United States v. Hays

UNITED STATES, Appellee
v.
Michael B. HAYS, Specialist
U.S. Army, Appellant
No. 04-0264
Crim. App. No. 20001100
United States Court of Appeals for the Armed Forces
Argued March 2, 2005
Decided September 30, 2005
EFFRON, J., delivered the opinion of the Court, an opinion with
respect to Issues I and II, in which GIERKE, C.J., and CRAWFORD
and BAKER, JJ., joined, and an opinion with respect to Issue IV,
in which BAKER and ERDMANN, JJ., joined. In view of the Court’s
disposition of Issue IV, it did not reach Issue III. ERDMANN,
J., filed a dissenting opinion on Issues I and II. GIERKE,
C.J., filed an opinion concurring in the result on Issue IV.
CRAWFORD, J., filed a dissenting opinion on Issue IV.
Counsel
For Appellant: Captain Charles L. Pritchard Jr. (argued);
Lieutenant Colonel Mark Tellitocci and Major Allyson G. Lambert
(on brief); Colonel Mark Cremin, Colonel Robert Teetsel, and
Captain Terri J. Erisman.
For Appellee: Captain Flor M. Suarez (argued); Colonel Steven
Salata, Lieutenant Colonel Mark Johnson, and Lieutenant Colonel
Theresa A. Gallagher (on brief); Lieutenant Colonel Margaret B.
Baines.
Military Judge: Donna M. Wright
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hays, No. 04-0264/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to mixed pleas,
of disobeying a superior officer (two specifications); violating
a general regulation; violating the Child Pornography Prevention
Act (CPPA), 18 U.S.C. § 2252A (2000) (four specifications);
soliciting another to rape a child; and false swearing, in
violation of Articles 90, 92, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 890, 892, 934 (2000), respectively.
The adjudged sentence included a dishonorable discharge,
confinement for ten years, total forfeiture of pay and
allowances, and reduction to the lowest enlisted grade. The
convening authority approved the sentence and granted Appellant
ninety-nine days of confinement credit.
In an unpublished opinion, the United States Army Court of
Criminal Appeals disapproved the finding of guilty for
soliciting the rape of a child but approved a finding of guilty
to the lesser offense of soliciting another person to commit the
offense of carnal knowledge. The court affirmed the remaining
findings of guilt, reassessed the sentence, and affirmed only so
much of the sentence as provided for a dishonorable discharge,
confinement for 114 months, total forfeiture of pay and
allowances, and reduction to the lowest enlisted grade. United
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States v. Hays, No. ARMY 20001100 (A. Ct. Crim. App. Jan. 22,
2004).
On Appellant’s petition, we granted review of the following
four issues:
I. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED IN AFFIRMING A FINDING OF
GUILTY OF SOLICITATION OF CARNAL KNOWLEDGE
WHERE: (1) THE COURT USED AN OVERBROAD
DEFINITION OF SOLICITATION; AND (2) THE
EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT
A FINDING THAT APPELLANT SOLICITED “JOHN
D___” TO COMMIT CARNAL KNOWLEDGE BECAUSE
APPELLANT’S ACTS DID NOT AMOUNT TO
SOLICITATION.
II. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED IN AFFIRMING A CONVICTION OF
SOLICITATION OF CARNAL KNOWLEDGE WHERE: (1)
THE COURT RELIED ON ERRONEOUSLY INTRODUCED
EVIDENCE OF UNCHARGED MISCONDUCT; (2) THE
COURT RELIED ON IMPROPER EXPERT TESTIMONY
WHICH WAS UNHELPFUL AND AMOUNTED TO
INADMISSIBLE PROFILE EVIDENCE AND LEGAL
OPINIONS; AND (3) THE COURT MISTAKENLY
DETERMINED THAT THE COMBINED IMPACT OF THE
ERRONEOUSLY ADMITTED EXHIBITS AND THE
IMPROPER EXPERT TESTIMONY WOULD NOT HAVE
CHANGED THE MILITARY JUDGE’S DETERMINATION
OF GUILT AT TRIAL.
III. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED IN FINDING THAT APPELLANT’S
PLEAS OF GUILTY TO [CHILD PORNOGRAPHY
OFFENSES UNDER] SPECIFICATIONS 1, 2, 3, AND
4 OF CHARGE IV WERE PROVIDENT WHERE: (1) THE
MILITARY JUDGE’S DEFINITION OF CHILD
PORNOGRAPHY INCLUDED COMPUTER-GENERATED
IMAGES, A DEFINITION THE SUPREME COURT FOUND
UNCONSTITUTIONAL; AND (2) THE MILITARY JUDGE
DID NOT CONDUCT AN ADEQUATE PROVIDENCE
INQUIRY AS REQUIRED BY UNITED STATES v.
CARE, 18 C.M.A. 535, 40 C.M.R. 247 (1969),
AND ITS PROGENY TO ESTABLISH THAT APPELLANT
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United States v. Hays, No. 04-0264/AR
BELIEVED THE IMAGES WERE PRODUCED USING REAL
CHILDREN.
IV. WHETHER THE FINDINGS OF GUILTY TO
DISTRIBUTION, RECEIPT, AND POSSESSION OF
CHILD PORNOGRAPHY IN VIOLATION OF 18 U.S.C.
§§ 2252A(a)(1)-(2), (2), AND (5)(a),
RESPECTIVELY, MUST BE SET ASIDE BECAUSE
THOSE STATUTES DO NOT APPLY TO CONDUCT
ENGAGED IN OUTSIDE THE TERRITORIAL LIMITS OF
THE UNITED STATES WHEN CHARGED UNDER CLAUSE
3 OF ARTICLE 134, UCMJ.
For the reasons set forth below, we affirm the decision of the
Court of Criminal Appeals, subject to modification of the child
pornography convictions as set forth in the decretal paragraph.
I. BACKGROUND
While investigating suspected child pornography offenses,
an agent of the Army’s Criminal Investigation Division (CID)
searched the e-mail accounts of a soldier stationed in Korea.
In the course of the search, one of the accounts received an
online message from a person identified as “P[ ]13.” The agent
entered into an online conversation with “P[ ]13.” During the
online conversation, “P[ ]13” expressed an interest in sexually
explicit pictures of girls between the ages of four and eight.
As the search of the initial suspect’s e-mail accounts
continued, “P[ ]13” sent two more e-mails with attachments
containing sexually explicit photographs of children and adults.
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United States v. Hays, No. 04-0264/AR
Based on information in the e-mails, CID identified
Appellant, who was stationed in Germany, as “P[ ]13.” CID then
searched Appellant’s e-mail accounts and U.S. Government-owned
computers in the library on Vilseck Air Base in Germany. CID
also collected discs located in Appellant’s household goods.
The information obtained from these searches provided the
primary evidence for the charges at issue in the present appeal.
II. SOLICITATION TO COMMIT
CARNAL KNOWLEDGE (ISSUES I AND II)
Appellant was prosecuted under Article 134, UCMJ, for
soliciting JD to rape a nine-year-old child. The offense has
three elements:
(1) That the accused solicited or advised a
certain person or persons to commit a
certain offense under the code other than
one of the four offenses named in Article
82;
(2) That the accused did so with the intent
that the offense actually be committed; and
(3) That, under the circumstances, the
conduct of the accused was to the prejudice
of good order and discipline in the armed
forces or was of a nature to bring discredit
upon the armed forces.
Manual for Courts-Martial, United States (2002 ed.) (MCM), pt.
IV, ¶ 105.b.
At trial, the prosecution introduced e-mails that were sent
and received by Appellant discussing the exchange of child
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United States v. Hays, No. 04-0264/AR
pornography and pictures. Some of the e-mails included pictures
of children and adults exposed and engaged in sexually explicit
behavior. The charge of solicitation to commit rape was based
primarily on an e-mail message in which Appellant wrote the
following to JD, a person apparently known to Appellant only
over the internet:
I was hoping that you would send me some
more good pix before I left . . . . I hope
that everything is working out with your 9
yo. Have you f***** her yet? If so, [d]o
you have pix? . . . Man you are not going to
believe it when I adopt that little girl and
send you pix of me and her as I promised. I
am going to do everything to her that you
can imagine. And you will be the first to
see, I promise you that much. I hope that
you can find it in your heart to send me
more pix as you have in the past week or so.
If you send me more pix, I will be eternally
grateful, and reward you greatly. Please
send me more!!
The court below concluded that this statement did not
establish Appellant’s intent that JD commit rape by force, but
that it was factually sufficient to prove the lesser included
offense of soliciting JD to commit the offense of carnal
knowledge. In Issues I and II, Appellant raises four challenges
to the solicitation conviction, as modified by the court below:
(1) whether the court employed an improper definition of
solicitation; (2) whether the evidence was legally sufficient;
(3) whether uncharged misconduct was improperly admitted into
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United States v. Hays, No. 04-0264/AR
evidence; and (4) whether the testimony of a Government expert
witness was improperly admitted into evidence.
A. LEGAL DEFINITION OF SOLICITATION
After discussing the elements of solicitation, the court
below stated: “Solicitation includes ‘any use of words or other
device by which a person is requested, urged, advised,
counseled, tempted, commanded or otherwise enticed or incited to
commit a crime.’” Hays, slip. op. at 11 (citing Rollin M.
Perkins & Ronald N. Boyce, Criminal Law 647 (3d ed. 1982), and
United States v. Hubbs, 20 M.J. 909, 910 (A.C.M.R. 1985)).
Appellant argues that this statement includes conduct that would
not otherwise have been criminal under the MCM. The
interpretation of “solicitation” under Article 134 is a question
of law, which we review de novo. See, e.g., United States v.
Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002).
According to the MCM, “Any act or conduct which reasonably
may be construed as a serious request or advice to commit [a
crime under the Code] may constitute solicitation.” Pt. IV, ¶
6.c.2. This Court has further described solicitation under
Article 134 as “an express or implicit invitation to join in a
criminal plan.” United States v. Williams, 52 M.J. 218, 220
(C.A.A.F. 2000).
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United States v. Hays, No. 04-0264/AR
The word “request” means “to ask for” and “invite” means
“to offer an incentive or inducement to: entice . . . to
request formally.” Webster’s Third New International Dictionary
of the English Language, Unabridged 1929, 1190 (3d ed. 1981).
These words are synonymous with the words in the treatise cited
by the Army court. The court supplemented the quotation from
the criminal law treatise by quoting the “serious request”
language from the MCM. Hays, slip. op. at 11 (“Any writing that
may be reasonably construed as a ‘serious request or advice’ to
commit rape may constitute solicitation. MCM, 1998, Part IV,
para. 6c(2).”). In that context, we do not interpret the
language in the Army court’s opinion as broadening the
definition of solicitation to include conduct that would not
otherwise be criminal. By quoting the synonymous terms from the
criminal law treatise, the Army court merely offered additional
explanation as to what constitutes a “serious request” in
accordance with the established definition of solicitation.
B. LEGAL SUFFICIENCY OF THE EVIDENCE
Legal sufficiency is a question of law, which we review de
novo. United States v. Riley, 58 M.J. 305, 311 (C.A.A.F. 2003).
The test is whether “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
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United States v. Hays, No. 04-0264/AR
reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
The elements of solicitation require proof that Appellant
“solicited or advised a certain person or persons to commit” the
offense of carnal knowledge -- sexual intercourse with non-
spouse under the age of sixteen -- and that Appellant “did so
with the intent that the offense actually be committed.” MCM,
pt. IV, ¶ 105.b (solicitation); id. pt. IV, ¶ 45.b.2 (carnal
knowledge). Appellant contends that the query in his e-mail was
not a serious request because it was simply a question that “did
not seek any action on [JD’s] part.”
The evidence demonstrates that Appellant’s inquiry into
whether JD had engaged in sexual intercourse with the nine-year-
old girl was followed immediately by a request for pictures of
such an encounter. In the same e-mail, Appellant offered JD a
quid pro quo. He described his intention to adopt a little girl
and promised to send JD pictures of engaging the girl in every
sexual activity “that [JD] can imagine.” He then said that if
JD sent pictures, Appellant would be “eternally grateful, and
[would] reward [JD] greatly.”
In order to fulfill Appellant’s request, it would have been
necessary for JD to engage in an act of sexual intercourse with
a nine-year-old girl. Considering the context of the e-mail --
particularly the repeated urging for JD to send pictures of him
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United States v. Hays, No. 04-0264/AR
engaging in sexual intercourse with the young girl, as well as
the quid pro quo contained in the same e-mail -- and viewing the
evidence in the light most favorable to the Government, a
reasonable factfinder could have found that the inquiry
constituted a serious request for JD to commit carnal knowledge
with the girl. Under these circumstances, a reasonable
factfinder could infer from the tone and language of the e-mail
that Appellant solicited JD to commit carnal knowledge with the
intent that the offense actually be committed.
Appellant further contends that even if his words
constituted a serious request to commit carnal knowledge, JD was
predisposed and would have committed the offense in the absence
of Appellant’s request. In Appellant’s view, JD’s
predisposition absolved Appellant of legal responsibility for
what otherwise might have been a criminal solicitation. As
support for this argument, Appellant relies upon a decision by
the Army Court of Criminal Appeals describing solicitation as
“seeking to induce conduct by another that that person was not
already predisposed to do . . . .” United States v. Dean, 44
M.J. 683, 685 (A. Ct. Crim. App. 1996). Appellant acknowledges
that the Army court in the present case appears to have
abandoned the predisposition limitation. Neither the UCMJ nor
the MCM precludes a conviction for solicitation simply because
the object of the solicitation may be predisposed towards
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United States v. Hays, No. 04-0264/AR
committing the crime. Because there may be cases in which a
solicitation transforms predisposition into action, we reject
Appellant’s invitation to adopt the predisposition limitation
set forth in Dean.
C. UNCHARGED MISCONDUCT
1. Background
Appellant contends that the solicitation conviction was
tainted by the improper introduction of uncharged misconduct
evidence. See Military Rule of Evidence (M.R.E.) 404(b). The
evidence at issue includes an e-mail from Appellant containing
images of minors engaging in sexually explicit conduct; pictures
of adults engaging in bestiality; requests from Appellant for
pictures and video of children engaging in sexual activity with
adults, including additional discussions with JD about the nine-
year-old girl; responses to such requests; and an e-mail to
multiple recipients stating that if they did not send “preteen
hardcore pix,” he would remove them from his trading list.
Defense counsel objected that each of the items was
irrelevant, and that specific items were unduly prejudicial or
contained inadmissible character evidence. See M.R.E. 401-04.
The prosecution responded that the e-mails and pictures
constituted relevant evidence of Appellant’s intent at the time
of the solicitation. See M.R.E. 404(b). The military judge
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United States v. Hays, No. 04-0264/AR
overruled the objections and admitted the exhibits into
evidence.
In the present appeal, Appellant challenges the
admissibility of each of these exhibits under the limitations on
the use of uncharged misconduct in M.R.E. 404. Appellant
contends that the prosecution improperly used these exhibits “in
an effort to show that appellant was a bad man with an unnatural
sexual attraction to children.”
We review a military judge’s ruling to admit or exclude
evidence for an abuse of discretion. United States v. Grant, 56
M.J. 410, 413 (C.A.A.F. 2002). Under M.R.E. 404(b), “Evidence
of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith.” Such evidence may be admissible for other purposes,
such as “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
M.R.E. 404(b). The admissibility of uncharged misconduct
evidence is analyzed under the three-pronged test of United
States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989): (1) Does
the evidence reasonably support a finding by the court members
that Appellant committed the prior crimes, wrongs, or acts?; (2)
What fact of consequence is made more or less probable by the
existence of the evidence?; and (3) Is the probative value of
the evidence substantially outweighed by the danger of unfair
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United States v. Hays, No. 04-0264/AR
prejudice? The evidence is inadmissible if it fails any one of
these three tests. United States v. Humpherys, 57 M.J. 83, 91
(C.A.A.F. 2002).
The Government, noting that the defense objected to most of
the exhibits on relevance grounds rather than under M.R.E. 404,
contends that we should review for plain error because defense
counsel’s objections did not preserve the uncharged misconduct
issue. We note, however, that under the Reynolds three-prong
test for analyzing uncharged misconduct under M.R.E. 404, two of
the three prongs involve relevance and undue prejudice under
M.R.E. 401 and M.R.E. 403. For purposes of the present appeal,
we shall assume without deciding that defense counsel’s
objections sufficiently preserved the issue of uncharged
misconduct on appeal.
2. Discussion
The first prong of the Reynolds test asks whether the
factfinder could reasonably find by a preponderance of the
evidence that the misconduct occurred -- sending and receiving
e-mails discussing the exchange of child pornography and
pictures containing sexually explicit images of children and
adults. The exhibits at issue were sent and received by “P[
]13,” and evidence introduced at trial showed that Appellant was
“P[ ]13.” This is sufficient evidence from which a reasonable
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United States v. Hays, No. 04-0264/AR
factfinder could conclude that Appellant sent and received the
e-mails and pictures.
Under the second Reynolds prong, the evidence must make
some fact of consequence more or less probable. It is not
sufficient, however, to introduce the evidence as evidence of
Appellant’s character to prove that he acted in conformity
therewith. M.R.E. 404(a); United States v. Robles-Ramos, 47
M.J. 474 (C.A.A.F. 1998). The Government contends that the
exhibits were relevant to show Appellant’s intent to solicit JD
to commit carnal knowledge. See M.R.E. 404(b). Appellant
responds that the exhibits do not prove or disprove Appellant’s
intent to commit carnal knowledge. According to Appellant, the
exhibits only establish that Appellant enjoyed viewing child
pornography, which was not a fact in controversy.
When considering whether uncharged misconduct constitutes
admissible evidence of intent under M.R.E. 404(b), we consider
“whether Appellant’s state of mind in the commission of both the
charged and uncharged acts was sufficiently similar to make the
evidence of the prior acts relevant on the intent element of the
charged offenses.” United States v. McDonald, 59 M.J. 426, 430
(C.A.A.F. 2004). “Extrinsic acts evidence may be critical to
the establishment of the truth as to a disputed issue,
especially when that issue involves the actor’s state of mind
and the only means of ascertaining that mental state is by
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United States v. Hays, No. 04-0264/AR
drawing inferences from conduct.” United States v. Tanksley, 54
M.J. 169, 176 (C.A.A.F. 2000) (quoting Huddleston v. United
States, 485 U.S. 681, 685 (1988)).
The critical issue with respect to the solicitation charge
in the present case was whether Appellant intended to ask JD to
engage in carnal knowledge with a child so that Appellant could
receive pictures of the activity. In that context, evidence of
Appellant’s intent is reflected in the exhibits describing his
desire to engage in sexual activities with young girls, as well
as through the exhibits showing that Appellant pressured a woman
identified as “[PD]” to send him a videotape of her boyfriend’s
sexual activities with her minor daughter, and that Appellant
communicated with JD about the nine-year-old girl on other
occasions. In addition, the exhibits were relevant as
reflecting Appellant’s motive for making the request of JD. See
2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 404.22[3] (Joseph M. McLaughlin ed., 2d ed. 2005).
The third Reynolds prong, employs the balancing test under
the M.R.E. 403: whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice.
Although the pictures and language in the e-mails were
offensive, that is the nature of much of the evidence in cases
involving child pornography. See United States v. Garot, 801
F.2d 1241, 1247 (10th Cir. 1986) (noting that defendants in
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United States v. Hays, No. 04-0264/AR
child pornography cases unavoidably risk the introduction of
evidence that would offend an average juror). In light of the
nature of the offense and the other evidence admitted, the
prejudicial impact of these exhibits did not substantially
outweigh their probative value in demonstrating Appellant’s
intent and motive to solicit JD. See United States v. Acton, 38
M.J. 330, 334 (C.M.A. 1993) (explaining that any prejudicial
impact due to the “shocking nature” of a pornographic video
depicting incest was diminished because the same conduct was
already before the court members).
Furthermore, this trial was before a military judge sitting
alone, and the record reflects that the military judge engaged
in a balancing analysis under M.R.E. 403. In that context, if
evidence is admitted for a limited purpose, we presume a
military judge will consider it only for that purpose. See
United States v. Stinson, 34 M.J. 233, 239 (C.M.A. 1992); United
States v. Ray, 26 M.J. 468, 471 (C.M.A. 1988).
D. EXPERT TESTIMONY
In support of the solicitation charge, the prosecution
relied on the testimony of Kenneth Lanning, an agent of the
Federal Bureau of Investigation, and assigned to the National
Center for the Analysis of Violent Crime. Mr. Lanning testified
as an expert in the behavioral aspects of sexual victimization
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United States v. Hays, No. 04-0264/AR
of children. Appellant challenges Mr. Lanning’s testimony on
two grounds: first, that it consisted of conclusions on the
ultimate issue; and second, that it constituted inadmissible
profile evidence.
1. Testimony on the ultimate issue
Mr. Lanning explained the significance of the exhibit that
contained the alleged solicitation by stating that the e-mail
was “attempting to entice the individual, encourage the
individual to do that, by indicating that he will do a similar
thing with a child and possibly send that individual pictures of
that.” Defense counsel objected that the testimony “goes to the
ultimate issue of intent. I don’t think the expert can give his
opinion that this is actually a solicitation.” The military
judge disagreed, stating: “I don’t think that’s what he did.
He’s giving his opinion on what the language of that particular
e-mail suggests and I think he can -- that’s his interpretation.
I think that’s legitimate and I think that’s within the scope of
his expertise as an expert.”
We review a military judge’s decision to admit expert
testimony for an abuse of discretion. See United States v.
Billings, 61 M.J. 163, 166 (C.A.A.F. 2005). M.R.E. 702 provides
that a witness qualified as an expert may testify as to
scientific, technical, or other specialized knowledge if it will
assist the factfinder in understanding the evidence or
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United States v. Hays, No. 04-0264/AR
determining a fact at issue. M.R.E. 704 adds, “Testimony in the
form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” This rule, however, does not
permit the expert to express an opinion on the “ultimate issue”
of a case. See United States v. Anderson, 51 M.J. 145, 151
(C.A.A.F. 1999).
An expert opinion interpreting a document does not
necessarily constitute an ultimate opinion on the intent of the
document’s author. Although Mr. Lanning used words associated
with the concept of solicitation, such as “entice” and
“encourage,” he did not provide an opinion on the ultimate issue
in this case -- whether Appellant’s actions amounted to
solicitation as a matter of law. His testimony, for example,
left it for the factfinder to determine whether the language in
the e-mail amounted to a serious request.
A military judge, who is presumed to know and understand
the law, is capable of distinguishing between the evidentiary
value of such an opinion and the military judge’s
responsibility, as factfinder, to determine the ultimate issue
of intent. See Ray, 26 M.J. at 471. In this case, the military
judge stated that she viewed Mr. Lanning’s testimony as simply
providing his opinion on the language of the e-mail, an area
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United States v. Hays, No. 04-0264/AR
within his expertise. In the context of a judge-alone trial,
admission of this expert testimony was not erroneous.
The present case is distinguishable from United States v.
Byrd, 60 M.J. 4 (C.A.A.F. 2004), where we held that, under
M.R.E. 701, the military judge erred by allowing the appellant’s
wife, a lay witness, to testify as to her opinion of the
appellant’s meaning in various passages of letters he wrote to
her. In contrast to the wife of the appellant in Byrd, Mr.
Lanning, who was accepted by the court as an expert, had a basis
of knowledge for his testimony opining on the meaning of
Appellant’s e-mail correspondence. Appellant did not allege at
trial, and has not contended on appeal, that Mr. Lanning’s
testimony was outside the scope of his expertise. As an expert
with specialized knowledge in the field of the behavioral
aspects of the sexual victimization of children, Mr. Lanning was
qualified to speak to the strategies employed by sexual
predators to encourage other individuals to commit sexual
offenses against children and to offer his opinion as to whether
this e-mail could be viewed as part of such a strategy.
2. Profile Evidence
“Profile evidence is evidence that presents a
‘characteristic profile’ of an offender, such as a pedophile or
child abuser, and then places the accused’s personal
characteristics within that profile as proof of guilt.” United
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States v. Traum, 60 M.J. 226, 234 (C.A.A.F. 2004) (citing United
States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998)). As we
noted in United States v. Banks, 36 M.J. 150, 161 (C.M.A. 1992):
“Generally, use of any characteristic ‘profile’ as evidence of
guilt or innocence in criminal trials is improper.”
At trial, defense counsel did not object to any of Mr.
Lanning’s expert testimony as constituting improper profile
evidence. On appeal, however, Appellant asserts that his
testimony amounted to profile evidence. Appellant interprets
Mr. Lanning’s testimony as beginning with a description of the
typical behavior and fantasies of a generalized group -- those
who use computers to view child pornography. According to
Appellant, Mr. Lanning then applied these general
characteristics to Appellant to reach the conclusion that
Appellant “wanted this rape of the 9 year old girl.” Appellant
summarizes Mr. Lanning’s testimony as stating that Appellant fit
the typical behavior patterns of a group, and because members of
that group typically desire to view pictures with a “first
person account,” Appellant therefore intended that JD rape the
girl.
In the absence of objection at trial, we apply the plain
error test of United States v. Powell, 49 M.J. 460, 463-65
(C.A.A.F. 1998). Appellant has the burden of demonstrating that
there was an error, that the error was plain or obvious, and
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United States v. Hays, No. 04-0264/AR
that the error materially prejudiced Appellant’s substantial
rights. Under Powell, we need not assess whether there was an
error if any error would not have materially prejudiced
Appellant’s substantial rights.
As we noted in United States v. Robbins:
When the issue of plain error involves a
judge-alone trial, an appellant faces a
particularly high hurdle. A military judge
is presumed to know the law and apply it
correctly, is presumed capable of filtering
out inadmissible evidence, and is presumed
not to have relied on such evidence on the
question of guilt or innocence. As a
result, plain error before a military judge
sitting alone is rare indeed.
52 M.J. 455, 457 (C.A.A.F. 2000) (citations omitted).
In this judge-alone trial, the military judge stated that
she understood Mr. Lanning’s testimony as simply interpreting
the language of the e-mail. In that context, even if the
testimony included profile evidence, there was no prejudice to
Appellant because the military judge did not treat the testimony
as profile evidence or give it any prejudicial weight in that
regard. See id. at 458; United States v. Talbert, 33 M.J. 244,
247 n* (C.M.A. 1991).
III. CHILD PORNOGRAPHY (ISSUES III AND IV)
Appellant pled guilty to the charged offenses of
distributing, receiving, possessing, and soliciting others to
21
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distribute and receive child pornography in violation of the
CPPA, under clause 3 of Article 134, UCMJ. On appeal, Appellant
asserts that his pleas were improvident because: (1) the statute
under which he was convicted has no extraterritorial
application; and (2) the military judge employed a definition of
child pornography that subsequently was determined to be
unconstitutional. In a challenge to the providence of a plea,
the appellant carries the burden of showing that the record of
trial demonstrates a substantial basis in law and fact for
questioning the plea. See United States v. O’Connor, 58 M.J.
450, 453 (C.A.A.F. 2003).
A. EXTRATERRITORIALITY
Appellant engaged in the conduct underlying the CPPA-based
charges in Germany. In United States v. Martinelli, 61 M.J.
___, ___ (2-3) (C.A.A.F. 2005), we held that the CPPA has no
extraterritorial application and found that Martinelli’s guilty
pleas to the CCPA-based offenses for conduct occurring in
Germany were improvident. We reached a different conclusion in
Martinelli with respect to one specification charging that
Martinelli used e-mail to send child pornography over the
Internet, citing a stipulation accompanying the plea
acknowledging that the pertinent e-mails were sent through the
United States. Id. at ___ (26-29). In the present case,
22
United States v. Hays, No. 04-0264/AR
Appellant did not enter into such a stipulation.1 Under these
circumstances, the plea was improvident. Accordingly, we need
not address the question of whether the military judge employed
an unconstitutional definition during the plea inquiry.
B. LESSER INCLUDED OFFENSES
The determination that Appellant’s pleas to violating the
CPPA were improvident does not end this Court’s inquiry. See,
e.g., Martinelli, 61 M.J. at ___ (35-40), United States v.
Reeves, ___ M.J. ___, ___ (16-20) (C.A.A.F. 2005). An
improvident plea to an offense of a CPPA violation charged under
clause 3 of Article 134 may be upheld on a proper record as a
provident plea to a lesser included offense under the first two
clauses of Article 134. United States v. Mason, 60 M.J. 15, 19-
20 (C.A.A.F. 2004). As explained in Reeves, “[T]he providence
inquiry must reflect that the accused ‘clearly understood the
nature of the prohibited conduct.’” ___ M.J. at ___ (19)
(quoting United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000)).
1
Because the Government chose to charge these offenses as
occurring solely within Germany, we need not address whether
Appellant’s use of United States-based internet services would
amount to domestic conduct for purposes of the CPPA. We also
need not determine whether the evidence demonstrates that a
relevant portion of Appellant’s conduct occurred in the United
States for purposes of the CPPA.
23
United States v. Hays, No. 04-0264/AR
Prior to questioning Appellant on the four CPPA-based
violations, the military judge focused Appellant’s attention on
the specification of Charge III. This specification alleged
that Appellant had “on divers occasions between on or about 20
September 1999 and on or about 4 March 2000” violated a specific
provision of the Joint Ethics Regulation, a Department of
Defense lawful general regulation, “by wrongfully receiving,
viewing, and distributing child pornography and bestiality via
the internet, using government computers.” It is clear from the
whole of the providence inquiry that the same conduct underlying
this charge also was at the heart of the CPPA-based offenses,
and that Appellant was fully aware of this interrelationship.
Accordingly, it is appropriate to consider the totality of the
inquiry to determine whether Appellant “clearly understood the
nature of the prohibited conduct” as being a violation of clause
1 or clause 2 of Article 134. See Reeves, ___ M.J. at ___ (19).
For purposes of this appeal, we shall assume, without deciding,
that the plea inquiry did not implicate Appellant’s First
Amendment rights. Compare Martinelli, 61 M.J. at ___ (37)
(requiring a “more precise articulation of the servicemember’s
understanding” when the accused’s First Amendment rights are
implicated), with Reeves, ___ M.J. at ___ (18-19) (applying the
standard when the servicemember’s constitutional rights are not
at issue). The military judge explained to Appellant, “A
24
United States v. Hays, No. 04-0264/AR
general regulation is lawful if it is reasonably necessary to
safeguard and protect the morale, discipline, and usefulness of
the members of the command and is directly connected with the
maintenance of good order in the services.” Appellant
acknowledged this advice and admitted that the elements of the
regulation offense, as explained by the military judge,
accurately described his conduct. Importantly, for purposes of
this appeal, the military judge asked Appellant during the
inquiry into the regulation offense, “Do you believe by using
these computers to access child pornography that reflected
adversely on the Department of Defense?” Appellant responded,
“Yes, ma’am, I do.”
The military judge also questioned Appellant on each of the
four CPPA-based violations (specifications 1, 2, 3, and 4 of
Charge IV). With regard to the first three specifications
(distribution and receipt of child pornography “on divers
occasions between on or about 20 September 1999 and on or about
4 March 2000” and possession of child pornography “on or about 5
January 2000”), the military judge did not expressly discuss
with Appellant whether he believed his conduct was to the
“prejudice of good order and discipline in the armed forces” or
was “of a nature to bring discredit upon the armed forces.”
Article 134, UCMJ.
25
United States v. Hays, No. 04-0264/AR
During the inquiry regarding the first two CPPA-based
specifications, Appellant admitted that he used Government
computers at Vilseck Library on the local military installation
to distribute and receive child pornography via his e-mail
account -- the same activities on the same Government computers
that Appellant indicated were involved in his violation of the
lawful general regulation. Similarly, he stated that the
computer discs of child pornography that he was charged with
possessing had been downloaded from these same Government
computers. He agreed that his conduct in receiving,
distributing, and possessing child pornography was “wrongful.”
In connection with the inquiry into Appellant’s guilty plea to
the last CPPA-based specification, soliciting others to
distribute and receive child pornography, Appellant left no
doubt on the record as to his awareness of the impact of his
conduct on the image of the armed forces:
MJ: And you believe in doing that, your
conduct was either prejudicial to good order
and discipline in the Armed Forces or was of
a nature to bring discredit upon the Armed
Forces?
ACC: I felt it was bringing discredit upon
the Armed Forces, ma’am.
MJ: Okay. Do you think if people outside
the military knew that a soldier was doing
this, it might tend to make them think less
of soldiers in the military?
ACC: It may, ma’am.
26
United States v. Hays, No. 04-0264/AR
MJ: Well, do you think it would tend to --
well, let me ask you this, do you think that
if people knew -- if civilians knew that you
were sending out email requesting others to
send and receive child pornography, do you
think that tends to make them think less of
people in the military?
ACC: Yes, ma’am.
The plea inquiry, as a whole, includes a critical component
that was absent in the inquiries conducted in Reeves. Appellant
admitted that his conduct was service-discrediting and why. See
United States v. Augustine, 53 M.J. 95, 96 (C.A.A.F. 2000);
Sapp, 53 M.J. at 92. The record shows that Appellant was
convinced of the facts predicate to a conviction under clause 2
of Article 134, and that there was a sufficient factual basis
for guilty pleas to the lesser included offenses under these
specifications. See Rule for Courts-Martial 910(e). Under the
facts of this case, Appellant admitted that he was using
Government computers to carry out his conduct.
In that light, we conclude under Reeves that this record
reflects an appropriate discussion of the character of the
conduct at issue as service-discrediting and demonstrates that
the accused “clearly understood the nature of the prohibited
conduct” as being a violation of clause 2, apart from how it may
or may not have met the elements of the separate criminal
statute underlying the clause 3 charge. ___ M.J. at ___ (19).
27
United States v. Hays, No. 04-0264/AR
Accordingly, in our decretal paragraph we direct amendment of
these specifications to replace the references to the CPPA with
references to service-discrediting conduct. Our approval of
these does not alter the essential nature of these offenses. As
a result, there was no prejudice as to his sentence, so a
sentence rehearing is unwarranted. See Augustine, 53 M.J. at
96; Mason, 60 M.J. at 20 (affirming the sentence).
IV. CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed, except that specifications 1-4 of Charge IV
are amended in each instance by deleting the words “in violation
of the Child Pornography Prevention Act, 18 U.S.C.” and the
respective section designations, and inserting the words
“conduct which was service-discrediting.”
28
United States v. Hays, 04-0264/AR
ERDMANN, Judge, (concurring in part and dissenting in
part):
In United States v. Martinelli, 61 M.J. __ (C.A.A.F. 2005),
we determined that the Child Pornography Prevention Act (CPPA)
has no extraterritorial application. Under the factual
circumstances presented in this case, I agree with the
majority’s conclusion that Hays’ guilty pleas to the four CPPA-
based specifications were improvident on that basis. I
therefore concur with the majority in regard to Issue IV.
As noted in Martinelli, an improvident plea to a CPPA-based
offense may, under certain circumstances, be upheld as provident
to a lesser included offense under clauses 1 or 2 of Article
134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2000).
Under this rationale, the majority affirms all four CPPA-based
specifications under clause 2 of Article 134. I also concur
with the result reached by the majority in this regard.
I dissent, however, to the majority’s resolution of Issues
I and II. Hays’ acts were not legally sufficient to constitute
solicitation of another to commit carnal knowledge. Further,
the military judge abused her discretion by admitting evidence
of Hays’ uncharged misconduct and in admitting Agent Lanning’s
testimony. I would therefore reverse the Army Court of Criminal
Appeals on those issues and would dismiss the specification
alleging solicitation of another to commit carnal knowledge.
United States v. Hays, 04-0264/AR
I. Solicitation Charge
Definition of “Solicitation”
The majority accepts the Army Court of Criminal Appeals’
definition of solicitation as “‘any . . . words or other device
by which a person is requested, urged, advised, counseled,
tempted, commanded or otherwise enticed or incited to commit a
crime.’” United States v. Hays, No. ARMY 20001100, (A. Ct.
Crim. App. Jan. 22, 2004) slip. op. at 11 (citation omitted).
This goes well beyond the definition of solicitation found in
the Manual for Courts-Martial, United States (2002 ed.)(MCM),
and the prior definition adopted by this court. The President
has defined solicitation as a “serious request or advice” to
commit a crime. MCM, pt. IV, ¶ 6c.2. This court has further
explained the term to mean an “express or implicit invitation to
join a criminal plan.” United States v. Williams, 52 M.J. 218,
220 (C.A.A.F. 2000).
The Army Court of Criminal Appeals has not felt constrained
by these relatively straightforward definitions. In a series of
opinions the Army court has adopted a number of terms to expand
the definition of “solicitation”.1 In this case the Army court
adopted a number of these terms, i.e., “requested, urged,
1
See United States v. Seeloff, 15 M.J. 978 (A.C.M.R.
1983)(using “induce,” “entice” and “influence”); United States
v. Hubbs, 20 M.J. 909 (A.C.M.R. 1985) (using “counsel,” “tempt,”
“command,” “incite,” “request,” “urge” and “advise”).
2
United States v. Hays, 04-0264/AR
advised, counseled, tempted, commanded or otherwise enticed or
incited.” Hays, slip. op. at 11.
The majority finds that these terms are synonymous with the
term “request” and since the Army court also referenced the MCM
requirement of a “serious request”, the terms merely offered
additional explanation.2 The term “serious request or advice” is
not such a unique term that it needs such extensive
supplementation. The question for the factfinder is whether the
language in question constituted a serious request or advice to
commit an offense. The difficulty in using a laundry list of
additional terms to further define “solicitation” is that it is
likely to give the impression to members that solicitation is
broader than defined by the President.
I would prefer to stay with the MCM definition that
solicitation is a serious request or advice to commit an
offense. However, even if I were to accept the majority’s
definition, there is not sufficient evidence to affirm Hays’
conviction.
Legal Sufficiency of the Solicitation Charge
The test for legal sufficiency is whether “considering the
evidence in a light most favorable to the prosecution, a
reasonable fact-finder could have found all the essential
2
One must wonder if Hays’ conduct constituted a “serious
request”, what is the need for the additional terms?
3
United States v. Hays, 04-0264/AR
elements beyond a reasonable doubt.” United States v. Walters,
58 M.J. 391, 395 (C.A.A.F. 2003). The elements that the
Government had to prove in this charge were (1) that Hays made a
serious request to Davis, (2) asking Davis to have sexual
intercourse with a person under the age of sixteen (other than
his spouse), (3) that Hays intended for Davis to agree to his
request and to actually commit the crime they were discussing,
and (4) that Hays’ conduct was prejudicial to good order and
discipline or was of a nature to bring discredit to the armed
forces. MCM, pt. IV, ¶ 105.b.
The e-mail that provides the basis for the solicitation
charge, states:
I hope that everything is working out with your 9 yo.
Have you f***** her yet? If so, [d]o you have pix?
Does your wife know that you do this type of stuff to
little girls? Man you are not going to believe it
when I adopt that little girl and send you a pix of me
and her as I promised. I am going to do everything to
her that you can imagine. And you will be the first
to see, I promise you that much. I hope that you can
find it in your heart to send me more pix as you have
in the past week or so. If you send me more pix, I
will be eternally grateful, and reward you greatly.
Please send me more!!
The language of the e-mail reveals only that Hays seriously
requested sexually explicit photographs of young girls.
Although Hays initially appears to have been talking about a
particular young girl, who may or may not have existed, the
evidence is simply not sufficient to establish that Hays was
4
United States v. Hays, 04-0264/AR
seriously requesting Davis to commit sexual acts with the girl.
As the e-mail does constitute a serious request for images of
child pornography, a solicitation charge to that offense would
be legally sufficient.
There is no question that sexual crimes against minors and
the area of child pornography encompass a variety of despicable
crimes for which society has justifiably proscribed serious
penalties. We should not, however, allow our disgust for Hays’
actions color our judgment in evaluating the legal sufficiency
of the charges. To conclude that Hays’ e-mail was a “serious
request or advice” for Davis to have sexual intercourse with a
specific young girl is a stretch that the evidence simply does
not support. Accordingly, I would reverse Hays’ conviction for
solicitation of another to commit carnal knowledge because the
evidence against him was legally insufficient.
II. Evidentiary Challenges
Uncharged Misconduct
Evidence of “other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith.” Military Rule of Evidence
(M.R.E.) 404(b). As explained by the Supreme Court, the law
seeks to prevent a finder of fact from concluding that an
accused acted criminally in a specific instance simply because
the accused is a bad or evil person:
5
United States v. Hays, 04-0264/AR
The State may not show defendant’s prior trouble with the
law, specific criminal acts, or ill name among his
neighbors, even though such facts might logically be
persuasive that he is by propensity a probable perpetrator
of the crime. The inquiry is not rejected because
character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overpersuade them as
to prejudge one with a bad general record and deny him a
fair opportunity to defend against a particular charge.
The overriding policy of excluding such evidence, despite
its admitted probative value, is the practical experience
that its disallowance tends to prevent confusion of issues,
unfair surprise and undue prejudice.
Michelson v. United States, 335 U.S. 469, 475-76 (1948)
(footnotes omitted); see also United States v. Humpherys, 57
M.J. 83, 90 (C.A.A.F. 2002) (“‘[E]vidence which is offered
simply to prove that an accused is a bad person is not
admissible’ under Mil.R.Evid. 404(b), Manual for Courts-Martial,
United States (2000 ed.).”). Character evidence such as
information that Hays sent out many e-mails asking for sexually
explicit pictures of children, that he received responses to
these e-mails, that he kept many of the responses in his inbox
and that the images attached to these responses are offensive,
is admissible only if it meets the three-prong test set out in
United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989):
1. Does the evidence reasonably support a finding that
appellant committed prior crimes, wrongs or acts?
2. What “fact of consequence” is made more or less
probable by the existence of the evidence?
3. Is the probative value of the evidence substantially
outweighed by the danger of unfair prejudice?
6
United States v. Hays, 04-0264/AR
As the majority properly notes, the first prong of Reynolds is
satisfied because there was sufficient evidence from which the
factfinder could conclude that Hays actually sent and received
the e-mails in question.
The more difficult question is whether the military judge
abused her discretion by concluding that the second and third
prongs of Reynolds were also satisfied. The military judge and
the majority conclude that the other e-mails and images satisfy
M.R.E. 404(b) and the second prong because they were relevant to
show Hays’ intent to solicit Davis to commit carnal knowledge.
But, as with the “solicitation” e-mail, the only fact that is
made more or less probable by the existence of the other e-mails
in Hays’ account is the fact that Hays requested, collected, and
viewed child pornography and that he was involved with a group
of other individuals who shared the same interests. The
existence of other vulgar and sometimes illegal e-mails in Hays’
inbox does not make it more or less likely that Hays intended to
seriously request an individual he knew only by e-mail address
to have sexual intercourse with a particular girl under the age
of sixteen. The military judge’s conclusion that Hays’ e-mail
activities made it more likely that he intended to solicit Davis
lacks both a factual and legal basis and is erroneous.
Similarly, the “other wrongs” evidence in question cannot
satisfy the third prong of Reynolds. The language and tone of
7
United States v. Hays, 04-0264/AR
Hays’ e-mails, as well as the frequency of his requests for
pornography and the nature of the images he received, which
included bestiality and violent images, were prejudicial. The
prosecution offered into evidence at least twenty-three exhibits
consisting of e-mail messages asking for child pornography and
multiple pornographic images. As discussed above, these e-mails
and images have no probative value with respect to Hays’ intent
to commit the crime with which he is charged. Accordingly,
their prejudicial effect outweighs any probative value, and they
should not have been admitted.
Agent Lanning’s Testimony
Hays challenged the admission of Agent Lanning’s testimony
as impermissible profile evidence and also as testimony as to
the ultimate legal issue, i.e., whether Hays solicited Davis to
commit a crime. An expert may testify if his “scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence . . . .” M.R.E. 702. An
expert may offer opinions, but he may not state legal opinions.
United States v. Benedict, 27 M.J. 253, 259 (C.M.A. 1988); see
also MCM, Analysis of the Military Rules of Evidence A22-50.
Lanning testified that Hays wanted to “entice the
individual, encourage the individual to [rape the child]” and
that “he [Hays] wanted this rape of the 9 year old girl and what
he, essentially, wanted was photographs of that rape.”
8
United States v. Hays, 04-0264/AR
According to the definition of solicitation used by the military
judge, this testimony went to the ultimate issue in this case.
Lanning was not only offering expert testimony as to what the e-
mail from Hays to Davis meant, he also offered his opinion on
why Hays sent the e-mail –- the very question to be decided by
the finder of fact.
If Lanning was put on the stand merely to interpret the
language of the e-mail, as the majority asserts, it is unclear
why he was qualified as an expert. The e-mail is written in
English, it is not written in code, and it does not discuss any
technology or other specialized areas of knowledge for which
expert interpretation would be necessary. The e-mail is a
document that speaks for itself, and Lanning did not have any
specialized skills that were needed to interpret it. See United
States v. Houser, 36 M.J. 392, 398 (C.M.A. 1993) (expert
testimony not needed where factfinder is “qualified without such
testimony ‘to determine intelligently and to the best possible
degree the particular issue.’” (citations omitted)); see also
United States v. Billings, 61 M.J. 163, 170 (C.A.A.F. 2005)
(Erdmann, J., concurring in part and in the result) (testimony
of jeweler not necessary to educate members about
characteristics of watch depicted in advertisement).
Lanning crossed the line between providing permissible
expert testimony to testifying on the ultimate issue in the
9
United States v. Hays, 04-0264/AR
solicitation charge –- that Hays intended to request Davis to
rape the minor girl. This is inappropriate expert testimony.
See United States v. Anderson, 51 M.J. 145, 151 (C.A.A.F. 1999)
(recognizing that an expert may not express an opinion on the
“ultimate issue”). Accordingly, Lanning’s testimony should have
been excluded as well and I therefore dissent from the
majority’s holding on Issues I and II.
10
United States v. Hays, 04-0238/AR
GIERKE, Chief Judge (concurring in the result):
I join the majority regarding Issues I and II. Regarding
Issue IV, I share the result of the majority but not its
analysis. As I explained in Martinelli,1 I believe that the
Child Pornography Prevention Act (CPPA) applies
extraterritorially. Thus, I do not agree with the majority that
Appellant’s pleas to the CPPA-based offenses for conduct
occurring in Germany were improvident based on an absence of
extraterritorial application of the CPPA. Rather, I would
conclude that Appellant’s pleas to the CPPA-based specifications
were improvident because the military judge used an
unconstitutional definition of “child pornography” during the
providence inquiry.2 Accordingly, I agree with the majority’s
result that the Army Court’s decision should be affirmed, and
that specifications 1 through 4 of Charge IV should be amended by
deleting reference to the CPPA and adding the phrase, “conduct
which was service discrediting.”
1
See United States v. Martinelli, 61 M.J. __, __ (C.A.A.F.
2005)(Gierke, C.J., concurring in part and dissenting in part).
2
See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002);
United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003).
United States v. Hays, No. 04-0264/AR
CRAWFORD, Judge (concurring in part and dissenting in
part):
I concur in the majority’s disposition of Issues I and II
and in the affirmation of Appellant’s sentence; however, I
respectfully dissent from the majority’s treatment of Issue IV.
In addition to the rationale provided in my dissenting
opinions in United States v. O’Connor, 58 M.J. 450, 455-59
(C.A.A.F. 2003) (Crawford, C.J., dissenting), and United States
v. Martinelli, 61 M.J. __, __ (C.A.A.F. 2005) (Crawford, J.,
dissenting), my dissent in this case is based on the specific
factual aspects of Appellant’s case, briefly discussed below.
APPLICATION OF 18 U.S.C. § 2252A
Because a domestic application of the Child Pornography
Prevention Act has been clearly established by the evidence in
this case, the question of extraterritorial application of 18
U.S.C. § 2252A need not be addressed.
Prosecution Exhibits 4 and 17 consist of e-mails to or from
Appellant with either attached or embedded photographic images
of child pornography. Several of these carry the “banner” of
“Yahoo! Mail” or “MSN Hotmail,” both of which are United States
corporations whose electronic mail servers are in the United
States. Id. See Martinelli, 61 M.J. at __ (2) (Crawford, J.,
dissenting); United States v. Kimler, 335 F.3d 1132, 1135 n.2
(10th Cir. 2003)( “In order to send and receive email messages
United States v. Hays, No. 04-0264/AR
using Hotmail, one must access the Hotmail servers, which are
located in Mountain View, California, at www.hotmail.com.”);
United States v. Bach, 400 F.3d 622, 625 (8th Cir. 2005).
By maintaining accounts with “Hotmail” and “Yahoo! Mail,”
Appellant was effectively renting electronic “space” on servers
located in the United States, on which he could store images of
child pornography -- images that he could remotely receive,
transmit, or reproduce at will, regardless of his own location
at the time. On each such occasion, Appellant was “reaching
into” the United States to commit a crime. See United States v.
Moncini, 882 F.2d 401 (9th Cir. 1989).
APPELLANT’S ACKNOWLEDGMENT OF ACTUAL CHILDREN
The military judge in this case did not include the
language struck down by the Supreme Court in Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002), when she explained the
applicable elements and definitions to Appellant. Appellant’s
plea sufficiently demonstrates his conviction that the images
were of “actual” children.
The record of Appellant’s Care inquiry* leaves no doubt
whatsoever that Appellant admitted to trafficking in
pornographic images of actual children:
MJ: Now, tell me what these pictures were of, that
you received.
*
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
2
United States v. Hays, No. 04-0264/AR
ACC: They were pictures of children -- pictures of
adults and children in sexual acts or children
and children in sexual acts.
MJ: So it was either children with adults -- children
engaging in sexual acts with adults and children
engaged in sexual acts with other children,
correct?
ACC: Yes, ma’am.
MJ: So, basically, two different categories?
ACC: Yes, ma’am.
MJ: And when you say “sexual acts” do you mean there
was oral to genital or genital to genital
contact?
ACC: Oral to genital penetration, anal penetration,
genital to genital.
MJ: Okay. And do you believe these pictures were of
sexually explicit conduct?
ACC: Yes, ma’am, I do.
MJ: And when you say “children,” do you mean children
under the age of 18?
ACC: Yes, ma’am.
. . . .
MJ: Did you know what images you were sending out?
ACC: Yes, I did, ma’am.
MJ: So you knew these images were of sexually
explicit conduct involving minors?
ACC: Yes, ma’am, I did.
. . . .
3
United States v. Hays, No. 04-0264/AR
MJ: And these computer discs, you believe, contained
images of the same type of child pornography
you’ve described to me previously?
ACC: Yes, ma’am.
MJ: In other words, child/child sexual acts and
child/adult sexual acts?
ACC: Yes, ma’am.
. . . .
MJ: And what would you ask them?
ACC: I would ask them to send me sexual photographs of
young girls between certain ages.
MJ: Like what ages?
ACC: Between three years old and twelve.
. . . .
Based on the prosecution exhibits, and the plea inquiry, I
dissent from the majority’s holding as to Issue IV.
4