CAAF affirms United States v. Ferguson

United States v. Ferguson

We granted review to determine whether the military judge erred by accepting Appellant’s guilty plea to indecent exposure.  We hold that there is no substantial basis in law or fact to
question Appellant’s plea to indecent exposure and affirm the judgment of the United States Air Force Court of Criminal Appeals (CCA).

The indecent exposure and other acts happened over the internet, primarily via webcam.

Appellant pled guilty at a general court-martial to attempting, on divers occasions, to send obscene materials to a minor via the Internet; on divers occasions communicating indecent language via the Internet to a person he believed to be a minor; indecent exposure; and possession of child pornography.

Appellant submitted his case to the CCA without assignment of error, but the CCA specified an issue concerning the providence of Appellant’s guilty plea to indecent exposure.

The issue is whether or not the indecent exposure was public.

Appellant asked bradnh14 whether he was alone. Bradnh14 responded that he was alone, but Appellant later admitted that he “couldn’t have known who was in the room” and that it could have been more than just bradnh14.  Appellant further admitted that he performed these acts in public view in an indecent manner, and that it was grossly vulgar, obscene, repugnant, and tended to incite lust. He asserted that it was indecent because he “couldn’t have known who was in the room. So, therefore, it would be a public — within public view, and the fact that [he] was sending it to a minor — that [he] thought was a minor.” In his stipulation of fact, Appellant admitted that the Internet transmission could have been intercepted[.]

Judges Ryan and Erdmann dissented.

The offense of indecent exposure, particularly in the Internet age, has been subject to a certain degree of confusion, as evidenced by the opposite conclusions recently reached by the
United States Navy-Marine Court of Criminal Appeals and the United States Air Force Court of Criminal Appeals in cases with strikingly similar factual situations. Compare United States v. Hockemeyer, No. NMCCA 200800077, 2008 CCA LEXIS 310, 2008 WL
4531999 (N-M. Ct. Crim. App. Sep. 30, 2008), with United States v. Ferguson, No. ACM 37272, 2009 CCA LEXIS 258, 2009 WL 2212070 (A.F. Ct. Crim. App. Jul. 15, 2009).

While bradnh14 was a member of the public who viewed the exposure in a nonpublic location, he certainly cannot be considered “unsuspecting” or “uninterested.” He was a law
enforcement officer conducting an undercover investigation who specifically invited and consented to the exposure. The facts as presented here may have constituted the offense of attempted indecent exposure, but they do not meet the legal requirements of indecent exposure as defined by the MCM and this court.