United States v. Johnston
ACM 39075
| A.F.C.C.A. | Nov 16, 2017Background
- Appellant, a 22‑year‑old Airman, responded to a Craigslist ad and engaged in ~4 days of emails/texts with an account he believed was a 14‑year‑old girl (“Julia”), but which was an AFOSI undercover account.
- In the exchanges Appellant acknowledged her age, used explicit sexual language, asked for nude photos of her vagina, and sent a photo of his penis.
- He was charged and convicted at a general court‑martial of two specifications of attempted sexual abuse of a child (Article 80/Article 120b‑type conduct) and one specification of attempted receipt of child pornography (Article 80, underlying listed Article 134 offense).
- Appellant appealed, arguing (1) preemption — that Article 134 (child pornography) is preempted by Article 120b(c); (2) legal and factual insufficiency of the attempted receipt conviction (lack of intent and substantial step); and (3) sentence inappropriateness.
- The CCA reviewed preemption de novo, reviewed legal and factual sufficiency de novo, and reviewed sentence appropriateness de novo and affirmed findings and sentence (dishonorable discharge, 10 months confinement, reduction to E‑1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption of Article 134 child‑pornography offense by Article 120b | Article 134 (receiving child pornography) is preempted because Congress intended Article 120b to comprehensively govern child sexual misconduct | Article 134 listed offense of child pornography remains separate and not absorbed by changes to Article 120b | Not preempted; Article 134 child‑pornography offense stands distinct and may underlie an Article 80 attempt charge |
| Legal sufficiency of attempted receipt conviction (specific intent) | Appellant lacked specific intent to receive child pornography | Appellant’s explicit requests for nude images of a 14‑year‑old and sexualized messages show specific intent | Legally sufficient: a reasonable factfinder could infer specific intent from messages requesting nude photos |
| Factual sufficiency of attempted receipt conviction (substantial step) | No substantial step toward receipt of child pornography | Repeated requests for genital images, logistical discussion, and sending his own penis photo demonstrate a substantial step | Factually sufficient: appellate court, after fresh review, is convinced of guilt beyond a reasonable doubt |
| Sentence appropriateness | Sentence (dishonorable discharge) is overly severe; ask reduction to BCD | Sentence was significantly below maximum and appropriately addresses serious misconduct | Sentence affirmed as not inappropriately severe given offenses and record |
Key Cases Cited
- United States v. Anderson, 68 M.J. 378 (C.A.A.F.) (preemption requires Congress intended another article to cover the area completely)
- United States v. Curry, 35 M.J. 359 (C.M.A.) (preemption two‑part test described)
- United States v. Turner, 25 M.J. 324 (C.M.A.) (legal sufficiency standard for conviction)
- United States v. Washington, 57 M.J. 394 (C.A.A.F.) (de novo review for legal/factual sufficiency)
- United States v. Barner, 56 M.J. 131 (C.A.A.F.) (draw every reasonable inference for prosecution on legal sufficiency)
- United States v. Lane, 64 M.J. 1 (C.A.A.F.) (de novo review of sentence appropriateness)