United States v. Simpson
In this guilty plea case, the military judge found Appellant guilty of one specification of conspiring to create and distribute an indecent visual recording, one specification of aiding and abetting the creation of an indecent visual recording, one specification of aiding and abetting the distribution of an indecent visual recording, and three specifications of assault consummated by a battery. The convening authority reduced the confinement of thirty-two months to eighteen (with the balance suspended due to the PTA.
On appeal, the CAAF answered whether it is legally impossible for an Appellant to be convicted of distributing indecent images to himself when the plain language of the code considers the distribution of “another[‘s]” images explicitly. Answering in the negative, the Court affirmed the holding of the NMCCA.
I. Legal Impossibility
While the Court will withhold acceptance of legal conclusions in a stipulation, it will, as it did here, accept the factual statements as true. Appellant, then, offers three arguments for why he cannot be guilty of distributing an indecent recording.
A. The Meaning of Distribute
First, Appellant argues that he could not have violated Article 120c(a)(3)’s prohibition on distributing an indecent recording because he was the recording's recipient. So it was delivered to him and not to “another” person. The Government argued that Appellant is guilty of the offense as an aider and abettor even though he did not “deliver” the recording. The court adopts the definition of distributing in Article 120c(d)(5) that “[d]istribute” means “delivering to the actual or constructive possession of another.”
Agreeing with the Government’s position, the Court found that the distribution element “is satisfied in this case because MB delivered the recording to a person other than herself, namely, to Appellant. And even though MB effected the delivery, Appellant can be guilty of this offense as a principal if he aided and abetted MB.” The Court reminds us that “A principal under an aiding and abetting theory is independently guilty of an offense even though he or she is not the actual perpetrator and did not personally commit all of the acts necessary for the offense.”
B. Congressional Intent
Second, Appellant contends that sustaining his guilty plea would produce a result that Congress never intended. Applying the reasoning of United States v. Hill, the Court concluded that “a person who aids and abets the distribution of an indecent recording can be liable as an aider and abettor if he sufficiently associates himself with the purpose of the actual distributor. In this case, as described above, Appellant did more than just receive an indecent image, he went further to “counsel and encourage MB to distribute the recording, and MB would not have distributed the recording without Appellant’s counseling and encouragement.”
C. MB’s Criminal Liability
Third, Appellant asserts “that he could not be guilty of aiding and abetting MB because MB is a civilian who is not subject to the UCMJ and who did not violate any state law by distributing the recording.” To this, the Government responds contending that such an argument falls outside the scope of the granted issue. The Court Agreed with the Government that the grant of review was limited and that the argument was outside the granted issue. Declining to decide the issue the Court relied on a footnote in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017).
At bottom, finding no prejudicial error, the Court Affirmed Appellant’s conviction.
 In United States v. Hill, 25 M.J. 411 (C.M.A. 1988), the Court asserted that merely buying or possessing drugs generally could not be considered aiding and abetting the distribution of drugs without running afoul of Congress’s intent to make buying drugs a separate offense from distributing drugs. “Otherwise, prosecutors would be free to obliterate the distinction between possessors and distributors by charging any possessor with aiding and abetting the distribution of the drugs which he has received.”
by Farris Francis.
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