Petition for Writ of Certiorari — Filipkowski v. United States

IN THE

Supreme Court of the United States

CAPTAIN VINCENT L. FILIPKOWSKI,

Petitioner

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIF OF CERTIORARI

KAREN L. HECKER

MAJoR, U. S. AIR FORCE RESERVE

Counsel of Record

BEVERLY B. KNOTT ANTONY B. KOLENC

COLONEL, U.S. AIR FORCE CAPTAIN, 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 20032-8000

(202) 767-1562

April 2003

ai ®

QUESTION PRESENTED |

Whether consensual internet conversations between

two adults can form the basis of a criminal

prosecution under 18 U.S.C. § 2422(b), in light of the

clear language of the statute and this Court’s holding

in Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002), where one of the participants falsely claims to

be 15 years old.

~

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TABLE OF CONTENTS

Page

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JURISDICTION ........ssessssessssessssessesssesssessneenseesnens sibiivasncelaiiits 1

CONSTITUTIONAL AND STATUTORY

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MEE GPE WBMES IIE occas cescnsscssinassnsncssusvesnssancsesse 2

REASONS FOR GRANTING THE WRIT oo 4

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APPENDIX A

(Order of the United States Court of Appeals for the

Armed Forces granting review and summarily affirming

lower court opinion (January 9, 2003)) .............:cscceseeees la

APPENDIX B

(Opinion of the United States Air Force Court of

Criminal Appeals (March 29, 2002)) .............:ccssccseeeseess 2a

iv

TABLE OF AUTHORITIES

Page

Constitutional Provisions

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See FIN vccsicissssinccinniintininiesiinriuiintiiiabeinasinainasinneimiiineiianiniiiils ]

Decisions of the Supreme Court of the United States

Ashcroft v. Free Speech Coalition, 535 U.S. 234

IED si ciinascsiietionnsnnesieiipinsihanicabaeailanieliaeiaiecniaibanaadiai 4,6, 7,8

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982)..... 5

Broadrick v. Oklahoma, 413 U.S. 601 (1973)...........:cceeeeeeees 7

Internal Revenue Service v. Cardoza-Fonseca, 480 U.S. 421

CREF D isncscasvianicesactnendinlshnkucsamlabnsanamaieaianiddiameniaaaegeieinis 6

Ratzlaf v. United States, 510 U.S. 135 (1994)... eee >

Reno v. American Civil Liberties Union, 521 U.S. 844, 874

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Federal Statutes

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ae See Ue NE isinincteclchosatenseitheesoherttisheiceaiaebcisanddidaan passim

Legislative Materials

Telecommunications Communication Act of 1996, P. Law

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S. Rpt. 106-250 (Febraary 1, IFIG)...ncccccoccorsncesssenssscnvsessoives 8

Child Protection and Sexual Predator Punishment Act of

1998, H.R. 3494 § 101, 105" Cong., 2d Sess. (1998)........... 8

The petitioner, Captain Vincent L. Filipkowski,

respectfully prays 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 January 9, 2003.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, United States v. Filipkowski,

USCA Dkt. No. 02-0581/AF (January 9, 2003), is located at

Appendix A. The unpublished opinion of the United States

Air Force Court of Criminal Appeals (No. ACM 34056,

March 29, 2002) is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on January 9, 2003.' 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 A, page la.

2

Section 2422(b) of Title 18, United States Code, states

the following:

(b) Whoever, using the mail or any facility or means of

interstate or foreign commerce, or within the special

maritime and territorial jurisdiction of the United States

knowingly persuades, induces, entices, or coerces any

individual who has not attained the age of 18 years, to

engage in prostitution or any sexual activity for which

any person can be charged with a criminal offense, or

attempts to do so, shall be fined under this title,

imprisoned not more than 15 years, or both.

STATEMENT OF THE CASE

On December 23, 1998, the petitioner engaged in an

Internet chat room “conversation” with an individual using

the name “Outdoor Boy FL.” These conversations were in

fact with another adult, Detective Joseph Kenny. However,

Detective Kenny had created a false user profile, which

indicated that his Internet character, “Outdoor Boy,” was

turning 16 years old the next day.

The transcripts of the chats show that it was “Outdoor

Boy” who repeatedly turned the conversation towards sexual

matters. At one point, the petitioner responded to “Outdoor

Boy’s” repeated emphasis on sex by accusing him of only

wanting to communicate through cyber sex and of being too

focused on that topic. The petitioner told “Outdoor Boy”

that he did not want to do that, and he repeatedly emphasized

that he was in no hurry to meet “Outdoor Boy.” “Outdoor

Boy” insisted on meeting that day, apparently because the

detective knew it would not be illegal for “Outdoor Boy” to

engage in sexual activity after he turned 16 years old. Later

that day, the petitioner ultimately agreed to “Outdoor Boy’s”

requests for a meeting and was arrested at a local shopping

mall.

3

However, the petitioner testified that he did not

believe “Outdoor Boy” would show up and that he did not

believe he was really a 15-year-old boy. The petitioner

testified at trial regarding the “fantasy” aspect of his Internet

conversations and explained that he did not know whether

“Outdoor Boy” was a minor vr an adult or whether he was

male or female. His conversations with this “person” were

part of the Internet’s “virtual world” where people often

speak and act untruthfully or inaccurately.

This was corroborated by the testimony of Professor

Brian Ott, an expert in media and culture studies, as well as

in computer-mediated communication. Professor Ott

testified about the unique aspects of the Internet’s “virtual

culture” and the different types of communication styles that

exist on line. A user’s inability to see the nonverbal

communication of the other party requires total reliance on

the verbal communication, breeding a “culture of

skepticism” within the Internet community. Frequent users

of the Internet engage in chats and other communications

expecting, or at least suspecting, that some or all of the

information that they are getting back may not be accurate.

If a minor had actually arrived at the meeting, the

petitioner testified that he simply intended to talk to him

about the struggles of being a gay teenager in today’s

society. The petitioner had undergone similar struggles

when he was growing up, as he observed his family and

society reject his homosexual uncle and others. When he

was a teenager, the petitioner contemplated suicide while he

was dealing with the pressure of his sexuality. He had read

studies relating that gay teenagers are 30% more likely to

commit suicide than straight teenagers are. This stems from

their feelings of fear, rejection and isolation from friends and

family members, along with the normal struggles of being a

teenager. For a teenager in that circumstance to have

someone tell him that “it’s okay and you’re going to be all

ne ae Fe

4

right and successful” can be very helpful. If it turned out

that “Outdoor Boy” was a teenager, the petitioner believed

that he could help “Outdoor Boy” by explaining these things

to him. He adamantly denied any intention to engage in

sexual activity with “Outdoor Boy.”

On September 22-27, 1999, the petitioner was tried

by a general court-martial convened at Peterson Air Force

Base, Colorado. Contrary to his pleas, the petitioner was

found guilty of, inter alia, one specification of violating 18

U.S.C. § 2422(b) for using a facility or means of interstate

commerce (the Internet) to attempt to knowingly persuade,

induce, entice or coerce an individual who has not attained

the age of 18 to engage in a sexual activity for which any

person can be charged with a criminal offense. This

specification was charged under Article 134 of the Uniform

Code of Military Justice, 10 U.S.C. § 934, which authorizes

courts-martial to try military members for conduct that

violates federal law. Petitioner was sentenced to a dismissal,

confinement for two years and total forfeitures of his pay and

allowances.

On March 29, 2002, the Air Force Court of Criminal

Appeals affirmed the petitioner’s conviction. This decision

was released several weeks before this Court’s decision in

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

[hereinafter “Free Speech Coalition”). The petitioner

appealed that decision to the United States Court of Appeals

for the Armed Forces, disputing the constitutionality of his

conviction in light of this Court’s Free Speech Coalition

decision. On January 27, 2003, the United States Court of

Appeals for the Armed Forces granted review of the

petitioner’s case and simultaneously affirmed his conviction

in a summary disposition.

5

REASONS FOR GRANTING THE WRIT

The petitioner’s conversations were conducted with

an adult who was posing as a 15-year-old child. The

government utilized the “attempt” portion of 18 U.S.C. §

2422(b) and convicted the petitioner of “attempting” to

knowingly persuade, induce or entice a child under 18 to

engage in unlawful sexual activity. This conviction is

contrary to the clear language of the statute and cannot

withstand constitutional scrutiny under the First Amendment.

As this Court has noted, “absent a clearly expressed

legislative intent to the contrary, [the statutory] language

must ordinarily be regarded as conclusive.” American

Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982). The plain

language of the statute demonstrates that the petitioner’s

conduct is not a federal offense. The statute makes it

unlawful for anyone to attempt to knowingly persuade,

induce, entice or coerce any individual who has not

attained the age of 18 years. 18 U.S.C. § 2422(b)

(emphasis added). This language is unambiguous and

clearly requires the involvement of an individual under the

age of 18. In order to “attempt to persuade” a person under

18 to engage in a criminal sexual act, one must communicate

that language to an actual person under 18, yet be

unsuccessful in those persuasion efforts.

The legislative history of this statute also

demonstrates that the statute does not proscribe sexual

conversations when no one under 18 years old is involved.

Normally, courts will not “resort to legislative history to

cloud a statutory text that is clear.” Ratzlaf v. United States,

510 U.S. 135, 147-48 (1994). However, the legislative

history of this statute further bolsters the plain and

unambiguous statutory language. Subsection (b) of 18

U.S.C. § 2422(b) was added to the statute in 1996 as part of

the Telecommunications Communication Act of 1996. P.

6

Law 104-104, 110 Stat. 137. It was enacted the same year as

the Child Pornography Protection Act, aspects of which were

ruled unconstitutional by this Court in its Free Speech

Coalition decision.

According to the Committee Report on the statute,

this section was added to support Congress’s “need ... to

take effective action to protect children and families from

online harm.” S. Rpt. 104-230 (February 1, 1996). The

Report also referenced a July 24, 1995, Senate Judiciary

Committee hearing regarding “online indecency, obscenity,

and child endangerment. The record of this hearing supports

the need for Congress to take effective action to protect

children and families from online harm.” Jd. Clearly,

Congress’s concern in enacting this legislation was to limit

some speech in order to protect actual children from being

harmed through contact with someone over the Internet.

However, in the petitioner’s case, the statute was used to

convict him of engaging in speech with an adult posing as a

minor.

In 1998, members of the House of Representatives

introduced legislation that included proposed changes to this

Statute. Those changes would have explicitly criminalized

“knowingly contacting an individual, who has_ been

represented to the person making the contact as not having

attained the age of 18 years.” Child Protection and Sexual

Predator Punishment Act of 1998, H.R. 3494 § 101, 105"

Cong., 2d Sess. (1998). Congress specifically rejected those

arguments and thus made clear that the legislature did not

intend to cover the conduct charged in the petitioner’s case.

“Few principles of statutory construction are more

compelling than the proposition that Congress does not

intend sub silentio to enact statutory language that it has

earlier discarded in favor of other language.” Internal

Revenue Service v. Cardoza-Fonseca, 480 U.S. 421, 442-43

(1987) (citations omitted). Here, Congress declined to enact

7 : ~—

the provisions pertaining to assumed minors. Given that

Congress discarded the language that would have addressed :

the conduct at issue in petitioner’s case, the conduct at issue

in this case does not constitute a federal offense.

Petitioner’s conviction also is constitutionally infirm.

The statute at issue in this case directly implicates First

Amendment concerns, as it criminalizes words and

statements. Statutes that attempt to restrict or burden the

exercise of First Amendment rights “must be narrowly

drawn and represent a considered legislative judgment that a

particular mode of expression has to give way to other

compelling needs of society.” Broadrick v. Oklahoma, 413

U.S. 601, 611-612 (1973). Thus, a statute that attempts to

proscribe constitutionally protected speech will not be

enforced unless a limiting construction effectively removes

the apparent threat to constitutionally protected expression.

Id. at 613.

“Sexual expression which is indecent but not obscene

is protected by the First Amendment.” Reno v. American

Civil Liberties Union, 521 U.S. 844, 874 (1997). “The

Constitution gives significant protection from overbroad

laws that chill speech within the First Amendment’s vast and

privileged sphere.” Free Speech Coalition, 535 U.S. at 244.

Applying this principle, 18 US.C. § 2422(b) is

unconstitutional on its face and as applied to the petitioner if

it prohibits a substantial amount of protected expression.

Such an impermissible prohibition will and does occur when

the statute is applied so expansively as to prohibit attempted

persuasion of an adult masquerading as a child under 18, as

in petitioner’s case.

In the context of child pornography, this Court has

held that Congress’s attempts to restrain free speech are

limited when the material at issue did not involve the use of

actual children. Jd. The Court noted 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.

This same logic and analysis should apply when Congress

attempts to restrain speech between two adults when one is

posing as a child.

In Free Speech Coalition, this Court stated that

“Congress may pass valid laws to protect children from

abuse, and it has.... The prospect of crime, however, by

itself does not justify laws suppressing protected speech....

It is also well established that speech may not be prohibited

because it concerns subjects offending our sensibilities.”

535 U.S. at 245. The Court noted that “the government has

shown no more than a remote connection between speech

that might encourage thoughts or impulses and any resulting

child abuse,” and “without a significantly stronger, more

direct connection, the Government may not prohibit speech

on the ground that it may encourage pedophiles to engage in

illegal conduct.” Jd. at 253-254.

In reaching materials that were made without the

involvement of children, the statute “abridged the freedom to

engage in a substantial amount of lawful speech” and was

therefore “overbroad and unconstitutional.” Jd. at 256.

These holdings and concepts apply equally to the statute at

issue in the petitioner’s case.

Congress may pass a law that protects children from

abuse, but that statute needs to be limited to the protection of

actual children. As noted above, the clear language of 18

U.S.C. § 2422(b) addresses that concern—a person can be

convicted of communicating with an actual minor in a

successful or unsuccessful effort to persuade the minor to

engage in criminal sexual conduct. However, the statute

cannot constitutionally be read or applied so broadly as to

implicate speech between adults. An Internet conversation

9 me

between two adults regarding sexual matters is

constitutionally protected.

The petitioner’s conversations did not “involve, let

alone harm, any children” when they were being conducted.

Id. at 241. The conversations between the petitioner and the

other adult were not obscene. Yet, the “attempt” aspect of

the statute as applied to the petitioner prohibited speech “that

records no crime and creates no victims by its production.”

It therefore proscribes a significant universe of speech that is

not obscene. As in Free Speech Coalition, this statute

cannot withstand constitutional scrutiny when applied to a

situation that does not involve or harm a child.

CONCLUSION

The petitioner’s conduct is not actionable under the clear

statutory language of 18 U.S.C. § 2422(b), as well as the

legislative history of that statute. | Furthermore, his

conviction is unconstitutional under this Court’s precedents,

including Ashcroft v. Free Speech Coalition, supra. His

conversations with the other adult were protected by the First

Amendment and he therefore respectfully requests that this

Court grant his petition for a writ of certiorari. Alternatively,

the petitioner would respectfully suggest that, in view of the

summary affirmance by the Court below, the case be

remanded to the United States Court of Appeals for the

Armed Forces with instructions to consider the impact of

Ashcroft v. Free Speech Coalition, supra, on its holding.

April 2003

10

Respectfully submitted,

KAREN L. HECKER

Major, United States Air Force Reserve

Counsel of Record

-~

ANTONY B. KOLENC

Captain, United States Air Force

BEVERLY B. KNOTT

Colonel, United States Air Force

Appellate Defense Division

Air Force Legal Services Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20032-8000

(202) 767-1562

la

Appendix A

United States Court of Appeals for the Armed Forces

Washington, D.C. 20442-0001

UNITED STATES, ) USCA Dkt. No. 02-0581/AF

) Crim.App. No. 34056

Appellee _)

)

v. ) ORDER

) :

Vincent L. )

FILIPKOWSKI, )

)

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 9" day of January, 2003,

ORDERED:

a

That said petition is hereby granted; and

That the decision of the United States Air Force Court of

Criminal Appeals is affirmed.

For the Court,

/s/ William A. DeCicco

Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (HECKER)

Appellate Government Counsel (RIDER)

2a

Appendix B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Captain VINCENT L. FILIPOWSKI [sic]

United States Air Force

ACM 34056

29 March 2002

Sentence adjudged 27 September 1999 by

GCM convened at Peterson Air Force Base,

Colorado. Military Judge: Amy M. Bechtold.

Approved sentence: Dismissal, confinement

for 2 years, and total forfeiture of pay and

allowances.

Appellate Counsel for Appellant: Lieutenant

Colonel Beverly B. Knott, Lieutenant Colonel

Timothy W. Murphy and Captain Karen L.

Hecker.

Appellate Counsel for the United States:

Colonel Anthony P. Dattilo, Lieutenant

Colonel Lance B. Sigmon, and Major Jennifer

R. Rider.

3a

Before

YOUNG, BRESLIN and HATTRUP!

Appellate Military Judges

OPINION OF THE COURT

BRESLIN, Senior Judge:

The appellant was convicted, contrary to his pleas, of

disobeying the lawful order of his superior commissioned

officer, negligent dereliction of duty, and using a facility of

interstate commerce to attempt to persuade, induce, entice, or

coerce a person under 18 years of age to engage in sexual

activity in violation of 18 U.S.C. § 2422(b). Articles 90, 92,

and 134, UCMJ, 10 U.S.C. §§ 890, 892, 934. The sentence

adjudged and approved was a dismissal, confinement for 2

years, and forfeiture of all pay and allowances.

The appellant contends that the conviction must be

set aside because of unlawful command influence, and that

the evidence is legally and factually insufficient to support a

conviction under 18 U.S.C. § 2422(b). Through the avenue

afforded by United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982), the appellant contends that the failure to obtain

permission to proceed to trial from offices issuing security

clearances is a jurisdictional defect, that the evidence is

legally and factually insufficient to support the convictions

for disobeying an order and dereliction of duty, and that the

sentence was inappropriately severe. Finding no error, we

affirm.

' Judge Hattrup participated in this decision before her departure

from the Court on 28 February 2002.

4

4a

Background

The appellant worked on highly-classified projects

involving satellites and communications at Peterson Air

Force Base, Colorado. He was a major-select, with almost

12 years’ service at trial time.

In October 1997, his unit commander gave him a

written letter of admonishment for using his government

computer to maintain statistics for his fantasy football

league. The letter of admonishment instructed the appellant

to remove any unofficial documents from his government

computer, and to use the Internet only for official business.

In 1998, during a performance feedback session, another

supervisor told him to stop using his government computer

for fantasy football. Later that year, a third supervisor told

him directly not to use his government computer during duty

time to engage in fantasy football and other similar activities

not related to his official duties.

In December 1998, the detachment commander

ordered a review of the appellant’s computer. The analysis

revealed that the appellant had opened fantasy football

spreadsheets during duty hours 258 times after receiving the

letter of admonishment, and that the programs remained

opened for up to 4 hours a day. The dates and times he

opened the spreadsheets corresponded to times he opened

sports statistics sites on the Internet.

At that same time, the appellant was on leave in

Jacksonville, Florida, for Christmas. On 23 December 1999,

the appellant went on the Internet, using the screen name

“SteelerCS.” He used the services of America On-Line, and

his transmissions were routed through Virginia. The

appellant entered a chat room entitled “JAXFL M4M.” The

abbreviation “M4M” means “men for men,” indicating a chat

room catering to homosexuals. The appellant began

Sa

communicating through instant messages with a person using

the screen name “OUTDRBOYFL,” who indicated he was

15 years old. Using instant messages, they had a lengthy

discussion, which was full of sexual references and

innuendo. They agreed to meet that day at a local mall.

In fact, OUTDRBOYFL was a team of police officers

working on Central Florida’s Child Exploitation Task Force.

The police officers intended to arrest the appellant at the

mall, but difficulties in printing out the transmissions

prevented them from doing so. The police surveilled the

appellant as he waited at the mall and later drove away.

The Florida police sent another message to

“SteelerCS” explaining that the OUTDRBOYFL was unable

to go to the mall. The appellant and OUTDRBOYFL had

another discussion through instant messages. It included

very explicit sexual matters. The appellant again agreed to

meet OUTDRBOYFL at a local store. The Florida police

were waiting, and “rested the appellant when he arrived at

the meeting place.

The appellant was properly advised of his rights, and

agreed to make a statement. He told the poiice he only

intended to counsel the boy, because he seemed confused

about his sexuality. He added that “he wasn’t even horny,”

because he had met an 18-year-old male on line the night

before, and had oral sex with him. The appellant told the

police that he was a homosexual.

After a day in civilian confinement, Florida

authorities released the appellant, and he returned to

Colorado. Air Force authorities seized his government

computer, and suspended his security clearances. He was

denied access to the office computer systems, and was

assigned duties outside his normal work area, because co-

workers often brought classified work to their desks. The

6a

command did not publicize the details of the case at the

outset, but the obvious change in circumstances generated

rumors and discussion.

The appellant began working on his defense. He

obtained numerous letters from co-workers attesting to his

good character and duty performance. A few individuals

complained that the appellant was pressuring them to

provide letters. He asked a lieutenant to help him obtain

copies of an earlier e-mail, and she aliowed him to use her

computer to send a request for the data. Later, she realized

that she violated the order denying the appellant access to the

office computer systems, and informed her superiors. The

command notified the appellant to stay out of the work area,

not to access the computer systems, and to contact the

command to request data or information for his defense.

In April 1999, trial counsel began interviewing

members of the detachment. These interviews sparked

gossip and speculation within the unit. The detachment

commander, Colonel (Col) Bogenrief, preferred charges

against the appellant on 3 May 1999. In anticipation of a

formal pretrial investigation, the appellant began collecting

character statements from detachment members. This

generated more rumors and speculation. On 7 May 1999, at

the end of a routine commander’s call, Col Bogenrief, read a

summary of the charges against the appellant, and reminded

unit personnel that the appellant was not to have access to

the unit’s computer systems.

While court-martial charges were pending, Col

Bogenrief made a comment at a staff meeting attended by 10

to 15 people that the appellant was a “dick sucking weasel.”

Apparently, Col Bogenrief used the expression from time to

time in referring to others. It was intended to describe

people who were opportunistic and self-serving, rather than

Ta

anything relating to sodomy. Some detachment members

heard rumors of this comment.

Still later, in a private conversation with several

detachment leaders, it was mentioned that the appellant was

taking leave to return to Florida to get his car, which had

been seized by the Florida authorities. Col Bogenrief

advised the appellant’s supervisor to “keep an eye” on the

appellant, because “he might run his car into a bridge

abutment.” He then smiled and added a comment to the

effect that it might save them all some bother. Rumors of

this comment also spread to some members of the

detachment.

The appellant learned of the detachment

commander’s comments shortly before trial. The appellant’s

counsel advised the prosecutors that they intended to raise an

issue concerning unlawful command influence. The

prosecutors investigated the matter. In an excess of caution,

the government arranged for a meeting with the unit

members. Col Bogenrief informed them that the appellant

was “innocent until proven guilty,” that they were free to

assist the defense if they chose, and that there would be no

reprisal against anyone who assisted the defense.

Unlawful Command Influence

At a preliminary session of the court-martial, the

appellant moved io dismiss the charges because of unlawful

command influence. Fhe~appellant alleged that the

commander created an atmosphere of fear and intimidation

within the organization so powerful that witnesses refused to

testify to his good character, denying him a defense. The

military judge heard evidence and entered extensive

findings. The military judge found actual and apparent

unlawful command influence. She denied the motion to

dismiss, but ordered remedial measures to assure the

8a

appellant’s ability to present a defense. The appellant now

renews his assertion of unlawful command influence before

this Court. We find no basis for relief.

Article 37, UCMJ, 10 U.S.C. § 837, provides, “No

person subject to this chapter may attempt to coerce or, by

any unauthorized means, influence the action of a court-

martial . . . in reaching the findings or sentence in any case.”

Improper conduct by a commander is known as unlawful

command influence. United States v. Stombaugh, 40 M.J.

208, 213 (1994); United States v. Thomas, 22 M.J. 388, 393

(C.M.A. 1986). The burden of production is on the party

alleging unlawful command influence. Stombaugh, 40 M.J.

at 213. While the threshold for raising unlawful command

influence at trial is low, it must be more than mere allegation

or speculation. United States v. Biagase, 50 M.J. 143, 150

(1999); Stombaugh, 40 M.J. at 213; United States v.

Johnston, 39 M.J. 242, 244 (C.M.A. 1994).

[T]here must be something more than an

appearance of evil to justify action by an

appellate court in a particular case. “Proof of

[command influence] in the air, so to speak,

will not do.” We will not presume that a

military judge has been influenced simply by

the proximity of events which give the

appearance of command influence in the

absence of a connection to the result of a

particular trial. United States v. Thomas, 22

M.J. 388, 396 (C.M.A. 1986), cert. denied,

479 U.S. 1085 [ ] (1987); see also United

States v. Levite, 25 M.J. 334, 341 (C.M.A.

1987) (Cox, J., concurring).

United States v. Allen, 33 MJ. 209, 212

(C.M.A.1991).

9a

Once the issue of command influence is

raised, the government must prove beyond a

reasonable doubt: (1) that the predicate facts do not

exist; or (2) that the facts do not constitute unlawful

command influence; or (3) that the unlawful

command influence will not prejudice the

proceedings or did not affect the findings and

sentence. Biagase, 50 M.J. at 151.

The military judge heard extensive testimony on the

motion. The defense counsel presented the testimony of ten

witnesses, including six members of the detachment and the

appellant; the prosecution called two witnesses. At the

conclusion of the evidence, the military judge entered

lengthy findings of fact and conclusions of law.

On issues of command influence, appellate courts

review the military judge’s findings of fact under a clearly-

erroneous standard, but review de novo “the question of

command influence flowing from those facts.” United States

v. Argo, 46 M.J. 454, 457 (1997) (quoting United States v.

Wallace, 39 M.J. 284, 286 (C.M.A. 1994)). It is necessary to

review the evidence and findings regarding these allegations.

Lieutenant Colonel (Lt Col) Samuel Walker indicated

that he feared that if he testified on behalf of the appellant, it

might affect his ability to get promoted. On cross-

examination, Lt Col Walker admitted that he came forward

because he was “trying to just protect my six so that I can

finish my career.”” Lt Col Walker explained that Col

Bogenrief had an aggressive management style that he found

intimidating, but that he had no knowledge of any retaliatory

actions taken by the commander. Lt Col Walker also stated

that he didn’t know the appellant and had no opinion about

2 “Six” or “Six o’clock” is term used to refer to the rear of an

aircraft.

~ 10a

his character. The military judge made findings of fact

relating to Lt Col Walker.

Applying the law to the facts in this case, I

find that Lieutenant Colonel Walker fears that

Colonel Bogenrief would engage in reprisal

action against those who testify in support of

the accused. This opinion appears to be based

solely on the commander’s brusque and

sometimes dictatorial manner... . Although

there is no evidence that Colonel Bogenrief

has intentionally attempted to improperly

influence Lieutenant Colonel Walker, it is

apparent that his management style has

created a very real belief on the part of

Lieutenant Colonel Walker that Colonel

Bogenrief would engage in_ unlawful

command _ influence. This constitutes

apparent unlawful command influence.

Reviewing the factual findings of the military judge

under the “clearly-erroneous” standard, we find them to be

amply supported by the record. Lt Col Walker found the

commander’s authoritarian style intimidating; his

exaggerated fear of the commander caused him to speculate

about what the commander might do.

Reviewing the military judge’s conclusion that this

was “apparent unlawful command influence” under the de

novo standard, we find the military judge erred. Proof of

apparent unlawful command influence must be more than

“mere speculation.” United States v. Baldwin, 54 M.J. 308,

311 (2001); Biagase, 50 M.J. at 150; Johnston, 39 M.J. at

244. The proof must be such that a reasonable person who

was aware of all the facts would conclude that the system

was unfair. United States v. Rosser, 6 M.J. 267, 271 (C.M.A.

1979). See also United States v. Allen, 31 M.J. 572, 590

lla

(N.M.C.M.R. 1990); United States v. Cruz, 20 M.J. 873, 890

(A.C.M.R. 1985), rev’d in part on other grounds, 25 M.J.

326 (C.M.A. 1987).

In this case, the fact that Col Bogenrief’s

management style was authoritarian, even if true, would not

cause a reasonable person to believe that he would engage in

unlawful command influence. See Allen, 33 M.J. at 212;

Levite, 25 M.J. at 341 ({A]n appellant’s unsubstantiated

assertion that unlawful command influence exists is not

going anywhere. . . .); Green v. Widdecke, 42 C.M.R. 178,

181 (C.M.A. 1970) (“[G]Jeneralized, unsupported claims of

‘command control’ will not suffice to create a justiciable

issue.”) Lt Col Walker’s exaggerated and unsubstantiated

fear of reprisal, no matter how sincerely held, is insufficient

to justify remedial action.

The military judge also heard the testimony of two

witnesses who claimed that they feared reprisal for assisting

the defense: Captain (Capt) Julie Plummer and Lt Col Anne

Kearney. The military judge found that the fear expressed

by Capt Plummer and Lt Col Kearney was based solely upon

their perception of the commander’s authoritarian

management style, and their speculation that he would treat

unfairly anyone that opposed him. Both were nonetheless

willing to testify against the commander, but did not really

know the appellant. The military judge found no unlawful

command influence concerning Lt Col Kearney. The

military judge found that Capt Plummer’s belief was

genuine, and concluded that constituted apparent unlawful

command influence. For the reasons discussed above, we

find this was error. We find no basis in law for finding

apparent unlawful command influence based upon Capt

Plummer’s speculations.

The military judge also considered allegations that

Senior Master Sergeant (SMSgt) Parks refused to support the

12a

appellant because of fear of reprisal by the commander.

SMSgt Parks was not called as a witness, although he was

apparently available. The military judge allowed all the

allegations to be presented through hearsay statements from

witnesses, primarily Capt Boldt, a defense attorney assisting

the trial defense team. The evidence reveals that (then)

Master Sergeant (MSgt) Parks received a letter of reprimand

from his superior officer for an inappropriate comment.

Upon receiving the reprimand, MSgt Parks wadded up the

paper and threw it away. MSgt Parks thought the reprimand

was unfair, and worried that it would affect his next annual

performance report, and his upcoming chance at promotion.

The appellant approached MSgt Parks and requested a

Statement attesting to the appellant’s character. MSgt Parks

did not feel he knew the appellant well enough to provide

such a statement. MSgt Parks was also worried initially that

supporting the appellant would anger the command and

adversely affect his opportunity for promotion. While the

case progressed, MSgt Parks received a performance report

unaffected by the reprimand and was_ subsequently

promoted. Later, SMSgt Parks attended the unit assemblies

in which personnel were advised that there would be no

repercussions against anyone who assisted the appellant’s

defense. In the days before trial, he changed his mind and

had “no opinion” about whether assisting the defense would

adversely affect his career. However, according to the

appellant, in a private telephone conversation just before

trial, SMSgt Parks indicated that he did not want to support

the appellant because he feared it would affect a future

assignment. The prosecution did not call SMSgt Parks as a

witness.

Ruling on the motion, the military judge found:

With respect to Senior Master Sergeant Parks,

the information presented indicates a fear of

reprisal is the reason that he does not want to

13a

provide support. The defense has therefore

presented information which, if true,

constitutes unlawful command influence. The

government has failed to meet its burden by

clear and convincing evidence that unlawful

command influence does not exist with

respect to Senior Master Sergeant Parks.

Rather than making more detailed findings of fact,

the military judge provided a single factual conclusion; i.e.

that SMSgt Park’s fear of reprisal was the reason he did not

want to assist the defense. This finding does not comport

with the weight of the evidence. Nonetheless, we must find

that the military judge’s finding of fact regarding SMSgt

Parks was not “clearly-erroneous” because there was some

evidence (the appellant’s self-serving statement) that could

support the finding.

Reviewing the military judge’s conclusions of law de

novo, we find error. We note the military judge applied the

wrong standard, asserting that the government failed to

disprove the allegations by “clear and convincing evidence”

rather than “beyond a reasonable doubt.” See Biagase, 50

M.J. at 151. We find no prejudice to the appellant from this,

however. If the government did not disprove the allegation

by clear and convincing evidence, then it would not have

satisfied the more stringent “beyond a reasonable doubt”

standard.

The more significant error in the military judge’s

conclusion of law is her determination that the facts provided

a basis for a finding of unlawful command influence. SMSgt

Parks’ fear is a fact, but the fact of his fear does not raise an

issue of unlawful command influence under the

circumstances. A reasonable person who knew all the facts

surrounding SMSgt Park’s administrative discipline and

subsequent promotion would not conclude that the command

14a

would engage in unlawful reprisal if SMSgt Parks testified

for the appellant. No matter how sincerely SMSgt Parks

believed it, it is nothing more than unfounded speculation.

The military judge also found that the commander’s

actions in announcing the charges and placing limitations

upon the appellant’s personal access to information from

within the unit’s information systems were not improper.

We agree. The restrictions on access were reasonable in

light of the heightened security interests involved. There is

no evidence the appellant was denied any information

relevant or necessary to his defense.

We are also convinced beyond a reasonable doubt

that actual or apparent unlawful command influence, if any,

did not prejudice the proceedings or affect the findings or

sentence. Jd. Because of her findings regarding SMSgt

Parks and “the totality of the circumstances,” the military

judge ordered remedial measures. She ruled that she would

grant any motion to compel the production of any witness

from the unit, and ordered the command staff excluded from

the courtroom and its environs. She also directed trial

counsel to offer a point of contact for all defense witness in

the event they feel they are the victims of reprisal.

Subsequently, the defense (joined by the prosecution) asked

the military judge to order another unit meeting, so that trial

counsel could inform all unit members of their right to

cooperate. The military judge ordered the additional

remedy, and it was carried out the next day.

The case proceeded to trial on the merits. The

defense did not ask the military judge to compel the

production of any witness, and did not present a “good

character” defense in findings. During the sentencing

portion of the case, the defense presented 25 character

statements, including letters from Lt Col Rattray, a member

of the unit, and Capt Plummer. Under the circumstances,

15a

any possibility of prejudice was eliminated. See United

States v. Rivers, 49 M.J. 434, 443 (1998).

Legal and Factual Sufficiency of the Evidence—18 U.S.C.

§ 2422(b)

The appellant maintains that the evidence is legally

and factually insufficient to support his conviction for

violating 18 U.S.C. § 2422(b) by using the Internet to

attempt to persuade, induce, or entice a person under 18

years of age to engage in unlawful sexual activity. We do

not agree.

Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we

will approve only those findings of guilt we determine to be

correct in both law and fact. The test for legal sufficiency is

whether, when the evidence is viewed in the light most

favorable to the government, any rational fact finder could

have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). The test for factual sufficiency is whether, after

weighing the evidence and making allowances for not having

observed the witnesses, we ourselves are convinced of the

appellant’s guilt beyond a reasonable doubt. United States v.

Turner, 25 M.J. 324, 325 (C.M.A. 1987). This is the test we

employ in this case. But see United States v. Nazario, 56

M.J. 572 (A.F. Ct. Crim. App. 2001); United States v.

Washington, 54 M.J. 936, 941 (A.F. Ct. Crim. App. 2001)

(indicating Congress-intended this Court to employ a

preponderance of the evidence test in determining the factual

sufficiency of the evidence).

On appeal, as he did at trial, the appellant argues that

he did not have the specific intent to commit the charged

offense when he engaged in the conversations over the

computer. The thrust of the appellant’s argument is that the

electronic conversation on the Internet was simply a

r

16a

fantasy—an “Internet play game’”—and that he had no

intention of ever meeting the other person or engaging in

sexual relations. He argues that the “culture of skepticism”

in this fantasy world is such that he did not really believe

that the person communicating with him was a 15 year-old

boy. The argument is significantly undercut by the fact that

the appellant actually traveled—twice—in an attempt to

meet the other person.

The appellant also offers an alternative argument,

claiming that he did intend to meet the other correspondent

for the purpose of “just going shopping,” or to serve as a

mentor for an obviously troubled young man. Of course, this

second argument contradicts the first regarding whether he

wanted to meet and who he expected to meet. Moreover, the

explicit nature of the sexual discussion indicates the purpose

of the proposed meeting was to be a sexual, not merely

social, encounter.

The appellant’s argument that the law enforcement

agents entrapped him is unpersuasive. The detectives

provided the appellant an opportunity to commit the offense,

but the idea of the crime did not originate with the

government. See Rule for Courts-Martial (R.C.M.) 916(g).

The law enforcement officers were skillful in pressing the

appellant to declare what he wanted without first suggesting

what that should be. In any event, it is clear the appellant

was predisposed to use the Internet to set up meetings with

other males for sexual relations. He admitted to the arresting

officers that just the night before he had engaged in oral

sodomy with a male he met over the Internet. While that

would not have violated 18 U.S.C. § 2422(b) absent proof

that the individual was under 18 years old, it is still an

offense under the UCMJ. Article 125, UCMJ, 10 U.S.C. §

925.

17a

Jurisdiction and “Permission to Proceed”

Citing United States vy. Grostefon, 12 MJ. 431

(C.M.A. 1982), the appellant maintains ‘that, before

prosecuting him, the Air Force failed to obtain permission

from all necessary agencies as required by Air Force

Instruction (AFI) 31-501, USAF Personnel Security

Program, J 8.9 (2 May 1994). He argues that, as a result, the

court-martial lacked jurisdiction over his case. We do not

agree.

The appellant had access to highly classified

programs. When these offenses came to light, his access was

removed. Under AFI 31-501, a commander contemplating

disciplinary action that could result in the removal of the

subject from the service must request permission to proceed

from the agencies that grant the security clearances.

Paragraph 8.9.8 provided, in pertinent part, “Under no

circumstances may the charges be referred to trial until the

appropriate action office grants authority to proceed.” The

appellant concedes that the government obtained permission

from his unit, the Air Force Operational Test and Evaluation

Center, to proceed to trial, but argues that it failed to

properly obtain permission from other affected agencies.

It is unnecessary for this Court to determine whether

permission to proceed was properly obtained in this case.

The Constitution of the United States gives Congress the

authority to regulate the land and naval forces. U.S. Const.

art. I, § 8, cl. 14. Congress established the jurisdiction of

courts-martial through the UCMJ. The appellant does not

Suggest that he does not meet the jurisdictional requirements

of the UCMJ.

The appellant alleges a violation of an Air Force

regulation. However, military courts are not justified in

attaching jurisdictional significance to service regulations in

18a

the absence of their express characterization as such by

Congress. United States v. Kohut, 44 M.J. 245, 249 (1996);

United States v. Jette, 25 M.J. 16, 18 (C.M.A. 1987). The

violation of a regulation may be asserted by an accused only

if it was prescribed to protect an accused’s rights. United

States v. Sloan, 35 M.J. 4, 9 (C.M.A. 1992).

In this case, the regulation in question is a policy

statement designed to protect the interests of the Air Force in

classified information, rather than to provide personal rights

to one who holds a security clearance. Even assuming

arguendo that there was a violation, it would not deprive the

court-martial of jurisdiction.

Factual and Legal Sufficiency—Disobey Order/Dereliction

of Duty

The appellant was convicted of negligent dereliction

of duty between 15 June 1998 and 30 October 1998 for using

his government computer for other than official purposes.

He was also found guilty of disobeying a lawful order not to

use his computer to play fantasy football on divers occasions

between 2 November 1998 and 5 December 1998. Citing

Grostefon, the appellant argues the evidence was legally and

factually insufficient to support the convictions. We

disagree.

At the time of the offenses, regulations required

government personnel to use government equipment for

official purposes only. Commanders were authorized to

allow some limited personal use of computers, provided it

did not adversely impact duty performance and was in the

best interests of the Air Force. The appellant notes that

others in the organization used their government computers

for personal purposes. He argues, as he did at trial, that he

was mistaken about whether his use of the government

computer to access and use fantasy football statistics was

isin

19a

permissible. However, the evidence reveals that superior

officers specifically told the appellant—three times—not to

use his government computer to engage in fantasy football

activities. Under the circumstances, his claim of ignorance is

unpersuasive. The evidence is legally sufficient to support

the conviction, and we are also convinced beyond a

reasonable doubt of the appellant’s guilt.

Sentence Appropriateness

The appellant argues that his sentence is

inappropriately severe, in light of his years of service, his

record of performance, and the nature of the offenses. We

do not agree.

Article 66(c), UCMJ, 10 U.S.C. § 866(c), requires

this Court to approve only that sentence, or such part or

amount of the sentence, as it finds correct in law and fact and

determines should be approved. The determination of

Sentence appropriateness “involves the judicial function of

assuring that justice is done and that the accused gets the

punishment he deserves.” United States v. Healy, 26 M.J.

394, 395 (C.M.A. 1988). In order to determine the

appropriateness of the sentence, this Court must consider the

particular appellant, the nature and seriousness of the

offense, the appellant’s record of service and all matters

contained in the record of trial. United States v. Snelling, 14

M.J. 267 (C.M.A. 1982); United States v. Aus, 47 M.J. 817,

828 (A.F. Ct. Crim. App. 1998).

We find the sentence appropriate for the offenses and

the offender. The appellant committed a serious crime by

attempting to entice what he believed to be a i5-year-old boy

into a sexual encounter. The offense reflects great discredit

not only upon the appellant but the entire Air Force. We

realize that the wrongful use of a government computer is,

by itself, a relatively minor transgression. However, the

20a

offenses were aggravated in this case because the appellant

repeatedly failed to follow, or intentionally disobeyed,

instructions from superior officers telling him not to use his

computer for these purposes.

The approved findings are correct in law and faci,

and no error prejudicial to the substantial rights of the

appellant occurred. Article 66(c), UCMJ; United States v.

Turner, 25 M.J. 324, 325 (C.M.A. 1987). Accordingly, the

approved findings and sentence are

AFFIRMED.

OFFICIAL

/s/

FELECIA M. BUTLER, TSgt, USAF

Chief Court Administrator