United States v. Harrower

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39127
________________________
UNITED STATES
Appellee
v.
Cody M. HARROWER
Airman (E-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 26 January 2018
________________________
Military Judge: Joshua E. Kastenberg.
Approved sentence: Dishonorable discharge, confinement for 17 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 9 March 2016 by GCM convened at Davis-Monthan Air Force
Base, Arizona.
For Appellant: Captain Patrick A. Clary, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major Mary Ellen Payne, USAF; Major
Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Harrower, No. ACM 39127
JOHNSON, Senior Judge:
A general court-martial composed of a military judge convicted Appellant,
contrary to his pleas, of one specification of sexual assault of a child, two spec-
ifications of sexual abuse of a child, and two specifications of violating 18
U.S.C. § 2251 by enticing a child to take part in sexually explicit conduct for
the purpose of producing a photograph of such conduct, in violation of Articles
120b and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b,
934. 1 The military judge sentenced Appellant to a dishonorable discharge, con-
finement for 18 months, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority reduced the term of confinement to
17 months and approved the remainder of the sentence.
Appellant raises three issues for our consideration on appeal: (1) Whether
his conviction for Specification 2 of Charge II, alleging enticement of a child in
violation of 18 U.S.C. § 2251, is legally and factually sufficient; (2) Whether the
conduct charged in Specification 2 of Charge II is constitutionally protected
from prosecution; and (3) Whether the Government was preempted from charg-
ing violations of 18 U.S.C. § 2251 under Clause 3 of Article 134, UCMJ, because
Congress limited prosecution of such conduct to Article 120b, UCMJ. We find
no relief is warranted and affirm the findings and sentence.
I. BACKGROUND
In the autumn of 2013, Appellant, a 19-year-old Airman assigned to the
weather squadron at Davis-Monthan Air Force Base (AFB), Arizona, began
corresponding by Facebook and text message with HB, then a 14-year-old girl
living in Appellant’s home state of New York. At the time, HB’s Facebook page
stated that she was 13 years old and in the seventh grade. Their conversations
eventually turned to sexual topics. In the course of their electronic correspond-
ence, Appellant sent HB a photo of his penis and a video of himself masturbat-
ing. In addition, Appellant requested HB send him sexually explicit pictures of
herself in return, including pictures of herself masturbating. Appellant met
with HB in person when he visited New York in December 2013. Over the
course of one or two weeks, Appellant engaged in sexual intercourse with HB
approximately five times.
In April or May of 2014, Appellant began corresponding with another girl,
SK, after they were matched by a phone application known as “Hot or Not.”
This correspondence began either shortly before or soon after SK’s 17th birth-
day in April 2014. SK’s Hot or Not profile accurately listed her date of birth
1The military judge found Appellant not guilty of one specification of sexual abuse of
a child in violation of Article 120b, UCMJ.
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United States v. Harrower, No. ACM 39127
and the fact that she lived near Tucson, Arizona, where Appellant was sta-
tioned. Appellant and SK exchanged phone numbers and began texting and
calling one another. In the course of their correspondence, SK informed Appel-
lant of her actual age and that she was in high school. Eventually their con-
versations turned sexual. Appellant requested SK send him photos of herself
naked, including her breasts and vagina. SK initially resisted but, according
to her trial testimony, Appellant “would be really disappointed and continue to
ask.” Eventually, SK complied with Appellant’s requests and sent him sexually
explicit pictures by text message and via the Snapchat cell phone application.
In late July 2014, Appellant engaged in a text conversation with SER, an-
other then-14-year-old girl who lived in New York. Appellant was aware SER
was under the age of 16 years at the time. The conversation included several
explicit descriptions by Appellant of sexual acts he wanted to perform with
SER.
Appellant’s internet activities came to the attention of the Air Force Office
of Special Investigations (AFOSI) detachment at Davis-Monthan AFB. On 1
August 2014, Appellant provided written statements to AFOSI that included
the following:
I have been talking to girls under the age of 18 and sending/re-
ceiving texts of a sexual nature.
...
I have also been talking to a girl named [SK], 2 and she is a 17
year old senior in high school. Her [sic] and I have never had sex,
but we do talk about it a bit. . . .
...
A girl I know back home in New York is named [SER], 3 and she
is under 18. Her [sic] and I do exchange sexual texts and pictures
quite a bit, but I have erased them off my phone because I don’t
want to keep them, as she is under 18. Her [sic] and I talk about
meeting when I come back home, but that is some time away.
...
Another girl is named [HB] and she is under 18 as well. We used
to hang out when I was in school about 5 years ago. We dated
2 Appellant’s statement uses SK’s first name only, but in context it clearly refers to SK.
3Appellant’s statement uses SER’s first name only, but in context it clearly refers to
SER.
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United States v. Harrower, No. ACM 39127
awhile ago and regularly talked about sex and shared pictures.
...
[SER] from New York sent me some naked pictures of her lying
on her bed and also in her bathroom, and also pictures of her in
a skimpy dress, and in return I sent her naked pictures as well
of my penis and of me naked after a shower.
Appellant told the AFOSI agents he had previously deleted the pictures he re-
ceived from the girls. The agents lawfully obtained Appellant’s phone and sent
it to the Defense Criminal Forensics Laboratory (DCFL). DCFL performed an
extraction on Appellant’s phone that failed to retrieve any sexually explicit im-
ages of SK, SER, or HB but did recover four “selfie” photographs of a hand
holding a penis as well as the July 2014 text exchange between Appellant and
SER described above.
On 3 October 2014, Appellant provided AFOSI an additional written state-
ment that included the following:
I used to date a girl named [HB], who was 15 when we were
talking and dating, while I was 19. While I was home over
Christmas last year, her [sic] and I hung out quite a bit, and her
[sic] and I would end up having sex most of the time. It started
with us talking about how we met when we were younger, then
we started dating and began talking more explicitly, including
having phone sex when I wasn’t home. When we talked, we ex-
changed multiple pictures and videos of each other in various
sexual poses, as well as performing sexual acts for each other to
see. . . . [S]he hates me now.
Appellant also referred to SER, who he described as 15 years old. He stated his
correspondence with SER eventually became
explicit with detail about having sex. It most [sic] started by us
talking about kissing and rubbing each other’s bodies. Then we
would go into the details of how we would have sex, including
oral and vaginal sex. I sent pictures to [SER] when [she] re-
quested, and [she] sent me pictures in return, when I asked. . . .
Appellant went on to describe meeting SK through Hot or Not. He stated SK
“told me she was 16. . . . Then we got closer and started talking about having
vaginal and oral sex. We traded pictures and videos when we were talking,
about sex and touching our bodies in a sexual manner.”
At trial, the Government introduced the testimony of HB and SK, Appel-
lant’s written statements, images extracted from Appellant’s phone, and the
transcript of Appellant’s July 2014 text conversation with SER as well as other
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United States v. Harrower, No. ACM 39127
evidence. The Government did not introduce any sexually explicit photographs
of HB, SK, or SER. On cross-examination, SK acknowledged that she had en-
gaged in sexually-charged text exchanges with several other males in addition
to Appellant and that, at one point during a pretrial interview with trial coun-
sel, SK had initially misattributed to Appellant one particular text exchange
that was actually with another individual.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
We review issues of legal and factual sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). Our assessment of legal and factual sufficiency is limited to
the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993).
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324 (C.M.A. 1987); see also United States v. Hum-
pherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The “reasonable doubt” standard does
not require that the evidence be free from conflict. United States v. Lips, 22
M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency,
we are bound to draw every reasonable inference from the evidence of record
in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, im-
partial 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 rea-
sonable doubt.” Washington, 57 M.J. at 399.
18 U.S.C. § 2251(a) provides, in pertinent part:
Any person who 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
. . . shall be punished as provided under subsection (e), if such
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United States v. Harrower, No. ACM 39127
person knows or has reason to know that such visual depiction
will be transported or transmitted using any means or facility of
interstate or foreign commerce or in or affecting interstate or
foreign commerce . . . .
18 U.S.C. § 2256 defines “minor,” as that term is used in 18 U.S.C. § 2251(a),
as anyone under the age of 18 years.
In United States v. Roderick, 62 M.J. 425, 429–30 (C.A.A.F. 2006), the
Court of Appeals for the Armed Forces (CAAF) explained the term “sexually
explicit conduct” as utilized in 18 U.S.C. § 2251(a) and defined by 18 U.S.C. §
2256 includes sexual intercourse, bestiality, masturbation, sadistic or maso-
chistic abuse, or “lascivious exhibition of the genitals or pubic area of any per-
son.” To determine what constitutes a “lascivious exhibition,” the CAAF
adopted the six factors developed in United States v. Dost, 636 F. Supp. 828,
832 (S.D. Cal. 1986), and widely employed across the federal circuits. These
factors include:
(1) Whether the focal point of the visual depiction is on the
child’s genitalia or pubic area;
(2) Whether the setting of the visual depiction is sexually sug-
gestive, i.e. in a place or pose generally associated with sexual
activity;
(3) Whether the child is depicted in an unnatural pose, or in in-
appropriate attire, considering the age of the child;
(4) Whether the child is fully or partially clothed, or nude;
(5) Whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity; and
(6) Whether the visual depiction is intended or designed to elicit
a sexual response in the viewer.
Roderick, 62 M.J. at 429 (citing Dost, 636 F. Supp. at 832). However, these
factors are not exclusive and the CAAF “combin[es] a review of the Dost factors
with an overall consideration of the totality of the circumstances.” Id. at 430.
2. Analysis
Appellant essentially makes two arguments in support of his contention
that his conviction of Specification 2 of Charge II, alleging that he enticed SK
to engage in sexually explicit conduct in violation of 18 U.S.C. § 2251, is legally
and factually insufficient. First, he contends that because the Government did
not present the pictures of SK that Appellant and SK referred to, it is impossi-
ble to apply the Dost factors to those images and determine that they consti-
6
United States v. Harrower, No. ACM 39127
tuted a “lascivious exhibition” of the genitals or pubic area and were thus “sex-
ually explicit” within the meaning of 18 U.S.C. § 2251. Second, he asserts the
imprecise descriptions in Appellant’s statements and SK’s testimony of the im-
ages of SK, combined with the absence of the actual images, SK’s admission
that she texted with other men, and her previous misattribution of one partic-
ular text exchange to Appellant, raise substantial doubts as to his guilt. We
disagree.
With respect to the Dost factors, the essential question is not whether the
Government is able to introduce the sexually explicit images SK created and
transmitted at Appellant’s request; rather, the question is whether the evi-
dence that was introduced establishes each element of the offense beyond a
reasonable doubt. We find that it does. SK testified that she recalled meeting
Appellant through the Hot or Not application. Appellant was aware of her age
both from the application and because SK told him. Appellant eventually
turned their conversations to sexual matters. Appellant requested SK send
him a picture of herself with “all of [her] clothes off.” Specifically, she testified
he “mostly” wanted pictures of her vagina. When SK expressed reluctance, Ap-
pellant “would be really disappointed and continue to ask.” She “absolutely”
felt pressured, and eventually she complied. Appellant’s sworn statement sub-
stantially reinforced SK’s testimony. It confirmed that he knew SK was under
18 years of age, that they talked “about having vaginal and oral sex,” and that
they traded pictures and videos of themselves touching their bodies “in a sex-
ual manner.”
Thus the evidence shows SK sent Appellant, at his request, one or more 4
images of her naked vagina in the context of conversations about “having vag-
inal and oral sex” with one another. Considering all of the Dost factors and “the
totality of the circumstances,” we are convinced the images constituted a las-
civious exhibition of SK’s genitals and pubic area and were therefore “sexually
explicit,” such that Appellant engaged in sexually explicit conduct when he en-
ticed SK to create and transmit by use of a means or facility of interstate com-
merce the photos of herself. See Roderick, 62 M.J. at 430.
Turning to Appellant’s second argument, we are not persuaded that SK
may have confused Appellant with one or more other men when she testified
at trial. SK registered her interest in Appellant after viewing his photo and
other information on the Hot or Not application. She recalled there was a pic-
ture of him in his Air Force uniform, and, once they started corresponding, he
told her he was “a weatherman for the Air Force,” which made her “trust him
4SK’s testimony and Appellant’s statement imply she created more than one such im-
age, but a single image would be sufficient to find Appellant guilty of the charge and
specification.
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United States v. Harrower, No. ACM 39127
more.” Although she corresponded with a number of other men, to SK’s
knowledge Appellant was the only servicemember she texted with. Appellant
sent SK additional photographs of himself. Notwithstanding her acknowledged
prior confusion regarding one particular text exchange, SK identified Appel-
lant by sight in the courtroom and affirmed she was “absolutely” sure she had
the exchanges she testified to with Appellant.
Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” we conclude the evidence was legally sufficient to support
Appellant’s conviction of enticing SK to engage in sexually explicit conduct be-
yond a reasonable doubt. Barner, 56 M.J. at 134. Moreover, having weighed
the evidence in the record of trial and having made allowances for not having
personally observed the witnesses, we are convinced of Appellant’s guilt be-
yond a reasonable doubt. See Turner, 25 M.J. at 325. Appellant’s conviction of
Specification 2 of Charge II is therefore both legally and factually sufficient.
B. Constitutionally Protected Conduct
1. Law
We review for plain error a claim raised for the first time on appeal that a
statute is unconstitutional as applied to an appellant’s case. United States v.
Goings, 72 M.J. 202, 205 (C.A.A.F. 2013). Under this standard, to demonstrate
that a facially constitutional statute is unconstitutional as applied to him, the
appellant “must point to particular facts in the record that plainly demonstrate
why his interests should overcome Congress’ and the President’s determina-
tions that his conduct be proscribed.” Id.
In Lawrence v. Texas, the United States Supreme Court held a constitu-
tional liberty interest protects the right of competent adults to engage in pri-
vate, consensual sexual activity. 539 U.S. 558, 578 (2003). “Constitutional
rights identified by the Supreme Court generally apply to members of the mil-
itary unless by text or scope they are plainly inapplicable.” United States v.
Marcum, 60 M.J. 198, 206 (C.A.A.F. 2004). Whether the liberty interest iden-
tified in Lawrence renders a servicemember’s conviction unconstitutional in a
particular case involves a three-part inquiry:
First, was the conduct that the accused was found guilty of com-
mitting of a nature to bring it within the liberty interest identi-
fied by the Supreme Court? Second, did the conduct encompass
any behavior or factors identified by the Supreme Court as out-
side the analysis in Lawrence? 539 U.S. at 578. Third, are there
additional factors relevant solely in the military environment
that affect the nature and reach of the Lawrence liberty interest?
Id. at 206–07.
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United States v. Harrower, No. ACM 39127
2. Analysis
Although not raised at trial, Appellant now contends the application of the
three-part inquiry the CAAF articulated in Marcum demonstrates his convic-
tion for enticing SK in violation of 18 U.S.C. § 2251 is unconstitutional because:
(1) SK had a constitutionally-protected right to engage in private sexual be-
havior; (2) the justification for proscribing child pornography does not apply in
this case because SK, though under 18, was at least 16 years old and consented
to the activity; and (3) the Government did not allege or prove any military-
specific considerations. See id. We disagree.
This court has previously rejected what Appellant essentially argues here:
that because Congress has defined “child” for purposes of Article 120b, UCMJ,
to mean someone under the age of 16 years, his enticement of a 16- or 17-year-
old girl to create sexually explicit photos of herself was constitutionally pro-
tected. See United States v. Hill, No. ACM 38848, 2016 CCA LEXIS 291, at
*11–13 (A.F. Ct. Crim. App. 9 May 2016) (unpub. op.). In Hill we noted that
although a 16- or 17-year-old girl does not meet the definition of “child” under
Article 120b, “that does not necessarily make her an adult as that word is used
in Lawrence.” Id. at *11. Lawrence specifically limited its holding to sexual ac-
tivity between adults, see 539 U.S. at 578, and SK was not an adult for pur-
poses of 18 U.S.C. § 2251. “[E]nticing a minor, even one who has reached the
age of consent [under Article 120b, UCMJ], to engage in lewd conduct for the
purpose of producing a visual depiction of such conduct does not fall within the
sphere of constitutionally protected conduct under Lawrence.” Hill, 2016 CCA
LEXIS at *12–13; see New York v. Ferber, 458 U.S. 747, 766 n.18 (1982)
(“[C]hild pornography [as defined by New York statute] is unprotected speech
subject to content-based regulation.”). Although the appellant in Hill was not
charged with violating a federal child pornography statute in violation of
Clause 3 of Article 134, UCMJ, the constitutional analysis is the same, and we
reach a similar conclusion in Appellant’s case. See id. at *12 (citing with ap-
proval analysis of prosecution under 18 U.S.C. § 2251 in United States v. Bach,
400 F.3d 622, 629 (8th Cir. 2005)).
We find unpersuasive Appellant’s reliance on Carey v. Population Servs.
Int’l, 431 U.S. 678, 694 (1977). Appellant cites Carey for the proposition that
“the right to privacy in connection with decisions affecting procreation extends
to minors as well as to adults.” Id. at 693. However, Appellant cites a portion
of the opinion that was not joined by a majority of the Court. Moreover, even
those justices who did join that portion “proceed[ed] on the assumption that
the Constitution does not bar state regulation of the sexual behavior of mi-
nors.” Id. at 694 n.17. In any event, we are not persuaded that SK’s right to
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United States v. Harrower, No. ACM 39127
privacy with regard to decisions affecting procreation gives Appellant a consti-
tutionally-protected right to entice 16- or 17-year-old minors to create images
of themselves engaging in sexually explicit conduct.
Appellant may find it incongruous that federal law permits a servicemem-
ber to engage in sexual intercourse with a 16- or 17-year-old but prohibits a
servicemember to persuade, induce, or entice that same individual to create a
sexually explicit photograph of herself for private viewing. However, that is
what Congress has done, and the Constitution does not prohibit it from doing
so.
C. Preemption
1. Law
We review de novo questions of statutory interpretation, including preemp-
tion. United States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015); United States
v. Benitez, 65 M.J. 827, 828 (A.F. Ct. Crim. App. 2007). However, if an appel-
lant forfeits an issue by not raising it at trial, appellate courts review it for
plain error. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). To pre-
vail under a plain error analysis, the appellant must demonstrate that there
was error, the error was plain or obvious, and the error materially prejudiced
a substantial right. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011).
The preemption doctrine “prohibits application of Article 134 to conduct
covered by Articles 80 through 132.” Manual for Courts-Martial, United States
(2012 ed.) (MCM), pt. IV, ¶ 60.c.(5)(a). In United States v. Kick, 7 M.J. 82
(C.M.A. 1979), our superior court referred to the preemption doctrine as the
legal concept that where Congress has occupied the field of a
given type of misconduct by addressing it in one of the specific
punitive articles of the code, another offense may not be creat-
ed and punished under Article 134, UCMJ, by simply deleting a
vital element. However, simply because the offense charged un-
der Article 134, UCMJ, embraces all but one element of an of-
fense under another article does not trigger operation of the
preemption doctrine. In addition, it must be shown that Con-
gress intended the other punitive article to cover a class of of-
fenses in a complete way.
Id. at 85 (citations omitted); see United States v. Erickson, 61 M.J. 230, 233
(C.A.A.F. 2005). Accordingly, the preemption doctrine only precludes prosecu-
tion under Article 134, UCMJ, where two elements are met: “(1) ‘Congress in-
tended to limit prosecution for . . . a particular area’ of misconduct ‘to offenses
defined in specific articles of the Code,’ and (2) ‘the offense charged is composed
of a residuum of elements of a specific offense.’” United States v. Curry, 35 M.J.
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359, 360–61 (C.M.A. 1992) (omission in original) (quoting United States v.
McGuinness, 35 M.J. 149, 151–52 (C.M.A. 1992)).
Article 120b(c) provides: “Any person subject to this chapter who commits
a lewd act upon a child is guilty of sexual abuse of a child and shall be punished
as a court-martial may direct.” For purposes of this article, Article 120b(h)(4)
defines “child” to mean “any person who has not attained the age of 16 years.”
Article 120b(h)(5) defines a “lewd act” to include, inter alia, “intentionally com-
municating indecent language to a child by any means, including via any com-
munication technology, with an intent to abuse, humiliate, or degrade any per-
son, or to arouse or gratify the sexual desire of any person[.]” 10 U.S.C. §
920b(h)(5)(C).
2. Analysis
Although Appellant did not raise the issue at trial, he now contends the
Government was preempted from prosecuting him under Article 134, UCMJ,
for enticing HB and SK to participate in sexually explicit conduct for the pur-
pose of creating a photo of that conduct in violation of 18 U.S.C. § 2251, because
Congress intended Article 120b(c) to apply to such alleged misconduct. We dis-
agree.
We have recently considered and rejected similar arguments. In Hill, we
held that a specification alleging the enticement of a minor to engage in lewd
acts for the purpose of producing a visual depiction thereof in violation of the
second clause of Article 134 was not a residuum of the elements of sexual abuse
of a child under Article 120b, UCMJ. 2016 CCA LEXIS 291, at *5. Significantly,
although Hill involved service-discrediting conduct in violation of Clause 2 of
Article 134, rather than the commission of a “crime[ ] or offense[ ] not capital”
in violation of Clause 3, we cited federal child pornography statutes including
18 U.S.C. § 2251 for the proposition that enticing a child to engage in illegal
conduct is an offense distinct from the underlying sexual offense. Similarly, in
United States v. Wheeler, consistent with the CAAF’s holding in United States
v. Schell, 72 M.J. 339, 343–44 (C.A.A.F. 2013), we found the Article 134 Clause
3 offense the appellant was charged with, alleging enticement of a minor in
violation of 18 U.S.C. § 2422, was “not composed of a residuum of elements of
any of the other enumerated UCMJ offenses.” 76 M.J. 564, 572 (A.F. Ct. Crim.
App. 2017), pet. granted 76 M.J. 457 (C.A.A.F. 2017); see also United States v.
Chambers, No. ACM 38975, 2017 CCA LEXIS 318, at *7 (A.F. Ct. Crim. App.
4 May 2017) (unpub. op.) (Article 134 Clause 2 specification alleging wrongful
inducement of a minor to create sexually-explicit visual depiction was not
preempted by Article 120b).
The implications of these decisions for Appellant’s argument is clear. Al-
though Appellant contends Wheeler is not dispositive because it addressed a
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United States v. Harrower, No. ACM 39127
violation of 18 U.S.C. § 2422 rather than 18 U.S.C. § 2251 as he was charged
with, he concedes both contain the element of enticement, and he fails to mean-
ingfully distinguish the statutes for purposes of our preemption analysis. We
continue to adhere to our previous reasoning. We find the military judge did
not commit plain error by failing to rule sua sponte that the violations of Article
134 alleged in Specifications 1 and 2 of Charge II were preempted by Article
120b, UCMJ.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. 5 Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
5 We note an error in the promulgating order with respect to Specification 1 of Charge
I, where the order reads “. . . had no attained the age . . .” vice “. . . had not attained
the age . . .” as stated on the charge sheet. We direct the publication of a corrected
court-martial order to remedy this error.
12