Petition for Writ of Certiorari — Bilby v. United States

') 94 584 SEP 30 1994

No. OEEICE OF THE CLERK

s

Un the Supreme Court of the United States

OCTOBER TERM, 1994

Kirk D. BILBY, CAPTAIN,

UNITED STATES AIR FORCE, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARK JEFFREY SIMMS

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

October 1994

QUESTION PRESENTED

Whether the United States Court of Military Appeals’

holding, that petitioner’s conviction for conduct unbecom-

ing an officer for soliciting an individual to violate 18

U.S.C. Section 2252 should be affirmed regardless of the

constitutionality of 18 U.S.C. Section 2252, violates peti-

tioner’s rights under the Fifth Amendment of the United

States’ Constitution?

TABLE OF CONTENTS

Ci ee TO on oi gu aons dbncessdeaeeaewsees l

be Pe ee ere yee 2

CONSTITUTIONAL PROVISION INVOLVED ..... 2

SPAR Emeeees OP TIS CARS ook. ccc decccccscsss 2

REASON FOR GRANTING THE WRIT ........... 6

CR Se 6b kbd coe endo een eae 9

APPENDIX A (Opinion of the United States Court of

I pene Srna ia ngs la

APPENDIX B (Opinion of the United States Air Force

Court of Military Review) ....................... 10a

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES: Page

Ex Parte Royall, 117 U.S. 241 (1886) ............ 6

Ex Parte Siebold, 100 U.S. 371 (1880) ........... 6

Shuttlesworth v. Birmingham, 373 U.S. 262

nds 669 se 56-5 Oke 0s 8 7

Standefer v. United States, 447 U.S. 10 (1980) .... 7

FEDERAL CASES:

United States v. Moncini, 882 F.2d 401 (9th Cir.

RS Sn Se, Fe Oe dae awd oe 5

United States v. X-Citement Video, Inc., 982 F.2d

1285 (9th Cir. 1992), cert. granted, 114 S.Ct.

boot e fe 8. Se ree 6, 8

United States v. American Airlines, 570 F.Supp.

654 (N.D. Texas 1983), rev’d on other grounds,

poof ee le | re 6

MILITARY CASES:

United States v. Bilby, 39 M.J. 467 (C.M.A.

as Las vows an ess 1, 5,6,7

United States v. Bilby, 34 M.J. 1191 (A.F.C.M.R.

1992), aff'd, 39 M.J. 467 (C.M.A. 1992) ....... 1,5

United States v. Gonzales, 19 M.J. 951

(A.F.C.M.R. 1985), pet. denied, 20 M.J. 206

aay Chev ek sae bees 6

CONSTITUTIONAL PROVISIONS:

EE ee 2, 8, 9

U.S. STATUTES:

5 U.S.C.A. Section 3331 (West 1977) ........... 7

10 U.S.C.A. Section 867a (West Supp. 1994) ..... 2

10 U.S.C.A. Section 882 (West 1983) ........... 6

TABLE OF AUTHORITIES

U.S. STATUTES — Continued: Page

10 U.S.C.A. Section 892 (West 1983) ........... 8

10 U.S.C.A. Section 933 (West 1983) ........... 2,4,7

10 U.S.C.A. Section 934 (West 1983) ........... 2, 4, 8

Eek Ae 24,5, 7,%

28 U.S.C.A. Section 1259(3) (West 1993) ........ 2

REGULATIONS:

Manual for Courts-Martial, United States, 1984,

Rule for Courts-Martial 307(c)(3) ............ 4

Manual for Courts-Martial, United States, 1984,

Part IV, paragraph 16e(3)(B) ................ 8

Manual for Courts-Martial, United States, 1984,

Part TV, parmgraphs 990... wc ccc ce cen 7

Manual for Courts-Martial, United States, 1984,

Part IV, paragraph 105 ..................... 6

In the Supreme Court of the United States

OCTOBER TERM, 1994

No.

Kirk D. BILBY, CAPTAIN,

UNITED STATES AIR FORCE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Kirk D. Bilby, respectfully prays that a

writ of certiorari issue to review the order and judgment of

the United States Court of Military Appeals entered in his

case on 14 July 1994.

OPINIONS BELOW

The order and judgment of the United States Court of

Military Appeals, United States v. Bilby, 39 M.J. 467

(C.M.A. 1994) is reprinted at Appendix A. The decision of

the United States Air Force Court of Military Review,

United States v. Bilby, 34 M.J. 1191 (A.F.C.M.R. 1992),

aff'd, 39 M.J. 467 (C.M.A. 1994) is reprinted at Appendix

B.

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on 14 July 1994. The jurisdiction of

this Court is invoked under 28 U.S.C.A. Section 1259(3)

(West 1993) and 10 U.S.C.A. Section 867a (West Supp.

1994).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitution of the United

States provides, in pertinent part, “[nJo person shall. . .

be deprived of life, liberty, or property, without due proc-

ess of law”.

STATEMENT OF THE CASE

At a general court-martial composed of a military judge

sitting alone petitioner was convicted of conduct

unbecoming an officer (ii: violation of U.C.M.J. Article

133, 10 U.S.C.A. Section 933 (West 1983)) by soliciting

child pornography in violation of 18 U.S.C. Section 2252.

(A second charge and specification alleging violation of

U.C.M.J. Article 134, 10 U.S.C.A. Section 934 (West

1983), was dismissed by the court after acceptance of peti-

tioner’s guilty plea to the Article 133 offense. See DD

Form 458 and R. 71.) Appellant was sentenced to be

dismissed from the United States Air Force. R. 121. The

convening authority approved the sentence as adjudged.

In 1989 the United States Customs Service began an

undercover operation targeting child pornography. See

Prosecution Exhibit 1. The Customs Service used a mail-

ing list taken from the National Motion Picture Company

in a separate action. See id. Individuals whose names ap-

peared on the list were mailed a flyer along with National

Motion Picture Company’s catalog. See id. The flyer was

ee |

prepared by the Customs Service and advertised “extreme-

ly hard to obtain erotica”. See Prosecution Exhibits 1 and

2. Anyone interested in the material was to contact “Ar-

tiste Internationale” at an address in Belgium. See Prose-

cution Exhibits | and 2. Petitioner’s name appeared on the

mailing list under an alias, Brian Dodd. See Prosecution

Exhibit 1.

Petitioner contacted Artiste Internationale using his

alias and requested their catalog. See id. Petitioner re-

ceived the catalog and ordered two videotapes and two

magazines on an order form provided in the catalog. See

Prosecution Exhibits 1 and 5. The first videotape peti-

tioner ordered was entitled “Little Ones in Love” and was

described in the catalog as depicting sodomy and inter-

course by a twelve year old boy and a ten year old girl. See

Prosecution Exhibits 1, 4, and 5. The second videotape

petitioner ordered was entitled “Carnivale” and was

described as showing five, seven, and nine year old boys

engaged in mutual masturbation, oral sodomy, and anal

intercourse. See Prosecution Exhibits 1, 4, and 5. Peti-

tioner accompanied the order form with a letter requesting

a more complete listing of materials. See Prosecution Ex-

hibits | and 6. In the letter requesting the catalog and the

letter accompanying the order, petitioner requested that

Artiste Internationale be “discreet”. See Prosecution Ex-

hibits 1 and 6.

In March 1990 petitioner wrote a letter to Artiste Inter-

nationale and a letter to National Motion Picture Com-

pany complaining that he had not received the materials he

ordered. See Prosecution Exhibits 1, 8, and 9. A videotape

containing both films was sent to petitioner’s post office

box on 25 June 1990 and petitioner picked up the material

at the post office and took it home. See Prosecution

4

Exhibit 1. Petitioner’s home was later searched pursuant

to a search warrant, and the videotape and other material

were discovered in the basement furnace room, hidden in

the ceiling rafters behind the insulation of the heating

system. See id.

At trial there was extensive discussion among the Mili-

tary Judge, defense counsel, and trial counsel regarding

whether the above-described offense stated an offense

under the Uniform Code of Military Justice. See R. 23-40.

During the inquiry into petitioner’s plea of guilty, it

became apparent that petitioner did not believe he was

guilty of an offense. See R. 50-71. Petitioner stated he did

not know it was a violation of law to solicit another person

to send him the videotapes. See R. 56. After petitioner’s

guilty pleas were accepted by the Military Judge, peti-

tioner made an unsworn statement during the presentenc-

ing procedure in which he again stated he did not know-

ingly break the law. See R. 104.

On appeal to the United States Air Force Court of Mili-

tary Review petitioner claimed among other issues that the

specification of the charge to which petitioner pleaded

guilty failed to state an offense and that the specification

of the charge to which the petitioner pleaded guilty was

defective in not alleging every essential element of the of-

fense. See Assignment of Errors and Brief on Behalf of

Accused |. With regard to the first issue, the United States

Air Force Court of Military Review noted that the

language of the specification followed the information ac-

companying U.C.M.J. Articles 133 and 134 (10 U.S.C.A.

Sections 933 and 934 (West 1983)) set forth in the Manual

for Courts-Martial; that the language satisfied the re-

quirements of Rule for Court-Martial 307(c)(3) (a “ ‘plain,

concise, and definite statement of the essential facts con-

stituting the offense charged’ ”); and that the specification

a TN |

5

was sufficient. See United States v. Bilby, 34 M.J. 1191,

1193 (A.F.C.M.R. 1992), affd 39 M.J. 467 (C.M.A.

1994). With regard to the second issue, the Court rejected

petitioner’s argument that an inherent scienter element was

missing from the specification, holding that the United

States need only prove that petitioner knew “ ‘the nature

of the. . . visual depictions and that the depictions were to

be transported or shipped in interstate or foreign com-

merce or mailed.’ ” See id. at 1193, quoting United States

v. Moncini, 882 F.2d 401, 404 (9th Cir. 1989). The Court

held that the Military Judge was not required to advise

petitioner that he had to know the ages of persons depicted

in the materials. See Bilby, 34 M.J. at 1194. The Court af-

firmed the findings of guilty and the sentence. See id. at

~ 1195.

Petitioner appealed the decision of the United States Air

Force Court of Military Review to the United States Court

of Military Appeals. The United States Court of Military

Appeals accepted for review the issue whether the statute

under which petitioner was convicted was fatally defective

and unconstitutional because it lacked a scienter require-

ment. See Supplement to Petition for Grant of Review |

and Order Granting Review. The United States Court of

Military Appeals noted controversy regarding the meaning

of 18 U.S.C. Section 2252. See United States v. Bilby, 39

M.J. 467, 469 (C.M.A. 1994). The Court assumed, for

purposes of its opinion, that petitioner was found guilty of

conduct unbecoming an officer for soliciting another to

violate the statute, as distinguished from the act of

soliciting another to distribute child pornography. See id.

at 469-470. The Court held that it was conduct unbecom-

ing an officer for an officer to solicit another to violate a

federal statute, regardless of the nature of the statute and

the constitutionality of the statute. See id. at 470. The

6

Court thus affirmed the decision of the United States Air

Force Court of Military Review. /d.

REASON FOR GRANTING THE WRIT

THIS COURT SHOULD REVIEW THE

UNITED STATES COURT OF MILITARY

APPEALS’ DECISION IN THIS CASE,

WHICH SUBJECTS UNITED STATES MILI-

TARY OFFICERS TO CRIMINAL LIABILITY

FOR SOLICITING OTHER INDIVIDUALS

TO VIOLATE FEDERAL STATUTES, RE-

GARDLESS OF THE CONSTITUTIONALITY

OF THE FEDERAL STATUTES, IN LIGHT

OF THIS COURT’S PENDING REVIEW OF

UNITED STATES V. X-CITEMENT VIDEO,

INC., 982 F.2D 1285 (9TH CIR. 1992), CERT.

GRANTED, 114 S.CT. 1186 (28 FEBRUARY

1994).

To constitute solicitation under military law, one must

solicit or advise a person or persons to commit an offense

under the Uniform Code of Military Justice. See /0

U.S.C:A. Section 882 (West 1983) and Manual for Courts-

Martial, United States, 1984, Part 1V, paragraph 105. The

essence of solicitation is the intention to engage in criminal

conduct. United States v. Gonzales, 19 M.J. 951, 952

(A.F.C.M.R. 1985), pet. denied, 20 M.J. 206 (C.M.A.

1985). See United States v. American Airlines, 570

F.Supp. 654, 660-663 (N.D. Texas 1983), rev’d on other

grounds, 743 F.2d 1114 (Sth Cir. 1984). “An unconstitu-

tional law is void, and is as no law. An offense created by

it is not a crime.” Ex Parte Siebold, 100 U.S. 371, 376

(1880). See Ex Parte Royall, 117 U.S. 241, 248 (1886). One

may not be convicted for aiding and abetting someone to

sc iii iain)

7

do an innocent act. See Shuttlesworth v. Birmingham, 373

U.S. 262, 265-266 (1963). See Standefer v. United States,

447 U.S. 10, 21 n.14 (1980). If one may not be convicted

of aiding and abetting someone to do an innocent act, it is

logical that one may not be convicted of soliciting some-

one to do an innocent act. Therefore, if 18 U.S.C. Section

2252 is unconstitutional, petitioner committed no crime in

soliciting another to violate it. In order to convict peti-

tioner for conduct unbecoming an officer for the instant -

conduct, the United States Court of Military Appeals

would have to have found 18 U.S.C. Section 2252 consti-

tutional, address the underlying conduct, or both. The

United States Court of Military Appeals declined to do

either. See United States v. Bilby, 39 M.J. 467, 469-470

and 470 n.4 (C.M.A. 1994).

Presume that Congress passes and enacts a statute

which states “All active duty Air Force officers shall shoot

immediately all individuals wearing red bandannas whom

they see.” The day prior to the effective date of the statute

Colonel X calls his subordinate officers Captain Y and

Major Z into his office and tells them not to follow the

Statute as it is obviously illegal and unconstitutional.

Under the Court of Military Appeals holding in the instant

case, he would per se be involved in conduct unbecoming

an officer and gentleman and would be subject to general

court-martial and a maximum sentence including dis-

missal, forfeiture of all pay and allowances, and confine-

ment for one year. See 10 U.S.C.A. Section 933 (West

1983) and Manual for Courts-Martial, United States,

1984, Part IV, paragraph 59e (permissible punishment).

Military officers swear or affirm to “support and defend

the Constitution of the United States against all enemies,

foreign and domestic”. See 5 U.S.C.A. Section 3331 (West

1977). Colonel X would arguably have a duty to counsel

8

his subordinates to refuse to follow this patently unconsti-

tutional statute. In fact, he may’ be derelict in his duties (an

offense punishable in his case by dismissal, forfeiture of

all pay and allowances, and six months confinement) if he

fails to counsel his subordinates. See 10 U.S.C.A. Section

892 (West 1983) and Manual for Courts-Martial United

States, 1984, Part 1V, paragraph 16e(3)(B) (permissible

punishment).

This Court has granted certiorari in United States vy.

X-Citemeit Video, Inc., 982 F.2d 1285 (9th Cir. 1992),

cert. granted, 114S.Ct. 1186 (28 February 1994), and will

address the constitutionality of 18 U.S.C. Section 2252.

The case has been set for oral argument 5 October 1994.

Petitioner concedes that if this Court determines that 18

U.S.C. Section 2252 is constitutional, his petition should

be denied. However, if this Honorable Court determines

that 18 U.S.C. Section 2252 is unconstitutional, petitioner

would then have been convicted of soliciting another to

violate an unconstitutional statute.

Such conviction would be fundamentally unfair and

violate petitioner’s rights under the Fifth Amendment of

the United States Constitution. The United States Court

of Military Appeals holding in this case threatens the

fundamental rights of officers serving in all branches of

the Armed Services. The Court of Military Appeals hold-

ing also threatens the fundamental rights of all military

members, as the holding might be persuasively argued by

analogy in U.C.M.J. Article 134 cases. (U.C.M.J. Article

134 prohibits disorders and neglects to the prejudice of

good order and discipline in the armed forces and conduct

of a nature to bring discredit upon the armed forces, see 10

U.S.C.A. Section 934 (West 1983).)

9

CONCLUSION

The United States Court of Military Appeals’ holding in

the instant case, that petitioner may be convicted of con-

duct unbecoming an officer for soliciting another to

violate a federal statute, regardless of the constitutionality

of the statute, fundamentally violates petitioner’s rights

under the Fifth Amendment to the United States Constitu-

tion. The holding also directly threatens the fundamental

rights of each officer serving in the Armed Forces of the

United States and should be addressed by this Court.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARK JEFFREY SIMMS

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

October 1994

APPENDICES

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 93-0207

CMR No. 29250

UNITED STATES, APPELLEE

v.

KirRK D. BiLBy, CAPTAIN U.S. AIR FORCE, APPELLANT

Argued Dec. 3, 1993

Decided July 14, 1994

Accused was convicted by general court-martial,

Michael C. Callinan, J., pursuant to his guilty plea to a

specification of conduct unbecoming an officer. The

United States Air Force Court of Military Review af-

firmed, 34 M.J. 1191, affirmed. Review was granted. The

United States Court of Military Appeals, Wiss, J., held

that military officer’s act of soliciting another person to

violate a federal statute is conduct unbecoming an officer,

regardless of the nature of the statute or lawfulness of the

statute.

Affirmed.

For Appellant: William G. Smith (argued); Colonel Jay

L. Cohen and Captain Robert A. Parks.

For Appellee: Captain Jane M.E. Peterson (argued);

Colonel Richard L. Purdon and Colonel Jeffery T. In-

felise (on brief); Major Paul H. Blackwell, Jr.

la

2a

OPINION OF THE COURT [

Wiss, Judge.

Appellant pleaded guilty at a general court-martial to

conduct unbecoming an officer by wrongfully and dis-

honorably soliciting distribution of child pornography in

violation of 18 USC § 2252. See Art. 133, Uniform Code

of Military Justice, 10 USC § 933. The military judge then

sentenced him to dismissal from the service. The conven-

ing authority approved these results, and the Court of

Military Review affirmed. 34 MJ 119] (1992).

We granted appellant’s petition that asked us to con-

sider whether “the statute under which appellant was con-

victed (18 USC § 2252) [was] fatally defective and un-

constitutional because it lacked a scienter requirement.”

Appellant urges that the statute is constitutionally flawed

and that, as a result, he could not have been convicted

lawfully of having solicited its violation. Now, on further

consideration, we decide that we need not answer the

granted issue in order to determine whether appellant’s

pleas and resulting conviction can stand: They can.

Appellant, under an alias, requested and received a

catalog containing pornographic materials but never

ordered anything. The United States Customs Service, as

part of an undercover operation targeting child por-

nography, obtained the mailing list for the catalog, and

they sent appellant and others a flyer advertising “extreme- i

ly hard to obtain erotica.”

The flyer did not mention child pornography, but ap- y

pellant responded to the flyer by asking to purchase “very

very young sex videos and magazines. . . .” He indicated

that he was “looking for pre-teen, and young teen”

3a

materials. Appellant was sent a catalog featuring pre-teen

and young teen subjects, and he ordered two videos and

two magazines. 34 MJ at 1192. The catalog’s descriptions

of the videos that he ordered made clear that they depicted

explicit sexual activity by children of tender years — ages 5,

7, and 9 in one instance and ages 10 and 12 in the other.

Undercover officers placed the materials in appellant’s

post-office box. After appellant had retrieved them, taken

them home, and left his house without them, agents ob-

tained a search warrant for the house. They found the

materials, the order form, and the catalog; and appellant

subsequently was apprehended.

As referred to trial, the specification laid against ap-

pellant alleged that he

wrongfully and dishonorably solicit[ed] the distribu-

tion of videotapes and/or magazines depicting child

pornography involving children engaged in bondage,

sadism, bestiality, and/or homosexual acts, and

young male castration.

Appellant had negotiated a pretrial agreement to plead

guilty to this specification and was fully prepared to do so

at trial.

The military judge, however, engaged in a good deal of

hand-wringing as to whether the specification was ade-

quate to state an offense, absent adoption of the Federal

child pornography law, 18 USC § 2252, to define

“wrongfully.” ' With concomitant consternation on

' In relevant part, 18 USC § 2252 provides:

(a) Any person who—

(1) knowingly transports or ships in interstate or foreign com-

merce by any means including by computer or mails any visual

depiction, if —

the part of the parties that the pretrial agreement was in

jeopardy, they ultimately agreed to “clarif[y]” the

specification by adding to the end of the original language: |

“the distribution of the said videotapes and/or magazines

is a violation of 18 USC 2252.” The parties agreed that,

“fijn essence, what we have then is the [Article] 134 [, UC-

MJ, 10 USC § 934] [offense of solicitation], charged as

[Article] 133.” See generally para. 59c(2), Part IV, Manual

for Courts-Martial, United States, 1984 (“This article

[133] includes acts made punishable by any other article,

provided these acts amount to conduct unbecoming an of-

ficer and a gentleman.”).

Appellant pleaded guilty to the specification as

amended. During the providence inquiry, the military

judge addressed the elements not only of conduct

unbecoming an officer under Article 133 (see para. 59b),

but also solicitation under Article 134 (see para. 105b,

Part IV, Manual, supra) and of the crime allegedly

solicited (see 18 USC §2252). In connection with the latter,

the military judge defined “minor” (“any person under the

age of 18”), “sexually explicit conduct” (“actual or

simulated sexual intercourse . . .” and “includes bestiality,

masturbation, sadistic or masochistic abuse or lascivious

exhibition of the genitials or pubic area of any person”),

and “viswal depiction” (“even includes undeveloped film

and videotapes”).

4a

(A) the producing of such vsiual depiction involves the use of a

minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

* * *

shall be punished as provided in subsection (b) of this section.

el

Sa

In this Court, appellant attacks his pleas and conviction

by asserting that 18 USC § 2252 lacks any scienter require-

ment and that, so lacking, it is an unconstitutional strict-

liability infringement of protected free speech.? See United

States v. X-Citement Video, Inc., 982 F.2d 1285 (9th

Cir.1992), cert. granted, A? sctle cmniemsnts. A. 2

127 L.Ed.2d 536 (February 28, 1994). He extrapolates

that, since the specification to which he pleaded guilty and

of which he was found guilty charged a violation of this

unconstitutional statute, his pleas and conviction cannot

be affirmed.?

The Government responds with a tripartite argument.

First, the unbecoming conduct that was alleged and found

was appellant’s act of soliciting another to distribute child

pornography—an act that independently satisfies the

elements of Article 133 without reference to Article 134

and/or 18 USC § 2252. Second, that being so, the

? The fact that appellant clearly knew that the materials he had

ordered contained minor actresses and actors does not preclude his

constitutional challenge that is based on absence of a scienter element.

First Amendment overbreadth is one of the few exceptions to the prin-

ciple that “a person to whom a statute may constitutionally be applied

may not challenge that statute on the ground that it may conceivably

be applied unconstitutionally to others in situations not before the

Court.” New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3359,

73 L.Ed.2d 1113 (1982); accord Gooding v. Wilson, 405 U.S. 518, 92

S.Ct. 1103, 31 L.Ed.2d 408 (1972).

* Appellant also asserts that the unconstitutionality of the statute

poisons the search warrant that led to discovery of the evidence

against him which, in turn, prompted his pleas and resultant convic-

tion. Apart from the tortuousness of this reasoning, it ignores the

clear principle that an unconditional plea of guilty waives any ap-

pellate complaint of unlawful search and seizure. See Mil.R.Evid.

311(i), Manual for Courts-Martial, United States, 1984; cf. RCM

910(a)(2), Manual, supra.

6a

amendment of the specification to include reference to 18

USC §2252 and the providence inquiry into the elements

of that statute merely were surplusage. Finally, 18 USC

§ 2252 contains a scienter element in any event, and ap-

pellant admitted during the providence inquiry that he had

it.

We are aware that there is considerable controversy sur-

rounding the meaning of 18. USC §2252, the Protection of

Children Against Sexual Exploitation Act of 1977. See,

e.g., United States v. Knox, 977 F.2d 815 (3d Cir.1992),

cert. granted, U.S. , 113 §.Ct. 2926, 124

L.Ed.2d 677 (1993), vacated and remanded, U.S.

, 114 S.Ct. 375, 126 L.Ed.2d 325 (1993) (what con-

stitutes “lascivious” and “exhibition” for purposes of the

Statute’s prohibition of “lascivious exhibition of the

genitals or pubic area”— 18 USC § 2256(2)(E)). Concern-

ing the precise issue in the case at bar, appellant is correct

that a majority of a panel of the Ninth Circuit in

X-Citement Video did hold that the statute does not con-

tain a scienter requirement and that, as such, it unconstitu-

tionally chills free speech. But see United States v. Mon-

cini, 882 F.2d 401 (9th Cir. 1989) (dictum). A dissenting

judge in X-citement Video (9th Cir.) agreed that the

statute does not expressly include scienter but concluded

that the statute could and should be constitutionally nar-

rowed to include a scienter of recklessness, which he

believed would meet the First Amendment challenge. See

generally Osborne v. Ohio, 495 U.S. 103, 115, 110 S.Ct.

1691, 1699, 109 L.Ed.2d (J990) (recklessness “plainly

satisfies the requirement laid down in [New York v.}

Ferber[, 458 U.S. 747, 765[, 102 S.Ct. 3348, 3358, 73

L.Ed.2d 1113] (1982)] that prohibitions on child por-

nography include some element of scienter”).

Ta

The Ninth Circuit is the only federal Court of Appeals

to have forthrightfully ruled on this issue. In the process

of resolving related issues, however, several other circuits

have concluded or assumed that the statute requires

knowledge that the materials contain minors. See, e.g.,

Rodriguez v. Clark Color Laboratories, 921 F.2d 347 (Ast

Cir.1990); United States v. Duncan, 896 F.2d 271 (7th

Cir.1990); United States v. Brown, 862 F.2d 1033 (3d

Cir.1988); United States v. Garot, 801 F.2d 1241 (10th

Cir.1986). Also, several district courts have rejected the

Ninth Circuit’s reasoning and have held that knowledge

that the materials contained minors is required by the

statute. See, e.g., United States v. Kempton, 826 F.Supp.

386 (D. Kan, 1993); United States v. Prytz, 822 F.Supp.

331 (D.S.C.1993). Other district courts, however, have

concluded to the contrary. See, e.g., United States v.

Kleiner, 663 F.Supp. 43 (S.D.Fla.1987); United States v.

Tolczeki, 614 F.Supp. 1424 (N.D. Ohio 1985). The

Supreme Court only recently has granted certiorari in

X-Citement Video, but we do not need to be detained by

this provocative debate.

We will assume for our present purposes that appellant

is correct that he was found guilty of conduct unbecoming

an officer by soliciting another to violate 18 USC § 2252,

as opposed to the Government’s position that he was

found guilty of conduct unbecoming an officer by

arguably the more generic act of soliciting another to

distribute child pornography. Indeed, that was the ex-

pressed views of the parties and the military judge when

the specification was amended, when the parties discussed

the maximum imposable sentence, and when the military

judge inquired into the providence of the plea.‘

* It might well be that, under the facts of this case, appellant could

have been prosecuted for the conduct unbecoming an officer by

8a

We do not believe that it seriously can be doubted that a

military offiver’s act of soliciting another person to violate

a Federal statute is disgraceful and dishonorable conduct,

see Parker v. Levy, 417 U.S. 733, 761, 94 S.Ct. 2547,

2564, 41 L.Ed.2d 439 (1974), without regard for the nature

of the statute (that is, what is prohibits) or for the

lawfulness of the statute (that is, whether it ultimately is

upheld as constitutional). It is not necessary, under Arti-

cle 133, that the conduct of the officer, itself, otherwise be

a crime. United States v. Taylor, 23 MJ 314, 318 (CMA

1987) (Court affirmed conviction for violating Article 133

by requesting another person to commit an offense under

circumstances wien that act was not punishable solicita-

tion under Article 134); see para. 59c(2). Cf. United

States v. Choate, 32 MJ 423, 425 (CMA 1991). Simply

stated, it is unbecoming for an officer to solicit someone

to violate a Federal statute — period.

Therefore, we need not enter the quagmire of the debate

over whether 18 USC § 2252 is constitutional and, if not,

whether one can be guilty under Article 134 of soliciting

another to violate it. Instead, under Article 133, all that

is necessary is that appellant did some certain act and that,

under the circumstances, that act constituted conduct

unbecoming an officer. See para. 59b. Here, that act

his involvement with child pornography. Likely, few would disagree

that any reasonable officer would know of the criminality of such con-

duct. Cf. United States v. Hartwig, 39 MJ 125 (CMA 1994) (conduct

unbecoming an officer to solicit a schoolgirl to mail a nude

photograph of herself to him). As we have pointed out in this opi-

nion, however, that was not ultimately the basis of appellant’s pleas,

the providence inquiry, or the military judge’s findings of guilty; so we

will restrict our discussion accordingly.

9a

was Soliciting someone else to violate a federal Statute, see

Parker v. Levy, supra.

Hil

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Judges Cox, CRAWFORD,

and GIERKE concur.

10a

APPENDIX B

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 29250

UNITED STATES

We

CAPTAIN KIRK D. BILBY, 385-68-2751, UNITED STATES AIR

FORCE

Sentenced Adjudged 1 Feb. 1991

Decided 9 June 1992

Accused was convicted by general court-martial, An-

drews Air Force Base, Maryland, Michael C. Callinan, J.,

pursuant to his guilty plea to a specification of conduct

unbecoming an officer. The United States Air Force Court

of Military Review, O’Hair, Senior Judge, held that: (1)

the specification that charged the accused with conduct

unbecoming an officer by soliciting the distribution of

child pornography was sufficient to state an offense; (2) it

was not necessary to advise the accused of any scienter ele-

ment; (3) an entrapment defense was not available to the

accused, who had been targeted in an undercover in-

vestigation and sent an advertisement for erotic materials,

where the accused raised the possibility of purchasing

child pornography, thus indicating his predisposition; and

(4) the accused failed to rebut the presumption that he

received effective assistance of counsel.

Affirmed.

lla

Appellate Counsel for the Appellant: William G. Smith

(argued), Colonel Jeffrey R. Owens, Major Alice M. Kott-

myer, Major Mary V. Yastishock, and Major Ronald G.

Morgan.

Appellate Counsel for the United States: Major Paul H.

Blackwell, Jr. (argued) and Lieutenant Colonel Brenda J.

Hollis.

Before O’HAik, Rives, and MILLS, Appellate Military

Judges.

OPINION OF THE COURT

O’HAIR, Senior Judge:

Pursuant to a pretrial agreement, appellant pleaded

guilty to one specification of conduct unbecoming an of-

ficer which alleged he did:

[W]rongfully and dishonorably solicit the distribution

of videotapes and/or magazines depicting child por-

nography involving children engaged in bondage,

sadism, bestiality, and/or homosexual acts, and

young male castration, the distribution of the said

videotapes and/or magazines is a violation of 18

U.S.C. 2252,

in violation of Article 133, UCMJ, 10 U.S.C. § 933. The

military judge sitting as a general court-martial sentenced

him to be dismissed from the service.

The appellant submitted four assignments of error for

our consideration:

1. The specification of the Charge to which the Ap-

pellant entered a plea of guilty failed to state an of-

fense;

2. The specification of the Charge to which the Ap-

pellant entered a plea of guilty was fatally defective in

not alleging every essential element of the offense

charged;

12a

3. Appellant’s plea of guilty to the specification of

Charge I was improvident;

4. Appellant was denied his Sixth Amendment right

to effective assistance of counsel.

However, during an oral argument, the primary focus was

on the issue of whether appellant was entrapped by federal

authorities. Examining all four assignments of error, we

find none with merit and affirm.

Sometime before the charged misconduct the appellant,

using an assumed name, requested he be sent a catalog

containing pornographic materials which presumably

could be legally purchased through the mail. He received

the catalog at his private post office box and there was no

evidence he ever ordered anything from this catalog. In

late 1989, the United States Customs Service, as part of an

undercover operation targeting child pornography, ob-

tained the mailing list for the above catalog. Those per-

sons whose names were on the mailing list, including the

appellant under his assumed name, were sent a flyer which

advertised “extremely hard to obtain erotica”, but it did

not mention child pornography or other specifics. Using

his assumed name, appellant responded to this letter by re-

questing to purchase “very very young sex videos and

magazines. . . .” He indicated he was “looking for pre-

teen, and young teen” materials. As a result of this letter

appellant was sent a catalog of videos and magazines

featuring pre-teen and young teen subjects and the catalog

listed the ages of the children who appeared in these pro-

ductions. Appellant completed an order blank, selected

two videos and two magazines he wished to purchase and

forwarded $128 in cash to pay for his order. When, after 8

weeks, he had not received his materials, he sent a letter of

complaint to the supposed supplier. After 2 more weeks

13a

of waiting and no receipt, he sent another letter of com-

plaint. Finally, on 25 June 1990, undercover officers ar-

ranged for the two videos appellant ordered to be placed in

his post office box. While under surveillance, appellant

retrieved the videos from his post office box and took

them home. A search of his home was conducted pursuant

to a search warrant and the videos were discovered in the

basement furnace room behind some ceiling insulation.

After the arraignment, but prior to conducting a Care

inquiry into the providence of his guilty plea, the military

judge questioned counsel for both sides as to what each

believed the elements of the offense to be. He also solicited

their opinion as to the maximum allowable punishment.

Following much discussion and many recesses, both par-

ties Orally stipulated to amend the specification. They

agreed that this was done solely for the purpose of clarify-

ing it, without changing its nature or scope. The added

language, which is quoted above, is as follows: “the

distribution of said videotapes and/or magazines is a

violation of 18 U.S.C. 2252.” The military judge per-

mitted the amendment of the specification; however, he

stated he did not see the necessity of reflecting this change

on the charge sheet.*

Appellant’s attack on the overall form and content of

the specification is meritless. The language used in the

specification, as it was amended at trial with the consent

of all parties, complies with the guidance found in the

* The better practice would be to make this amendment on the

charge sheet, rather than leaving it to the staff of the convening

authority to discover such changes and properly reflect them on a pro-

mulgating order.

l4a

explanations and sample specifications of Article 133, and

the Article 134, 10 U.S.C. § 934 offense after which the

specification was fashioned. MCM, Part IV, paragraphs

59c and f, 105b and f.

The military judge informed the appellant that the

following elements constituted the offense of conduct

unbecoming an officer by soliciting the transporting of

child pornography:

1. [A]t or near Waldorf, Maryland, you wrongfully

and dishonorably solicited the distribution of child

pornography, specifically involving children

engaged in bondage, sadism, bestiality, homosexual

acts, and young male castration.

2. [Y]our conduct amounted to solicitation to the Ar-

tiste Internationale that they transport or ship visual

depictions of minors engaged in sexually explicit con-

duct . . . which would be a violation of the Federal

statute, 18 U.S.C. 2252. In other words, you actually

intdended that they violate that statute.

3. [Y]Jou intended that Artiste Internationale

transport visual depictions of minors engaged in sex-

ually explicit conduct in violation of 18 U.S.C.-2252.

4. [T)hat under the circumstances, your conduct was

conduct unbecoming an officer and a gentleman.

The military judge then recited the elements of the of-

fense solicited by appellant, sending child pornography

through the mails:

1. Artiste Internationale would have had to first,

knowingly transport or ship in interstate or foreign

commerce a visual depiction.

2. That visual depiction must be produced using

minors engaged in sexually explicit conduct . . .

15a

3. [T]he visual depiction would show the minors

engaged in sexually explicit conduct.

We find that the specifications, as amended by the par-

ties, satisfies the requirements of Rule for Court-Martial

(RCM) 307(c)(3) that the language amount to a “plain,

concise, and definite statement of the essential facts con-

stituting the offense charged.” The elements, as stipulated

to by the parties and later explained by the military judge,

were a complete description of the facts the government

would have had to prove had this been a contested case.

The appellant raises for the first time on appeal that the

advice to appellant was deficient in that there is an in-

herent “scienter” element missing from this recitation by

the military judge. If the appellant’s argument were ac-

cepted, this would require that the government prove ap-

pellant had actual knowledge of the ages of the minors ap-

pearing in the solicited child pornography. We reject this

proposition. The government need only prove that an ac-

cused had “knowledge of the nature of the contents of the

visual depictions and that the depictions were to be

transported or shipped in interstate or foreign commerce

or mailed.” United States v. Moncini, 882 F.2d 401, 404

(9th Cir.1989). “[I]}t is only the shipment or transportation

of the sexually explicit material which must be knowing.”

United States v. Kleiner, 663 F.Supp. 43, 44

(S.D.Fla.1987). Since the prosecution of a person who

produces child-pornographic materials (under 18 U.S.C.

§ 2251(a)) does not require proof that the defendant has

knowledge of the minor’s age, it makes sense that the pros-

ecution of one who transports these same materials

through the mails can be done without having to prove

l6a

‘knowledge of the minor’s age. See Unitea States v. U.S.

District Court for the Central District of California, 858

F.2d 534, 538 (9th Cir. 1988). Therefore, we conclude that

the military judge was not required to advise appellant

that he had to know the ages of persons depicted in the

pornographic materials he ordered.

The more difficult issue before us is whether appellant’s

plea was provident.The appellant insisted at trial that at

the time of the alleged acts he did not know that mailing

child pornography, and that soliciting another to perform

such an act, were illegal. This prompted the judge to ex-

plain that ignorance of the law is not a defense, and to

secure appellant’s understanding of this principle.

The trial judge was extraordinarily patient and

thorough in all aspects of the providence inquiry,

generously allowing time for appellant to consult with

counsel at times when he showed any hesitation to admit

his culpability. This same manner continued during his ex-

change with the appellant when discussing the defense of

entrapment. Once again, appellant was reticent when he

responded to the judge’s question of whether he

understood that the defense of entrapment was not ap-

plicable to him under the facts of this case. Appellant’s in-

itial response was simply: “I’ve been told that it doesn’t.”

This prompted a further exploration of this topic which

ultimately resulted in appellant’s acceptance of this legal

conclusion.

After the original briefs were submitted in this case, the

U.S. Supreme Court announced a decision in the case of

Jacobson v. United States, __. U.S. ___, 112 S.Ct.

1535, 118 L.Ed.2d 147 (1992). Jacobson was the subject

17a

of a series of communications from federal undercover

agents for 26 months. At the conclusion of that period he

finally requested that several items of child pornography

be sent to him. In finding an entrapment defense existed

and reversing his conviction, Justice White wrote for the

majority:

“Had the agents in this case simply offered petitioner

the opportunity to order child pornography through

the mails, and petitioner— who must be presumed to

know the law—had promptly availed himself of this

criminal opportunity, it is unlikely that his entrap-

ment defense would have warranted a jury instruc-

tion.”

Jacobson, ___. U.S. at ___, 112 S.Ct. at 1541. This

hypothetical description is exactly what we have here.

Undercover agents found appellant’s assumed name on a

mailing list for a catalog of pornographic materials. They

sent appellant a flyer in which there was no mention of

child pornography, and it was appellant who first raised

this topic and indicated his willingness to buy these items.

They sent him a catalog of videos and magazines they had

for sale, which included a listing of the ages of the children

purportedly photographed in their merchandise. Ap-

pellant ordered four itmes with the intent they be mailed to

him at his at his post office box.

From these facts, we agree the defense of entrapment

was not available to appellant. The appellant was

predisposed to commit this crime and the undercover

agents provided no more than an opportunity. United

States v. Whittle, 34 M.J. 206 (C.M.A.1992); United

States v. Clark, 28 M.J. 401 (C.M.A.1989); RCM 916(g).

Our reading of the Stipulation of Fact, appellant’s

testimony and the other prosecution exhibits considered

18a

by the military judge persuade us the plea was provident.

We are convinced appellant anticipated the persons ap-

pearing in the magazines and videotapes he ordered would

be minors. We derive this not only from his initial cor-

respondence which described his preference for “pre-teen

and young teen” materials but also because the ages of the

young actors were contained in those materials. Accord-

ingly, the military judge appropriately informed and ques-

tiones appellant on the elements of the offense to which he

desired to plead guilty, discussed potential defenses with

him and properly accepted the plea. The providence in-

quiry was complete in all respects.

IV

In the final assignment of error, appellant complains

that his trial defense counsel were ineffective. On this

assignment, the Court has considered the affidavit submit-

ted by one of the trial defense counsel. We find the defense

of appellant at trial was effective and conscientious.

The law presumes that counsel are effective and they act

in the best interest of their client. To rebut this presump-

tion appellant must show that the alleged errors of counsel

were So serious that there is a reasonable probability that

the outcome would have been different had they not oc-

curred. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); United States v. Cordes, 33

M.J. 462 (C.M.A.1991); United States v. Bono, 26 M.J.

240 (C.M.A.1988). Our examination of the defense coun-

sel’s affidavit provides a professionally sound explanation

for the tactics followed by the defense at trial. Conse-

quently, we find appellant’s assertion of ineffective

assistance of counsel to be without merit.

19a

For the reasons stated, the findings of guilty and the

sentence are

AFFIRMED.

Judges Rives and MILLS concur.

: U.S. GOVERNMENT PRINTING OFFICE: 1994—381-631/87044