United States v. Brantner

54 M.J. 595, 2000 CCA LEXIS 259, 2000 WL 1818376
CourtU S Coast Guard Court of Criminal Appeals
DecidedDecember 12, 2000
DocketCGCMG 0142; Docket No. 1103
StatusPublished
Cited by8 cases

This text of 54 M.J. 595 (United States v. Brantner) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brantner, 54 M.J. 595, 2000 CCA LEXIS 259, 2000 WL 1818376 (uscgcoca 2000).

Opinions

McClelland, judge:

Appellant was tried by a general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of 12 specifications of violating a lawful general order by using a government computer to download sexually explicit images from the Internet in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892, and 8 specifications of violating 18 U.S.C. § 2252(a)(2) by knowingly receiving child pornography in interstate commerce in violation of Article 134, UCMJ, 10 U.S.C. § 934. The court sentenced Appellant to be reduced to E-1, to [597]*597forfeit all pay and allowances, to be confined for two years and to be separated from the Coast Guard with a dishonorable discharge.

In accordance with the pretrial agreement, the convening authority approved the reduction to E-l, the confinement and the forfeitures, but suspended reduction below E-3 and the forfeitures for six months and suspended confinement in excess of ten months for twelve months.1 The convening authority also mitigated the dishonorable discharge to a bad-conduct discharge, which he approved.

The facts, as revealed in a stipulation of fact and in the providence inquiry, are as follows. Appellant was assigned to USCGC RED BIRCH (WLM 687). Among other duties, Appellant was responsible for maintaining the cutter’s Internet web page. He was given access to and custody of the ship’s laptop computer, on which he loaded software licensed to him by Erol’s Internet Services, so that he could work on the ship’s Internet web page. In order to access the software on the computer, Appellant used his personal password, which he had registered with Erol’s, and all his excursions on the Internet used his Erol’s software. Over a period of approximately three and a half months, Appellant’s Internet visits included browsing pornographic Internet web sites and engaging in Internet Relay Chat (IRC) or “chat room” activities where he actively sought and exchanged pornographic images, sometimes posing as a teenage girl in order to obtain pornographic images of children and minors. In all, Appellant downloaded to the hard drive of the ship’s computer 812 pornographic image files, 42 of which contained images of persons under the age of eighteen engaged in sexually explicit conduct.

Before this Court, Appellant has assigned four errors. Three of the assignments contend that his pleas of guilty of Article 92 were improvident, because (1) the regulation he was charged with violating is vague; (2) the record does not establish that the regulation is a lawful general order; (3) the constitutionality of the regulation was not satisfactorily resolved. The fourth assignment is that the pleas of guilty of Article 134 were improvident because the record does not establish scienter. We reject the assignments and affirm.

I. Vagueness

Appellant contends that the pleas of guilty to the specifications under Charge I, alleging violations of a lawful general order, were improvident because the regulation (order) was unconstitutionally vague.

The part of the regulation identified in the specifications as having been violated reads as follows:

Standard. An employee has a duty to protect and conserve Government property and shall not use such property, or allow its use, for other than authorized purposes.

This text is followed in the regulation by the following definitions (emphasis added) and examples:

Government property includes any form of real or personal property in which the Government has an ownership, leasehold, or other property interest as well as any right or other intangible interest that is purchased with Government funds, including the services of contractor personnel. The term includes office supplies, telephone and other telecommunications equipment and services, the Government mails, automated data processing capabilities, printing and reproduction facilities, Government records, and Government vehicles.
Authorized purposes are those purposes for which Government property is made available to members of the public or those purposes authorized in accordance with law or regulation.
Example 1: Under regulations of the General Services Administration at 41 CFR 201-21.601, an employee may make a personal long distance call charged to her personal calling card.
Example 2: An employee of the Commodity Futures Trading Commission whose office computer gives him access to a commercial service providing information for investors may not use that service for personal investment research.
[598]*598Example 3: In accordance with chapter 252 of the Federal Personnel Manual, an attorney employed by the Department of Justice may be permitted to use her office word processor and agency photocopy equipment to prepare a paper to be presented at a conference sponsored by a professional association of which she is a member.

Appellant claims that the regulation is vague because it fails to adequately define “use” and “authorized purposes.” His argument appears to be premised on the notion that the examples affect the meaning of the regulation. We do not read them that way. The examples are just that, examples. Examples 1 and 3 are examples where a personal use of government property has been preauthorized by a regulation' — apart from the instant regulation. This alerts the reader that the reader’s proposed use, too, may be authorized by some regulation. Such examples in no way render the basic regulation vague. A person who uses government property for a personal purpose without first obtaining individual authorization or ensuring that a regulation exists authorizing that use does so at his or her peril.

Appellant also complains that the examples fail to fully explain their rationale, suggesting that the approval of the use in example 1 or disapproval in example 2 may be somehow related to the effect of the use on the government equipment. Appellant’s confusion really amounts to incredulity that it could really be unlawful to apply government property to personal use when the effect on the government property is minimal.2 Indeed, it is hard to imagine a person being prosecuted for making a telephone call that does not incur direct expense to the government. However, that reality of prosecutorial discretion does not negate or render vague a clear, simple regulation that government property is not to be put to unauthorized use.

Stripped of its distractions, Appellant’s vagueness argument boils down to a complaint that the regulation fails to address his particular situation within its text. The regulation speaks in generalities. This is not the same as being vague. What is authorized can be determined with reasonable certainty, in some cases by reference elsewhere, in other cases by common sense. Common sense says that activities directly relating to official duties are authorized. Activities not relating to official duties are authorized if another regulation or authority so provides.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Halsey
62 M.J. 681 (U S Coast Guard Court of Criminal Appeals, 2006)
United States v. Halsey
62 M.J. 681 (Air Force Court of Criminal Appeals, 2006)
United States v. Montes
60 M.J. 759 (U S Coast Guard Court of Criminal Appeals, 2004)
United States v. Labean
56 M.J. 587 (U S Coast Guard Court of Criminal Appeals, 2001)
United States v. Coleman
54 M.J. 869 (Army Court of Criminal Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 595, 2000 CCA LEXIS 259, 2000 WL 1818376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brantner-uscgcoca-2000.