft Generation Squadron, did, at
Travis Air Force Base, California, on or about 5 June 1996, knowingly
possess three or more pictures which contain a visual depiction the production
of which involved the use of a minor engaging in sexually explicit conduct
and such visual depiction is of such conduct, on land or a building
owned by or otherwise under the control of the Government of the United
States, to wit: 9 Vandenberg Court, Travis Air Force Base, California,
in violation of 18 USC § 2252.



He agreed to the following stipulation of fact
concerning this charge:



MJ: 14. On or about 3 June 1996, SSgt Nash
interviewed Stacey Falk, the Accuseds wife, pursuant to an investigation
he was conducting. During the course of that interview, Mrs. Falk informed
SSgt Nash that her husband had child pornography on his computer which
was located in their home at 9 Vandenberg Court. With the exception of
Mrs. Falk playing Solitaire on the computer, A1C Falk exclusively used
the computer. SSgt Nash obtained a search authorization to seize and search
the computer and Special Agent Timothy Hanners, a Computer Crime Investigator
with the Air Force Office of Special Investigations, subsequently searched
the contents of the Accuseds personal computer.
15. A1C Falk had hundreds of photographic images
stored on his computer. He neatly categorized these images into directories
on his computer labeled "Children," "Preteen," "Weird," and "XXX." On or
about 5 June 1996, A1C Falk possessed 126 photographic images depicting
child pornography, most of which were stored on his computer under the
directory "Pre-teen." Many of these images graphically depicted children
engaged in sexually explicit conduct including sexual intercourse, sodomy,
and masturbation. The remainder of the images depicted the genitals or
pubic areas of the children in a lascivious manner. A1C Falk knew that
he had these images in his possession and he knew that they depicted children
engaged in sexually explicit conduct.
16. Prosecution Exhibit 3 consists of hard
copies of the photographic images depicting child pornography which were
downloaded from the Accuseds computer. Lieutenant Colonel Stephen Boos,
a pediatrician assigned to the . . . David  Grant Medical Center at Travis
Air Force Base, has reviewed the photographic images contained in Prosecution
Exhibit 3 and confirmed that all depict children under the age of 18 years.
Dr. Boos estimates that the images depict children ranging in age from
approximately six years through approximately sixteen years.
Now, are all those previous paragraphs true
and correct to the best of your knowledge and belief, and do you wish to
admit that they are true?
ACC: Yes, Your Honor.



Finally, appellant explained his offense to the
military judge as part of the guilty plea inquiry. He stated:



With regard to Charge I, Specification 1,
I downloaded some pictures off the Internet after gaining access. When
sorting through these files I determined that I did possess child pornography
which I then filed away into their respective directories.



(Emphasis added.)
I disagree with the majority opinion for several
reasons. See generally United States v. Harrison,
26 MJ 474, 476 (CMA 1988) (post-trial speculation as to facts supporting
offense not countenanced). First, appellant pleaded guilty and admitted
violating 18 USC § 2252 (1994), as charged. He specifically admitted
his possession of 126 computer files of child pornography; his organization
of the files containing these pictures into four different directories
on his computer; and that his conduct in government housing violated 18
USC 2252(a)(4)(B) ("knowingly possess 3 or more books, magazines, periodicals,
films, video tapes, or other matter which contain any visual depiction
. . . . involv[ing] the use of a minor engaging in sexually explicit conduct.").
A conviction in similar circumstances under this same statutory provision
was upheld in United States v. Hockings, 129 F.3d 1069 (9th
Cir. 1997) (eight computer files). In my view, a computer picture stored
in a file on a hard drive is in a container for visual depictions
under 18 USC § 2252 ("other matter which contain any visual depiction").
A computer has the capacity to contain a full library of books and pictures
stored in the files of its hard drive.
In addition, assuming appellants admitted
conduct of possessing these computer pictures did not violate 18 USC 2252(a)(4)(B)
(1994), it clearly violated another subsection of that same statute, subsection
(a)(2). This subsection had no multiple container requirement. It states
that any person who



(2) knowingly receives, or distributes
any
visual depiction that has been mailed, or has been shipped or transported
in interstate or foreign commerce, or which contains materials which have
been mailed or so shipped or transported, by an means including by computer,
or knowingly reproduces any visual depiction for distribution in interstate
or foreign commerce by any means including by computer or through the mails,
if
(A) the producing of such visual depiction
involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;



shall be punished under the statute. (Emphasis
added).
Here again, appellant admitted to the military
judge:



With regard to Charge I, Specification 1,
I downloaded some pictures off the Internet after gaining access. When
sorting through these files I determined that I did possess child pornography
which I then filed away into their respective directories.



Affirmance of his conviction based on his guilty
plea admissions to a closely related offense is permitted under United
States v. Felty, 12 MJ 438, 441-42 (CMA 1982); see generally
Art. 59(a), UCMJ, 10 USC § 859(a).
Finally, even if appellants admitted conduct
did not violate any subsection of 18 USC § 2252 (1994), I would still
affirm his conviction under Article 134, UCMJ, 10 USC § 934. Possession
of 126 computer images of child pornography, lasciviously organized into
four directories on a personal computer, in government housing on a military
post, is per se service discrediting conduct in my view.
Affirmance of his conviction for this conduct under Article 134 is warranted,
even if no civilian offense was established. See United States
v. Gallegos, 41 MJ 446 (1995) (manifest example of conduct prejudicial
to good order and discipline affirmed as offense under Article 134, despite
failure to constitute civilian offense).
 
 
CRAWFORD, Judge (dissenting):
When investigative officers searched appellants
home in June 1996, they seized not only his computer, which contained 126
files of child pornography divided into 4 directories he had labeled "Children,"
"Pre-teen," "Weird," and "XXX"; they also seized one picture of verified
child pornography and subscription information for the pornographic bulletin-board
system appellant was running from his home.
In the end, appellant was only charged with
a single specification of possession of child pornography, in addition
to his larceny, conspiracy, and false claim offenses. Pursuant to a pretrial
agreement, appellant pled guilty to all the charges and was sentenced only
to a dishonorable discharge, 42 months confinement, total forfeitures,
and a reduction to the lowest rank. He fared well.
Appellant now argues that his plea to the child
pornography offense was improvident and that this Court should dismiss
the conviction and reassess his sentence. For the following reasons, I
believe that we should not do so.
By pleading guilty, appellant waived a trial
on the facts and made a conscious decision to relieve the Government of
its responsibility to prove all of the elements of its case. See United
States v. Faircloth, 45 MJ 172 (1996). Essentially, a plea of guilty
by an accused changes the substance of the court-martial. Further, "[b]ecause
[appellant] pleaded guilty, the issue must be analyzed in terms of providence
of his plea, not sufficiency of the evidence," changing the substance of
our review as well. Id. at 174.
Thus, the bar for reversing a military judges
finding that a plea was provident must be high. As this Court has noted,
this rule is "rooted, in part, in our respect for the obvious tactical
decision by an accused and his counsel to forgo possible defenses." United
States v. Roane, 43 MJ 93, 99 (1995), citing United States v. Logan,
22 USCMA 349, 350, 47 CMR 1, 2 (1973).
Appellant chooses now to raise a defense he
could have raised before the military judge at his trial on October 7,
1996. He even failed to mention it in his November 22 response to the Staff
Judge Advocate Recommendation on his court-martial. That defense hinges
on an amendment to the federal child pornography statute proposed at a
Senate Judiciary Committee hearing on June 4, 1996, written into Senate
Report No. 104-358 on August 27, 1996, debated on the Senate floor on September
28, 1996, and signed into law on September 30, 1996. It is important to
note that, although appellate defense counsel at oral argument conceded
that the trial defense team "missed the boat," appellant does not claim
ineffective assistance of counsel but, rather, improvidence of his plea.
The mere possibility of a defense that appellant
could have raised was that, because the law in June 1996 stated that it
was a crime to knowingly possess "3 or more books, magazines, periodicals,
films, video tapes, or other matter" which contained child pornography,
and because appellant was only charged with possessing one hard drive containing
child pornography, his charged conduct did not constitute a crime under
18 USC § 2252(a)(4)(A) (1994). The 1996 amendment on which appellant
pins this argument changed the law to prohibit knowing possession of "any
book, magazine, periodical, film, videotape, computer disk, or any other
material that contains 3 or more images of child pornography." See
18 USC § 2252A(a)(5)(A) (1996). It is appellants contention that
by amending the law clearly to include his behavior, Congress somehow admitted
that the law had not previously encompassed it.
However, what appellant ignores in making this
argument, and the majority undervalues in agreeing with it, is that "Congress
may amend a statute simply to clarify existing law, to correct a misinterpretation,
or to overrule wrongly decided cases. Thus, an amendment to a statute does
not necessarily indicate that the unamended statute meant the opposite."
Hawkins
v. United States, 30 F.3d 1077, 1082 (9th Cir. 1994). The
language of the Senate Report on which appellant relies does not necessarily
mean what he wants it to mean -- a determination that should have been
left to the military judge.
Had appellant raised this defense in the first
place, the Government would have been forced to prove that the 4 directories
of child pornography, or possibly the 126 files of child pornography, on
his hard drive constituted "other matter" as used in the preamendment statute.
This is not an absurd argument and may, in fact, have been considered by
appellant and his trial defense team in deciding to sign the pretrial agreement.
A similar defense as that which appellant now
raises was tried and rejected by the Supreme Court in United States
v. Alpers, 338 U.S. 680 (1950). There, the Court applied the rule of
ejusdem
generis to determine that phonograph records, a fairly new and increasingly
prevalent technology at the time, though not specified in the federal obscenity
statutes outdated list, could constitute "other matter." The Courts words
then are relevant now: "The most important thing to be determined is the
intent of Congress. The language of the statute may not be distorted under
the guise of construction, or so limited by construction as to defeat the
manifest intent of Congress." Id. at 681-82.
It may be appropriate at this point to remark
on the sloppiness with which the Government approached its duty in preferring
charges and making its case at court-martial. It is the Governments failure
to mirror carefully the language it chose in writing out the specification
and preparing proposed instructions to that of the actual statute that
gives appellants appeal the most vitality. However, this does not absolve
defense counsel of their own carelessness.
Despite these flaws, I fail to see how they
could have misled appellant and his defense team or prejudiced him in any
way. In United States v. Felty, 12 MJ 438, 442 (CMA 1982), this
Court found that a "technical variance between the offense alleged and
that which is established from an accuseds own lips does not require setting
aside the plea of guilty." There, the appellant pleaded guilty to escape
from custody but was, in reality, guilty of escape from confinement, two
"different offenses." Id. at 440. Included amongst the factors we
considered to reach our decision was that the appellant



believed that he was guilty of an escape;
according to his answers during the providence inquiry, he was indeed
guilty. There is no reason to believe that the variance impaired his ability
to prepare for trial, and the finding of guilty, if affirmed, would protect
him from prosecution on any other charge of escape arising out of the same
course of conduct.



Id. at 442.
Though the wording of the Article 134 specification
charging the possession of child pornography was not the same as that in
the statute, the statute was properly referenced as part of the charge
and should have been within easy grasp of both detailed defense counsel
and individual defense counsel. Likewise, a copy of the statute was attached
to the Governments proposed instructions.
In United States v. Meyer, 802 F.2d
348 (9th Cir. 1986), cert. denied, 484 U.S. 817 (1987),
the appellant there made a similar argument to that of appellant here.
In that case, the appellant was also charged under the child pornography
statute, and the indictment also misstated the wording of the statute.
The indictment used statutory language which had been amended just prior
to the appellants offense, stating an element of the crime was the "lewdness"
of the exhibition depicted, not the "lasciviousness," as Congress had just
adjusted it to read. Id. at 351. The Ninth Circuit rejected the
appellants argument, stating that it



fail[ed] to see how the wording of the indictment
impaired his defense. See United States v. Pheaster, 544
F.2d 353, 363 (9th Cir. 1976), cert. denied sub
nom. Inciso v. United States, 429 U.S. 1099 ... (1977).... Appellant
does not seriously suggest that he was confused as to the charges he had
to meet, see Pheaster, 544 F.2d at 363, and under the circumstances
the indictments correct citation to the statute was adequate to inform
him that lasciviousness was an element of the crime.



802 F.2d at 351.
The bottom line is that for the offenses to
which appellant pleaded guilty, he could have faced a maximum punishment
of a dishonorable discharge, 30½ years1
confinement, total forfeitures, a reduction to the lowest enlisted rank,
and an unlimited fine. His decision to sign the pretrial agreement removed
the possibility of a fine, and, in the end, his confinement amounted to
only 42 months. He got the benefit of his bargain. No amount of after-the-fact
legal maneuvering should be allowed to break that legitimate deal.
Because I find appellants plea provident,
I do not consider whether the substance of his defense is persuasive, an
analysis best left to the factfinder. For these reasons, I would affirm.
FOOTNOTE:
1 Counsel agreed on the
record that the maximum confinement was 25½ years; however, a re-calculation
indicates that total confinement could have amounted to 30½ years.

Appendix:
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