United States v. Coleman

54 M.J. 869, 2001 CCA LEXIS 3, 2001 WL 55523
CourtArmy Court of Criminal Appeals
DecidedJanuary 24, 2001
DocketARMY 9801240
StatusPublished
Cited by5 cases

This text of 54 M.J. 869 (United States v. Coleman) is published on Counsel Stack Legal Research, covering Army 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. Coleman, 54 M.J. 869, 2001 CCA LEXIS 3, 2001 WL 55523 (acca 2001).

Opinion

[870]*870OPINION OF THE COURT

CARTER, Judge:

A military judge, sitting as a general court-martial, convicted appellant, pursuant to his pleas, of carnal knowledge (three specifications), sodomy with a child (two specifications), indecent acts upon a child (two specifications), unlawful and knowing receipt of visual depictions of minors engaged in sexually explicit conduct,1 and false swearing, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, and 934 [hereinafter UCMJ]. The adjudged sentence was a bad-conduct discharge, confinement for six years, forfeiture of all pay and allowances, and reduction to Private El. The pretrial agreement required the convening authority to disapprove any confinement in excess of eight years. After reviewing appellant’s Rule for Courts-Martial 1105 [hereinafter R.C.M.] matters, the convening authority adopted his staff judge advocate’s recommendation and reduced appellant’s confinement to five years, but otherwise approved the adjudged sentence. This case is before the court for review under Article 66, UCMJ, 10 U.S.C. § 866.

We heard oral argument on appellant’s second assignment of error:

APPELLANT WAS NOT PROVIDENT TO CHARGE IV AND ITS SPECIFICATION BECAUSE THE FACTS DO NOT ESTABLISH THAT THE PRODUCTION OF THE VISUAL DEPICTIONS “INVOLVE [D] THE USE OF A MINOR” AS REQUIRED BY 18 U.S.C. § 2252(a)(2)(A).

For the reasons to be discussed, we disagree.

Facts

Appellant was actively involved in “chatting” with minor girls on the Internet, engaging in sexual activity with minor girls, and exchanging and collecting sexually explicit photographs of minor girls. The carnal knowledge, sodomy, and indecent acts charges concerned appellant’s sexual activities with three different girls, L.B., D.B., and D.P., all under the age of sixteen.

In the fall or winter of 1995, appellant met L.B. at an on-post bowling alley. Appellant was twenty-two years old. He knew that L.B. was fifteen years old. Within two weeks of meeting, they engaged in sexual intercourse at the home of one of L.B.’s friends.

In December 1997, appellant began conversing with D.B. in an Internet chat room. Appellant knew that D.B. was fourteen years old. After communicating over the Internet for two to three weeks, appellant met D.B. at an off-post movie theater. During the movie, appellant placed his hand under D.B.’s clothes, inserted his finger in her vagina, and rubbed her breasts over her shirt. The next evening, appellant accepted D.B.’s invitation to come to her parent’s residence while she was alone. After taking their clothes off, appellant penetrated D.B.’s vagina with his finger and rubbed her breasts. Appellant then performed cunnilingus on D.B., after which they engaged in sexual intercourse on three occasions. D.B. also performed fellatio on appellant at his request. During a conversation on a subsequent date, appellant asked D.B. to let him take nude pictures of her or the two of them nude together. She agreed, but appellant never took any pictures of her. Appellant sent her, over the Internet, pictures of himself with his penis exposed.

In January 1998, appellant communicated with D.P. in an Internet chat room. D.P. told appellant that she was fourteen years old. Within a week of their initial conversation, appellant met D.P. at a pool on Fort Huaehuca, Arizona. From there they drove to a remote site on post, where both appellant and D.P. took off their clothes in the uncovered bed of his pickup truck. Appellant penetrated D.P.’s vagina with his finger and she fondled his penis. Appellant then performed cunnilingus on D.P., after which they engaged in sexual intercourse.

[871]*871On 6 March 1998, appellant lied in a sworn statement concerning the number of times he had sexual intercourse with these girls. Two sworn statements by appellant, admitted during the providence inquiry, described other uncharged misconduct concerning underage girls and nude pictures. In one of these statements, appellant specifically admitted to sending nude frontal pictures of himself to girls under eighteen; to knowingly providing pornographic pictures to juveniles; to soliciting juveniles to let him take pictures of them in the nude or in sexually explicit positions; and to knowingly sending child pornography to persons in other states.

Between 1 November 1997 and 31 March 1998, appellant downloaded onto the hard drive of his computer approximately fifty-five images of what appeared to be minors engaged in sexually explicit conduct. Based upon these images, the Specification of Charge IV alleged that appellant:

did at Fort Huachuca, Arizona 85613, on or between 01 November 1997 and 31 March 1998, unlawfully and knowingly receive visual depictions that had been transported by computer, via the Internet, in interstate and foreign commerce, which said visual depictions, when produced, involved the use of a minor engaging in sexually explicit conduct, and which said visual depictions are of such sexually explicit conduct, which is a violation of Title 18, United States Code, Section 2252(a) (1998).2

The parties stipulated to the following facts regarding the above offense:

On or between 01 November 1997 and 31 March 1998, PFC Coleman did possess, distribute and receive, via the Internet, computer reproductions containing images of child pornography, teen and pre-teen children nude and performing sexual acts. Over 50 images of child pornography were copied from PFC Coleman’s computer depicting children as young as five engaging in various sexual acts with adults and other children. PFC Coleman did distribute these images to other juveniles and adults in Arizona as well as other states in the United States. PFC Coleman’s conduct was of such nature to bring discredit upon the Armed Forces.

18 U.S.C. § 2252 Offense

In a two-pronged argument, appellant requests that we set aside and dismiss his conviction under 18 U.S.C. § 2252 and order a rehearing on his sentence. First, appellant argues that 18 U.S.C. § 2252, unlike the subsequently enacted 18 U.S.C. § 2252A, requires the actual exploitation of real children under the age of eighteen, as opposed to computer-generated images of children. Second, appellant claims his guilty plea is improvident because the military judge failed to specifically ask him how he knew that the images he downloaded were of real children rather than computer-generated images of children.

We agree with the first prong of appellant’s argument. Both 18 U.S.C.

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

Related

United States v. Washburne
59 M.J. 866 (Navy-Marine Corps Court of Criminal Appeals, 2004)
United States v. Leco
59 M.J. 705 (Navy-Marine Corps Court of Criminal Appeals, 2003)
United States v. Cream
58 M.J. 750 (Navy-Marine Corps Court of Criminal Appeals, 2003)
Ashcroft v. Free Speech Coalition
535 U.S. 234 (Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 869, 2001 CCA LEXIS 3, 2001 WL 55523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-coleman-acca-2001.