This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________ UNITED STATES Appellee

v. Gregory S. SIMPSON , Gunnery Sergeant United States Marine Corps , Appellant

No. 20

- 0268 Crim. App. No. 201800268 Argued January 12, 2021

— March 10, 2021
Military Judge: Robert D. Merrill
For Appellant: Tami L. Mitchell , Esq. (argued); Lieutenant Clifton E

. Morgan III

, JAGC, USN

, and David P. Sheldon

, Esq. (on brief)

. For Appellee: Lieutenant Gregory A. Rustico

, JAGC, USN (argued) ; Lieutenant Colonel Nicholas L

. Gannon , USMC

, Major Kerry E. Friedewald , USMC, and Brian K. Keller

, Esq. (on brief)

. Judge MAGGS delivered the opinion of the Court, in which Judges OHLSON and SPARKS joined. Chief Judge STUCKY filed a n opinion concurring in part and dissenting in part

, in which Judge HARDY joined.

_______________ Judge MAGGS delivered t he opinion of the Court.
The assigned issue in this case is: “ Whether it is legally impossible for Appellant to be convicted of distributing in decent images to himself under A rticle 77, [Uniform Code of Military Justice ( UCMJ ), 10 U.S.C. § 877 (2012)]

, when the plain l anguage of A rticle 120c(a)(d)(5), UCMJ

, require s the images be distributed to ‘ another

. ’ ” W e answer this question in the negative , holding that Appellant could properly plead guilty to distributing the indecent visual recording at issue a s an aider and abettor of the person who distributed the reco r ding to Appellant . We therefore affirm the judgment of the United States Navy

- Marine Corps Court of Criminal Appeals (NMCCA). United States v. Simpson , N o . NMCCA, 201800268
, 2020 CCA LEXIS 67

, a t * 2
, 2020 WL 1173334 , at *1 (N

- M

. Ct. Crim. App. Mar. 11, 2020) (unpublished)

.United States v. Simpson , No. 20

- 0268/MC Opinion of the Court

2 I. Background A military judge , sitting as a general court

- martial, found Appellant guilty, consistent with his pleas, of one specification of conspiring to create and distribute an indecent visualrecording, 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 re cording, and three specifications of assault consummated by a battery, in violation of Articles 81, 120c, and 128, UCMJ , 10 U.S.C. §§ 881, 920c, 928 (2012). The convening authority approved the findings. 1
The assigned issue concerns the specification of ai ding and abetting the distribution of an indecent visual recording in violation of Article l20c(a)( 3 ) , UCMJ

. 2 T his specification alleged:

1 The military judge sentenced Appellant to confinement for thirty

- two months, a bad

- conduct discharge, and reduction to E

- 1. With respect to the sentence, the convening authority approved the reduction to E

- 1, the bad

- conduct discharge, and confinement for eighteen months with a suspension of the remaining amount of confinement for forty

- four months. On appeal, the NMCCA consolidated two of the three specification s of assault consummated by a battery and set the beginning date of suspension of confinement asthe date of sentencing instead of the date of the convening authority’s action. Simpson

, 2020 CCA LEXIS 67

, at *46

, 2020 WL 1173 334
, at *16. The NMCCA otherwise affirmed the findings and
sentence. Id. at *4 8 , 2020 WL 1173334, at *16.

2 Article 120c(a) , UCMJ, provides in relevant part : (a) Indecent viewing, visual recording, or broadcasting.

— Any person subject to this chapter who, without legal justification or lawful authorization

—

. . . . (2) knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person ’ s consent and under circumstances in which that other person h as a reasonable expectation of privacy; or (3) knowingly broadcasts or distributes any such recording that the person knew or reasonablyUnited States v. Simpson , No. 20

- 0268/MC Opinion of the Court

3 On divers occasions between on or about 1 December 2016 and on or about 19 February 2017, at or near McAlester, OK, active duty U.S. Marine [Gunnery Sergeant ( GySgt )] Gregory Simpson knowingly distributed a recording of the private area of Ms. ENF, when he knew or reasonably should have known that the recording was made and distributed without the consent of Ms. ENF and under circumstances in which she had a reasonable expectation of privacy

. As part of his plea agreement, Appellant entered into a

s tipulat i on of fact. In relevant part, this stipulation of fact stated:
(1) On divers occasions between on or about December 1, 2016 and February 19, 2017

, GySgt Simpson knowingly and willfully counseled [MB] to photograph and video record the private areas of Ms. ENF, and to send them to him via email. (2) GySgt Simpson counseled [MB] by repeatedly encouraging and requesting via email that [MB] take indecent photographs and videos of Ms. ENF.GySgt Simpson repeatedly encouraged and requested that [MB] send the phot ographs and videos to him via his yahoo email address. (3) Following GySgt Simpson ’ s counseling [MB] took photographs and videos of Ms. ENF ’ s privatearea in various stages of undress, to include completely nude in the bathtub, and emailed them to GySgt Si mpson. [MB] took the photographs and video without Ms. ENF ’ s consent when Ms. ENF had a reasonable expectation of privacy. [MB] sent the photographs and videos to GySgt Simpson without Ms. ENF ’ s consent. (4) GySgt Simpson knew that [MB] took the photographs and videos of Ms. ENF ’ s private area without Ms. ENF ’ s consent when she had a reasonable expectation of privacy. GySgt Simpson knew that [MB] sent the photographs and videos of Ms. ENF to him without Ms. ENF ’ s consent.

should have known was made under the circumstances proscribed in paragraphs (1) and (2); is guilty of an offense under this section and shall be punished as a court

- martial may direct.United States v. Simpson , No. 20

- 0268/MC Opinion of the Court

4 (5) GySgt Simps on is guilty of distribution of indecent visual recordings of Ms. ENF even though he was not physically present with [MB] when she took the photographs and videos or when she sent the photographs and videos. (6) GySgt Simpson knows that [MB] only took the photographs and videos of Ms. ENF for his sexual gratification. GySgt Simpson knows that [MB]would not otherwise have taken them if GySgt Simpson did not counsel [MB] to take the photographs. GySgt Simpson knows that [MB] would not otherwise have sent the m if GySgt Simpson did not counsel [MB] to send the photographs and videos

. Before taking Appellant ’ s plea of guilty, the military judge sought clarification o f the Government ’ s theory of how Appellant was guilty of dist ributing an indecent recording when it was actually MB , not Appellant, who had emailed the recording

. T he military judge asked: “ Is that based on an aiding and abetting theory of liability? ” Trial c ounsel responded, “ Yes, sir, it ’ s a princip [al] liability theory. ”

T he military judge explaine d aider and abettor liability under Article 77(1), UCMJ , to Appellant

. Appellant then pleaded guilty to the specification at issue

. On appeal, however, Appellant contended that his guilty plea lacked a sufficient basis in law. Simpson

, 2020 CCA LEXIS 67

, at * 7

– 8
, 2020 WL 1173334 , at *3. T he NMCCA agreed with the military judge t hat Appellant was guilty as a n aider and abettor under Article 77(1), UCMJ. Id. at * 16

– 17
, 2020 WL 1173334
, at *6.

II. Standard of Review

“ Unless properly withdrawn or ordered str icken 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. ” Rule for Courts

- Martial (R.C.M.) 811(e). In this appeal, we therefore accept all of the facts in the pa rties ’ stipulation as true. 3 United States v. Nance , 67 M.J. 362
, 363

3 The stipulation of facts in this case contains some legal conclusions, such as the statement that Appellant “ is guilty of distribution of indecent visual recordings of Ms. ENF even though he was not physically present with [MB] when she took the photographsUnited States v. Simpson , No. 20-0268/MC Opinion of the Court

5 (C.A.A.F. 2009). We must upho ld Appellant’s guilty plea unless there is a “ ‘substantial basis’ in law and fact for questioning the guilty plea.” United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991). We review A ppellant’s legal impossibility argument de novo because the argument concerns an issue of law. See United States v. Willis , 46 M.J. 258, 259 (C.A.A.F. 1997) (reviewing de novo the appellant’s argument that there was no substantial basis in law for upholding his guilty pleato attempted murder because the charge in the case was legally impossible).
III. Analysis of the Assigned Issue Appellant advances three arguments for why he cannot beguilty of distributing an indecent recording in violation of Article 120c(a)(3), UCMJ. We reject the first two arguments. Weexpress no opinion on the third argument because that argument is not within the scope of the granted issue.
A. Argument Based on the Definition of “Distribute”
Appellant’s first argument rests on the definition of “distribute” in Article 120c(d)(5), UCMJ. This definition states that the term “[d]istribute” means “delivering to the actual or constructive possession of another .” Article 120c(d)(5), UCMJ(emphasis added). Appellant contends that under this definition, he could not have violated Article 120c(a)(3)’s prohibition on distributing an indecent recording because the recording at issue was delivered to him and not to “another” person.
The Government responds that the recording was delivered “to another” because MB delivered the recording to Appellant. And although Appellant did not actually deliver therecording, the Government argues that he is guilty of the offense as an aider and abettor. The Government further asserts that Appellant’s liability as an aider and abettor doesnot fictitiously transmute him into being the actual distributor of the indecent recording, such that he somehow could be considered to have delivered the recording to himself.

and videos or when she sent the photographs and videos.” We do not automatically accept legal conclu sions in the stipulation of facts
as true.United States v. Simpson , No. 20

- 0268/MC Opinion of the Court

6 We agre e with the Government ’ s argument. The distribution element of Article 120c(a)(3) , UCMJ, 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 c an be guilty of this offense as a principal if he aided and abetted MB

. A principal under anaiding 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. See United States v. Sneed

, 17 C.M.A. 451, 453, 38 C.M.R. 249, 251 ( 1968) (citing United States v. Wooten

, 1 C.M.A. 358, 362 n.1
, 3 C.M.R. 92, 96 n.1 (1952) )

. Article 77 (1), UCMJ, provides that “[ a] ny person punishable under this chapter who

— (1) commits an offense punishable by this chapter, or aids, abets, counsels,

comman ds, or procures its commission

. . . is a principal. ” In this case, there was a substantial basis in law and fact for accepting A ppellant ’ s plea that he was guilty a s a principal under this rule. T he stipulation of fact establishes that Appellant “ counseled ” and encouraged MB to distribute the recording and further states that MB would not have distributed the recording to Appellant without Appellant ’ s counsel ing and encouragement.

B. Argument Based on Congress’ s Intention
Appel lant ’ s second argument is that upholding his guilty plea would produce a result that Congress never intended. He asserts that the G overnment ’ s theory could make a person who merely rece ives a n indece nt recording guilty of distributing the recording on the ground that he or she aided and abetted the delivery. Such criminal liability, Appellant contends, goes against Congress ’ s decision in Article 120c(a)(3)

, UCMJ, to make only the distrib ution of an indecent recording an offense.
In response, the G overnment cites the reasoning of this Court in United States v. Hill

, 25 M.J. 411 (C.M.A. 19 8 8 )

. In Hill

, 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 ’ sintent to make buying drugs a separate offense from distributing drugs. Id. at 413. The Court explained: “ Otherwise,United States v. Simpson , No. 20

- 0268/MC Opinion of the Court

7 prosecutors would be fr ee 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. ” Id. The Court in Hill nevertheless held that the buyer of drugs could be found gui lty of aiding and abetting the distribution of drugs if the buyer “ sufficiently associate [s] himself with the purpose of the seller so that he becomes an aider and abettor of the seller. ” Id. at 414. The G overnment
argues that Appellant in this case suffic iently associated himself with the MB ’ s purpose such that he can be found guilty of aiding and abetting the distribution of the indecent recording

. We agree that t he mere receipt and possession of a n indecent recording do es not violate Article 120(c)(3), UCMJ, because Congress did not address receipt and possession in th at provision

. But following the reasoning in Hill

, we also conclude a person who aids and abet s the distribution of an indecent recording can be liable as an aider and abettor if he suffici ently associates himself with the purpose of the actual distributor

. In this case, as described above, Appellant counseled and encouraged MB to distribute the recording , and MB would not have distributed the recording without Appellant ’ s counseling and enc ouragement. In doing so, he not only associated himself with MB ’ s purpose, but also shaped her purpose. Accordingly, we conclude that the military judge had a substantial basis in law and fact for accepting Appellant ’ s guilty plea.

C. Argument T hat MB D id N ot Commit a Crime
Appellant finally argues that he could not be guilty of aiding and abett ing 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

. This argument rests on the wordi ng of Article 77(1), UCMJ, which refers to the committing of an offense or the counseling of “ its commission. ” Appellant assert s that he could not have counseled the commission of an offense by MB because MB ’ s conduct was not criminal. The Government responds that we should not consider this argument because it falls outside the scope of the granted issue

. W e agree with the Government

. As stated above , the only question before us is “[ w] hether it is legally impossible for Ap-United States v. Simpson , No. 20

- 0268/MC Opinion of the Court

8 pellant to be convicted of d istributing in decent images to himself under A rticle 77, UCMJ, when the plain l anguage of A rticle 120c(a)(d)(5), UCMJ

, require s the images be distributed
to ‘ another

. ’ ” T his issue does not encompass the question whether an accused can aid and abet someone who is not subject to the UCMJ or does not violate state law

. While t he NMCCA addressed and rejected Appellant ’ s argument in its opinion, see Simpson

, 2020 CCA LEXIS 67

, at * 17

─ 18
, 2020 WL 1173334 , at *6, we did not grant review of the issue

. United States v. Guardado , 77 M.J. 90, 95 n.1 (C.A.A.F. 201 7 )(declining to address an argument outside the scope of the issues for which review was granted).

IV. Conclusion The assigned issue is answered in the negative. The judgment of the United States Navy

- M arine Corps Court of Criminal Appeals is affirmed.United States v. Simpson , No. 20

- 0268/MC

Chief Judge STUCKY

, with whom Judge H ARDY joins

, concurring in part and dissenting in part

. I agree with the general proposition that it is not legally impossible for an accused to distribute indecent images to himself as a n aider and abettor under Article 77, UCMJ , 10 U.S.C. § 877 (201 2 ) , when the accused has sufficiently associated himself with the purpose of the actual distributor

. United States v. Hill , 25 M.J. 411, 414 (C.M.A. 1988)

. But this A ppellant is not liable as an aider and abettor as there is no evidence that MB performed a criminal act

. The law of principals in the military is contained in Article 77, UCMJ, which provides:
Any person punishable under this chapter who

— (1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which if directly performed by him would be punishable by this chapter;
is a principal. For an accused to be guilty as an aider and abettor, under the plain language of the first clause, someone must have committed a criminal offense. In Appellant ’ s case, MB was not subject to the UCMJ and neither the Government nor the majority have alleged that she committed any crime. Therefore, Appellant could not have aided or abetted in the commissio n of the offense. Furthermore, to read Article 77(1) as covering Appellant ’ s activities would render Article 77(2) superfluous, and that we cannot do. See 2A Norman J. Singer & Shambie Singer, Statutes and Statutory Construction § 46:6, at 238

– 56 (7th ed. 2014) (“ Courts construe a statute to give effect to all its provisions, so that no part is inoperative or superfluous, void or insignificant, and so that one section does not destroy another, unless a provision is the result of obvious mistake or

error. ” ( footnotes omitted) ) ; see Corley v. United States , 556 U.S. 303, 314 (2009).

T he evidence would clearly support Appellant ’ s conviction under the second clause . He caused an act to be done

— causedUnited States v. Simpson

, No. 20

- 0268/MC Chief Judge STUCKY, concurring in part and dissenting in part

2 MB to send him the indecent images

— that if he had performed would have been a criminal offense under the UCMJ

, specifically Article 120c(a)(3)

. Thus, he would have been a principal and subject to conviction.
However, Appellant was prosecuted as an aider and abettor under the first clause and the military judge acce pted his guilty plea on that theory. “ The providence of a plea is based not only on the accused ’ s understanding and recitation of the factual history of the crime, but also on an understanding of how the law relates to those facts.

. . . This fair notice r esides at the heart of the plea inquiry .” United States v. Medina , 66 M.J. 21, 26 (C.A.A.F. 2008) . As it was legally impossible for Appellant to be convicted of distributing the images on an aider or abettor theory, there is a substantial basis in law and fact for questioning his guilty plea. Therefore, I would set aside his conviction for this offense.