United States v. Gilbert, No. ARMY 20190766, 2020 BL 294990 (A. Ct. Crim. App. July 31, 2020)
Appellant met a 13-year old girl (“MN”) online and asked her to send him nude photos. Although he never received the photos, he pled guilty to (1) attempt to possess child pornography; (2) sexual abuse of a child; and (3) possession of child pornography. On appeal, the ACCA considered whether asking a minor to send naked pictures of herself, and hoping the images contained sexually explicit conduct, satisfied the elements of attempted possession of child pornography. In a unanimous opinion, the ACCA found that it did not.
Appellant’s Conduct Did Not Constitute a Substantial Step In Committing the Crime
To be convicted of attempted possession of child pornography, the solicited images must depict “sexually explicit conduct.”
In this case, Appellant asked for a nude “selfie” of MN, but she declined. She later suggested that she would send Appellant a photo of her clothed breasts. Appellant replied that it would be “only fair” if he could see her naked.
Since the conversation suggested that MN would be sending a nude photo of her breasts only, the military judge concluded that this image would not be “sexually explicit” within the meaning of the statute. However, the military judge still ruled that Appellant took a “substantial step” toward committing the crime because he testified that he “hoped” MN would send him sexually explicit photos eventually.
The ACCA disagreed and held that Appellant’s “hope” that he would receive sexually explicit photos eventually was not a substantial step but only “preparation.” Accordingly, the Court set aside the attempt conviction and remanded for a reassessment of his sentence.
 Judge Walker authored the majority opinion, which was joined by Judges Aldykiewicz and Salussolia.
 Sexually explicit conduct is “(a) sexual intercourse or sodomy; (b) bestiality; (c) masturbation; (d) sadomasochistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person.”
 Appellant previously had sent MN nude videos and photos of himself.