United States v. Bilby

34 M.J. 1191, 1992 CMR LEXIS 570, 1992 WL 136413
CourtU S Air Force Court of Military Review
DecidedJune 9, 1992
DocketACM 29250
StatusPublished
Cited by1 cases

This text of 34 M.J. 1191 (United States v. Bilby) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bilby, 34 M.J. 1191, 1992 CMR LEXIS 570, 1992 WL 136413 (usafctmilrev 1992).

Opinion

OPINION OF THE COURT

O’HAIR, Senior Judge:

Pursuant to a pretrial agreement, appellant pleaded guilty to one specification of conduct unbecoming an officer which alleged he did:

[Wjrongfully and dishonorably solicit the distribution of videotapes and/or magazines depicting child pornography 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 Appellant entered a plea of guilty failed to state an offense;
2. The specification of the Charge to which the Appellant entered a plea of guilty was fatally defective in not alleging every essential element of the offense charged;
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, obtained the mailing list for the above catalog. Those persons 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 requesting 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 his 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 productions. 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 of waiting and no receipt, he sent another letter of complaint. Finally, on 25 June 1990, undercover officers arranged 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. Fol[1193]*1193lowing much discussion and many recesses, both parties orally stipulated to amend the specification. They agreed that this was done solely for the purpose of clarifying 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 permitted the amendment of the specification; however, he stated he did not see the necessity of reflecting this change on the charge sheet.

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Related

United States v. Bilby
39 M.J. 467 (United States Court of Military Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
34 M.J. 1191, 1992 CMR LEXIS 570, 1992 WL 136413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bilby-usafctmilrev-1992.