United States v. Wagner

52 M.J. 634, 1999 CCA LEXIS 312, 1999 WL 1144788
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 15, 1999
DocketNMCM 98 00342
StatusPublished

This text of 52 M.J. 634 (United States v. Wagner) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Wagner, 52 M.J. 634, 1999 CCA LEXIS 312, 1999 WL 1144788 (N.M. 1999).

Opinion

ANDERSON, Judge:

A military judge, sitting as a special court-martial, convicted the appellant, pursuant to his pleas, of wrongfully appropriating a credit card, housebreaking, seven specifications of obtaining Internet services under false pretenses, wrongfully receiving child pornography, and wrongfiilly possessing child pornography in violation of Articles 121, 130, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 930, and 934 (1994). The appellant was sentenced to confinement for 90 days, forfeiture of $500 pay per month for three months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

After carefully considering the record of trial, the appellant’s two assignments of error, the Government’s response, supplemental pleadings, and oral argument, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. See Arts. 59(a) and 66(c), UCMJ.

Facts

The appellant unlawfully entered a fellow Marine’s barracks room, took a credit card from the Marine’s wallet, copied the number, and later used it to pay for access to pornographic images located on a variety of Inter[636]*636net websites. From the Internet websites, he received and downloaded visual depictions of minors involved in sexually explicit conduct. He stored some of the downloaded pornographic images on computer disks and printed out some of the images.

Preemption

In his first assignment of error, the appellant contends that his conviction for the possession of child pornography under Article 134, UCMJ, as an offense prejudicial to good order and discipline and/or as service discrediting conduct was preempted by federal law. We disagree.

Article 134, UCMJ, creates three different types of crimes, commonly referred to as clause 1, 2, and 3 offenses:

Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve non-capital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act____

Manual for Courts-Martial, United States (1998 ed.), Part IV, H60c(l). The use of Article 134, UCMJ, however, is limited by the preemption doctrine: “If any conduct [charged under Article 134, UCMJ] is specifically made punishable by another article of the code, it must be charged as a violation of that article.” Id. This doctrine “prohibits [the] application of Article 134 to conduct covered by Articles 80 through 132.” Id. at 1160c(5)(a). '

The appellant pleaded guilty to possession of child pornography in violation of Article 134, UCMJ, charged under clauses 1 and 2. That specification alleged that the appellant did:

wrongfully and unlawfully possess computer floppy disks and computer generated photographs, which contained visual depictions, when the producing of said visual depictions involved the use of minors engaged in sexually explicit conduct, and the visual depictions were of such conduct, which conduct by the [appellant] was to the prejudice of good order and discipline in the armed forces and/or of a nature to bring discredit upon the Armed Forces.

Charge Sheet, Charge TV, Specification 11.

A parallel specification was also charged under clause 3. That specification alleged that the appellant did:

violate section 2252(a)(4)(A)’ of Title 18, United States Code, as follows: within a building owned by, leased to, or otherwise used by or under the control of the Government of the United States, by possessing 3 or more computer floppy disks and computer generated photographs, which contained visual depictions, when the producing of said visual depictions involved the use of minors engaged in sexually explicit conduct, and the visual depictions were of such conduct.

Charge Sheet, Charge IV, Specification 10. The appellant pled not guilty to this specification, and it was ultimately withdrawn by the Government and dismissed by the military judge.

The key difference between the two specifications was in the number of child pornographic matters alleged to have been possessed. The clause 3 specification alleged the possession of three or more items, while the clause 1/clause 2 specification did not allege a specific number of matters possessed. To be convicted of violating the federal statute, 18 U.S.C. § 2252(a)(4)(A), under clause 3, the appellant would have had to admit to possession of three or more items. The statute prohibited the following conduct:

Any person who ... on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States ... knowingly possesses three or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction, ... if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and such visual depiction is of such conduct.

[637]*63718 U.S.C. § 2252(a)(4)(A) (1994), amended by Pub.L. No. 105-314, § 203(a)(1), 112 Stat. 2974, 2978 (1998).1

The appellant asks us to set aside his conviction under clauses 1 and 2 of Article 134, UCMJ, and his argument is two-fold. First, he argues that the providence inquiry failed to establish that he possessed three or more items of child pornography, thus rendering any guilty plea to a prosecution under the clause 3 specification improvident. Second, he argues that by enacting 18 U.S.C. § 2252(a)(4)(A), Congress preempted the military from creating a new offense under clauses 1 and 2 that criminalized the possession of less than three items. On both a factual and a legal basis, we decline to set aside the conviction.

“In determining the providence of [an] appellant’s pleas, it is uncontroverted that an appellate court must consider the entire record in a case.” United States v. Johnson, 42 M.J. 443, 445 (1995). In this case, the appellant admitted during the providence inquiry to possessing at least one computer disk containing downloaded images of child pornography and two computer-generated photographs of child pornography. Record at 55-56; Prosecution Exhibit 1 at 3-5. During the appellant’s sworn testimony on sentencing, he also admitted that he possessed more than one computer disk containing images of child pornography, an admission consistent with a stipulation of fact that referred to his possession of “computer disks” containing images of child pornography. Record at 74; Prosecution Exhibit 1 at 3. Although these disks contained “between 20 and 50” images of child pornography, each disk can only be considered a single matter under the federal statute.

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Bluebook (online)
52 M.J. 634, 1999 CCA LEXIS 312, 1999 WL 1144788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wagner-nmcca-1999.