United States v. Dellacamera
201600230
| N.M.C.C.A. | Mar 30, 2017Background
- Appellant, a military policeman in Okinawa, messaged an online persona he believed was a 14-year-old girl, using explicit sexual language and requesting nude photographs.
- He sent an image of his naked torso/partially exposed penis and another man’s exposed penis, and proposed sexual meeting; the account was an NCIS undercover agent.
- He drove from his duty location toward the supposed victim’s home and was apprehended before meeting.
- At an uncontested court-martial he pleaded guilty to: attempted sexual assault of a child, attempted sexual abuse of a child (lewd act), attempted production of child pornography, absence without leave, indecent exposure (Article 120c), and solicitation of production/distribution of child pornography.
- Sentence: 48 months confinement, reduction to E‑1, dishonorable discharge; CA approved and suspended confinement in excess of 14 months per PTA.
- On appeal the court affirmed most pleas but found the providence of the indecent exposure plea (Article 120c) improvident under precedent and set that finding aside; it reassessed and affirmed the remaining findings and sentence.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether dishonorable discharge is mandatory for an Article 80 conviction involving attempted Article 120b(b) | Dishonorable discharge not mandatory | Prior decisions support sentence as imposed | Rejected; consistent with United States v. Henegar |
| Whether solicitation of child pornography plea was improvident because the recipient was an adult undercover agent (legal impossibility) | Solicitation impossible as agent was an adult, so no actual child pornography could be produced | Solicitation judged by defendant’s belief; impossibility (legal or factual) is not a defense to solicitation/attempt | Rejected; plea provident — defendant’s belief controls (treat accused according to facts as supposed) |
| Whether attempted sexual abuse (lewd act) plea was improvident because the photo was not indecent | Photo of partially exposed penis not indecent; plea thus not provident | Lewd-act element under Art. 120b requires intent to arouse — indecency not required; appellant admitted intent | Rejected; plea provident for attempted sexual abuse (lewd act) |
| Whether indecent exposure (Art. 120c) plea was provident where charge was based on electronically transmitted image | Electronic transmission of indecent image to an adult does not fall within Art. 120c as intended by Congress | Appellant’s conduct insufficient as a matter of law for indecent exposure under Art. 120c | Granted in part; indecent exposure conviction set aside as improvident and legally insufficient; court reassessed sentence and affirmed remainder |
Key Cases Cited
- United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (treat accused according to facts as he supposed them to be; impossibility is not a defense to attempt)
- United States v. Williams, 553 U.S. 285 (2008) (solicitation of child pornography from an undercover agent criminal under federal statute; impossibility not a defense)
- United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010) (solicitation specification may fail where the solicited act cannot be committed by the solicited person)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (factors guiding appellate sentence reassessment)
- United States v. Uriostegui, 75 M.J. 857 (N-M. Ct. Crim. App. 2016) (electronic transmission of indecent image to an adult not punishable under Art. 120c)
- United States v. Henegar, 75 M.J. 772 (N-M. Ct. Crim. App. 2016) (treatment of discharge issue addressed; relied upon here)