United States v. Trempe
201600150
| N.M.C.C.A. | Jan 31, 2017Background
- Appellant, an adult service member, engaged in explicit online communications with a 15-year-old cousin and a 17-year-old step-niece between 2013–2014, including requests for nude photos and sending images of his erect penis.
- He pled guilty at general court-martial to sexual abuse of a child (Art. 120b) and indecent language (Art. 134); military judge found a factual basis and accepted the pleas.
- Sentenced to 18 months’ confinement, reduction to E-1, and a dishonorable discharge; convening authority modified to a bad-conduct discharge and suspended confinement beyond 300 days per a pretrial agreement.
- On the record the appellant described why the communications were indecent: familial relationship, victim under 18, solicitation of nude/genital images, and tendency to incite lustful thoughts.
- Appellant appealed, arguing the indecent-language plea was improvident for three reasons and the CMO misstated a location phrase (the court noted the CMO error sua sponte).
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether plea to indecent language was improvident due to inconsistency with other statements (relationship advanced to consensual sex) | Appellant: later consensual/romantic relationship conflicts with guilt for indecent language earlier | Gov: relationship outcome does not negate indecency of earlier statements; appellant admitted facts making language indecent | Court: No substantial conflict; plea provident — facts support indecency despite later relationship |
| Whether alleged language failed to violate community standards (not "indecent") | Appellant: language not grossly offensive to community standards; thus not indecent | Gov: judge defined indecent language; appellant admitted communications would be vulgar/disgusting to community and solicited pornographic images from a minor | Court: Military judge’s definition and appellant admissions provided sufficient factual basis; language reasonably tends to incite libidinous thoughts |
| Whether judge erred by not advising appellant about First Amendment/protected speech distinction (Hartman heightened inquiry) | Appellant: judge should have explained constitutionally protected categories and distinction | Gov: here speech was not constitutionally protected (solicitation from a minor, familial context); Hartman inquiry not required | Court: Hartman not triggered; indecent language not protected and judge did not abuse discretion in not conducting heightened inquiry |
| Whether CMO accurately reflected findings (location phrase) | (Not raised by appellant) | Court observed CMO failed to reflect not-guilty finding for phrase "at or near Tampa, Florida" in a specification | Court: No prejudice found but ordered corrective action to fix CMO |
Key Cases Cited
- United States v. Moon, 73 M.J. 382 (C.A.A.F. 2014) (standard for reviewing providence of guilty pleas and Hartman guidance)
- United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011) (heightened plea inquiry required where constitutionally protected conduct implicated)
- United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007) (resolving inconsistencies between plea and later statements)
- United States v. Green, 68 M.J. 266 (C.A.A.F. 2010) (relationship context relevant to indecent-language inquiry)
- United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) (need for showing "reasonably direct and palpable" connection to military mission when protected speech implicated)
- United States v. Moore, 38 M.J. 490 (C.A.A.F. 1994) (indecent language not protected by First Amendment in military context)
- Parker v. Levy, 417 U.S. 733 (1974) (military necessity can permit restrictions outside civilian constitutional norms)
- United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (protected conduct may still be punishable in military when prejudicial to good order and discipline)
- United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (plea providence requires accused’s factual recitation and understanding of law)