United States v. Hale
On February 4, 2021, in an unpublished opinion, AFCCA affirmed the findings and sentence of Airman Dylan S. Hale (Appellant).
Hale opinion here
Background & Convictions
Two incidents led to Appellant’s charges, both of which occurred the year after his enlistment and when he was 18-years-old. First, Appellant met a 16-year-old male, RV, when volunteering at a local Civil Air Patrol program. After Appellant sent RV multiple sexually themed text messages, RV and his father involved the police, who assumed RV’s identity for the purposes of communicating with Appellant. The police also introduced a fictitious minor into the conversation, who was purported to be a 14-year-old foster child. During their conversations, Appellant asked for photos of RV’s penis, and he made plans to meet the two boys at a local mall in order to have sex. When Appellant arrived at the mall, he was met by local law enforcement and AFOSI agents, leading to his convictions of two specifications of attempted sexual assault of a child and one specification of attempted receipt of child pornography. After Appellant’s arrest, AFOSI agents found 61 images of child pornography on Appellant’s external hard drive, leading to his conviction, contrary to his plea, of possession of child pornography.
Second, several months after Appellant’s arrest, he attended an on-base party where he became intoxicated. At the party, Appellant became frustrated with an acquaintance, CJC, after he denied that they had sex. Appellant tried to grab CJC’s head, missed, and then grabbed him by his shirt. Later that night, Appellant attempted to hit CJC with his vehicle, but instead struck CJC’s friend. Appellant then tried to flee the base—but the gate was closed. Just before he was detained by law enforcement at the gate, Appellant told his friend, CC, who had been with him all night, to lie about what happened. However, both the hit-and-run and their conversation was recorded by Appellant’s dashboard audio-visual recorder. These events led Appellant being convicted of two specifications of simple assault, two specifications of assault consummated by a battery, one specification of operating a vehicle while drunk, one specification of wrongfully leaving the scene of an accident, and one specification of willful dereliction of duty.
Finally, following the party, AFOSI agents searched a safe in Appellant’s room and found THC, along with two substances known as 3-FPM and dimethocaine. Appellant admitted that he ingested the latter two substances despite knowing that he was prohibited to do so. This led to his convictions of wrongful possession of THC and failure to obey a lawful general regulation proscribing possession of substances to alter mood or function.
 3-FPM is a chemically altered form of an appetite suppressant that is intended to boost mood and self-esteem. Dimethocaine is an anesthetic that produces effects similar to cocaine.
Appellant was sentenced to a dishonorable discharge, confinement for 3,040 days, and reduction to the grade of E-1. On appeal, Appellant argued: (1) whether the court-martial lacked jurisdiction over him for possession of child pornography, when he received the porn prior to enlisting; (2) whether evidence was sufficient to support his convictions; and (3) whether the SJA erred in advising the convening authority that he could not grant administrative confinement credit.  The Court also addressed an issue not raised by Appellant: (4) whether he was entitled to relief for facially unreasonable post-trial delay. Finding no error materially prejudicial, the AFCCA affirmed the findings and sentence.
1. Possession of Child Porn Received Before Enlistment
Appellate contended that no evidence showed he knowingly possessed child pornography after he enlisted, and that he did not have control over computer files in unallocated space. The Court rejected both of these arguments. First, the forensic digital media examiner testified that all media came from allocated space—i.e., from files that were not deleted. Additionally, forensic evidence revealed that Appellant had recently accessed the child pornography, showing that he exercised “direct or constructive control” of the files after the date of his enlistment.
2. Legal and Factual Sufficiency of Convictions
Appellant brought two arguments against the sufficiency of his conviction of attempted sexual assault of a child. First, Appellant argued that traveling to the mall to meet JV and the fictitious minor was not a “substantial step” towards committing the offense. The Court quickly dismissed this challenge, holding that “courts agree that travel constitutes a substantial step.” In addition, the Court found evidence that Appellant intended penetrative contact based on his text conversations. Second, the Court held that Appellant was not entrapped despite text messages showing his hesitation after learning the age of the fictitious minor. Specifically, the Court found no entrapment when the context of Appellant’s text messages suggested that his hesitation was actually due to the minor’s “looks” and difficulty in finding a safe location to have sex without getting caught.
The Court also dismissed Appellant’s claim that he was not guilty of attempted receipt of child pornography. Specifically, Appellant argued that he was not guilty because his conduct was not service discrediting and because he thought that he could legally request a sexual photo from “a boy who was old enough to consent.” Rejecting these claims, the Court ruled that Appellant’s incessant “badgering” RV for a picture of his penis showed that he engaged in discrediting conduct. Further, the Court held that the “specific intent” element of the crime only includes intent to commit the act—the crime does not require knowing that the act is illegal.
Appellant also argued that he did not know THC was in his safe, claiming that the THC was mixed with the 3-FPM when he received the substance. When the AFOSI agents searched Appellant’s safe, they seized two substances: a white substance later identified as 3-FPM, and a green “leafy” substance later identified as THC. The two substances were found sitting next to each other, but the agents collected both powders into a single bag. Because there was more than “trace amounts” of THC mixed in with the 3-FPM, the Court found “strong circumstantial evidence” that Appellant knew the green substance was “of a contraband nature,” especially considering that it was stored next to a controlled substance analogue familiar to Appellant.
3. Advice to Convening Authority
Appellant also claimed that the convening authority was incorrectly advised that he did not have the authority to grant three-to-one administrative credit for the days Appellant endured harsh conditions in pretrial confinement. However, Appellant cited no authority to show that the convening authority could award administrative credit for harsh conditions of pretrial confinement. The Court disagreed with the logic of Appellant’s argument that “the convening authority could have circumvented the limitations on his power by instead granting ‘administrative credit’ against [his] sentence.” Further, because the appropriate avenue for this relief was through the military judge, and at trial Appellant had expressly waived his right to file the appropriate R.C.M. 305 motion, the Court found that no relief was warranted.
4. Post-Trial Delay
Finally, though not argued by Appellant, the Court addressed whether he was entitled to relief for facially unreasonable post-trial delay when the AFCCA did not render a decision within 18 months of docketing. Specifically, Appellant’s case was docketed in July 2019, but due to 14 enlargement of time requests from both Appellant and the Government, the final reply brief was not submitted until November 2020. Thus, because Appellant was largely responsible for the delay and did not assert that he was entitled to relief on the issue, the Court found that he did not experience any cognizable prejudice and that the delay was not so egregious as to adversely affect the perceived fairness and integrity of the military justice system. Accordingly, finding no error materially prejudicial to Appellant’s substantial rights, the Court affirmed the findings and sentence.
 The Court briefly dismissed Appellant’s claim that the court-martial lacked jurisdiction because he was a juvenile when he initially received the child pornography, citing United States v. Baker, 34 C.M.R. 91, 93 (C.M.A. 1963) (holding that the Federal Juvenile Delinquency Act does not apply to the military). The Court also held Appellant waived his right to argue that two specifications were unreasonably multiplied and dismissed three Grostefon claims without discussion.
 “Unallocated space” is the location where a computer typically stores residual data from deleted files.
LT Chris Clifton
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