United States v. Simpson

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Gregory S. SIMPSON, Gunnery Sergeant
United States Marine Corps, Appellant
No. 20-0268
Crim. App. No. 201800268
Argued January 12, 2021—March 10, 2021
Military Judge: Robert D. Merrill
For Appellant: Tami L. Mitchell, Esq. (argued); Lieutenant
Clifton E. Morgan III, JAGC, USN, and David P. Sheldon,
Esq. (on brief).
For Appellee: Lieutenant Gregory A. Rustico, JAGC, USN
(argued); Lieutenant Colonel Nicholas L. Gannon, USMC,
Major Kerry E. Friedewald, USMC, and Brian K. Keller,
Esq. (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Judges OHLSON and SPARKS joined. Chief Judge
STUCKY filed an opinion concurring in part and dissent-
ing in part, in which Judge HARDY joined.
_______________
Judge MAGGS delivered the opinion of the Court.
The assigned issue in this case is: “Whether it is legally
impossible for Appellant to be convicted of distributing inde-
cent images to himself under Article 77, [Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. § 877 (2012)], when the plain
language of Article 120c(a)(d)(5), UCMJ, requires the images
be distributed to ‘another.’ ” We answer this question in the
negative, holding that Appellant could properly plead guilty
to distributing the indecent visual recording at issue as an
aider and abettor of the person who distributed the recording
to Appellant. We therefore affirm the judgment of the United
States Navy-Marine Corps Court of Criminal Appeals
(NMCCA). United States v. Simpson, No. NMCCA,
201800268, 2020 CCA LEXIS 67, at *2, 2020 WL 1173334, at
*1 (N-M. Ct. Crim. App. Mar. 11, 2020) (unpublished).
United States v. Simpson, No. 20-0268/MC
Opinion of the Court
I. Background
A military judge, sitting as a general court-martial, found
Appellant guilty, consistent with his pleas, of one specifica-
tion of conspiring to create and distribute an indecent visual
recording, one specification of aiding and abetting the crea-
tion of an indecent visual recording, one specification of aid-
ing and abetting the distribution of an indecent visual record-
ing, and three specifications of assault consummated by a
battery, in violation of Articles 81, 120c, and 128, UCMJ, 10
U.S.C. §§ 881, 920c, 928 (2012). The convening authority ap-
proved the findings.1
The assigned issue concerns the specification of aiding and
abetting the distribution of an indecent visual recording in
violation of Article l20c(a)(3), UCMJ.2 This specification
alleged:
1 The military judge sentenced Appellant to confinement for
thirty-two months, a bad-conduct discharge, and reduction to E-1.
With respect to the sentence, the convening authority approved the
reduction to E-1, the bad-conduct discharge, and confinement for
eighteen months with a suspension of the remaining amount of con-
finement for forty-four months. On appeal, the NMCCA consoli-
dated two of the three specifications of assault consummated by a
battery and set the beginning date of suspension of confinement as
the date of sentencing instead of the date of the convening author-
ity’s action. Simpson, 2020 CCA LEXIS 67, at *46, 2020 WL
1173334, at *16. The NMCCA otherwise affirmed the findings and
sentence. Id. at *48, 2020 WL 1173334, at *16.
2 Article 120c(a), UCMJ, provides in relevant part:
(a) Indecent viewing, visual recording, or broadcast-
ing.—Any person subject to this chapter who, with-
out legal justification or lawful authorization—
....
(2) knowingly photographs, videotapes, films, or
records by any means the private area of another
person, without that other person’s consent and
under circumstances in which that other person
has a reasonable expectation of privacy; or
(3) knowingly broadcasts or distributes any such
recording that the person knew or reasonably
2
United States v. Simpson, No. 20-0268/MC
Opinion of the Court
On divers occasions between on or about 1 December
2016 and on or about 19 February 2017, at or near
McAlester, OK, active duty U.S. Marine [Gunnery
Sergeant (GySgt)] Gregory Simpson knowingly
distributed a recording of the private area of Ms.
ENF, when he knew or reasonably should have
known that the recording was made and distributed
without the consent of Ms. ENF and under
circumstances in which she had a reasonable
expectation of privacy.
As part of his plea agreement, Appellant entered into a
stipulation of fact. In relevant part, this stipulation of fact
stated:
(1) On divers occasions between on or about De-
cember 1, 2016 and February 19, 2017, GySgt Simp-
son knowingly and willfully counseled [MB] to pho-
tograph and video record the private areas of Ms.
ENF, and to send them to him via email.
(2) GySgt Simpson counseled [MB] by repeatedly
encouraging and requesting via email that [MB]
take indecent photographs and videos of Ms. ENF.
GySgt Simpson repeatedly encouraged and re-
quested that [MB] send the photographs and videos
to him via his yahoo email address.
(3) Following GySgt Simpson’s counseling [MB]
took photographs and videos of Ms. ENF’s private
area in various stages of undress, to include com-
pletely nude in the bathtub, and emailed them to
GySgt Simpson. [MB] took the photographs and
video without Ms. ENF’s consent when Ms. ENF had
a reasonable expectation of privacy. [MB] sent the
photographs and videos to GySgt Simpson without
Ms. ENF’s consent.
(4) GySgt Simpson knew that [MB] took the pho-
tographs and videos of Ms. ENF’s private area with-
out Ms. ENF’s consent when she had a reasonable
expectation of privacy. GySgt Simpson knew that
[MB] sent the photographs and videos of Ms. ENF to
him without Ms. ENF’s consent.
should have known was made under the circum-
stances proscribed in paragraphs (1) and (2);
is guilty of an offense under this section and shall be
punished as a court-martial may direct.
3
United States v. Simpson, No. 20-0268/MC
Opinion of the Court
(5) GySgt Simpson is guilty of distribution of in-
decent visual recordings of Ms. ENF even though he
was not physically present with [MB] when she took
the photographs and videos or when she sent the
photographs and videos.
(6) GySgt Simpson knows that [MB] only took
the photographs and videos of Ms. ENF for his sex-
ual gratification. GySgt Simpson knows that [MB]
would not otherwise have taken them if GySgt Simp-
son did not counsel [MB] to take the photographs.
GySgt Simpson knows that [MB] would not other-
wise have sent them if GySgt Simpson did not coun-
sel [MB] to send the photographs and videos.
Before taking Appellant’s plea of guilty, the military judge
sought clarification of the Government’s theory of how Appel-
lant was guilty of distributing an indecent recording when it
was actually MB, not Appellant, who had emailed the record-
ing. The military judge asked: “Is that based on an aiding and
abetting theory of liability?” Trial counsel responded, “Yes,
sir, it’s a princip[al] liability theory.”
The military judge explained aider and abettor liability
under Article 77(1), UCMJ, to Appellant. Appellant then
pleaded guilty to the specification at issue. On appeal, how-
ever, Appellant contended that his guilty plea lacked a suffi-
cient basis in law. Simpson, 2020 CCA LEXIS 67, at *7–8,
2020 WL 1173334, at *3. The NMCCA agreed with the mili-
tary judge that Appellant was guilty as an aider and abettor
under Article 77(1), UCMJ. Id. at *16–17, 2020 WL 1173334,
at *6.
II. Standard of Review
“Unless properly withdrawn or ordered stricken from the
record, a stipulation of fact that has been accepted is binding
on the court-martial and may not be contradicted by the par-
ties thereto.” Rule for Courts-Martial (R.C.M.) 811(e). In this
appeal, we therefore accept all of the facts in the parties’ stip-
ulation as true.3 United States v. Nance, 67 M.J. 362, 363
3 The stipulation of facts in this case contains some legal con-
clusions, such as the statement that Appellant “is guilty of distri-
bution of indecent visual recordings of Ms. ENF even though he was
not physically present with [MB] when she took the photographs
4
United States v. Simpson, No. 20-0268/MC
Opinion of the Court
(C.A.A.F. 2009). We must uphold Appellant’s guilty plea un-
less there is a “ ‘substantial basis’ in law and fact for ques-
tioning the guilty plea.” United States v. Prater, 32 M.J. 433,
436 (C.M.A. 1991). We review Appellant’s legal impossibility
argument de novo because the argument concerns an issue of
law. See United States v. Willis, 46 M.J. 258, 259 (C.A.A.F.
1997) (reviewing de novo the appellant’s argument that there
was no substantial basis in law for upholding his guilty plea
to attempted murder because the charge in the case was le-
gally impossible).
III. Analysis of the Assigned Issue
Appellant advances three arguments for why he cannot be
guilty of distributing an indecent recording in violation of Ar-
ticle 120c(a)(3), UCMJ. We reject the first two arguments. We
express no opinion on the third argument because that argu-
ment is not within the scope of the granted issue.
A. Argument Based on the Definition of “Distribute”
Appellant’s first argument rests on the definition of “de-
liver” in Article 120c(d)(5), UCMJ. This definition states that
the term “[d]istribute” means “delivering to the actual or con-
structive possession of another.” Article 120c(d)(5), UCMJ
(emphasis added). Appellant contends that under this defini-
tion, he could not have violated Article 120c(a)(3)’s prohibi-
tion on delivering an indecent recording because the record-
ing at issue was delivered to him and not to “another” person.
The Government responds that the recording was deliv-
ered “to another” because MB delivered the recording to Ap-
pellant. And although Appellant did not actually deliver the
recording, the Government argues that he is guilty of the of-
fense as an aider and abettor. The Government further as-
serts that Appellant’s liability as an aider and abettor does
not fictitiously transmute him into being the actual distribu-
tor of the indecent recording, such that he somehow could be
considered to have delivered the recording to himself.
and videos or when she sent the photographs and videos.” We do
not automatically accept legal conclusions in the stipulation of facts
as true.
5
United States v. Simpson, No. 20-0268/MC
Opinion of the Court
We agree with the Government’s argument. The distribu-
tion element of Article 120c(a)(3), UCMJ, is satisfied in this
case because MB delivered the recording to a person other
than herself, namely, to Appellant. And even though MB ef-
fected the delivery, Appellant can be guilty of this offense as
a principal if he aided and abetted MB. A principal under an
aiding and abetting theory is independently guilty of an of-
fense even though he or she is not the actual perpetrator and
did not personally commit all of the acts necessary for the of-
fense. See United States v. Sneed, 17 C.M.A. 451, 453, 38
C.M.R. 249, 251 (1968) (citing United States v. Wooten, 1
C.M.A. 358, 362 n.1, 3 C.M.R. 92, 96 n.1 (1952)).
Article 77(1), UCMJ, provides that “[a]ny person
punishable under this chapter who—(1) commits an offense
punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission . . . is a principal.” In
this case, there was a substantial basis in law and fact for
accepting Appellant’s plea that he was guilty as a principal
under this rule. The stipulation of fact establishes that
Appellant “counseled” and encouraged MB to distribute the
recording and further states that MB would not have
distributed the recording to Appellant without Appellant’s
counseling and encouragement.
B. Argument Based on Congress’s Intention
Appellant’s second argument is that upholding his guilty
plea would produce a result that Congress never intended. He
asserts that the Government’s theory could make a person
who merely receives an indecent recording guilty of distrib-
uting the recording on the ground that he or she aided and
abetted the delivery. Such criminal liability, Appellant con-
tends, goes against Congress’s decision in Article 120c(a)(3),
UCMJ, to make only the distribution of an indecent recording
an offense.
In response, the Government cites the reasoning of this
Court in United States v. Hill, 25 M.J. 411 (C.M.A. 1988). In
Hill, the Court asserted that merely buying or possessing
drugs generally could not be considered aiding and abetting
the distribution of drugs without running afoul of Congress’s
intent to make buying drugs a separate offense from distrib-
uting drugs. Id. at 413. The Court explained: “Otherwise,
6
United States v. Simpson, No. 20-0268/MC
Opinion of the Court
prosecutors would be free to obliterate the distinction be-
tween possessors and distributors by charging any possessor
with aiding and abetting the distribution of the drugs which
he has received.” Id. The Court in Hill nevertheless held that
the buyer of drugs could be found guilty of aiding and abetting
the distribution of drugs if the buyer “sufficiently associate[s]
himself with the purpose of the seller so that he becomes an
aider and abettor of the seller.” Id. at 414. The Government
argues that Appellant in this case sufficiently associated him-
self with the MB’s purpose such that he can be found guilty of
aiding and abetting the distribution of the indecent recording.
We agree that the mere receipt and possession of an inde-
cent recording does not violate Article 120(c)(3), UCMJ, be-
cause Congress did not address receipt and possession in that
provision. But following the reasoning in Hill, we also con-
clude a person who aids and abets the distribution of an inde-
cent recording can be liable as an aider and abettor if he suf-
ficiently associates himself with the purpose of the actual
distributor. In this case, as described above, Appellant coun-
seled and encouraged MB to distribute the recording, and MB
would not have distributed the recording without Appellant’s
counseling and encouragement. In doing so, he not only asso-
ciated himself with MB’s purpose, but also shaped her pur-
pose. Accordingly, we conclude that the military judge had a
substantial basis in law and fact for accepting Appellant’s
guilty plea.
C. Argument That MB Did Not Commit a Crime
Appellant finally argues that he could not be guilty of aid-
ing and abetting MB because MB is a civilian who is not sub-
ject to the UCMJ and who did not violate any state law by
distributing the recording. This argument rests on the word-
ing of Article 77(1), UCMJ, which refers to the committing of
an offense or the counseling of “its commission.” Appellant as-
serts that he could not have counseled the commission of an
offense by MB because MB’s conduct was not criminal. The
Government responds that we should not consider this argu-
ment because it falls outside the scope of the granted issue.
We agree with the Government. As stated above, the only
question before us is “[w]hether it is legally impossible for Ap-
7
United States v. Simpson, No. 20-0268/MC
Opinion of the Court
pellant to be convicted of distributing indecent images to him-
self under Article 77, UCMJ, when the plain language of Ar-
ticle 120c(a)(d)(5), UCMJ, requires the images be distributed
to ‘another.’ ” This issue does not encompass the question
whether an accused can aid and abet someone who is not sub-
ject to the UCMJ or does not violate state law. While the
NMCCA addressed and rejected Appellant’s argument in its
opinion, see Simpson, 2020 CCA LEXIS 67, at *17─18, 2020
WL 1173334, at *6, we did not grant review of the issue.
United States v. Guardado, 77 M.J. 90, 95 n.1 (C.A.A.F. 2017)
(declining to address an argument outside the scope of the is-
sues for which review was granted).
IV. Conclusion
The assigned issue is answered in the negative. The judg-
ment of the United States Navy-Marine Corps Court of Crim-
inal Appeals is affirmed.
8
United States v. Simpson, No. 20-0268/MC
Chief Judge STUCKY, with whom Judge HARDY joins,
concurring in part and dissenting in part.
I agree with the general proposition that it is not legally
impossible for an accused to distribute indecent images to
himself as an aider and abettor under Article 77, UCMJ, 10
U.S.C. § 877 (2012), when the accused has sufficiently associ-
ated himself with the purpose of the actual distributor.
United States v. Hill, 25 M.J. 411, 414 (C.M.A. 1988). But this
Appellant is not liable as an aider and abettor as there is no
evidence that MB performed a criminal act.
The law of principals in the military is contained in Article
77, UCMJ, which provides:
Any person punishable under this chapter who—
(1) commits an offense punishable by this chap-
ter, or aids, abets, counsels, commands, or pro-
cures its commission; or
(2) causes an act to be done which if directly
performed by him would be punishable by this
chapter;
is a principal.
For an accused to be guilty as an aider and abettor, under
the plain language of the first clause, someone must have
committed a criminal offense. In Appellant’s case, MB was not
subject to the UCMJ and neither the Government nor the ma-
jority have alleged that she committed any crime. Therefore,
Appellant could not have aided or abetted in the commission
of the offense. Furthermore, to read Article 77(1) as covering
Appellant’s activities would render Article 77(2) superfluous,
and that we cannot do. See 2A Norman J. Singer & Shambie
Singer, Statutes and Statutory Construction § 46:6, at 238–56
(7th ed. 2014) (“Courts construe a statute to give effect to all
its provisions, so that no part is inoperative or superfluous,
void or insignificant, and so that one section does not destroy
another, unless a provision is the result of obvious mistake or
error.” (footnotes omitted)); see Corley v. United States, 556
U.S. 303, 314 (2009).
The evidence would clearly support Appellant’s conviction
under the second clause. He caused an act to be done—caused
United States v. Simpson, No. 20-0268/MC
Chief Judge STUCKY, concurring in part and dissenting in part
MB to send him the indecent images—that if he had per-
formed would have been a criminal offense under the UCMJ,
specifically Article 120c(a)(3). Thus, he would have been a
principal and subject to conviction.
However, Appellant was prosecuted as an aider and abet-
tor under the first clause and the military judge accepted his
guilty plea on that theory. “The providence of a plea is based
not only on the accused’s understanding and recitation of the
factual history of the crime, but also on an understanding of
how the law relates to those facts. . . . This fair notice resides
at the heart of the plea inquiry.” United States v. Medina, 66
M.J. 21, 26 (C.A.A.F. 2008). As it was legally impossible for
Appellant to be convicted of distributing the images on an
aider or abettor theory, there is a substantial basis in law and
fact for questioning his guilty plea. Therefore, I would set
aside his conviction for this offense.
2