Petition for Writ of Certiorari — O'COnnOr v. United States

(res U.S.

O1 836 DEC 0 3 agge

NOFRICE OF THe in.

IN THE

Supreme Court of the United States

SENIOR AIRMAN BARRY V. O’;CONNOR,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

KYLE R. JACOBSON

CAPTAIN, U. S. AIR FORCE

Counsel of Record

BEVERLY B. KNOTT TIMOTHY W. MURPHY

LT COLONEL, U.S. AIR FORCE LT COLONEL, U.S. AIR FORCE

Counsel for Petitioner Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE LEGAL SERVICES AGENCY

112 LUKE AVENUE, SUITE 343

BOLLING AFB, DC 20332-8000

(202) 767-1562

December 2001

aera aban eaee Wieived <<»

QUESTION PRESENTED

Whether petitioner’s plea of guilty to offenses under 18

U.S.C. § 2252A is involuntary because he had an incomplete

understanding of the offenses when the military judge

explairied the offenses using the unconstitutionally vague

and overbroad definitions of "child pornography" contained

in 18 U.S.C. § 2256.

TABLE OF CONTENTS

Page

ee Fe EE I etetinectnsenersnensicisecoviencencconemsen IV

SIE SEIU <ccvsnan:sernbiccesendbsieenebesenerionetetinsietareiesrncton |

TE IIIT os vcnccsicdlN stance senldiudeanatdeaoitbnesiewsiiediocwontntentiioonen

CONSTITUTIONAL AND STATUTORY

Pe ey BW Gs FRIED conenistreceisniviccionsexenisesrntttrenctonses |

TSE CHE 6 Ee GPM cer ctcerenivsnsrecseteteisnenineninenseonten 2

REASONS FOR GRANTING THE WRIT .....................06. 4

STII s < sndnctarnnndusvannpiasaidetisinsertbiaredrestbepnesbenisouvinniunste 6

APPENDIX A

(Order of the United States Court of Appeals for the

Armed Forces granting review. 55 MJ. 367 (2001)

BN iaicinssciinenskecjnesdeinionerinvemnceerintineneiinenrenraiononnens la

APPENDIX B

(Order of the United States Court of Appeals for the

Armed Forces denying relief in this case based on United

States v. James, 55 M.J. 297 (20O1))......0..-ccccsseerccceceeeses 2a

APPENDIX C

(Opinion of the United States Court of Appeals for the

Armed Forces in United States v. James, 55 M.J. 297

RGA DA SE AEN Ne nL NO Ee 3a

APPENDIX D

(Opinion of the United States Air Force Court of

BE PIED cocnsencrovveesanstnnmenensvevenctsnaninecemmnniinetess lla

eee ee

™

TABLE OF AUTHORITIES

Page

Constitutional Provisions

Pe Fe iinccectonssticcsstanactpsammibicacatsanseretericsacmcectidansen 1,4

ee I icteric raceiced isa eeiinigietinbdaneiecn l

Decisions of the Supreme Court of the United States

Henderson v. Morgan, 426 U.S. 637 (1976) .........ccceeeeeeeeeeees 5

New York v. Ferber, 458 U.S. 747 (1982)......cceccsseseeeseeseees 4

Federal Circuit Cases

Free Speech Coalition v. Reno,

198 F.3d 1083 (9th Cir. 1999)... ee 3,4, 5,6

Military Cases

United States v. James, 55 M.J. 297 (2001) ........ccccccceeeeeeeeees 3

Federal Statutes

Pe, Be sisainiocnce siterwtetaeeriechreteiinindtesaitusendaice |

FOS Fe ivinnsicaiteiceidisdiiididtaadiaos, |

18 U.S.C. § 2252A scsi cada aatlelbaicaaaabanadsanaagtaiaiaaeedataadies 2,4,5

Oe hada Oe i isvtedscndssnpadeciicchediaiaieabadhedidlnsaceneseiioiann passim

EE Se een nen nee

The pe ier, Senior Airman Barry V. O'Connor,

respectfully piays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on September 6, 2001.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, United States v. O'Connor,

USCA Dkt. No. 01-0403/AF, is located at Appendix B. The

unpublished opinion of the United States Air Force Court of

Criminal Appeals (No. ACM 33671, January 25, 2001) is

located at Appendix D.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on September 6, 2001.' The

jurisdiction of this Court is invoked under 28 U.S.C. §

1259(3) and 10 U.S.C. § 867(a)(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides that "Congress shall make no law . . . abridging the

freedom of speech." The Due Process Clause of the Fifth

Amendment to the United States Constitution states that "No

person shall . . . be deprived of life, liberty, or property,

without due process of law.”

' Appendix B, p. 2a.

>

~

Section 2256(8) of Title 18, United States Code, contains

the following definition that applies to a violation of Section

2252A of the same ttle:

"child pornography” means any visual depiction,

including any photograph, film, video, picture, or

computer or computer-generated image or picture,

whether made or produced by electronic, mechanical,

or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves

the use of a minor engaging in sexually explicit |

conduct;

(B) such visual depiction is, or appears to be, of a

minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted,

or modified to appear that an identifiable minor is

engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted,

presented, described, or distributed in such a manner

that conveys the impression that the material is or

contains a visual depiction of a minor engaging in |

sexually explicit conduct ;

STATEMENT OF THE CASE

On March 4 and 5, 1999, the petitioner was tried by a

general court-martial composed of a military judge sitting

alone. The petitioner pled guilty to wrongfully and

knowingly receiving or distributing child pornography in

violation of Section 2252A(a)(2)(A) and wrongfully and

knowingly possessing computer disks and computer tapes

that contained three or more images of child pornography in

viclation of Section 2252A(a)(5)(B).

In discussing these two offenses with petitioner while

obtaining his guilty pleas, the military judge used the same

3

definitions of "child pornography” as contained in Section

2256(8). (R. at 57, 78).

On July 19, 2001, the United States Court of Appeals for

the Armed Forces granted review on the following issue:

WHETHER APPELLANT’S CONVICTIONS

UNDER SPECIFICATIONS 2 AND 3. OF

ADDITIONAL CHARGE II MUST BE SET ASIDE

BECAUSE THE DEFINITIONS OF CHILD

PORNOGRAPHY USED TO SUPPORT THOSE

CONVICTIONS ARE UNCONSTITUTIONALLY

VAGUE AND OVERBROAD.

On September 6, 2001, the United States Court of

Appeals for the Armed Forces affirmed the decision below,

citing their earlier decision in United States v. James, 55

M.J. 297 (2001) (App. C at 3a). In James, the Court of

Appeals for the Armed Forces held that the definitions

contained in Section 2256(8) are constitutional.” Jd. at 7a, 55

M.J. at 299. In so doing, the Court of Appeals for the Armed

Forces expressly disagreed with the decision of the United

States Court of Appeals for the Ninth Circuit in Free Speech

Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert.

granted sub nom, Holder v. Free Speech Coalition, 531 U.S.

1124 (2001) (No. 795, 2000 term, renamed Ashcroft v. Free

Speech Coalition). Id. This Honorable Court granted

certiorari in Free Speech Coalition and has heard oral

argument in the case.

> The James court also decided that James's appeal failed on an

independent ground because James admitted that he believed that the

pornography in his case actually contained minors. James at 9a-10a, 55

M.J. at 301. Petitioner has not made such an assertion in this case.

REASONS FOR GRANTING THE WRIT

In New York v. Ferber, 458 U.S. 747 (1982), this Court

held that sexually explicit material depicting actual children

is unprotected by the First Amendment regardless of whether

it is obscene. This ruling was based on documented

evidence that minors can suffer serious harm by participating

as performers in sexually explicit materials. Jd. at 758-59.

This Court therefore has made clear that Congress can ban

child pornography to the extent that the proscribed material

portrays sexually explicit conduct by actual children. /d. at

764.

The anchoring of the constitutional justification to actual

harm to genuine children, however, was not followed on

September 30, 1996, when Congress passed the Child

Pornography Prevention Act of 1996.’ Under this Act, as

codified in Section 2256(8), child pornography is now

defined as any sexually explicit material that: (1) depicts

actual minors; (2) depicts persons who appear to be minors;

(3) modifies or alters the image of an identifiable minor so

that the minor appears to be engaging in sexually explicit

conduct; or (4) is advertised or described so as to convey the

impression that it depicts a minor.

In Free Speech Coalition v. Reno, the United States

Court of Appeals for the Ninth Circuit examined the

definitions of child pornography in Section 2256(8) (which

are applied to Section 2252A) and held that the First

Amendment prohibits Congress from enacting a statute that

makes criminal the generation of images of fictitious

children engaged in imaginary but explicit sexual conduct.

> The Child Pornography Prevention Act of 1996 amended Title 18 of the

United States Code by revising Sections 2251, 2252, and 2256, and by

adding Section 2252A.

5

198 F.3d. at 1086. Specifically, the Court held “that the

language of ‘appears to be a minor’ set forth in Subsection

2256(8)(B) and the language ‘conveys the impression’ set

forth in Subsection 2256(8)(D) are unconstitutionally vague

and overbroad.” /d. at 1097.

In petitioner’s case, the military judge used the very

definitions containing the language "appears to be a minor"

and "conveys the impression" that the Free Speech Coalition

court found to violate the Constitution. (R. at 57, 78). As

this Court has noted, a guilty plea is not voluntary if an

accused "has such an incomplete understanding of the charge

that his plea cannot stand as an intelligent admission of

guilt." Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976).

Therefore, petitioner’s convictions under Section 2252A

must be set aside because they were obtained when the

military judge based his explanation of the offenses to

petitioner on the unconstitutionally vague and overbroad

definitions of child pornography contained in Section

2256(8).

6

CONCLUSION

The decision of the United States Court of Appeals for

the Armed Forces is in conflict with the decision of the

United States Court of Appeals for the Ninth Circuit in Free

Speech Coalition v. Reno, supra, a case currently pending

before this Court. Petitioner asks that this Honorable Court

find that, consistent with the decision of the United States

Court of Appeals for the Ninth Circuit, petitioner’s plea was

involuntary because it was based on definitions that are

unconstitutionally vague and overbroad.

The petitioner therefore respectfully requests that this

Court grant his petition for a writ of certiorari.

Respectfully submitted,

KYLE R. JACOBSON

Captain, United States Air Force

Counsel of Record

TIMOTHY W. MURPHY

Lt Colonel, United States Air Force

BEVERLY B. KNOTT

Lt Colonel, United States Air Force

Appellate Defense Division

Air Force Legal Services Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

December 2001

la

Appendix A

United States Court of Appeals for the Armed Forces

Washington, D.C. 20442-0001

UNITED STATES, ) USCA Dkt. No. 01-0403/AF

) Crim.App. No. 33671

Appellee )

)

Vv. ) ORDER GRANTING REVIEW

)

Barry V. )

O'CONNOR [SSAN omitted] )

Appellant )

On consideration of the petition for grant of review of the

decision of the United States Air Force Court of Criminal Appeals,

it is, by the Court, this 19th day of July, 2001,

ORDERED:

That said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTIONS UNDER

SPECIFICATIONS 2 AND 3 OF ADDITIONAL CHARGE II

MUST BE SET ASIDE BECAUSE THE DEFINITIONS OF

CHILD PORNOGRAPHY USED TO SUPPORT THOSE

CONVICTIONS ARE UNCONSTITUTIONALLY VAGUE

AND OVERBROAD.

No Briefs will be filed under Rule 25.

For the Court,

/s/_ James T. Harper

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (JACOBSON)

Appellate Government Counsel (ROMER)

2a

Appendix B

United States Court of Appeals for the Armed Forces

Washington, D.C. 20442-0001

UNITED STATES, ) | USCA Dkt. No. 01-0403/AF

) | Crim.App. No. 33671

Appellee )

)

Vv. ) ORDER

)

)

Barry V. )

O'TONNOR [SSAN omitted} )

Appellant )

On consideration of the granted issue at 55 MJ [367] (Daily

Journal July 19, 2001), and in view of this Court’s decision in

United States v. James, 5S MJ 297 (2001), it is, by the Court, this

6th day of September, 2001,

ORDERED:

That the decision of the United States Air Force Court of

Criminal Appeals is affirmed.

For the Court,

James T. Harper

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (JACOBSON)

Appellate Government Counsel (ROMER)

TO ee ee ee

3a

Appendix C

UNITED STATES, Appellee

v.

Terry W. JAMES, Machinist’s Mate First Class

U.S. Navy, Appellant

No. 00-0592

Crim. App. No. 99-0435

United States Court of Appeals for the Armed Forces

Argued February 6, 2001

Decided August 15, 2001

SULLIVAN, J., delivered the opinion of the Court, in which

CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

Counsel

For Appellant: Lieutenant Jonathan R. Goodman, JAGC,

USNR (argued).

For Appellee: Colonel M. W. Fisher, Jr., USMC (argued);

Lieutenant Commander Philip Sundel, JAGC, USNR (on brief).

Military Judge: Robert G. Sokoloski

Judge SULLIVAN delivered the opinion of the Court.

On July 13, 1998, appellant was tried by a military judge

sitting alone at a special court-martial at the U.S. Trial Service

Office Guam. Pursuant to his pleas, he was found guilty of one

specification of possessing child pornography and two

specifications of transporting child pornography in_ interstate

commerce, in violation of 18 USC § 2252A as assimilated by

Article 134, Uniform Code of Military Justice, 10 USC § 934. The

military judge sentenced appellant to a bad-conduct discharge,

confinement for 150 days, and reduction to pay grade E-!. On

da

March 8, 1999, the convening authority approved the sentence as

adjudged, and on May 19, 2000, the Navy-Marine Corps Court of

Criminal Appeals affirmed the findings and sentence. See United

States v. James, 53 MJ 612 (N.M. Ct. Crim. App. 2000). '

On November 16, 2000, this Court granted review of the

following issue:

WHETHER THE LOWER COURT ERRED IN FINDING

THAT THE STATUTORY LANGUAGE "APPEARS TO BE A

MINOR" AND "CONVEYS THE IMPRESSION" THAT A

PICTURE PORTRAYS A MINOR WITHIN 18 USC § 2252A

WAS NOT UNCONSTITUTIONALLY OVERBROAD BOTH

ON ITS FACE AND AS APPLIED TO APPELLANT.

We hold that the appellate court below did not err in affirming

appellant's guilty-plea convictions of possessing and transporting

child pornography under 18 USC § 2252A and Article 134. See

generally United States v. Hilton, 167 F.3d 61 (1" Cir. 1999), cert.

denied, 528 U.S. 844 (1999).

The record of trial shows that during 1998, appellant served

aboara the USS FRANK CABLE (AS 40), stationed at Guam.

Appellant lived in government quarters with another person, M.H.

The roommate owned a personal computer and paid monthly fees

for Internet access through a commercial provider. He also

allowed appellant to use both the computer and the Internet

account.

From February to April 1998, appellant used the roommate's

Internet account to "swap" files by downloading pictures from an

Internet site in exchange for posting pictures to that same site.

Appellant "intentionally picked sites . . . advertis[ing] ‘pre-teen

pics’ and downloaded" at least three files that contained “pictures

of minors engaged in explicit sexual activity. After downloading”

these files, "appellant viewed" the pictures "and saved" the images

onto his roommate's computer.

On April 22, 1998, appellant entered a chat room offering a

conversation on "Dad and daughter sex." While accessing the chat

' The typed original of the opinion below is dated May 19, 2000.

& =

=—

Sa

~

room through his roommate’s account, appellant engaged in a

discussion with someone called "Fast Girl,” in fact the screen

name of a male agent of the U.S. Customs Service posing as a

female pedophile. "[A]t Fast Girl's request, appellant uploaded a

picture of a child he believed to be a minor engaged in sexually

explicit activity" and sent the picture electronically to Fast Girl.

"Two days later, . . . appellant uploaded" another fifteen pictures

which he "believed" were "minors engaged in sexually explicit

activity" and sent them electronically to Fast Girl. The agent

posing as Fast Girl received all the pictures back in continental

United States. 53 MJ at 612-13.

Appellant admitted the above facts and pleaded guilty to

violating 18 USC § 2252A on at least three occasions.”

Appellant asks this Court to set aside his convictions under 18

USC § 2252A and Article 134 for possessing and transporting

child pornography. He contends that this federal statute 1s

unconstitutional because it violates the First Amendment. Cf.

United States v. Mento, 231 F.3d 912, 915 (4th Cir. 2000), cert.

filed Jan. 22, 2001. He particularly argues that this statute 1s

constitutionally overbroad because it not only prohibits sexually

explicit depictions of actual children, but also such pictures of

virtual or apparent children as well. He asks that his guilty pleas to

violating this unconstitutional statute be set aside as improvident.

See generally United States v. Prater, 32 MJ 433, 436 (CMA

1991) (an accused must "show a ‘substantial basis’ in law and

fact” exists for overturning a guilty plea on appeal).

The Child Pornography Prevention Act of 1996 proscribes

knowing transportation, knowing receipt, knowing distnbution,

and knowing possession of child pornography in interstate

commerce "by any means, including by computer." See 18 USC §

? 18 USC § 2252A was amended on October 30, 1998 (Pub. L. No. 105-

314, 112 Stat. 2978 (1998)) which eliminated "*3 or more images’ each

place that term appears and inserting ‘an image.’" Appellant’s offenses

were alleged to have occurred between February and April 1998.

6a

2252A(a).’ The term "child pornography" is broadly defined in

the U.S. Code. It includes not only a "visual depiction . . . of

sexually explicit conduct .. .(A)... involv[ing] the use of a minor

engaging in sexually explicit conduct"; but also "(B) such visual

depiction [which] is, or appears to be, of a minor engaging in

sexually explicit conduct” and "(D) such visual depiction... .

conveys the impression that the material is or contains a visual

depiction of a minor engaging in sexually explicit conduct[.]" See

18 USC §§ 2256(8) (emphasis added). The military judge

explained to appeilant:

The term "child pornography” means any visual depiction

including photograph, video, picture of computer-generated

image or picture, whether made or produced by electronic

mechanical or other means of sexually explicit conduct, where

the production of such visual depiction involves the use of a

minor engaging in sexual [sic] explicit conduct. Such visual

depiction is or appears to be of a minor engaging in sexually

explicit conduct or such visual depiction has been created,

adapted or modified to appear that of an unidentifiable minor

* "(a) Any person who - (1) knowingly mails, or transports or ships in

interstate or foreign commerce by any means, including by computer,

any child pornography; (2) knowingly receives or distributes - (A) any

child pornography that has been mailed, or shipped or transported in

interstate or foreign commerce by any means, including by computer; or

(B) any material that contains child pornography that has been mailed, or

shipped or transported in interstate or foreign commerce by any means,

including by computer;

or (5) either — (A) in the special maritime or territorial jurisdiction of the

United States, or on any land or building owned by, leased to, or

otherwise used by or under the control of the United States Government,

or in the Indian country (as defined in section 1151), knowingly

possesses any book, magazine, periodical, film, videotape, computer

disk, or any other material that contains 3 or more images of child

pornography; or (B) knowingly possesses any book, magazine,

periodical, film, videotape, computer disk, or any other material that

contains 3 or more images of child pornography that has been mailed, or

shipped or transported in interstate or foreign commerce by any means,

including by computer, or that was produced using materials that have

been mailed, or shipped or transported in interstate or foreign commerce

by any means, including by computer, shall be punished as provided in

subsection (b).

Ta

or it contains a visual depiction of a minor engaging in

sexually explicit conduct. Do you understand that?

ACC: Yes, sir.

MJ: The definition of "child pornography," "visual depiction,"

and "minor" again come under or come from section 2256 of

Title 18 of the United States Code... .

R. 19.

Appellant argues that the "appears to be" and "conveys the

impression" language of the statute infringes on speech protected

by the First Amendment of the U.S. Constitution. He largely

adopts the position of the Ninth Circuit in Free Speech Coalition

v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 121 S.Ct.

876 (2001). There, the Ninth Circuit recognized that the definition

of child pornography found in the federal statute (18 USC

2256(8)) constituted a “content-based classification of speech."

Reno, 198 F.3d at 1091. As such, it stated that the Government had

to show both "a compelling interest" served by this statute and

how that statutory definition was "narrowly tailored" to fit that

interest. Id. Focusing on the "compelling interest" of the state in

proscribing child pornography mentioned by the Supreme Court in

New York vy. Ferber, 458 U.S. 747 (1982), the Ninth Circuit held

that the state had no compelling interest in regulating virtual or

apparent child pornography where no minor was actually harmed.

Reno, 198 F. 3d at 1096. "Nothing in Ferber can be said to justify

the regulation of such materials other than the protection of the

actual children used in the production of child pornography." /d at

1092.

We disagree with the Ninth Circuit’s holding in Free Speech

Coalition v. Reno, supra, and hold the definition of "child

pornography" in 18 USC §§ 2256(8) and the prohibitions in 18

USC § 2252A are constitutional. The majority of the other federal

courts of appeals that have considered this same issue have held

this section of the Act to be constitutional. See United States v.

Hilton, 167 F.3d 61 (ist Cir. 1999); see also United States v.

Acheson, 195 F.3d 645 (11th Cir. 1999); United States v. Mento,

231 F. 3d 912 (4th Cir. 2000); and United States v. Fox, 248 F.3d

394 (Sth Cir. 2001). In particular, we adopt the rationale of the

First Circuit as elaborated in United States v. Hilton, supra at 72

8a

(holding that "appears to be" language added prohibition against

virtual child pornography to prohibition against actual child

pornography as particularly defined in original statute).

The First Circuit in Hilton opined that suppressing the

"virtual" or apparent child-pornography trade constituted a

compelling government interest that justified the expanded

definition of "child pornography" found in the federal statute. It

acknowledged that this federal statute created a "content-based"

restriction, 167 F.3d at 69, and applied the same "compelling state

interest-narrow tailoring" test as the Ninth Circuit in Reno. See

Hilton, 167 F.3d at 68. However, looking to~the decision in

Osborne v. Ohio, 495 U.S. 103 (1990), it maintained that the

Supreme Court has recognized a broader governmental interest in

regulating child pornography than approved in Ferber. See Hilton,

167 F.3d at 70,73. As such, the First Circuit upheld the statute as

constitutional:

As technology improves and access to technology increases,

efforts to eradicate the child pornography industry could be

effectively frustrated if Congress were prevented from

targeting sexually explicit material that "appears to be" of real

children. The government’s interest in addressing these forms

of child pornography is no less powerful than in instances

where an actual child is actually used and abused during the

production process. We will not second-guess Congress’s

decision to address the social ills posed by the various types of

virtual child pornography.

Hilton, 167 F.3d at 73.* We agree.

* The First Circuit recounted Congress’ stated reasons for broadening the

definition of child pornography: "First, the legislature desired to reduce

the sheer volume of computerized child pornography that could be used

by child molesters and pedophiles to ‘stimulate or whet their own sexual

appetites.’ S. Rep. 104-358, at pt. I1V(B). Second, Congress sought to ban

computer-generated images that are ‘virtually indistinguishable’ from

those of real children, but are made without live children. Id. . . . Third,

the new law was designed to protect the privacy of actual children whose

innocuous images are altered to create sexually explicit pictures. .

Fourth, Congress wished to deprive child abusers of a ‘criminal tool’

frequently used to facilitate the sexual abuse of children." Hilton, 167

9a

In any event, even if the First Circuit’s approach to 18 USC §

2252A is not followed, appellant’s convictions need not be

invalidated. A narrow construction of this statute applying it only

to pictures of actual minors would clearly render this statute

constitutional even under the Ninth Circuit’s decision. See Free

Speech Coalition v. Reno, supra at 1086. Here, appellant's

admissions "objectively support" his pleas of guilty to violations

of the more narrowly construed statute directed at sexual pictures

of actual minors. See generally United States v. Shearer, 44 MJ

330, 334 (1996) ("An inquiry into the providence of a guilty plea

must establish the factual circumstances admitted by the accused

which ‘objectively’ support his plea.").

Appellant argues that no definite proof exists in his case that

the pictures at issue showed actual minors. However, in the guilty-

plea context, the Government does not have to introduce evidence

to prove the elements of the charged offense beyonda reasonable

doubt; instead, there need only be "factual circumstances” on the

record "which ‘objectively’ support” the guilty pleas, i.e., that

actual minors were in appellant’s pictures. See Shearer, 44 MJ at

334. Here, appellant pleaded guilty to the charged violations of 18

USC § 2252A (R. 11) and admitted that actual minors were in the

charged pictures.

The judge in this case explained to appellant that an element

of the crimes of possessing and transporting child pornography

was proof that the subjects of the pictures were minors. He said:

The third element of Specification i, is that the visual

depiction was produced by using at least one person who was

a minor engaged in this sexually explicit conduct. Do you

understand that element?

ACC: Yes, sir.

MJ: And that element is the same for Specification 2 and

Specification 3. Do you understand that?

ACC: Yes, sir.

F.3d at 66-67. See United States v. Mento, 231 F.3d 912, 916, 918, 920-

22 (4th Cir. 2000).

10a

R. 16. Moreover, appellant particularly admitted that the subjects

of the pictures were minors:

Q. Now, why do you believe that- as far as describes those

files- why you believe the files to be described as child

pornography?

A. Well, they depicted young females under the age of

eighteen, which as you stated, that they, uh, they are minors. I

believe that the pictures depicted minors under the age of

eighteen and at least four contained minors engaged in sexual

activity.

*“* *

Q. Do you believe that one of those persons involved in that

conduct was a minor?

A. I believe the person in the picture was under eighteen, yes,

sir.

Q. Now, when you say the person in the picture, was there one

person or more than one?

A. There were two persons in the picture, sir. The person I’m

referring to- is I believe, the young lady, was a minor. | am

not- | am not sure of the male.

R. 27, 34.

Appellant's admissions concerning the age of the subjects of

the pictures in his case were amply supported by the pictures _

themselves which are attached to this record as exhibits. See R.

54-55 and Pros. Ex. 2-4. In addition he admitted that he went to

various web sites looking for pictures of "“pre-teen(s}" and

downloaded pictures from files labeled in a manner reasonably

suggesting depiction of actual minors. R. 26, 38. Finally, appellant

admitted that he visited chat rooms on the Internet with topics

such as "Dad and daughter sex" where pictures of minors were

regularly requested and provided. R. 32. Viewed in its entirety, we

conclude that the factual circumstances reflected in the record

"objectively support" appellant’s guilty pleas to possessing and

transporting child pornography depicting actual minors.

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.

lla

Appendix D

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman BARRY V. O’CONNOR

United States Air Force

ACM 33671

25 January 2001

Sentence adjudged 5 March 1999 by GCM

convened at Hurlburt Field, Florida. Military

Judge: Bruce T. Brown (sitting alone).

Approved sentence: Dishonorable discharge,

confinement for 12 years, and reduction to E-1.

Appellate Counsel for Appellant: Colonel Jeanne

M. Rueth, Colonel James R. Wise, and Captain

Michael J. Apol.

Appellate Counsel for the United States: Colonel

Anthony P. Dattilo, Lieutenant Colonel Ronald A.

Rodgers, and Major Karen L. Manos.

Before

SPISAK, ROBERTS, and CONNELLY

Appellate Military Judges

OPINION OF THE COURT

l2a

CONNELLY, Judge:

Consistent with his pleas, the appellant was convicted by a

military judge sitting as a general court-martial of sodomy,

indecent acts on a female under 16 not his wife, obstruction of

justice, wrongful receipt of child pornography, and wrongful

possession of child pornography. Articles 125, 134, UCMJ, 10

U.S.C. $$ 925, 934; 18 U.S.C. § § 2252A(a)(2)(A), (5)(B). His

approved sentence consists of a dishonorable discharge,

confinement for 12 years and reduction to E-1.

The appellant complains, pursuant to United States v.

Grostefon, 12 MJ. 431 (C.M.A. 1982), that the military judge

erred by failing to recuse himself, that his trial defense counsel

was ineffective and that his sentence was inappropriately severe.

We find no error and affirm.

RECUSAL OF MILITARY JUDGE

On the first day of tral, the appellant pled guilty to

committing sodomy and numerous indecent acts on_ his

stepdaughter over a three-year period. After appellant's plea was

accepted the court recessed for the evening. The military judge

went to an off-base restaurant for dinner. Unknown to the judge,

the victim and her family were dining at the same restaurant. The

victim’s grandfather approached the judge’s table, introduced

himself, and pointed to the victim seated nearby. The judge told

the grandfather that “he thought it would be best under the

circumstances that we not have any further conversations,” at

which point the grandfather “agreed and returned to his table.”

The judge could see the victim and her family during dinner, but

could not hear any of their conversations. The next morning, the

judge disclosed to counsel and the appellant what had occurred

and no one raised any objection.

On appeal, the appellant asserts that it was plain error for the

military judge not to recuse himself because, as a result of the

restaurant encounter, he gained an impermissible familiarity with

the victim, and his continuance on the case would raise a question

in the mind of a reasonable person about the judge’s impartiality.

Our standard of review on this issue is abuse of discretion. United

NEC

13a

States v. Butcher, 53 MJ. 711 (A.F. Ct. Crim. App. 2000).

R.C.M. 902(a) states that a military judge “shall disqualify himself

_ in any proceeding in which that military judge's impartiality

might reasonably be questioned.” Accord Uniform Code of

Judicial Conduct for Military Trial and Appellate Judges and

Uniform Regulations and Procedures Relating to Judicial

Discipline, Canon 2; TJAGPL-3. This rule requires us to

determine whether an objective, disinterested observer fully

informed of the facts would have a significant doubt that the

appellant received a fair trial. United States v. Berman, 28 MJ.

615, 617-18 (A.F.C.M.R. 1989).

The military judge went to the off-base restaurant without any

knowledge that the victim and her family would be present. The

judge had no personal contact with the victim at the restaurant

other than observing her eat. The military juage immediately

discontinued the conversation initiated by the grandfather and

reported the incident the following morning to counsel and the

appellant. No objective, disinterested observer informed of the

above facts would doubt the military judge’s impartiality.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant claims that trial defense counsel committed four

errors that, taken as a whole, denied him effective assistance of

counsel. These errors involve appellant’s disclosure of

confidences to a temporary defense paralegal on loan from the

base legal office, failure to move for the military judge’s recusal,

an ineffective sentencing argument, and failure to object to the

prosecution’s improper sentencing argument.

Tie Supreme Court has set forth a two-pronged test to assist

appellate courts in determining questions of ineffective assistance

of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

Strickland’s two-prong test requires the appellant to first show that

counsel’s performance was so deficient, the errors so serious that

the counsel was not functioning as the “counsel” guaranteed by the

Sixth Amendment. Next the appellant must show prejudice to his

ability to receive a fair trial, the result of which was reliable.

Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), quoted in

United States v. Christy, 46 M.J. 47, 50 (1997).

l4a

Appellant is unable to show that his trial defense counsel's

performance was deficient, much less that he suffered any

prejudice. Appellant first asserts that his trial defense counsel had

him disclose confidences to a temporary defense paralegal without

informing him that the paralegal’s normal job was in the base legal

office. The record is silent as to what, if any, confidences were

disclosed by the appellant to the paralegal and why the appellant

believes these confidences were disclosed to the government.

Indeed, the appellant in his declaration filed with this Court admits

that he “cannot specifically prove [the paralegal] disclosed any of

my confidences to the prosecution.” The record is simply devoid

of any evidence of ineffectiveness concerning the temporary

defense paralegal. As for the second assertion regarding counsel’s

failure to press for the military judge's recusal following a chance

encounter with the victim's grandfather at an off-base restaurant,

this issue has been adequately disposed of above and does not

present an issue regarding counsel’s effectiveness.

The remaining two allegations of ineffectiveness concern the

trial defense counsel’s sentencing argument which is characterized

by appellant as “very weak and poorly presented” and his

counsel’s failure to object to a portion of trial counsel’s sentencing

argument. We have reviewed both sentencing arguments and find

no error. Trial defense counsel’s argument was logical and

comprehensive. It rebutted several contentions made in the

government’s sentencing argument, stressed the importance of

appellant’s guilty plea and remorse, commented on the importance

of rehabilitation in fashioning any sentence, and _ stressed

appellant’s positive duty performance, especially during the period

awaiting trial. It concluded with a request that appellant be given a

second chance and be sentenced to 5 years’ confinement. In light

of the horrific nature of the charges for which the appellant stood

convicted, trial defense counsel’s sentencing argument was

appropriate and certainly not ineffective.

In his argument, trial counsel disparaged two grades on

appellant’s most recent EPR—an overall evaluation of 4 and a

rating of “acceptable” on the conduct block. Trial counsel’s

comments on this point were minor, consisting of six lines in a six

page sentencing argument. In addition, while trial defense counsel

15a

did not object, he did address these comments in his sentencing

argument stressing that while awaiting trial (the period of time

covered by the EPR) appellant committed no new offenses and

complied with the no-contact order given him by his commander.

We find trial defense counsel’s performance in this regard

satisfactory.

SENTENCE APPROPRIATENESS

The standard of review on issues of sentence appropriateness

is whether, considering the entire record, the character of the

offender and the nature of the offenses for which he is being

sentenced, the sentence adjudged or approved is appropriate.

United States v. Peoples, 29 M.J. 426 (C.M.A. 1990). Appellant

alleges that while his offenses were serious, they do not warrant a

dishonorable discharge and 12 years in jail. We disagree.

Considering the entire record and the egregious nature of the

offenses committed over a lengthy period of time, we find the

sentence appropriate.

CONCLUSION

We conclude the findings and sentence are correct in law and

fact, the sentence is appropriate, and no error prejudicial to the

substantial rights of the appellant was committed. Accordingly,

the approved findings of guilty and the sentence are

AFFIRMED.

OFFICIAL

//s//

LAURA L. GREEN

Clerk of Court