United States v. Schauer

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40203
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UNITED STATES
Appellee
v.
Matthew D. SCHAUER
Technical Sergeant (E-6), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 9 March 2023
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Military Judge: Colin P. Eichenberger.
Sentence: Sentence adjudged on 14 September 2021 by GCM convened
at Hill Air Force Base, Utah. Sentence entered by military judge on 14
October 2021: Dishonorable discharge, confinement for 48 months, for-
feiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Spencer R. Nelson, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major
Joshua M. Austin, USAF; Major John P. Patera, USAF; Mary Ellen
Payne, Esquire.
Before KEY, ANNEXSTAD, and GRUEN, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Judge
ANNEXSTAD and Judge GRUEN joined.
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PUBLISHED OPINION OF THE COURT
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KEY, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a plea agreement, of one specifica-
tion each of possessing and producing child pornography in violation of Article
United States v. Schauer, No. ACM 40203
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934.1 The military
judge sentenced Appellant to a dishonorable discharge, confinement for 48
months, forfeiture of all pay and allowances, and reduction to the grade of E-
1. The convening authority approved the sentence in its entirety.
Appellant raises two issues on appeal, specifically whether: (1) the Govern-
ment erred by permitting the convening authority to consider matters submit-
ted by the named victim’s father;2 and (2) Appellant’s sentence is inappropri-
ately severe.3 We find no error materially prejudicial to Appellant’s substantial
rights, and we affirm the findings and the sentence.
I. BACKGROUND
A. Investigation into Appellant’s Offenses
In April 2020, agents with the Air Force Office of Special Investigations
learned that a Tumblr social networking account connected to Appellant’s
email address had child pornography posted to it. The pornography had been
posted from an Internet protocol address located in a foreign country during
the latter half of 2018, while Appellant was deployed there. The Government
identified ten images and one video posted to the account which appeared to
be child pornography. At his court-martial, Appellant admitted that all 11 files
amounted to child pornography and that he had downloaded the files from
other Tumblr accounts, saved them on his phone, and then uploaded the files
to his own Tumblr account. This conduct formed the basis for Appellant’s guilty
plea to possession of child pornography.
During the investigation into the above, agents examined a number of Ap-
pellant’s electronic devices. In doing so, they discovered that Appellant had
1 Reference to Article 134, UCMJ, 10 U.S.C. § 934, with respect to the possession of
child pornography specification, is to the Manual for Courts-Martial, United States
(2016 ed.). Unless otherwise noted, all other references to the UCMJ and the Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
2 In his assignments of error brief, Appellant describes this issue as:
Whether the Government erred in its post-trial processing when: 1) be-
fore trial, the Government requested that the military judge appoint a
specific Article 6b representative for the victim; 2) the military judge
granted the request and issued an order appointing the requested Ar-
ticle 6b representative; 3) the Government solicited input for action
from a parent that the military judge did not designate as the victim’s
representative; and 4) over trial defense counsel objection, the conven-
ing authority considered said input from the non-designated parent[.]
3Appellant personally raises this second issue pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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exchanged messages for about two weeks in March 2020 with JK via an online
messaging platform. For the most part, the messages were not overtly sexually
explicit in nature, but rather consisted of a running discussion about JK trying
to sneak out of her house so they could “meet up,” JK seeking a “sugar daddy,”
and Appellant “spoiling” JK. Appellant would refer to JK as “princess” and
himself as “daddy” in the messages.
JK’s profile on the messaging platform indicated that she was 18 years old,
but after conversing with Appellant for some time, she revealed that she was
“a minor.” Specifically, she wrote,
I’m a minor but it all depends on if you are willing to meet up
because I’ve had sex with plenty of adults before and never told
on any of them and I particularly like you and your methods of
everything but if you don’t want to meet because I’m a minor
that’s your choice and I won’t be angry I’ll be a little dissatisfied
but I’ll be ok[.]
Appellant replied that it was “unfortunate that [she] felt the need to tell
[him] that,” as he no longer had “plausible deniability.” Appellant then told JK
he would not meet up with her due to her age, leading JK to say she would
cease her contact with him.4
Shortly thereafter, Appellant reversed his position, telling JK he would
meet up with her if she could prove that she was the person she claimed to be
by sending him “something that no cop would be able to fake.” JK asked, “Like
what,” and Appellant responded, “I’m not sure.” JK then proposed, “We could
do like a picture of me doing something specific.” Appellant wrote back, “If you
could [send] me a video of you showing your id which shows your age, in the
same clip shows you nude and touching yourself..... that’s about the best I can
think of.” In response, JK sent Appellant a short video wherein she displays
her school identification card which indicated she was an eighth-grade middle
school student. In the same video, JK is seen sitting in front of a mirror with
her legs spread and briefly penetrating her vagina with her finger. Appellant
replied with a message which read, “I’m not gonna lie princess you may have
really screwed the pooch here.” The two exchanged a few more messages in
which Appellant indicated he was uncomfortable meeting up with JK because
of “to[o] many things gone wrong” and “to[o] many red flags,” leading to the
end of their conversation. Appellant and JK never met in person, but Appellant
4 The record does not indicate Appellant knew JK’s actual age at the time of these
conversations. Appellant told the military judge, however, that he reviewed the Air
Force Office of Special Investigation’s report of investigation prior to his court-martial
and learned that JK was 14 years old at the time they were sending messages to each
other.
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United States v. Schauer, No. ACM 40203
was charged with, and convicted of, producing child pornography based upon
the video JK sent him.
B. Victim Participation in Appellant’s Court-Martial
Just over a month before Appellant’s court-martial, the Government sub-
mitted a motion requesting the military judge designate JK’s mother, Ms. LK,
as JK’s representative under Article 6b, UCMJ, 10 U.S.C. § 806b. According to
the Government’s motion, JK was still “a minor” when the motion was filed.
The Government further asserted that JK was “a child who cannot properly
understand or assert the rights afforded to them by Article 6b.” The following
day, 6 August 2021, the military judge granted the Government’s request, in-
dicating in his order that trial defense counsel had informed him via email that
they did not oppose the appointment.
On 18 August 2021, Appellant signed a plea agreement in which he agreed
to, inter alia, “waive all motions which may be waived under the Rules for
Court[s]-Martial.”
At Appellant’s court-martial on 14 September 2021, the military judge
brought up the Government’s Article 6b, UCMJ, motion and said he wanted to
confirm that the Defense had no objection to Ms. LK’s appointment. Trial de-
fense counsel reiterated they did not. While discussing the plea agreement
with Appellant, the military judge asked which motions the Defense would
have raised but for the “waive all motions” provision. Trial defense counsel
highlighted a motion to suppress the seizure of evidence and motions to compel
expert consultants, in the event requests for such consultants were denied.
Trial defense counsel did not make any reference to a possible motion related
to Article 6b, UCMJ.
Once the Government rested its presentencing case, the military judge
asked if there was a crime victim present who would like to be heard. In re-
sponse, the Government produced what it described as a written “victim im-
pact statement from JK that ha[d] been entered through her Article 6b rep[re-
sentative].” The military judge asked who the statement was from, and trial
counsel answered, “[I]t is the statement through the Article 6b rep[resentative]
for the named victim, JK, [Ms. LK].” The military judge then asked if the De-
fense objected to the document, and trial defense counsel replied, “With the
redactions in place, no objection.” The document, which was marked as a court
exhibit, has two lines in the body redacted, as well as portions of the header
and signature blocks. In the header, the “from” line includes Ms. LK’s first
name followed by a redacted field. In the signature block, a signature above
Ms. LK’s signature has been redacted. Below Ms. LK’s signature, there is this
text: “[Ms. LK’s first name] [redacted field] [Ms. LK’s last name], parents.”
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United States v. Schauer, No. ACM 40203
The document is divided into five sections with the following headings: Vic-
tim Impact, Family Impact, Financial Impact, Parents’ Point of View, and
Summary. In the document, under “Victim Impact,” Ms. LK indicated JK “was
severely impacted,” although the memorandum suggests the primary impact
was the result of the law enforcement investigation as opposed to JK’s interac-
tions with Appellant. Ms. LK went on to explain that JK was receiving mental
health treatment. For the “Family Impact,” Ms. LK explained the family as a
whole was receiving mental health treatment and that they had installed an
alarm system. She identified the cost of the alarm and the mental health treat-
ment as financial impacts. Under “Parents’ Point of View,” Ms. LK wrote: “This
was not a victimless crime. [Appellant] is responsible for all the negative con-
sequences and outcomes that were inflicted upon the victim. He exploited a
minor-aged child for criminal and nefarious purposes.”
The same day as Appellant’s court-martial, the Government provided Mr.
NK—JK’s father—written notice that he had the opportunity to submit mat-
ters to the convening authority (the memorandum is addressed to Mr. NK “on
behalf of JK”). The Government subsequently notified Appellant that Ms. LK
and Mr. NK had submitted a memorandum and that Appellant had the oppor-
tunity to respond to or rebut those matters if he wished. The memorandum
from JK’s parents is signed by both Ms. LK and Mr. NK and restates the fact
JK received mental health care and asserts she was “severely impacted.” JK’s
parents credit Appellant for pleading guilty but found the sentence fair, and
state “[t]he opinion of the victim and her family is that the sentence should not
be reduced by the [c]onvening [a]uthority.”
In a clemency submission filed five days later, trial defense counsel objected
to JK’s parents’ memorandum, arguing that Mr. NK was not a crime victim in
this case. Trial defense counsel further objected to statements in the memo-
randum suggesting that Appellant was convicted of “many counts” of child por-
nography and that Appellant was forced to plead guilty due to “overwhelming
evidence.” On this latter point, trial defense counsel asserts Appellant decided
to plead guilty “on his own accord.”
II. DISCUSSION
A. Victim-Impact Matters
On appeal, Appellant argues that Mr. NK was neither a victim nor JK’s
representative, therefore the convening authority was prohibited from consid-
ering the post-trial matters jointly submitted by Ms. LK and Mr. NK. We find
Appellant’s claim to be without merit.
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1. Law
We review de novo questions regarding the proper completion of post-trial
processing. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App.
2004) (citation omitted).
Under Article 6b(a)(4)(B), UCMJ, a victim has the right to be reasonably
heard at the “sentencing hearing relating to the offense.” For purposes of this
article, “victim” is defined as “an individual who has suffered direct physical,
emotional, or pecuniary harm as a result of the commission of an offense” un-
der the UCMJ. When a victim is under 18 years of age, “the legal guardians of
the victim . . . , family members, or any other person designated as suitable by
the military judge, may assume the rights of the victim.” Article 6b(c), UCMJ.
During presentencing proceedings, crime victims may make unsworn state-
ments orally, in writing, or both. Rule for Courts-Martial (R.C.M.)
1001(c)(5)(A). This rule defines “crime victim” as “an individual who has suf-
fered direct physical, emotional, or pecuniary harm as a result of the commis-
sion of an offense of which the accused was found guilty or the individual’s
lawful representative or designee appointed by the military judge.” R.C.M.
1001(c)(2)(A). The contents of the statement are limited to victim impact and
matters in mitigation. R.C.M. 1001(c)(3). “Victim impact” is defined to “in-
clude[ ] any financial, social, psychological, or medical impact on the crime vic-
tim directly relating to or arising from the offense of which the accused has
been found guilty.” R.C.M. 1001(c)(2)(B).
Before deciding whether or not to take action on the sentence, the conven-
ing authority in this case was required to “consider matters timely submitted
. . . by the accused and any crime victim.” R.C.M. 1109(d)(3)(A). Under R.C.M.
1106A(c)(1), crime victims may submit “any matters that may reasonably tend
to inform the convening authority’s exercise of discretion” regarding the deci-
sion on action. R.C.M. 1106A(b)(2)’s definition of “crime victim” mirrors that
found in R.C.M. 1001(c)(2)(A): “an individual who has suffered direct physical,
emotional, or pecuniary harm as a result of the commission of an offense of
which the accused was found guilty . . . or the individual’s lawful representa-
tive or designee appointed by the military judge.”
2. Analysis
In this case, the military judge designated Ms. LK to serve as JK’s desig-
nated representative under Article 6b, UCMJ. In so doing, Ms. LK was author-
ized to exercise JK’s rights under that article, to include JK’s right to be rea-
sonably heard at Appellant’s sentencing hearing. As R.C.M. 1001(c)(2)(A) ex-
plains, the “crime victim” is either the victim him- or herself or that victim’s
designated representative—that is, either JK or Ms. LK could speak at the
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United States v. Schauer, No. ACM 40203
sentencing hearing on JK’s behalf. According to trial counsel, the memoran-
dum submitted was JK’s statement “through” Ms. LK, as JK’s designee.5 This
memorandum, which was admitted without objection, largely describes the di-
rect, personal impacts suffered by JK, but also includes impacts to her family
as a whole—such as expenses for counseling and an alarm system and the fact
the entire family was receiving mental health care.
With respect to the post-trial processing of this case, Appellant contends
Mr. NK may not be considered a “victim.” This position, however, cannot be
squared with the definitions in the UCMJ and the Rules for Courts-Martial.
Insofar as Mr. NK and Ms. LK must pay for the mental health care and the
alarm system they believe were necessitated by Appellant’s conduct, they have
suffered a pecuniary harm, either individually or jointly. Moreover, it is hardly
difficult to understand the notion that a parent may be psychologically harmed
by crimes committed against the minor children in their care—a notion we
have previously endorsed. See, e.g., United States v. Dunlap, No. ACM 39567,
2020 CCA LEXIS 148, at *25–26 (A.F. Ct. Crim. App. 4 May 2020) (unpub. op.)
(“[A] parent responsible for the safety and well-being of children and who wit-
nesses the suffering of those children may be harmed as much as, if not more
than, the children themselves.”).
Contrary to Appellant’s position, we conclude Mr. NK did qualify as a vic-
tim for the reasons stated above and was therefore entitled to be heard by the
convening authority before the decision on whether to take action was made.
For the same reasons, Ms. LK qualified as a victim. Moreover, as JK’s desig-
nated representative, Ms. LK had the legal authority to speak on behalf of JK,
the victim named on the charge sheet in this case. Appellant cites no authority
prohibiting Ms. LK from explaining the impact Appellant’s offenses had on her
personally in addition to the impacts on JK, whom Ms. LK represented, and
we are aware of none. Finally, we know of no law, rule, or policy that would
prohibit victims from jointly submitting matters to a convening authority in-
stead of submitting individual memoranda, and we see nothing improper with
Mr. NK and Ms. LK jointly authoring such a memorandum. Finding no error,
we grant no relief.
B. Sentence Severity
Appellant contends his sentence is inappropriately severe in light of his
military service, which included four overseas deployments that he asserts
5Although the redactions in the memorandum were not discussed in any detail during
Appellant’s court-martial, it would be reasonable to conclude that the document was
originally prepared as a letter from and signed by both Ms. LK and Mr. NK. The re-
dactions in the header and the signature block removed Mr. NK’s name and signature.
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took a toll on both his marriage and his mental health. Appellant’s plea agree-
ment required the military judge to sentence Appellant to confinement for no
less than 12 months and no more than 48 months for each specification. The
military judge sentenced Appellant to 18 months for the possession specifica-
tion and 48 months for the production specification, in addition to a dishonor-
able discharge. In accordance with the plea agreement, the military judge or-
dered the periods of confinement to run concurrently.
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citation omitted). Our authority to deter-
mine sentence appropriateness “reflects the unique history and attributes of
the military justice system, [and] includes but is not limited to considerations
of uniformity and evenhandedness of sentencing decisions.” United States v.
Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citations omitted). We may affirm
only as much of the sentence as we find correct in law and fact and determine
should be approved on the basis of the entire record. Article 66(d)(1), UCMJ,
10 U.S.C. § 866(d)(1). “We assess sentence appropriateness by considering the
particular appellant, the nature and seriousness of the offense[s], the appel-
lant’s record of service, and all matters contained in the record of trial.” United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)
(citations omitted). Although we have great discretion to determine whether a
sentence is appropriate, we have no power to grant mercy. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted).
Appellant’s request is one in the nature of clemency, which we are barred
from granting. While Appellant’s sentence is significant, so was his miscon-
duct. Appellant sought out, downloaded, and re-posted images and a video con-
stituting child pornography. Additionally, Appellant found a young girl online
and proposed she send him a video in the nude while touching herself. By vir-
tue of her compliance, Appellant succeeded in enticing JK to produce child por-
nography and then deliver the same to Appellant. This is a step far beyond
simply downloading existing child pornography. Instead, Appellant incremen-
tally expanded the existing universe of that material by causing the creation
of the video. We have carefully considered Appellant, his record of service, his
personal circumstances, and the entirety of his record of trial, and we conclude
Appellant’s adjudged sentence is not inappropriately severe.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
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Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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