          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                           _________________________

                               No. 201600120
                           _________________________

                   UNITED STATES OF AMERICA
                                    Appellee
                                        v.

                             Shaun M. WILEY
         Chief Warrant Officer 2 (CWO-2), U.S. Marine Corps
                              Appellant
                      _________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
       Convening Authority: Commanding General, III Marine
        Expeditionary Force, Camp Foster, Okinawa, Japan.
 Staff Judge Advocate’s Recommendation: Colonel John M. Hackel,
                               USMC
    For Appellant: James S. Trieschmann, Jr., Esq.; Lieutenant
                Jacqueline M. Leonard, JAGC, USN
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
               USN; Captain Sean M. Monks, USMC.
                      _________________________

                          Decided 10 August 2017
                          _________________________

   Before C AMPBELL , 1 H UTCHISON , and P ETTIT Appellate Military
                                 Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________




   1 Former Senior Judge Campbell took final action in this case prior to detaching
from the court.
                       United States v. Wiley, No. 201600120


   HUTCHISON, Senior Judge:

    At a contested general court-martial, members convicted the appellant of
attempted sexual assault of a child, attempted sexual abuse of a child,
attempted receipt of child pornography, indecent exposure, communicating
indecent language, and solicitation—violations of Articles 80, 120c, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920c, and 934
(2012). The convening authority (CA) approved the adjudged sentence of 44
months’ confinement and a dismissal.

    The appellant originally raised six assignments of error (AOEs). Based
upon our initial review, we specified two issues for briefing. The appellant
then filed a supplemental AOE. For ease of reading, the AOEs and specified
issues are numbered consecutively: (1) the military judge erred in failing to
grant the appellant relief under Article 10, UCMJ, or in the alternative, trial
defense counsel (TDC) was ineffective; (2) all the Article 80, UCMJ, attempt
convictions are factually insufficient because the government failed to prove
beyond a reasonable doubt the appellant was not entrapped; (3) the indecent
exposure conviction is factually and legally insufficient because the alleged
exposure was via electronic media; (4) the solicitation to produce and
distribute child pornography conviction—subparagraph (c) of Charge III,
Specification 2—is legally and factually insufficient because the solicited
undercover agent was not a child; (5) the military judge erred in failing to
instruct the members on the affirmative defense of voluntary abandonment;
(6) the military judge committed plain error in failing to allow the members
to request admissible evidence relevant to the appellant’s entrapment
defense;2 (7) subparagraphs (a) and (b) of Charge III, Specification 2—
alleging the appellant solicited an undercover agent whom he believed was
under the age of 16 to have sexual intercourse with him and receive kisses
and oral sex from him—fail to state offenses; (8) the military judge committed
plain error in failing to instruct the members on the elements for
subparagraphs (a) and (b) of Charge III, Specification 2; and (9) the
preemption doctrine requires this court to reverse its holding in United States
v. Robertson, 17 M.J. 846, 850 (N.M.C.M.R. 1984), and set aside and dismiss
the appellant’s conviction for Charge III, Specification 2.

   Having carefully considered the record of trial and the parties’
submissions, we find merit in the third and seventh AOEs. We also note
there are several discrepancies in the Court-Martial Order (CMO), including


   2 This AOE is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). We have reviewed and summarily reject it. United States v. Clifton, 35 M.J. 79
(C.M.A. 1992).


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                        United States v. Wiley, No. 201600120


its failure to set forth the pleas and findings, or other dispositions, for each
charge and specification on which the appellant was arraigned, as required
by RULE FOR COURTS-MARTIAL (R.C.M.) 1114(c)(1), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.).3 Following the corrective action within
our decretal paragraph, we are convinced that the remaining findings and
sentence are correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant remains. Arts. 59(a) and 66(c),
UCMJ.
                                  I. BACKGROUND
    In March 2015, while stationed in Okinawa, Japan, the appellant
responded to a personal advertisement in the “women for men” section of
Craigslist, and thereafter, communicated via text message with a person who
told him she was 14 years old.4 In fact, the purported 14-year-old girl was an
active duty Sailor, working as an undercover agent (UC) with the Naval
Criminal Investigative Service (NCIS). Although the UC’s Craigslist
advertisement listed her age as “70,” it displayed her actual picture as a
teenager. During the course of their online conversation over the next two to
three days, the appellant engaged in increasingly explicit sexual discussions
with the UC, sent her digital pictures of his exposed penis, and asked her to
send him illicit photographs of herself. The appellant eventually drove to
meet the UC, was apprehended by NCIS, and on 31 March 2015, ordered into
pretrial confinement. The government preferred charges, stemming from the
appellant’s online interactions with the UC, on 24 April 2015.
   During a search of the appellant’s residence, NCIS and command
representatives discovered audio recordings of an argument between the
appellant and his wife, PW. NCIS believed the recordings evidenced PW
confronting the appellant about raping, forcibly sodomizing, and assaulting
her. On 20 May 2015, NCIS agents interviewed PW about the audio
recordings. PW explained that the recorded argument occurred in September


   3  The appellant was arraigned on 4 charges and 5 additional charges, totaling 29
specifications. Prior to empaneling members, the government withdrew and
dismissed some of the charges and specifications, and the military judge dismissed,
merged and consolidated other charges and specifications. Thereafter, the military
judge, the parties, and the members referred to the charges as reflected on a cleansed
charge sheet. See Appellate Exhibit (AE) XXXVII. In promulgating his action, the CA
refers only to the charges and specifications as reflected in AE XXXVII. Therefore, for
the sake of clarity, we will reference the charges and specifications based on AE
XXXVII instead of the original charge sheet.
   4  Record at 230. After initially responding to the Craiglist advertisement, further
communications were conducted through either iMessage or Kik, a social media
“instant text messaging application.” Id. at 223.


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                            United States v. Wiley, No. 201600120


2013 and that the incident giving rise to it did not involve sex. Despite PW’s
assertions, on 3 June 2015, the government preferred additional charges
against the appellant which alleged forcible rape, attempted forcible sodomy,
assault consummated by battery, and communicating a threat. NCIS re-
interviewed PW on 5 June 2015, and she again denied there was any forcible
sex. Both the 20 May and 5 June interviews were recorded.
    On 9 June 2015, the government preferred dereliction of duty charges
against the appellant for allegedly mishandling classified information. In
light of this additional aspect of the investigation, the classified and
unclassified evidence within the appellant’s NCIS case file became
“intermingled.”5 On 11 June 2015, the appellant waived his Article 32,
UCMJ, preliminary hearing “for trial strategy purposes.”6
    On 17 July 2015, the appellant was arraigned on all charges, 109 days
after being placed into pretrial confinement, and agreed to a trial
management order (TMO) scheduling trial for 21 September 2015.7 The TMO
also required that the government complete all pretrial discovery obligations
by 27 July 2015.
   On 5 August 2015, the government filed a motion to move the trial from
21 September to 6 October 2015 in order to accommodate travel for a
government witness.8 The TDC, in part, responded to the continuance
motion:
         Article 10 of the [UCMJ] requires the Government to take
         immediate steps to try an accused when he is placed in pretrial
         confinement. The Government’s justification in this case—that
         a witness is going on vacation—is not sufficient to override the
         Government’s responsibilities under Article 10, UCMJ, or [the
         appellant’s] rights under the Sixth Amendment to the United
         States Constitution.9
   In a 10 August 2015, Article 39(a), UCMJ, session, the TDC further
argued that the appellant was “sitting in pretrial confinement now with his
Article 10 rights, with his speedy trial rights. So we certainly don’t consent to
moving the trial back.”10 However, the Article 10, UCMJ, issue was never


   5   Record at 103.
   6   AE XXX at 4.
   7   Record at 6; AE I.
   8   AE III.
   9   AE IV at 1-2.
   10   Record at 16.


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                        United States v. Wiley, No. 201600120


litigated, and the military judge did not make any findings of fact or
conclusions of law. Rather, the military judge issued a modified TMO that
delayed the start of trial for two days, until 23 September 2015.11
   On 4 September 2015, the government counsel provided the TDC an
NCIS interim report of investigation dated 27 August 2015. The interim
report stated that after investigators discovered the audio recordings at the
appellant’s residence, NCIS agents attempted to interview PW, but she
declined. The interim report did not mention that NCIS recorded interviews
of PW on 20 May and 5 June 2015. The government counsel was also
unaware of the 20 May and 5 June 2015 interviews, but he understood that
PW would participate at trial.
   On 14 September 2015, the government counsel provided the TDC an
NCIS report and the summaries of PW’s 20 May and 5 June 2015 statements
to NCIS. This report was the first indication to the appellant that PW had
made any case-related statements. The following day, the government
counsel provided the TDC the NCIS video recordings of PW’s interviews.
    Based on the government’s discovery violations, on 17 September 2015,
the TDC filed a motion for appropriate relief asking that the charges related
to PW “be dismissed with prejudice and that [the appellant] be immediately
released from pre-trial confinement,” or, alternatively, “that the court prevent
the [g]overnment from presenting the testimony of [PW] at trial.”12 As a final
alternative, the TDC requested a trial continuance for “at least three weeks,
to allow the defense additional time to investigate the materials newly
provided to the defense.”13 However, the TDC cautioned that the
government’s “late discovery of exculpatory material” puts the defense in the
untenable position of “either (1) agree[ing] to a continuance, thus resulting in
[the appellant] spending more time in pretrial confinement and giving the
[g]overnment more time to prepare its case; or (2) keep[ing] the currently
scheduled trial date without being able to fully investigate the new material
provided . . . the week before trial.”14 Although the TDC reminded the
military judge that the appellant “has been in pretrial confinement since




   11 It is unclear from the record whether the military judge modified the TMO
because of the government’s continuance request or simply as a matter of docket
management. Regardless, nothing in the record suggests the appellant opposed the
two day delay ordered by the military judge.
   12   AE XVI at 12.
   13   Id.
   14   Id. at 11.


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                        United States v. Wiley, No. 201600120


March,” the motion did not invoke Article 10, UCMJ, and he did not demand
speedy trial or request dismissal of the charges.15
    The military judge found that the government’s failure to disclose the
interviews of PW constituted discovery and due process violations, but
concluded that the “appropriate remedy for this violation is a continuance of
the trial.”16 Announcing his ruling during an Article 39(a), UCMJ, session on
23 September 2015, the military judge stated:
         The bottom line is the defense is entitled to a continuance. The
         question is going to become, really, [h]ow much of a
         continuance? Right now, the Court is saying that you have the
         rest of today. But based upon that, you are going also to be
         allowed the opportunity to review the NCIS case files that list
         Chief Warrant Officer Wiley as the subject. So, trial counsel,
         you need to make sure that NCIS is aware that defense is
         coming over there today. And they need to have those case files
         ready for inspection by the defense, and they don’t need to
         delay that.17
    The next day, 24 September 2015, the government counsel informed the
court that the NCIS “chain of command” had still not granted approval for
the TDC to review the NCIS case files, but expected approval and release of
the material later that day.18 Consequently, the TDC asked for, and the
military judge granted, a continuance until the following day, 25 September
2015. At 1630 on 24 September 2015, the government produced two of three
NCIS investigative files for defense inspection, but redacted several
documents from the files. The third file, which contained classified material,
was not produced. In response, the TDC filed another motion for appropriate
relief based on the government’s failure to comply with discovery obligations
or the court’s orders, this time asking that all charges be dismissed or that
the proceedings be abated.19 However, the defense motion—while noting that
the appellant remained confined—did not mention Article 10, UCMJ, or
demand speedy trial.
   At an Article 39(a), UCMJ, session on 25 September 2015, the
government provided notice of intent to appeal an earlier decision by the
military judge to consolidate and merge several offenses, and requested a

   15   Id.
   16   AE XXX at 7.
   17   Record at 71.
   18   Id. at 74.
   19   AE XLI at 1 (emphasis added).


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                         United States v. Wiley, No. 201600120


continuance.20 The TDC did not oppose the continuance, but expressed
concern for the “day-to-day” continuances and the “anxiety” such uncertainty
was causing the appellant.21 As a result, and based on the court docket, the
military judge continued the trial until 6 October 2015. The parties did not
litigate the defense motion to dismiss or abate the proceedings, but the
military judge reiterated to the government counsel the requirement to grant
the TDC access to the NCIS case files.
   The record is unclear as to what caused the next Article 39(a), UCMJ,
session to be delayed until 10 November 2015, but the military judge noted:
         The purpose of this session today is to try and get things back
         on track in view of the government’s Article 62[, UCMJ,]
         appeal being denied by the appellate government folks.
         Subsequently, I did order trial to occur the first week of
         December.22
Turning again to the TDC’s access to the NCIS case files, the government
counsel sought to assert privilege over the remaining case file, pursuant to
MILITARY RULE OF EVIDENCE (Mil. R. Evid) 505, MANUAL FOR COURTS-
MARTIAL (2012 ed.). The military judge ordered the government to redact
classified information from the file and grant the defense access to the
unclassified portions by 13 November 2015. The TDC then renewed his
request for dismissal of all charges or abatement of the proceedings:
         So we just want to go back to that motion that we filed on [the]
         24th of [September], sir. We think that this month and a half
         that the government has gotten by filing this Article 62 appeal
         does not change the fact of where we were that morning asking
         this court to either abate or dismiss for noncompliance with
         this Court’s order. So they—it’s a month and a half later; they
         still haven’t complied with this Court’s order.23




   20   See supra, Note 3.
   21 Record at 101. During the 39(a), UCMJ, session, following the military judge’s
order continuing the trial until 6 October 2015, the TDC requested that the appellant
be released from pretrial confinement. Following a brief recess, the TDC withdrew
his request, commenting, “after further consideration we’re not going to raise the
issue of release from pretrial confinement today. We think that a continuance until 6
October will give the government more time to comply with the Court’s order.” Id. at
106.
   22   Id. at 107.
   23   Id. at 116 (emphasis added).


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                          United States v. Wiley, No. 201600120


The TDC did not demand speedy trial and did not oppose the December trial
date. Trial began on 1 December 2015.
                                     II. DISCUSSION
A. Article 10, UCMJ
    The appellant alleges that the military judge erred in failing to grant
relief under Article 10, UCMJ, after his “lengthy pre-trial confinement was
prolonged by Government inaction and non-compliance with discovery.”24 We
review Article 10, UCMJ, speedy trial claims de novo. United States v.
Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003).
    Article 10, UCMJ, demands that when a service member is placed in
pretrial confinement, “immediate steps shall be taken . . . to try him or to
dismiss the charges and release him.” In reviewing Article 10, UCMJ, claims,
courts do not require “constant motion,” from the government, but do require
“reasonable diligence in bringing the charges to trial.” United States v.
Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005) (citations and internal quotation
marks omitted). This “duty imposed on the [g]overnment immediately to try
an accused who is placed in pretrial confinement does not terminate simply
because the accused is arraigned.” Cooper, 58 M.J. at 60. Rather, it extends to
“at least the taking of evidence.” Id. In conducting our review, we give
substantial deference to the military judge’s findings of fact, reversing only if
they are clearly erroneous. Mizgala, 61 M.J. at 127. Finally, we look at four
factors in examining the circumstances surrounding an alleged Article 10,
UCMJ, violation: “(1) the length of the delay; (2) the reasons for the delay; (3)
whether the appellant made a demand for a speedy trial; and (4) prejudice to
the appellant.” Id. at 129 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
    Given this legal framework, and mindful of the appellant’s concession
that his TDC’s “invocation of Article 10, UCMJ, was not a model of clarity,”25
we now analyze the Barker factors. In doing so, we recognize that none of the
four factors has any “talismanic power. Rather, we must . . . weigh all the
factors collectively before deciding whether a defendant’s right to a speedy
trial has been violated.” United States v. Wilson, 72 M.J. 347, 354-55
(C.A.A.F. 2013) (citations and internal quotation marks omitted).
   1. Length of the delay
    The length of delay constitutes a triggering mechanism under Article 10,
UCMJ. See United States v. Thompson, 68 M.J. 308, 312 (C.A.A.F. 2010)
(holding that the 145-day period the appellant spent in pretrial confinement


   24   Appellant’s Brief of 4 Oct 16 at 12.
   25   Id. at 17.


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                     United States v. Wiley, No. 201600120


was sufficient to trigger an Article 10, UCMJ, inquiry); Cossio, 64 M.J. at 257
(holding that a 117-day period of pretrial confinement triggered the full
Article 10, UCMJ, inquiry). The appellant spent 248 days in pretrial
confinement. Therefore, we conclude that the delay, from the appellant’s
placement into pretrial confinement on 31 March 2015 through trial on 1
December 2015, is sufficient to trigger analysis of the remaining Barker
factors.
   2. Reasons for the delay
    The bulk of the delay now complained of was unrelated to the
government’s malfeasance in providing discovery. Even assuming 248 days
was presumptively prejudicial, the facts of this case demonstrate various
legitimate reasons for the delay.
   First, we find no unreasonable delay between when the appellant was
placed into pretrial confinement, on 31 March 2015, and his 17 July 2015
arraignment. The appellant faced 9 charges and 29 specifications addressing
3 wholly unrelated criminal activities, and involving classified information.26
   Following arraignment, “a change in the speedy trial landscape [took]
place. This is because after arraignment, ‘the power of the military judge to
process the case increases, and the power of the [g]overnment to affect the
case decreases.’” Cooper, 58 M.J. at 60 (quoting United States v. Doty, 51 M.J.
464, 465-66 (C.A.A.F. 1999). In short, once the appellant was arraigned, the
military judge had the “power and responsibility to force the [g]overnment to
proceed with its case if justice so require[d].” Id.
   The military judge, with the concurrence of the TDC, initially issued a
TMO setting trial for 21 September 2015. Therefore, any delay between
arraignment and 21 September 2015 was presumptively reasonable. See
United States v. King, 30 M.J. 59, 66 (C.M.A. 1990) (holding that an accused
“cannot be responsible for or agreeable to delay and then turn around and
demand dismissal for that same delay”); United States v. Toombs, 574 F.3d
1262, 1274 (10th Cir. 2009) (“[d]elays attributable to the defendant do not
weigh in favor of a Sixth Amendment violation”) (citation omitted).
    Therefore, in assessing whether the government acted with “reasonable
diligence in bringing the charges to trial,” we focus on the period between 21
September 2015 and the start of trial on 1 December 2015. Mizgala, 61 M.J.
at 127. In doing so, we are mindful that “[a] deliberate attempt to delay the
trial in order to hamper the defense should be weighted heavily against the



   26  While not dispositive for Article 10, UCMJ, purposes, we note that the
appellant was arraigned within the timelines prescribed by R.C.M. 707.


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                          United States v. Wiley, No. 201600120


government,” while “a valid reason . . . should serve to justify appropriate
delay.” Barker, 407 U.S. at 531.
    The appellant points to the government’s repeated discovery violations as
cause for the delay. Specifically, the appellant argues that NCIS caused
“unnecessary delay from 27 July until 17 September 2015 by failing to timely
disclose recordings of NCIS interviews with [PW]” and again from “27 July
2015 until at least 4 November 2015 . . . by repeatedly failing to comply with
the [m]ilitary [j]udge’s discovery order directing [d]efense access to the
agent’s case file.”27 While the government’s failure to disclose the interviews
with PW amounted to discovery and due process violations, the military
judge provided the appropriate remedy by continuing the trial until the TDC
had an opportunity to review the material and the NCIS case files. Initially
delaying the start of the trial for only a single day, the military judge then
granted the defense request to further delay the start of trial another day—
until 25 September.28 After the government failed, again, to provide access to
the NCIS case file, the defense filed a motion to dismiss the charges, abate
the proceedings, or, in the alternative, for a continuance. However, on the
same day—25 September 2015—the government filed notice of its intent to
appeal the military judge’s ruling merging and consolidating several of the
charges and specifications.29 Based on that government notice, the military
judge continued the case until 6 October 2015.
    While the government did delay in providing the defense access to the
NCIS case files, it appears from the scant record before us that the
government’s delay was not the cause of the continuance between 6
October—the new trial date set by the military judge after the government
filed notice of appeal—and the eventual start of trial on 1 December 2015. In
opening the 10 November 2015, Article 39(a), UCMJ, session, the military
judged noted that after he was informed that the “appellant government
folks” had declined to take the government’s Article 62, UCMJ, appeal, he
then ordered trial to begin the first week of December.30 Likewise, in that
same session, while arguing for the charges to be dismissed based on
discovery violations, the TDC pointed out that they were in the same position
they were in on 24 September—without access to the NCIS case files—
despite the “month and a half that the government has gotten by filing this



   27   Appellant’s Brief at 16.
   28 Following the military judge’s issuance of the revised TMO, trial was set to
begin on 23 September 2015. See supra, note 10.
   29   AE XLIV.
   30   Record at 107.


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                          United States v. Wiley, No. 201600120


Article 62 appeal[.]”31 The clear import of the these two statements is that the
delay from 25 September to 1 December 2015 resulted from the government’s
decision to pursue an Article 62, UCMJ, appeal, and was independent of the
government’s discovery violation.
   Article 62(c), UCMJ, provides that delays resulting from an appeal under
Article 62 “shall be excluded” from speedy trial analysis “unless an
appropriate authority determines that the appeal was filed solely for the
purpose of delay with the knowledge that it was totally frivolous and without
merit.” In United States v. Danylo, 73 M.J. 183, 187-88 (C.A.A.F. 2014), the
Court of Appeals for the Armed Forces (CAAF) found that an unexplained,
170-day delay between the government’s notice of appeal and the decision by
the Court of Criminal Appeals was not unreasonable. Here, the delay
between the government’s notice of intent to appeal and the start of the trial
was 67 days, and the record is devoid of information from which we could
conclude that the 67-day delay was unreasonable, or that the government
pursued the appeal for purposes of delay.
    We recognize that, normally, the burden is on the prosecution to show
that the government proceeded to trial with “reasonable diligence.” The
appellant points out that “the government must be held responsible” for this
67-day period of delay.32 The record, however, does not contain any findings
of fact or other information, beyond the conclusory statements of the military
judge and the TDC indicating the 67-day delay was occasioned by the
government’s appeal. We can only conclude that the military judge ordered,
without objection from the TDC, “trial to occur the first week of December”
after the “appellate government folks” denied the appeal.33 This lack of
information in the record is attributable to the failure of the appellant to
raise this issue at trial.34 Consequently, the government had no reason to
provide a detailed accounting of their efforts to bring the case to trial in the
absence of any motion by the appellant. Under the circumstances, the 67
days between 25 September and 1 December 2015 does not seem
unreasonable. Therefore, we conclude, that the reasons for the delay weigh in
the government’s favor.




   31   Id. at 116.
   32   Appellant’s Brief at 16.
   33   Record at 107.
   34  Accord United States v. Culpepper, ACM 34058, 2001 CCA LEXIS 343, at *3
(A.F. Ct. Crim. App. 11 Dec 2001).


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                          United States v. Wiley, No. 201600120


   This is not to say we condone the government’s dilatory discovery
practices in this case; rather we simply find that they had little impact on the
delays associated with bringing the appellant to trial.
   3. Demand for speedy trial
    As we noted previously, the appellant made no demand for speedy trial.
We have long held that “the right to speedy trial is a shield, not a sword,” and
that “failure to assert the right [] will make it difficult for a defendant to
prove that he was denied a speedy trial.” United States v. Miller, 66 M.J. 571,
575 (N-M. Ct. Crim. App. 2008) (citations and internal quotation marks
omitted). Although the appellant moved to dismiss all charges and
specifications based on discovery violations, those motions included no
demand for a speedy trial.35 The appellant argues that his multiple requests
for dismissal, his invocation of Article 10, UCMJ, in opposition to a
government continuance request, and his lengthy pretrial confinement,
combined, “were sufficient to invoke Article 10, UCMJ[.]”36 We disagree and
hold that mere references to Article 10, UCMJ—without more—do not
constitute a demand for a speedy trial. See United States v. Foster, No.
201200235, 2013 CCA LEXIS 92, at *7-8, unpublished op. (N-M. Ct. Crim.
App. 7 Feb 2013) (per curiam) (concluding the appellant made no demand for
speedy trial where a motion to dismiss did not include a demand for a speedy
trial and acknowledged the appellant’s agreement to the trial schedule);
United States v. Brooks, No. 200501266, 2007 CCA LEXIS 166, at *12-14,
unpublished op. (N-M. Ct. Crim. App. 16 May 2007) (holding there was no
demand for a speedy trial, despite the appellant filing a motion to dismiss
based on denial of speedy trial rights), aff’d on other grounds, 66 M.J. 221
(C.A.A.F. 2008). Indeed, following the government’s failure to provide access
to the NCIS case file on 23 September 2015, as ordered by the military judge,
the TDC asked for a continuance; and following the government’s aborted
appeal, the TDC raised no objections to the new trial date of 1 December
2015. Therefore, this factor weighs in favor of the government.
    4. Prejudice to the appellant
   “‘Prejudice . . . should be assessed in the light of the interests of
defendants which the speedy trial right was designed to protect.’” Mizgala, 61
M.J. at 129 (quoting Barker, 407 U.S. at 532). We, therefore, examine the
question of prejudice in light of three important interests the Supreme Court
identified in Barker: (1) to prevent oppressive pretrial incarceration; (2) to
minimize anxiety and concern; and (3) to limit the possibility that the defense


   35   See AE XLI; Record at 116.
   36   Appellant’s Brief at 17-18.


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                         United States v. Wiley, No. 201600120


will be impaired. Barker, 407 U.S. at 532. “‘Of these, the most serious is the
last, because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system.’” Mizgala, 61 M.J. at 129 (quoting
Barker, 407 U.S. at 532).
    The appellant contends that the delay in his court-martial precluded his
father from testifying live, in-court, as a sentencing witness. His father flew
to Okinawa to testify in September 2015, but was unable to return in
December 2015 because of poor health. The appellant argues these
circumstances are similar to United States v. Stellato, 74 M.J. 473, 489
(C.A.A.F. 2015), where our superior court affirmed a military judge’s decision
to dismiss charges after repeated government discovery violations. In
Stellato, the CAAF found prejudice when the government’s continuing
discovery violations not only resulted in the defense’s inability to call a key
witness who died before trial, but also because the violations “resulted in lost
evidence, unaccounted for evidence, and evidence left in the hands of an
interested party.” Id. at 490. Here, the appellant has not alleged any lost or
unaccounted for evidence—only that his father had to testify telephonically
during sentencing.
   The appellant also argues that the constant changes to the trial schedule
caused anxiety and that he suffered oppressive conditions of confinement,
because he was unable to access his prescribed medications. However, he has
provided no evidence that his anxiety was any greater than normal,37 and
nothing in the record indicates that the appellant filed an Article 13, UCMJ,
motion concerning oppressive treatment in pretrial confinement.38 In fact, the
TDC informed the military judge that he had already “remedie[d] the issue”
of medication for the appellant before trial started.39 Consequently, the
appellant’s failure to demonstrate prejudice in terms of oppressive
confinement, heightened anxiety, or his ability to prepare for trial and
present evidence weighs in favor of the government.




    37 See Wilson, 72 M.J. at 354 (expressing the CAAF’s concern “not with the

normal anxiety and concern experienced by an individual in pretrial confinement, but
rather with some degree of particularized anxiety and concern greater than the
normal anxiety and concern associated with pretrial confinement”) (citations
omitted).
   38 See Thompson, 68 M.J. at 313 (concluding that failure to raise an Article 13,
UCMJ, motion, though not dispositive of an Article 10, UCMJ, claim, may be
considered as a relevant factor bearing upon the question of prejudice for oppressive
confinement).
   39   AE XXXVI at 2.


                                         13
                          United States v. Wiley, No. 201600120


    In balancing the Barker factors, we conclude the appellant was not denied
his right to a speedy trial under Article 10, UCMJ, and consequently, the
military judge did not err in failing to grant relief. Even though the appellant
spent 248 days in pretrial confinement and the government’s discovery
practice was fraught with error, the appellant never demanded speedy trial.
From the record before us, it appears much of the delay was attributed to
either an agreed upon, distant, trial date or a valid pursuit of an Article 62,
UCMJ, appeal. In reality, the government’s discovery violation had very little
impact on the trial dates. As a result, despite the discovery violation, we
conclude that the government proceeded to trial with reasonable diligence
under the circumstances of this case.
   5. Ineffective assistance of counsel
    Finally, as an alternative to his Article 10, UCMJ, complaint, and
recognizing that the TDC’s “invocation of Article 10, UCMJ, was not a model
of clarity,”40 the appellant argues that TDC was ineffective for “failing to
forcefully seek Article 10, UCMJ, relief[.]”41 In reviewing claims of ineffective
assistance of counsel, we “look at the questions of deficient performance and
prejudice de novo.” United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012)
(citation and internal quotation marks omitted). However, we “‘must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’” United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
Thus, the appellant bears the burden of demonstrating (1) that his counsel’s
performance was deficient to the point that he “was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment” and (2) that the deficient
performance prejudiced the defense. Id. (Citations and internal quotation
marks omitted).
    In order to satisfy the second prong of Strickland, and demonstrate
prejudice when a claim of ineffective assistance of counsel is premised on the
TDC’s failure to seek Article 10, UCMJ, relief at trial, an appellant must
demonstrate that he would prevail on appeal. Tippit, 65 M.J. at 81; see also
United States v. Purdin, No. 20120277, 2014 CCA LEXIS 683, at *11,
unpublished op. (A. Ct. Crim. App. 12 Sep 2014) (holding there was no
ineffective assistance of counsel since the appellant would not have prevailed
on an Article 10, UCMJ, motion if raised at trial).
   For all the reasons set forth above, we conclude that there is no likelihood
the appellant would have prevailed if the TDC had made a demand for


   40   Appellant’s Brief at 17.
   41   Id. at 21.


                                          14
                          United States v. Wiley, No. 201600120


speedy trial and litigated a motion under Article 10, UCMJ. The remaining
Barker factors—the reasons for the delay and lack of any prejudice to the
appellant—would still favor the government. As a result, the appellant’s
claim that his TDC was ineffective is without merit.
B. Entrapment
    The appellant next avers that the government failed to prove beyond a
reasonable doubt that he had the requisite mens rea to commit the Charge I
attempt crimes for which he was convicted. Alternatively, he claims to have
been entrapped, and that, therefore, factually insufficient evidence supports
those convictions.42
    We review questions of factual sufficiency de novo. Art. 66(c), UCMJ;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
factual sufficiency is whether “after weighing all the evidence in the record of
trial and recognizing that we did not see or hear the witnesses as did the trial
court, this court is convinced of the appellant’s guilt beyond a reasonable
doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006)
(citing United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987) and Art. 66(c),
UCMJ), aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting
this unique appellate role, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399.
    The appellant argues that we “cannot be convinced beyond a reasonable
doubt that [he] intended to have sexual relations with a minor because [we]
cannot be convinced beyond a reasonable doubt that [he] was anything other
than confused about the age of the person with whom he was dealing.”43 The
appellant notes the UC sent him current photographs of herself as an adult
and argues his online conversations with the UC evidence an ambivalence
towards their relationship based on concerns about the UC’s real age. These
concerns, according to the appellant, were caused by the use of “different ages
in her social media persona, none of which was under the age of consent.”44


   42  Although the military judge instructed the members that the “evidence has
raised the issue of entrapment in relation to the offenses of attempted sexual assault
of a child, attempted sexual abuse of a child, attempted receipt of child pornography,
indecent exposure, indecent language, and soliciting another to commit an offense[,]”
Record at 315, the appellant does not contend on appeal that his Charge II and III
convictions are factually insufficient due to entrapment. See Appellant’s Brief at 29.
   43   Appellant’s Brief at 25.
   44   Id. (citation omitted)


                                         15
                         United States v. Wiley, No. 201600120


   We disagree. The government offered 241 pages of text messages between
the appellant and the UC.45 Throughout those text messages, the UC tells the
appellant, numerous times, and the appellant acknowledges, that she is a
minor:
         Appellant: So tell me the secret of your beauty and youthful
         glow
         ...
         UC: I’m 1446
                                           ....
         Appellant: I’m old enough to be your daddy47
                                           ....
         Appellant: You seem like a pretty cool chic, but the law cares
         sweetheart!!48
                                           ....
         Appellant: I’m going to jail...
         UC: Omg why
         Appellant: I’m flirting with a little girl49
                                           ....
         Appellant: I’m always going to want to see your body... You are
         forbidden fruit.50
                                           ....
         Appellant: I forget you are so young.
         UC: Practically 15. I’m not young
         Appellant: Yes. That’s young.
         UC: Ohkay (sic).
         Appellant: too young to be talking to an old man about sex51


   45   Prosecution Exhibit 2.
   46   Id. at 18.
   47   Id. at 22.
   48   Id. at 24.
   49   Id. at 71.
   50   Id. at 171.


                                           16
                         United States v. Wiley, No. 201600120


                                       ....
         Appellant: I cannot pretend you aren’t a child.52
                                       ....
         Appellant: You are beautiful. That’s why it’s hard for me
         because you’re practically 1553
    The appellant’s text messages and subsequent actions further indicated
his specific intent to commit the crimes alleged under Charge I. He told the
UC he would kiss her thighs and, “ass cheeks,” and “lick every square” of her
vagina;54 he requested, encouraged, and directed the UC to digitally
penetrate herself; he sent the UC digital images of his exposed penis; he
repeatedly requested pictures of the UC’s exposed genitalia; and he
eventually drove to the UC’s house to meet her. These facts leave us
convinced beyond a reasonable doubt that the appellant actually believed the
UC was a minor and, therefore, had the requisite mens rea to commit the
attempt crimes under Charge I, for which he was convicted.
    Regarding the appellant’s contention that he was entrapped, when “the
trier of fact f[inds] against him on the entrapment issue, [an] appellant can
only prevail by showing that these findings are incorrect as a matter of law.”
United States v. Vanzandt, 14 M.J. 332, 345 (C.M.A. 1982). Entrapment is an
affirmative defense in which “the criminal design or suggestion to commit the
offense originated in the [g]overnment and the accused had no predisposition
to commit the offense.”55 In order for an entrapment defense to prevail, “the
defense has the initial burden of . . . show[ing] that a government agent
originated the suggestion to commit the crime.” United States v. Whittle, 34
M.J 206, 208 (C.M.A. 1992). Once the defense has met that initial burden, the
burden shifts to the government to prove beyond a reasonable doubt either,
(1) that the “criminal design did not originate with the [g]overnment;” or (2)
“that the accused had a predisposition to commit the offense, prior to first
being approached by [g]overnment agents.” Id. (citations and internal
quotation marks omitted).
   In effect, the first element of entrapment is an inducement by the
government to commit the crime. United States v. Howell, 36 M.J. 354, 359-
60 (C.M.A. 1993). “Inducement is government conduct that creates a

   51   Id. at 192.
   52   Id. at 193.
   53   Id. at 205.
   54   Id. at 90-96.
   55   R.C.M. 916(g).


                                        17
                       United States v. Wiley, No. 201600120


substantial risk that an undisposed person or otherwise law-abiding citizen
would commit the offense” and can take many forms, including fraudulent
representations, threats, persuasion, coercive tactics, or even pleas “based on
need, sympathy, or friendship.” United States v. Hall, 56 M.J. 432, 436
(C.A.A.F. 2002) (citations and internal quotation marks omitted). However,
there is no inducement where government agents simply “provide the
opportunity or facilities to commit the crime[.]” Id. at 437 (citations and
internal quotation marks omitted).
    The appellant argues that the UC induced him to engage in the offenses
under Charge I by initially representing herself as an adult in her online
profile and steering their conversation towards sexual matters. Additionally,
the appellant argues that his lack of child pornography in his possession
indicates that he was not predisposed to commit the crimes. Again, we
disagree. The UC repeatedly told the appellant that she was 14, and he still
continued to send her sexually explicit images and messages. Ironically, at
one point, the appellant thought the UC might be involved in a sting
operation. But when she proved she was a real person—by sending him a
picture—he redoubled his efforts to get her to send him child pornography
and to meet her.
    Likewise, we are convinced the appellant was predisposed to commit
these offenses. Within hours of first contacting the UC, the appellant sent a
picture of himself without a shirt on and commented on the fact that she was
so young. Without prompting, the appellant asked the UC, who he believed to
be a 14-year-old girl, to “[t]ell [him] a naughty secret no one else knows.”56
The fact that the government merely provided the appellant the
“opportunit[y] . . . for the commission of the offense does not constitute
entrapment.” R.C.M. 916(g), Discussion.57
C. Indecent exposure
    In United States v. Uriostegui, 75 M.J. 857 (N-M. Ct. Crim. App. 2016), we
held that it was an abuse of discretion for a military judge to accept a guilty
plea to indecent exposure based on the same factual scenario for which this
appellant was convicted—sending a digital image of his exposed penis via
electronic media. Although Uriostegui involved a guilty plea, we see no
reason to distinguish its application from the nearly identical facts here.


   56   PE 2 at 6.
    57 See also United States v. Bell, 38 M.J. 358, 360 (C.M.A. 1993) (finding that

entrapment “only comes into play” when “the [g]overnment’s deception actually
implants the criminal design in the mind of the defendant”).




                                        18
                          United States v. Wiley, No. 201600120


Indeed, we found that Uriostegui’s “actions would be legally insufficient to
support an indecent exposure conviction if a rehearing was authorized.” Id. at
865-66. Therefore, in accordance with that holding, we find the appellant’s
conviction of indecent exposure was based upon factually and legally
insufficient evidence, and we set it aside.
D. Solicitation offenses
   The crimes alleged in Charge III, Specification 2 were originally charged
as six separate specifications of solicitation. The military judge consolidated
them into a single specification alleging three solicitations:
         In that [the appellant], while on active duty, did, on or near
         Okinawa, Japan, between on or about 24 March 2015 and on or
         about 31 March 2015, wrongfully solicit [the UC], when he
         believed she had not attained the age of sixteen years:
         a) to have sexual intercourse with him, by planning,
         requesting, and encouraging her to meet him in person;
         b) to kiss her and to penetrate her vagina and anus with his
         tongue, by planning, requesting, and encouraging her to meet
         him in person;
         c) to produce and distribute child pornography, by planning,
         requesting, and encouraging her to create and send to him
         digital images of her exposed genitalia; and that said conduct
         was to the prejudice of good order and discipline in the armed
         forces and was of a nature to bring discredit upon the armed
         forces.58
    We specified for briefing whether subparagraphs (a) and (b) stated
offenses, or alternatively, whether the military judge committed prejudicial
error in failing to instruct the members regarding the elements of
subparagraphs (a) and (b). The appellant, separately, challenged the legal
and factual sufficiency of his conviction under subparagraph (c).
   1. Solicitation to produce and distribute child pornography
    The appellant argues “the images which he requested were not child
pornography” and, therefore, his conviction for soliciting the UC to produce
and distribute child pornography is legally and factually insufficient.59 He
contends that, because the UC was not actually a minor, his request for her
to take and send him photos of her exposed genitalia was not a criminal act.


   58   AE XXXVII at 3-4; Record at 90.
   59   Appellant’s Brief at 32.


                                          19
                      United States v. Wiley, No. 201600120


    In order to solicit another to commit an offense, the appellant must have
“solicited or advised a certain person . . . to commit a certain offense under
the code” with “the intent that the offense actually be committed[.]” MANUAL
FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶ 105b.
The person solicited “must be capable of committing a separate criminal
offense prohibited by the UCMJ.” United States v. Ashworth, No. 201500028,
2015 CCA LEXIS 373, at *4, unpublished op. (N-M. Ct. Crim. App. 3 Sep
2015) (per curiam). However, the criminal act of “solicitation appears to
involve nothing more than making a nefarious request or suggestion[.]” Id.
    The appellant argues that the facts underlying his solicitation offense are
similar to those in United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010),
where the CAAF set aside Sutton’s conviction for soliciting his stepdaughter
to commit indecent liberties when he asked her to lift up her shirt and show
him her breasts. The CAAF held that the stepdaughter’s actions in lifting up
her shirt “could not constitute the criminal offense of indecent liberties with a
child by [the stepdaughter]” because she could not “commit the offense of
indecent liberties with a child on herself.” Id. at 459.
    The appellant’s reliance on Sutton, however, is misplaced. In Ashworth,
we affirmed a conviction for soliciting distribution of child pornography after
Ashworth pleaded guilty and admitted to asking actual minors, with whom
he conversed online, to take and share “sexually explicit photos of
themselves” with him. Ashworth, 2015 CCA LEXIS 373, at *9. Citing
Ashworth, our sister court recently concluded that “a child can commit the
offense of producing child pornography[,]” noting that child pornography is
contraband, and finding “[t]he plain language of the offense has no exception
that would allow children to produce and distribute child pornography, even
when the images are of themselves.” United States v. Thomas, No. 20150205,
2016 CCA LEXIS 551, at *10, unpublished op. (A. Ct. Crim. App. 9 Sep 2016).
We agree. Thus, unlike Sutton, where the acts solicited would not constitute
a crime on the part of the solicited minor, had the UC here been an actual
minor, she would have committed “a separate criminal offense” by taking
pictures of her exposed genitalia and sending them to the appellant.”
Ashworth, 2015 CCA LEXIS 373, at *4.
   Additionally, as we recently held in United States v. Dellacamera, No.
201600230, 2017 CCA LEXIS 209, unpublished op. (N-M. Ct. Crim. App. 30
Mar 2017), even though the photos would not have involved a minor had the
UC actually complied with the appellant’s request, the appellant nonetheless
engaged in an act of seriously requesting production and distribution of child
pornography,” Id. at *9 (emphasis in original). Since we treat the appellant in
accordance with the facts as he believed them to be at the time, his “mistaken
notion regarding the identity of the party he solicited affords him no
defense[.]” Id. Therefore, after considering all of the evidence in a light most

                                       20
                          United States v. Wiley, No. 201600120


favorable to the prosecution, we are convinced that a rational factfinder could
have found the appellant guilty of soliciting the production and distribution
of child pornography. Likewise, after making allowances for not having
personally observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt.
   2. Solicitation of the UC to sexually assault and sexually abuse herself
   “‘A specification states an offense if it alleges, either expressly or by
implication, every element of the offense, so as to give the accused notice and
protection against double jeopardy.’” United States v. Sutton, 68 M.J. 455,
455 (C.A.A.F. 2010) (quoting United States v. Crafter, 64 M.J. 209, 211
(C.A.A.F. 2006)).
   The elements of “soliciting another to commit an offense” under Article
134, UCMJ, are:
         (1) That the accused solicited or advised a certain person or
         persons to commit a certain offense under the code other than
         one of the four offenses named in Article 82[, UCMJ];
         (2) That the accused did so with the intent that the offense
         actually be committed; and
         (3) That under the circumstances, the conduct of the accused
         was to the prejudice of good order and discipline in the armed
         forces or was of a nature to bring discredit upon the armed
         forces.60
   Charge III, Specification 2, subparagraphs (a) and (b), alleged the
appellant solicited the sexual assault of a child and sexual abuse of a child,
respectively. The elements of that solicited sexual assault of a child are:
         (1) That the accused committed a sexual act upon a child
         causing contact between the penis and vulva or anus or mouth;
         and
         (2) That at the time of the sexual act the child had attained the
         age of 12 years but had not attained the age of 16 years.61
   The elements of that solicited sexual abuse of a child are:
          (1) That the accused committed sexual contact upon a child by
         touching, or causing another person to touch, either directly or
         through the clothing, the genitalia, anus, groin, breast, inner
         thigh, or buttocks of any person; and

   60   MCM, Part IV, ¶ 105b.
   61   Id. at Part IV, ¶ 45b.b(3)a.


                                         21
                          United States v. Wiley, No. 201600120


         (2) That the accused did so with intent to abuse, humiliate,
         harass, or degrade any person or to arouse or gratify the sexual
         desire of any person.62
    As noted previously, the recipient of a solicitation “must be capable of
committing a separate criminal offense prohibited by the UCMJ.” Ashworth,
2015 CCA LEXIS 373, at *4 (emphasis added). Applying that principle—and
treating the appellant in accordance with the facts as he believed them—the
appellant’s text messages could not constitute solicitation under
subparagraphs (a) and (b) because, like the solicited party in Sutton that
could not commit indecent liberties with a child on herself, an actual 14-year-
old, in the UC’s position, would commit no crime by having sexual intercourse
with the appellant or permitting him to kiss her and penetrate her vagina
and anus with his tongue. Therefore, subparagraphs (a) and (b) fail to state
offenses, and we dismiss the language under those subparagraphs.63
E. Voluntary abandonment
    The appellant next contends, for the first time on appeal, that the
military judge erred in failing to instruct the members on the doctrine of
voluntary abandonment regarding Charge I, Specification 3—alleging the
appellant attempted to receive child pornography—since the appellant’s
“statements concerning his regret and disgust prior to actually receiving any
child pornography necessitated such an instruction.”64 Voluntary
abandonment is:
         a defense to an attempt offense that the person voluntarily and
         completely abandoned the intended crime, solely because of the
         person’s own sense that it was wrong, prior to the completion of
         the crime. The voluntary abandonment defense is not allowed if
         abandonment results, in whole or in part, from other reasons,
         for example, the person feared detection or apprehension,
         decided to await a better opportunity for success, was unable to



    62 Id. at Part IV, ¶ 45b.b(4)a. To the extent the sexual abuse includes kissing the

UC, as opposed to “penetrating her vagina and anus with his tongue,” the elements
are (1) “That the accused committed sexual contact upon a child by touching, or
causing another person to touch, either directly or through the clothing, any body
part of any person; and ([2]) That the accused did so with intent to arouse or gratify
the sexual desire of any person.” Id. at Part IV, ¶ 45b.b(4)b.
    63 This conclusion renders moot the other specified issue—whether the military

judge committed plain error in failing to instruct the members on the elements for
subparagraphs (a) and (b) of Charge III, Specification 2.
   64   Appellant’s Brief at 34.


                                          22
                         United States v. Wiley, No. 201600120


         complete the crime, or encountered unanticipated difficulties or
         unexpected resistance.65
    Before instructing the members on findings, the military judge asked if
there were “any other instructions coming to mind based upon the evidence
as it has been presented at this point?”66 The TDC replied in the negative and
did not mention or raise voluntary abandonment as a defense. Because the
appellant did not request a voluntary abandonment instruction, or otherwise
object to the instructions the military judge ultimately gave the members,
this issue was forfeited, and we review for plain error. United States v.
Feliciano, 76 M.J. 237, 239-40 (C.A.A.F. 2017); see also United States v.
Davis, 76 M.J. 224, 229 (C.A.A.F. 2017) (holding that failure to request a
required instruction or otherwise object to the final form of instructions
constitutes forfeiture and reviewing courts will test for plain error).
    ‘“Under a plain error analysis, the accused has the burden of
demonstrating that: (1) there was error; (2) the error was plain or
obvious; and (3) the error materially prejudiced a substantial right of the
accused.”’ Davis, 76 M.J. at 230 (quoting United States v. Payne, 73 M.J. 19,
23 (C.A.A.F. 2014)). “[T]he failure to establish any one of the prongs is fatal
to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.
2006).
    In conducting our plain error analysis, we must first determine whether
the military judge erred. For an affirmative defense, “[a] military judge must
give such an instruction if . . . ‘there is some evidence in the record, without
regard to credibility, that the members could rely upon if they choose.’”
Feliciano, 76 M.J. at 240 (quoting United States v. Behenna, 71 M.J. 228, 234
(C.A.A.F. 2012)). “In other words, a military judge must instruct on [the]
defense when, viewing the evidence in the light most favorable to the defense,
a rational member could have found in the favor of the accused in regard to
that defense.” Id. (citation and internal quotation marks omitted).
Consequently, if the record lacks any evidence that would trigger a military
judge’s duty to provide an instruction on an affirmative defense, it is not
error to avoid giving that instruction. United States v. Stanley, 71 M.J. 60, 64
(C.A.A.F. 2012).
   The appellant argues that after requesting explicit pictures of the UC, his
subsequent regret and disgust—as evidenced from his text message that he




   65   MANUAL FOR COURTS-MARTIAL, Part IV, ¶ 4.c.(4) (2012 ed.).
   66   Record at 287.


                                          23
                          United States v. Wiley, No. 201600120


was “sick to his stomach” about talking with the UC about sex67—
“demonstrate[s] a withdrawal from the attempt to obtain intimate photos[.]”68
However, the appellant continued to seek explicit images of the UC after his
expressions of regret, texting “[w]hen you send me pics/videos like I sent you,
then it will be fair. You shouldn’t be mad at me[.] I’ve done everything you’ve
asked”69 and “you refuse to send me my video(s) that you PROMISED…I’ll
think about forgiving you.”70 When the UC subsequently sent a picture of
herself clothed, the appellant said she was only partially forgiven but was
“getting closer.”71 In short, the appellant’s continued conduct belies the notion
that he voluntarily and completely abandoned his attempt to receive child
pornography.
    Even without the appellant’s subsequent conduct, we are not persuaded
that the appellant’s expression of disgust amounts to evidence of
abandonment. Indeed, after numerous requests for explicit images of the UC,
the appellant never told the UC not to send him those pictures or took any
affirmative steps to ensure he would not receive any such images. Having
found no evidence of voluntary abandonment, we conclude the military judge
did not commit plain error when he did not instruct members on the
voluntary abandonment defense.
F. Preemption
    Finally, the appellant urges this court to dismiss Charge III,
Specification 2,72 because he believed he was soliciting a civilian, not subject
to UCMJ jurisdiction, who could not commit “a separate criminal offense
prohibited by the UCMJ.” Ashworth, 2015 CCA LEXIS 373, at *4 (emphasis
added). The appellant contends that because the President established as an
element of solicitation, “that the accused solicited . . . a person or persons to
commit a certain offense under the code,” this necessarily implies that the
person solicited must be subject to the code and, therefore, the government is




   67 PE 2 at 194. See also Id. at 185 (“I must be losing my mind. I’m so sorry for
sending you those pictures. OMG. Please if this is all for real we need to talk. You are
a sweetheart and I would hate to see you hurt.”).
   68   Appellant’s Brief at 37.
   69   PE 2 at 205.
   70   Id. at 215.
   71   Id. at 218.
   72 Having already set aside subparagraphs (a) and (b) of the specification supra,
we consider this AOE only as it relates to the remainder of the specification.


                                          24
                           United States v. Wiley, No. 201600120


preempted from substituting a less burdensome requirement, that the offense
would be under the code if committed by someone subject to the code.73
    Service courts have routinely rejected such arguments. In Robertson, we
held that “[t]he solicitation of another person to commit an offense which, if
committed by one subject to the UCMJ, would be punishable under the
UCMJ, is an offense cognizable under Article 134.” 17 M.J. at 851 (citation
omitted). Relying on Robertson, we more recently opined that “[t]he solicited
person’s status as someone not subject to the UCMJ is irrelevant.” United
States v. Brondeau No. 201400140, 2014 CCA LEXIS 702, at *7, unpublished
op. (N-M. Ct. Crim. App. 23 Sep 2014) (per curiam); see also United States v.
Greene, No. 20130401, 2015 CCA LEXIS 274, at *4, unpublished op. (A. Ct.
Crim. App. 29 June 2015) (“the question in determining whether an Article
134 violation has occurred is not whether the person solicited could have
violated the UCMJ but instead whether the offense, ‘if committed by one
subject to the code, would be punishable under the code.’” (quoting MCM,
Part IV, ¶ 105.e.)); United States v. Hanner, No. 28497, 1993 CMR LEXIS 61,
at *6, unpublished op. (A.F.C.M.R. 28 Jan 1993) (“The person solicited can be
a civilian.”) (citations omitted).
    The appellant argues that we should overturn Robertson, because we did
not consider the preemption doctrine—that “Congress has preempted the
field of a given type of misconduct by addressing it in one of the specific
punitive articles of the Code and that another offense cannot be created and
punished under the general article simply by deleting a vital element.”
United States v. Kick, 7 M.J. 82, 88 (C.M.A. 1979) (Perry, J., dissenting).
Courts have typically applied the preemption doctrine in two factual
scenarios: (1) in preventing the government from charging misconduct under
Article 134, UCMJ, that is already covered by Articles 80 through 132,
UCMJ;74 and (2) in preventing “the government from using a novel
specification to allege an Article 134 offense that is already listed inside the
article’s framework.” United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017)
(emphasis in original); see also MCM, Part IV, ¶ 60.c.(6)(c) (2012 ed.). The
appellant’s conviction under Charge III, Specification 2 falls under neither
scenario. Simply put, the solicitation specification contains distinct elements
not included by a different UCMJ punitive article. Therefore, we see no
reason to deviate from holdings in Robertson and Brondeau that soliciting or
advising anyone to commit an offense which, if committed by someone subject




   73   MCM, Part. IV, ¶ 105.b.(1).
   74   See Id. at Part IV, ¶ 60.c.(5)(a).


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                       United States v. Wiley, No. 201600120


to the UCMJ, would be punishable under the UCMJ, is an offense cognizable
under Article 134.75
G. Sentence reassessment
   Although we have set aside the indecent exposure conviction and the
sexual assault and sexual abuse language from the solicitation offense, we
are convinced that the set aside specification and language did not affect the
sentencing decision, and we, therefore, see no need to reassess the sentence.
    First, the military judge merged, for sentencing, the indecent exposure
with Charge I, Specification 2, which, in part, included the appellant’s lewd
act by intentionally exposing his genitalia. Second, although we set aside the
Charge III, Specification 2, subparagraph (a) and (b) language, the appellant
remains convicted of that specification’s remaining language. Moreover, as
we noted supra, the military judge seemingly disregarded those now set aside
subparagraphs and, instead, treated the specification as if it only alleged
soliciting the production and distribution of child pornography. As a result,
the military judge further merged that specification with Charge I,
Specification 3—attempted receipt of child pornography—for sentencing.
Therefore, the appellant was not prejudiced, as the members considered only
crimes for which he remains convicted in reaching the adjudged sentence. See
United States v. Elespuru, 73 M.J. 326, 330 (C.A.A.F. 2014).
                                III. CONCLUSION
    The findings of guilty to Charge II and its sole specification, as well as the
language in subparagraphs (a) and (b) of Charge III, Specification 2, are set
aside and dismissed with prejudice. The remaining findings and the sentence
are affirmed.
    The supplemental promulgating order will reflect the pleas and findings
for each of the charges and specifications upon which the appellant was
arraigned. It will properly note that the military judge:
        (1) dismissed Charge I, Specification 2 and consolidated it with
        Charge I, Specification 1;
        (2) dismissed Charge I, Specifications 4 through 7, consolidated them
        with Charge I, Specification 3, and then renumbered the resulting
        consolidated specification as Charge I, Specification 2;
        (3) dismissed Charge I, Specification 8;


   75 As we note, infra, the military judge merged Charge III, Specification 2 with
Charge I, Specification 3 (attempted receipt of child pornography) for sentencing.
Therefore, even if we dismissed Charge III, Specification 2, it would not affect the
appellant’s sentence.


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                      United States v. Wiley, No. 201600120


        (4) renumbered Charge I, Specification 9 as Charge I, Specification 3;
        (5) renumbered the sole specification of Charge III as Charge III,
        Specification 1;
        (6) dismissed Charge IV, Specifications 2 through 6, consolidated them
        with Charge IV, Specification 1, and then renumbered the resulting
        consolidated specification as Charge III, Specification 2; and
        (7) entered a Not Guilty finding to Additional Charge IV76 and its sole
        specification, following an R.C.M. 917 defense motion.
   The supplemental promulgating order will also reflect that: (1) Additional
Charge I and the two specifications thereunder, Additional Charge II and the
two specifications thereunder, and Additional Charge III, Specification 4,
were withdrawn and dismissed following the entry of pleas; and (2)
Additional Charge V and the three specifications thereunder were withdrawn
and dismissed after arraignment but before the entry of pleas. Finally, the
supplemental promulgating order will reflect that the appellant is entitled to
248 days of confinement credit. United States v. Crumpley, 49 M.J. 538, 539
(N-M. Ct. Crim. App. 1998).
   Senior Judge CAMPBELL and Judge PETTIT concur.


                                     For the Court




                                      R.H. TROIDL
                                      Clerk of Court




   76  Following the government’s withdrawal of Additional Charges I and II,
Additional Charge IV is reflected as Additional Charge II on the cleansed Charge
Sheet, AE XXXVII, and on the CMO.


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