United States v. Reeves , 2005 CAAF LEXIS 1096 ( 2005 )


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  •                        UNITED STATES, Appellee
    v.
    Marc R. REEVES, Sergeant
    U.S. Army, Appellant
    No. 03-0595
    Crim. App. No. 20010497
    United States Court of Appeals for the Armed Forces
    Argued February 23, 2005
    Decided September 29, 2005
    ERDMANN, J., delivered the opinion of the court, in which EFFRON
    and BAKER, JJ., joined. GIERKE, C.J., filed a separate opinion
    concurring in part and dissenting in part. CRAWFORD, J., filed
    a dissenting opinion.
    Counsel
    For Appellant: Captain Karen W. Riddle (argued); Colonel Mark
    Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G.
    Lambert (on brief); Colonel Robert D. Teetsel and Captain
    Gregory M. Kelch.
    For Appellee: Captain Mason S. Weiss (argued); Colonel Steven
    T. Salata, Lieutenant Colonel Mark L. Johnson, and Lieutenant
    Colonel Theresa A. Gallagher (on brief); and Captain Janine P.
    Felsman.
    Amicus Curiae for Appellee: Damian P. Richard (law student)
    (argued); Gregory M. Huckabee (supervising attorney) (on brief) –
    for the University of South Dakota School of Law.
    Military Judge:   Kenneth H. Clevenger
    This opinion is subject to revision before final publication.
    Judge ERDMANN delivered the opinion of the court.1
    Sergeant Marc R. Reeves was convicted of violating certain
    provisions of the Child Pornography Prevention Act of 1996
    (CPPA),2 charged as a “crime or offense not capital” under the
    third clause of Article 134, Uniform Code of Military Justice
    (UCMJ), 10 U.S.C. § 934 (2000).   This is the same statute we
    addressed in United States v. O’Connor, 
    58 M.J. 450
    (C.A.A.F.
    2003), and more recently United States v. Martinelli, 61 M.J.
    ___ (C.A.A.F. 2005).   As in Martinelli, the conduct underlying
    Reeves’ convictions occurred in Germany.   We granted review of
    this case to examine the extraterritorial application of the
    CPPA and the effect of that issue on the underlying charges in
    this case.
    In Martinelli we considered whether the CPPA had
    extraterritorial application and concluded that it did not.
    Consistent with Martinelli, we hold that the three sections of
    the CPPA under which Reeves was charged do not extend to his
    conduct in Germany.    We further hold that none of Reeves’
    conduct in Germany continued into the United States.     Thus, none
    1
    We heard oral argument in this case at the University of South
    Dakota School of Law, Vermillion, South Dakota, as part of this
    court’s “Project Outreach.” This practice was developed as part
    of a public awareness program to demonstrate the operation of a
    Federal Court of Appeals and the military justice system.
    2
    The CPPA consists of §§ 18 U.S.C. 2251, 2252, 2252A,
    2260(b)(2000).
    2
    of Reeves’ conduct falls within the domestic application of the
    CPPA.    We also hold that Reeves’ guilty pleas to the CPPA-based
    Article 134, clause 3 specifications cannot be deemed provident
    as to lesser included offenses under either Article 134, clauses
    1 or 2.
    PROCEDURAL BACKGROUND
    Reeves entered guilty pleas and was convicted by a general
    court-martial in April and May of 2001 of violating a lawful
    general regulation in violation of Article 92, UCMJ, 10 U.S.C. §
    892 (2000), and possessing child pornography, receiving child
    pornography, and using a minor to engage in sexually explicit
    conduct for the purpose of producing a visual depiction of such
    conduct in violation of the CPPA as a “crime or offense not
    capital” under clause 3 of Article 134, UCMJ.
    Reeves was sentenced to a dishonorable discharge,
    confinement for fifty-six months, forfeiture of $250.00 pay per
    month for twelve months, reduction to pay grade E-1, and a
    reprimand.    Pursuant to a pretrial agreement, the convening
    authority reduced the confinement to thirty-six months and
    approved the balance of the sentence.    The United States Army
    Court of Criminal Appeals affirmed the findings but deleted a
    portion of the reprimand3 and affirmed the remaining sentence.
    3
    The Court of Criminal Appeals deleted that portion of the
    reprimand that referred to “distributing” child pornography
    3
    We granted review to determine whether Reeves’ conviction of
    possessing, receiving, and producing child pornography, charged
    under clause 3 of Article 134, could be upheld in light of
    Ashcroft v. Free Speech Coalition, 
    535 U.S. 234
    (2002).4       We
    specified five additional issues addressing whether the CPPA had
    extraterritorial application.5
    because Reeves did not distribute child pornography. United
    States v. Reeves, No. ARMY 20010497, slip op. at 2 (A. Ct. Crim.
    App. May 30, 2003).
    4
    We granted review of the following issue raised by appellate
    defense counsel:
    WHETHER THE ARMY COURT OF CRIMINAL APPEALS
    ERRED IN UPHOLDING APPELLANT’S CONVICTION
    UNDER THE CHILD PORNOGRAPHY PROTECTION [sic]
    ACT, 18 U.S.C. § 2251, ET SEQ., DESPITE THE
    SUPREME COURT’S PRONOUNCEMENT THAT THE CPPA
    DEFINITION OF CHILD PORNOGRAPHY IS
    UNCONSTITUTIONAL, ASHCROFT v. FREE SPEECH
    COALITION, 
    535 U.S. 234
    (2002), AND THIS
    COURT’S DECISION THAT ASHCROFT v. FREE
    SPEECH COALITION REQUIRES THAT ACTUAL MINORS
    WERE USED IN PRODUCING THE PORNOGRAPHIC
    IMAGES. SEE UNITED STATES v. O’CONNOR, 
    58 M.J. 450
    (C.A.A.F. 2003).
    United States v. Reeves, 
    60 M.J. 376-77
    (C.A.A.F. 2004)(order).
    5
    The specified issues were:
    I.    WHETHER 18 U.S.C. § 2252A(a)(2), WHICH IN PART
    PROSCRIBES KNOWING RECEIPT OF CHILD PORNOGRAPHY
    THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS
    EXTRATERRITORIAL APPLICATION.
    II.   WHETHER 18 U.S.C. § 2252A(a)(5), WHICH PROSCRIBES
    KNOWING POSSESSION OF CHILD PORNOGRAPHY “ON ANY
    LAND OR BUILDING OWNED BY, LEASED TO, OR
    OTHERWISE USED BY OR UNDER THE CONTROL OF THE
    4
    FACTUAL BACKGROUND
    A. Specifications 1 and 2:   Receiving and Possessing Child
    Pornography
    Sergeant Reeves was assigned to the 502d Engineer Company
    of the 565th Engineer Battalion located at Pioneer Kaserne, a
    United States Army installation, in Hanau, Germany.   He resided
    with his family at New Argonner Kaserne, another U.S. Army
    installation in Hanau.   On a number of occasions from March to
    December 2000, Reeves went to the public library at Pioneer
    Kaserne and used the library computers to sign on to the
    Internet.
    U.S. GOVERNMENT,” HAS EXTRATERRITORIAL
    APPLICATION.
    III. WHETHER 18 U.S.C. § 2251(a), WHICH IN PART
    PROSCRIBES USING A MINOR TO ENGAGE IN SEXUALLY
    EXPLICIT CONDUCT FOR THE PURPOSE OF PRODUCING A
    VISUAL DEPICTION OF THAT CONDUCT USING MATERIAL
    THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS
    EXTRATERRITORIAL APPLICATION.
    IV.    WHETHER 18 U.S.C. § 2252A(a)(2) IS BEING APPLIED
    DOMESTICALLY OR EXTRATERRITORIALLY WHEN APPLIED
    TO THE ACT OF DOWNLOADING AND RECEIVING CHILD
    PORNOGRAPHY AT A COMPUTER LOCATED IN GERMANY WHEN
    THAT MATERIAL WAS “SENT FROM THE U.S. THROUGH THE
    INTERNET.”
    V.     WHAT EFFECT, IF ANY, IS THERE ON APPELLANT'S
    GUILTY PLEA TO RECEIVING CHILD PORNOGRAPHY IN
    VIOLATION OF 18 U.S.C. § 2252A(a)(2), FROM
    APPELLANT’S ADMISSION DURING THE PROVIDENCE
    INQUIRY THAT THE IMAGES “WERE SENT FROM THE U.S.
    THROUGH THE INTERNET TO ME.”
    5
    Once on the Internet, Reeves would enter “teen” chat rooms
    where he would communicate with individuals who indicated they
    were twelve to fifteen years old.    Reeves received e-mail that
    contained digital images, including images of minors “in a state
    of nudity involving a lewd exhibition or graphic focus on a
    minor’s genitals.”   Reeves also belonged to “e-mail distribution
    groups” from which he automatically received child pornography.
    Reeves would download and view these images on the library
    computers and print them out on the library printers.   After his
    conduct was discovered and reported to law enforcement, various
    printed images containing child pornography were found in
    Reeves’ vehicle and in his quarters.
    Based upon these facts, Reeves was charged with the
    following violations of the CPPA under clause 3 of Article 134:
    Specification 1: . . . at or near Hanau, Germany, on land
    used by and under the control of the United States
    Government, to wit: New Argonner Kaserne, between on or
    about 01 March 2000 and 05 December 2000, knowingly and
    wrongfully possess[ed] about 46 computer printouts
    containing child pornography in violation of Title 18 U.S.
    Code § 2252A(a)(5)(A).
    Specification 2: . . . at or near Hanau, Germany, between
    on or about 01 March 2000 and 05 December 2000, knowingly
    and wrongfully receive[d] child pornography that had been
    transported in interstate commerce or foreign commerce by
    means of a computer to wit: downloading electronic files
    containing child pornography from the internet and copying
    said files onto the hard drive of a computer located at the
    Pioneer Library in Hanau, Germany in violation of 18 U.S.
    [Code] § 2252A(a)(2).
    6
    B.    Specification 3: Producing a visual depiction of a minor
    engaged in sexually explicit conduct
    The facts underlying this offense occurred in the summer of
    2000 when Reeves used a camcorder to videotape “two little
    German girls” near the Main River in Hanau, Germany.       (PE 1).
    From a distance of about 200 feet, Reeves filmed the girls,
    focusing in on their “genital areas”, and focusing in particular
    on one of the girls “in a way to see into the little girl’s
    shorts” and intending “to satisfy [his] lust.”
    Based upon these facts, Reeves was charged with the
    following violation of the CPPA under clause 3 of Article 134:
    Specification 3: at or near Hanau, Germany, on or about
    between May 2000 and August 2000, use[d] a minor to engage
    in sexually explicit conduct for the purpose of producing a
    visual depiction of such conduct using material that had
    been mailed, shipped or transported in interstate commerce
    or foreign commerce in violation of 18 U.S. [Code] §
    2251(a).
    DISCUSSION
    A.   Standard of Review
    This case involves a guilty plea.      For this court to reject
    a guilty plea on appellate review, the record of trial must show
    a substantial basis in law and fact for questioning the plea.
    United States v. Jordan, 
    57 M.J. 236
    , 238 (C.A.A.F. 2002)(citing
    United States v. Prater, 
    32 M.J. 433
    , 436 (C.M.A. 1991)).
    Whether Congress intended 18 U.S.C. §§ 2251(a) and 2252A(a)(2)
    and (a)(5)(A) to have extraterritorial application is a question
    7
    of statutory interpretation.     Interpretation of a statute and
    its legislative history are questions of law that we review de
    novo.    United States v. Falk, 
    50 M.J. 385
    , 390 (C.A.A.F. 1999);
    Martinelli, 61 M.J. at ___ (8).
    B.   The Nature of the Charge under Article 134
    Reeves’ possession, receipt and production of child
    pornography were charged as violations of Article 134, UCMJ --
    the “General Article.”     Conduct is punishable under Article 134
    if it prejudices “good order and discipline in the armed forces”
    (clause 1), if it is “of a nature to bring discredit upon the
    armed forces” (clause 2), or if it is “a crime or offense not
    capital” (clause 3).     
    O’Connor, 58 M.J. at 452
    ; Martinelli, 61
    M.J. at __ (8).     As was the case in both O’Connor and
    Martinelli, Reeves’ offenses under Article 134 were specifically
    charged as “clause 3” offenses, with 18 U.S.C. §§ 2251(a) and
    2252A(a)(2) and (a)(5)(A) serving as the “crimes or offenses not
    capital.”
    As in Martinelli, the principal issue that we specified for
    review is whether the CPPA applies to Reeves’ conduct in
    Germany.     If we find that the CPPA is not applicable to Reeves’
    conduct in Germany, we must then consider whether, due to the
    nature of his usage of the Internet, his conduct fell within the
    domestic application of the CPPA.       Finally, if we find that
    Reeves’ pleas were improvident under clause 3 of Article 134, we
    8
    must determine whether they would be provident to a lesser
    included offense under clause 1 or 2 Article 134.
    C.    The Extraterritorial Application of the CPPA
    (1) Extraterritorial Application of § 2252A
    In Martinelli this court determined that § 2252A did not
    apply extraterritorially to Martinelli’s conduct in Germany.
    Under the rationale of United States v. Bowman, 
    260 U.S. 94
    (1922) and Equal Employment Opportunity Commission v. Arabian
    American Oil Co. (Aramco), 
    499 U.S. 244
    , 248 (1991), we
    concluded that the CPPA is subject to a presumption against
    extraterritoriality and that there was nothing in the language
    of the statute or the legislative history to overcome this
    presumption.   Martinelli, 61 M.J. at __ (25-26).    As a result
    there was a substantial basis on which to question the
    providence of Martinelli’s guilty plea to the CPPA-based clause
    3 offenses resulting from conduct occurring in Germany.
    Reeves’ receipt and possession of child pornography –-
    charged under § 2252A –- also occurred in Germany and in that
    respect this case is indistinguishable from Martinelli.
    Therefore, consistent with our holding in Martinelli, we find
    that § 2252A does not have extraterritorial application and is
    inapplicable to Reeves’ conduct in Germany.
    9
    (2)   Extraterritorial Application of § 2251(a)
    Unlike Martinelli, Reeves was also charged with producing a
    visual depiction of sexually explicit conduct by a minor in
    violation of § 2251(a).   We have not previously considered the
    question of the extraterritorial application of § 2251(a).6
    As with § 2252A, we begin with a presumption against
    extraterritoriality.   The Supreme Court has recognized as a
    longstanding principle of American law “that legislation of
    Congress, unless a contrary intent appears, is meant to apply
    only within the territorial jurisdiction of the United States.”
    
    Aramco, 499 U.S. at 248
    (quoting Foley Bros. v. Filardo, 
    336 U.S. 281
    , 285 (1949)).    As we stated in Martinelli, we must
    assume that Congress legislates against the backdrop of this
    presumption.   Martinelli, 61 M.J. at ___ (10).   Moreover,
    offenses created by the CPPA do not fall within the Bowman
    exception to the presumption against extraterritoriality.     Id.
    at ___ (12) (citing United States v. 
    Bowman, 260 U.S. at 97-98
    ,
    for the proposition that certain “criminal statutes which are,
    as a class, . . . enacted because of the right of the government
    to defend itself against obstruction, or fraud wherever
    perpetrated” are not accorded a presumption of
    6
    Section 2251(a) was originally enacted in 1978 as part of the
    Protection of Children Against Sexual Exploitation. It was
    amended a number of times over the years and in 1996 it was
    incorporated into the CPPA.
    10
    extraterritoriality).    We look next “to see whether ‘language in
    the [relevant statute] gives any indication of a congressional
    purpose to extend its coverage beyond places over which the
    United States has sovereignty or some measure of legislative
    control.’”    
    Aramco, 499 U.S. at 1230
    (quoting Foley 
    Bros., 226 U.S. at 285
    ); see also Small v. United States, 
    125 S. Ct. 1752
    (2005).    To answer this question we look at the text of the
    statute, its structure and its legislative history.    Martinelli,
    61 M.J. at __ (15-16).
    (a)     Text and Structure
    As in Martinelli, the statutory section in question
    includes references to “interstate and foreign commerce.”    This
    language is “not, in and of [itself], a ‘clear expression’ of
    any congressional intention that the acts proscribed by the
    statute constitute a federal crime no matter where in the world
    they occur.”    Id. at __ (18).   As in Martinelli, we decline to
    find congressional intent for extraterritorial application based
    solely on the use of the words “interstate and foreign
    commerce.”7
    7
    Our discussion of Congress’ intent is also informed by an
    analysis of the “Territory or Possession of the United States”
    language in § 2251. Although this phrase refers to physical
    locations outside of the fifty United States, it is not a broad
    or all encompassing phrase. The “territories” of the United
    States are generally defined as including Guam, the United
    States Virgin Islands and American Samoa, as well as the
    Commonwealths of Puerto Rico and the Northern Mariana Islands.
    11
    In addition, Congress’ intent to limit the reach of
    § 2251(a) is made more clear by reference to § 2260.   In 1994,
    Congress adopted § 2260, which specifically targets “[a] person
    who, outside the United States, employs, uses, persuades,
    induces, entices, or coerces any minor to engage in . . . any
    sexually explicit conduct for the purpose of producing any
    visual depiction of such conduct . . . .”   Emphasis supplied.
    In other words, there is another statutory section that
    addresses all of the same acts when such acts are committed
    outside of the United States with the intent that the materials
    be sent into the United States.    If Congress intended § 2251(a)
    to apply extraterritorially, there would have been no need for
    § 2260 because such behavior would already have been
    criminalized regardless of whether the accused intended to
    import the visual depictions into the United States.
    See Daniel H. MacMeekin, The Overseas Territories and
    Commonwealths of the United States of America (2000), available
    at http://www.macmeekin.com/Library/terr+commonw2.htm. The
    United States also asserts sovereignty over, and administers, a
    number of small islands which do not have permanent populations.
    These islands are often referred to as “possessions”. These
    include Howland, Baker, and Jarvis Islands; Kingman Reef; and
    Johnson, Palmyra, Wake, and Midway Atolls, all in the Pacific;
    and Navassa Island in the Caribbean. 
    Id. Congress’ decision to
    use the phrase “Territories and Possessions of the United
    States” suggests that Congress wished to limit the statute’s
    application rather than to broaden it.
    12
    (b)   Legislative History
    Having concluded that the text and structure of § 2251(a)
    do not express any clear intent by Congress that the statute
    apply extraterritorially, we turn to its legislative history.
    We conclude that it too gives no indication that Congress
    intended § 2251(a) to apply extraterritorially.   The clear focus
    of that legislative history is on the patent evils of child
    pornography and the concern that “child pornography and child
    prostitution have become highly organized multimillion dollar
    industries that operate on a nationwide scale.”   S. Rep. No. 95-
    438, at 5 (1977).    Although the history of § 2251(a) contains
    extensive discussion of the nationwide problem of child
    pornography, it does not discuss issues of extraterritoriality,
    much less include any clear expression of congressional intent
    in that regard.
    D.     The Domestic Application of the CPPA
    In Martinelli, we also considered whether any of
    Martinelli’s conduct could be characterized as domestic conduct
    as he had stipulated that all of the e-mails that he sent or
    received were routed through servers in the United States.    61
    M.J. at ___ (26-27).    We concluded in that case that the act of
    “sending” e-mails containing child pornography was a “continuing
    offense” because Martinelli’s conduct continued as the e-mail
    traveled through the Internet to its destination.   Id. at ___
    13
    (29).    Because the e-mails in Martinelli traveled through the
    United States en route to their destination, we found that the
    sending offense occurred in both Germany and the United States
    and therefore the CPPA applied domestically to that
    specification.    
    Id. We went on
    to conclude that other specifications, which
    charged Martinelli with “receiving child pornography” and
    “reproducing child pornography for distribution”, were not
    “continuing offenses” as they did not involve any conduct that
    started in Germany and continued into the United States.
    Therefore, there was no domestic application of the CPPA
    available for those offenses.    Here, as in Martinelli, each
    specification alleges different conduct and each must be
    examined individually.
    Specification 1 (possession):    This specification charged
    Reeves with violating 18 U.S.C. § 2252A(a)(5)(A) by possessing
    child pornography on land used by and under the control of the
    United States Government.    This specification is a “situs” based
    possession charge and does not allege movement of child
    pornography through the Internet.       The principle of “continuing
    jurisdiction” is therefore inapplicable to this specification
    and there is no basis for finding a domestic application of the
    CPPA.
    14
    Specification 2 (receiving):   This specification charged
    Reeves with violating 18 U.S.C. § 2252A(a)(2) by receiving child
    pornography that had been transported through the Internet.
    Reeves admitted during his providence inquiry that the images
    were “sent from the U.S. through the Internet to me.”     Had
    Reeves been charged with “sending” e-mails containing child
    pornography through the Internet, the principle of a “continuing
    offense” may have established domestic U.S. application of the
    CPPA.    However, Reeves was charged with “receiving”8 e-mails
    containing child pornography.    Here, Reeves did not knowingly
    receive the images until he accessed the pictures in Germany and
    the act of opening the images did not trigger a chain of events
    that continued into the United States.     His conduct therefore
    can not be subject to a domestic U.S. application of the CPPA.
    Martinelli, 61 M.J. at ___ (30).9
    8
    The military judge defined “receiving” as “to take into one’s
    possession and control or accept custody of . . . .”
    9
    With respect to the question of whether all of the email
    messages in Reeves’ Excite account were “resident” on Internet
    servers located in the United States, Excite.com (which was
    operated by At Home or Excite@Home until the company declared
    bankruptcy in late 2001) had both domestic and international
    operations during the time period in which Reeves was using his
    excite.com account to receive child pornography. See At Home
    Corporation, Form 10-K, Annual Report for Fiscal Year 2000,
    available at
    http://www.sec.gov/Archives/edgar/data/1020620/00010128700100149
    8/0001012870-01-001498-0001.txt (“We also lease space at smaller
    facilities in various locations throughout the
    15
    Specification 3 (production):    This specification charged
    Reeves with violating 18 U.S.C. § 2251(a) by using a minor to
    engage in sexually explicit conduct for the purpose of producing
    a visual depiction of such conduct.     Although Reeves admitted
    that the camcorder he used to videotape the German girls had
    been manufactured in Japan, purchased in the United States and
    transported by him to Germany, in videotaping the girls he did
    not begin any conduct that continued into the United States.
    His conduct occurred entirely in Germany and there can be no
    domestic application of the CPPA.      Martinelli, 61 M.J. ___ (29-
    30).
    In summary, none of acts identified in the specifications
    in Charge II constitute a “continuing offense” and therefore
    there can be no domestic application of the CPPA in this case.
    E. The Possibility of Lesser Included Offenses
    The conclusion that Reeves’ guilty pleas are not provident
    under clause 3 of Article 134 does not end our inquiry.     We have
    recognized in the past that an improvident plea to a CPPA-based
    clause 3 offense may, under certain circumstances, be upheld as
    a provident plea to a lesser included offense under clause 2 of
    Article 134.   See, e.g., United States v. Augustine, 
    53 M.J. 95
    United States as well as in several international locations.”).
    Reeves admitted only that images were sent to him from the U.S.
    “through the Internet . . . .” The record does not include any
    information about where the servers on which his opened and
    unopened email messages were located.
    16
    (C.A.A.F. 2000); United States v. Sapp, 
    53 M.J. 90
    , 92 (C.A.A.F.
    2000); 
    O’Connor, 58 M.J. at 454–55
    ; United States v. Mason, 
    60 M.J. 15
    , 20 (C.A.A.F. 2004); Martinelli, 61 M.J. at __ (35).
    The question is whether those circumstances are present in
    Reeves’ case.
    Augustine and Sapp were two pre-Free Speech Coalition10
    cases where:
    the guilty pleas . . . were entered to a violation of
    Article 134, clause 3, based on possession of child
    pornography in violation of the CPPA. As in this case, the
    guilty pleas were found to be improvident as to the clause
    3 offense in light of certain requirements under the CPPA
    that were not established in the record. In those cases,
    however, we concluded that the guilty pleas were provident
    as to the lesser-included offense of engaging in “conduct
    of a nature to bring discredit upon the armed forces” under
    clause 2 and upheld the convictions under Article 134.
    
    Augustine, 53 M.J. at 96
    ; 
    Sapp, 53 M.J. at 92
    .
    
    O’Connor, 58 M.J. at 454
    .   Sapp and Augustine dealt with the
    possibility of a lesser included offense under clause 2 of
    Article 134 where a guilty plea to a CPPA-based clause 3 Article
    134 charge was found improvident.    In those cases, where no
    10
    In Free Speech Coalition the Supreme Court determined that
    certain portions of the definition of term “child pornography”
    used in § 2252A were unconstitutional, specifically the “or
    appears to be” language of § 2256(8)(B) and the entirety of
    §2256(8)(D), specifically the “conveys the impression” 
    language. 535 U.S. at 256
    , 258. Prior to Free Speech Coalition, knowing
    possession and receipt of images of child pornography, actual or
    virtual, was sufficient to establish one of the factual
    predicates for a provident guilty plea under the CPPA.
    Following the decision, the actual character of the visual
    depictions is a factual predicate to any plea of guilty under
    the CPPA therefore requiring an inquiry into the “virtual” or
    “actual” nature of the images. 
    O’Connor, 58 M.J. at 453
    .
    17
    constitutional considerations were involved, we found the pleas
    provident to a violation of clause 2 of Article 134.
    After the Free Speech Coalition decision, we explained in
    O’Connor, Mason and Martinelli that where the constitutional
    rights of a servicemember could come into play, we will apply
    closer scrutiny to the providence inquiry before upholding a
    plea as provident to a lesser included offense under clause 1 or
    2 of Article 134.   See 
    O’Connor, 58 M.J. at 454–55
    ; 
    Mason, 60 M.J. at 19
    ; Martinelli, 61 M.J. at ___ (36-37).   The difference
    between our review of a providence inquiry under the
    O’Connor/Mason/Martinelli standard and our review under the less
    strict Augustine/Sapp standard is a qualitative difference.
    “Although the understanding required of the servicemember
    remains the same, we require a clearer more precise articulation
    of the servicemember’s understanding under O’Connor than we
    require in cases where the accused’s First Amendment rights are
    not implicated.”    Martinelli, 61 M.J. at ___ (37).
    During Reeves’ providence inquiry the military judge
    defined the term “child pornography” for purposes of
    Specifications 1 and 2 without utilizing the language determined
    to be unconstitutional by the Supreme Court in Free Speech
    18
    Coalition.11   Specification 3 charged a violation of 18 U.S.C. §
    2251(a) which does not contain the term “child pornography”.12
    With no constitutional dimension at play in the providence
    inquiry, our analysis into the possibility of a lesser included
    offense is governed by the principles embodied in Augustine and
    Sapp rather than O’Connor, Mason, or Martinelli.
    Nevertheless, the providence inquiry must reflect that the
    accused “clearly understood the nature of the prohibited
    conduct.”    
    Sapp, 53 M.J. at 92
    .    In both Augustine and Sapp the
    accused admitted the service discrediting character of his
    conduct during the plea inquiry and we characterized those
    discussions as demonstrating that the accused “clearly
    understood the nature of the prohibited conduct.”     
    Augustine, 53 M.J. at 96
    ; 
    Sapp, 53 M.J. at 92
    .
    In this case, however, there is an absence of any inquiry or
    discussion of service discrediting conduct or conduct that is
    prejudicial to good order and discipline.     The military judge
    did not list service discrediting conduct or conduct that is
    prejudicial to good order and discipline as an element of any of
    11
    Here the military judge did not use the “or appears to be” or
    the “conveys the impression” language focused on by the Supreme
    Court.
    12
    The phrase “engaged in sexually explicit conduct” as found in
    § 2251(a) is defined in § 2256 to be a depiction of “lascivious
    exhibition of the genitals.” That term has been held to be
    constitutional. United States v. Wiegand, 
    812 F.2d 1239
    (9th
    Cir. 1987).
    19
    the child pornography offenses.    The plea inquiry focused
    entirely on the elements of the clause 3 offenses.    Thus, the
    providence inquiry simply does not provide a sufficient basis
    for determining that Reeves’ pleas are provident to the lesser
    included offenses of conduct that is service discrediting or
    prejudicial to good order and discipline under clause 1 or 2 of
    Article 134.
    DECISION
    The decision of the United States Army Court of Criminal
    Appeals as to Charge II and its specifications and the sentence
    is reversed, but is affirmed in all other respects.   The
    findings of guilty to Charge II and its specifications and the
    sentence are set aside and the record of trial is returned to
    the Judge Advocate General of the Army for a rehearing on Charge
    II and its specifications and the sentence.13   If a rehearing on
    Charge II and its specifications is deemed impracticable, that
    charge and those specifications may be dismissed and a rehearing
    held on the sentence alone.   Thereafter, the provisions of
    Articles 66(b) and 67(a), UCMJ, 10 U.S.C. §§ 866(b), 867(a)
    (2002), shall apply.
    13
    Because of our decision in this case, the specifications of
    Charge II will necessarily have to be amended prior to any
    rehearing to allege lesser included offenses of conduct
    prejudicial to good order and discipline in the armed forces, or
    of a nature to bring discredit upon the armed faces in violation
    of clauses 1 and/or 2 of Article 134, UCMJ.
    20
    United States v. Reeves, No. 03-0595/AR
    GIERKE, Chief Judge (concurring in part and dissenting in
    part):
    The bottom line is that I agree with the majority as to both
    reasoning and result to affirm only Appellant’s guilty plea to
    Charge I and its sole specification.     Therefore, I concur in
    part.
    But with respect to the three Child Pornography Prevention
    Act (CPPA) offenses all in Charge II, I disagree with the
    majority as to either its reasoning (Charge II, specifications 1
    and 2) or to both its reasoning and result (Charge II,
    specification 3).     So I also respectfully dissent in part.
    The result that I reach is not so different from the
    majority, but the judicial path to resolve this case is both
    different and important.     As we agree to the disposition as to
    Charge I, I focus only on the three specifications under Charge
    II.
    In United States v. Martinelli,1 I concluded that the CPPA
    has extraterritorial application.     I disagree with the conclusion
    that the Congress that enacted the CPPA did not intend it to
    apply extraterritorially to reach the actions of a servicemember
    when he possesses, receives, and produces child pornography2
    1
    61 M.J. __, __ (1-23)(C.A.A.F. 2005) (Gierke, C.J., concurring
    in part and dissenting in part).
    2
    Section 2252A(a)(2) of Title 18 of the U.S. Code proscribes the
    knowing receipt of child pornography, 18 U.S.C. § 2252A(a)(5)
    prohibits the knowing possession of child pornography, and 18
    U.S.C. § 2251(a) makes it a crime to use a minor to engage in
    sexually explicit conduct for the purpose of producing a visual
    depiction of that conduct.
    United States v. Reeves, No. 03-0595/AR
    merely because he is outside the territorial boundaries of the
    United States.
    Also as I stated in Martinelli, I do not read the language
    in Bowman3 as narrowly as does the majority.4   I believe that to
    do so, the majority incorrectly interprets the underlying
    rationale of the exception to the presumption against
    extraterritoriality and also misevaluates the nature and impact
    of the offenses in this case.   Given the limitless boundaries of
    cyberspace, child pornography over the Internet is just the type
    of offense to which the exception to the presumption against
    extraterritoriality should apply.
    And, as I fully discussed in Martinelli,5 interpreting the
    plain language of the statute, its legislative history, and the
    comprehensiveness of the scheme of the entire statute, I believe
    Congress clearly meant the CPPA to reach the acts of a United
    States servicemember who possesses and receives child pornography
    on a U.S. military base in Germany.   For the same reasons, I
    believe Congress intended the statute to reach Appellant’s
    offense of involving young German girls in the production of
    child pornography that occurred off-base in Germany.
    Additionally, § 2260 clearly pertains to the production
    of child pornography with the intent to import that pornography
    3
    United States v. Bowman, 
    260 U.S. 94
    , 96 (1922).
    4
    See Martinelli, 61 M.J. at __, __ (3-11)(Gierke, C.J.,
    concurring in part and dissenting in part).
    5
    Id. at __ (11-23)(Gierke, C.J., concurring in part and
    dissenting in part).
    2
    United States v. Reeves, No. 03-0595/AR
    into the United States.    Under that statute, the Government is
    required to prove the additional element of intent to import the
    child pornography into the United States in order to prosecute an
    accused.   Thus, I am not persuaded by the majority’s argument
    that § 2260 eliminates the need to decide if § 2251(a) applies
    extraterritorially to cover Appellant’s act of producing a visual
    depiction of a minor engaged in sexually explicit conduct.6
    Rather, I believe that § 2251(a) reaches Appellant’s CPPA-based
    offenses in this case precisely because it does have
    extraterritorial application.
    As I conclude that the three CPPA-based specifications under
    which Appellant was charged extend to Appellant’s criminal
    conduct in Germany, I respectfully dissent in part.    Having
    established this point, Appellant’s guilty plea to all three
    CPPA-based offenses under Charge II initially appears provident.
    But, unlike the majority, I view Appellant’s guilty pleas to the
    possessing and receiving pornography (Charge II, specifications 1
    and 2) to be improvident in light of the Supreme Court’s decision
    in Ashcroft v. Free Speech Coalition.7    This conclusion results
    in my agreeing with the majority’s decision to remand the
    specifications, but for the different reason I have stated.
    As to specification 3 of Charge II, I disagree with the
    majority that Appellant’s guilty plea is provident only to the
    lesser included offense.   I view Appellant’s plea to the charged
    6
    See United States v. Reeves, 61 M.J. __ (12-13) (C.A.A.F.
    2005).
    3
    United States v. Reeves, No. 03-0595/AR
    offense provident because the constitutionally-objectionable
    “child pornography” language is not included in that
    specification.    Therefore, I would affirm Appellant’s guilty plea
    to this offense.
    In summary, I concur with the disposition of Charge I and the
    majority’s result in addressing Charge II, specifications 1 and
    2.    I dissent from the disposition of Charge II, specification 3.
    7
    
    535 U.S. 234
    (2002).
    4
    United States v. Reeves, 03-0595/AR
    CRAWFORD, Judge (dissenting):
    For the reasons thoroughly explained in United States v.
    Martinelli, 61 M.J. __, __ (C.A.A.F. 2005) (Crawford, J.,
    dissenting), I respectfully dissent and offer a few additional
    comments.
    Like Specialist Martinelli, Appellant was stationed at a
    United States military installation in Germany, subscribed to a
    web-based e-mail account, and used a public computer to commit
    violations of 18 U.S.C. § 2252A, as well as Article 92, Uniform
    Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2000).    Unlike
    Martinelli, who used an off-post Internet café, Appellant used
    U.S. Government-owned computers in the post library to effect
    receipt of, as well as to view and print, pornographic images of
    actual children.    In addition, Appellant, while among the German
    civilian populace near Hanau, used actual German children to
    produce a sexually explicit videotape in violation of 18 U.S.C.
    § 2251(a).
    DOMESTIC ASPECT OF APPELLANT’S CRIMES
    Prosecution Exhibit 1, Appellant’s stipulation of fact
    (including the documents comprising TAB B) and his responses
    during the Care inquiry,1 establish that Appellant had a web-
    based e-mail account at Excite.com which afforded him electronic
    “space” on Excite.com’s servers in the United States.    Using a
    1
    United States v. Care, 
    18 C.M.A. 535
    , 
    40 C.M.R. 247
    (1969).
    United States v. Reeves, 03-0595/AR
    web browser on the library’s computers, Appellant gained access
    to his e-mail account which he then used as an address at which
    to receive pornographic images, view them, store them, and
    download them to the hard drives of the library computers for
    printing.   He admitted that these images had been “transported
    in interstate or foreign commerce” because “they were sent from
    the U.S. through the Internet to me.”2   Appellant’s receipt of
    child pornography occurred in the United States, just as it did
    on a U.S. military post in Germany.
    APPLICATION OF § 2252A TO OVERSEAS MILITARY INSTALLATIONS
    After printing images of child pornography, using the
    library’s printers, Appellant stored numerous images of child
    pornography at his family quarters, in his automobile, and his
    quarters storage area, all on a U.S. Army Kaserne near Hanau,
    Germany.    All of the theories I voiced in Martinelli pertain a
    fortiori to Appellant’s possession of child pornography on a
    U.S. military installation.
    APPLICATION OF § 2251(a) TO OVERSEAS CONDUCT
    While the jurisdictional theories I advanced in Martinelli
    also apply to Appellant’s prosecution under this statute, I must
    reject the majority’s attempt to distinguish the jurisdictional
    language in this statute from that in § 2260.   The majority
    2
    Appellant’s use of “Me” refers to his web-based address on the
    servers of Excite.com. Some of these images clearly indicate
    that they were routed through commerce repeatedly.
    2
    United States v. Reeves, 03-0595/AR
    contends that territorial application of § 2251(a) was not
    intended by Congress because § 2260, with express
    extraterritorial application “addresses all of the same acts.”
    United States v. Reeves, 61 M.J. __, __ (12) (C.A.A.F. 2005).
    Not quite.     First, § 2260 carries with it no requirement that
    any of the criminal acts be connected to interstate or foreign
    commerce, giving § 2260 far greater breadth.    Second, it is
    clear to my reading that § 2260 was enacted not only to expand
    the scope of existing prohibitions, but to serve as an emphatic
    statement of congressional intent to exercise jurisdiction over
    non-U.S. citizens who may produce child pornography in their own
    countries for importation into the territory or waters of the
    United States.    Even if there is overlap between these statutes,
    I believe they have related but different purposes.
    WAIVER
    Appellant has waived this issue, both as to § 2252A and
    § 2251(a).     See United States v. Martin, 
    147 F.3d 529
    , 533 (7th
    Cir. 1988).3    In the stipulation of fact, Appellant stipulated
    that “there are no impediments to the jurisdiction of the
    court.”
    3
    “A challenge to the indictment based on the adequacy of the
    interstate commerce stipulation had no relation to subject
    matter jurisdiction –- the power to adjudicate –- but instead
    went only to an alleged failure of proof.”
    3
    United States v. Reeves, 03-0595/AR
    JURISDICTION UNDER § 2252A BASED ON COMMERCE
    Appellant also stipulated that these images were sent from
    or through a site in the United States and that he knowingly
    received and transported the pictures “in interstate or foreign
    commerce.”    When questioned by the military judge, he said the
    images “were sent from the United States through the Internet to
    me.”   When the military judge asked Appellant whether he was
    satisfied that this amounted to interstate or foreign commerce,
    he agreed.
    PROVIDENCE TO CLAUSES (1) AND (2) OFFENSES
    Appellant, a sergeant with a high school diploma, over five
    years of active duty, and then serving at his fourth permanent
    duty station, pleaded guilty to violating a lawful general
    regulation by viewing child pornography.    He admitted to
    understanding that the regulation prohibiting viewing of child
    pornography was lawful because it was “reasonably necessary to
    safeguard and protect the morale, discipline, and usefulness of
    the members of the command and is directly connected to the
    maintenance of good order and discipline.”    He admitted that his
    conduct in viewing child pornography was wrongful and that he
    had no legal justification or excuse.    He stipulated to leaving
    images of child pornography on the printer at the installation
    library where soldiers, civilians, and dependents could find it,
    and to taking his very young daughter with him to the library
    4
    United States v. Reeves, 03-0595/AR
    where he would view and print images of child pornography.    He
    stipulated to standing on one side of the Main River and, for
    between twenty and thirty minutes, training his video camera on
    the genital area of two young German girls, while accompanied by
    his own young daughter.   All of these images and films he
    secreted in his vehicle, quarters, and quarters storage area.
    Even if these were the only facts we had to go on, I would
    find it impossible to conclude that Sergeant Reeves did not
    understand “the nature of the prohibited conduct.”   Said another
    way, how could Sergeant Reeves admit that the Commander of U.S.
    Army, Europe, could lawfully prohibit the viewing of child
    pornography so as to “promote the morale, discipline, and
    usefulness of the members of the command” and that such
    prohibition was “directly connected to the maintenance of good
    order and discipline” without knowing that using the post
    library’s computers and printers to receive, download, and print
    child pornography in front of his two and one-half-year-old
    daughter and leaving child pornography on the printer for all to
    see was prejudicial to good order and discipline?    He could not.
    And it is only the smallest of steps to conclude that, on
    this record, Appellant also knew that openly focusing his video
    camera, for twenty to thirty minutes on the pubic area of seven-
    year-old German national children as they played by a public
    river, was equally prejudicial and service discrediting as well.
    5
    United States v. Reeves, 03-0595/AR
    This record overwhelmingly supports affirmation of a lesser
    included offense under either or both clauses (1) and (2) of
    Article 134, UCMJ.
    CONCLUSION
    There is no substantial basis in law or fact to question
    the providence of Appellant’s pleas.    Even if the record were
    insufficient to uphold Appellant’s pleas to violations of §§
    2252A and 2251(a), however, the record strongly supports
    conviction for disorders on the same facts.   For all these
    reasons, I respectfully dissent.
    6