U.S. v. Simpson, 81 M.J. 33

Core Criminal Law Subjects: Crimes: Article 77 - Principals Pre-2019 offenses

1. appellant could properly plead guilty to distributing an indecent visual recording under Article 120c(a)(3), UCMJ, as an aider and abettor of the person who distributed the recording to appellant
2. 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

Core Criminal Law Subjects: Crimes: Article 120c - Other Sexual Misconduct Pre-2019 offenses › (a) Indecent Viewing, Visual Recording, or Broadcasting

1. Article 120c(a), UCMJ, prohibits any person subject to the UCMJ, without legal justification or lawful authorization, from knowingly distributing any recording of the private area of another person, without that other person’s consent and under circumstances in which the other person had a reasonable expectation of privacy
2. appellant could properly plead guilty to distributing an indecent visual recording under Article 120c(a)(3), UCMJ, as an aider and abettor of the person who distributed the recording to appellant; the distribution element of Article 120c(a)(3), UCMJ, is satisfied in this case because the person who distributed the recording delivered it to a person other than herself, namely, to appellant; even though another person effected the delivery, appellant can be guilty of this offense as a principal if he aided and abetted that other person; 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; in this case, appellant was guilty as a principal under this rule where appellant counseled and encouraged the other person to distribute the recording and where the other person would not have distributed the recording to appellant without appellant’s counseling and encouragement
3. the mere receipt and possession of an indecent recording does not violate Article 120c(a)(3), UCMJ, because Congress did not address receipt and possession in that provision; but 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; and in this case, where appellant counseled and encouraged the actual distributor to distribute the recording, and the actual distributer would not have distributed the recording without appellant’s counseling and encouragement, appellant not only associated himself with the actual distributer’s purpose, but also shaped her purpose; accordingly, the military judge had a substantial basis in law and fact for accepting appellant’s guilty plea to aiding and abetting the distribution of an indecent recording

Core Criminal Law Subjects: Evidence: Stipulations

1. unless properly withdrawn or ordered stricken from the record, a stipulation of fact that has been accepted is binding on the court-martial and may not be contradicted by the parties thereto
2. an appellate court does not automatically accept legal conclusions in a stipulation of facts as true

Trial Stages: Merits: Guilty Pleas

1. an appellate court must uphold appellant’s guilty plea unless there is a substantial basis in law and fact for questioning the guilty plea
2. appellant could properly plead guilty to distributing an indecent visual recording under Article 120c(a)(3), UCMJ, as an aider and abettor of the person who distributed the recording to appellant

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court does not automatically accept legal conclusions in a stipulation of facts as true
2. an appellate court must uphold appellant’s guilty plea unless there is a substantial basis in law and fact for questioning the guilty plea
3. an appellate court reviews an appellant’s legal impossibility argument de novo because the argument concerns an issue of law