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_______ _______ __________

No. ACM 39116

_______ _______ __________

UNITED STATES Appellee

v.

Nikolas J. SMITH
Senior Airman (E

- 4) , U.S. Air Force, Appellant

________________________
Appeal from the United S tates Air Force Trial Judiciary

Decided 31 January 2018

________________________
Military Judge: Mark W. Milam

. Approved sentence: Dishonorable discharge, confinement for 1 year , and reduction to E

- 1. Sentence adjudged 14 April 2016 by GCM convened at Ramstein Air Base, Germany

. For Appellant: Major Annie W. Morgan, USAF.

For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Major Mary Ellen Payn e , USAF ; Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.

Before HARDING, SPERANZA , and CARRILLO, Appellate Military Judges

. Judge CARRILLO delivered the opinion of the c ourt, in which Senior Judge HARDING and Judge SPERANZA joined

.

________________________ This is an unpublished o pinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

________________________ CARRILLO, Judge:

A general court

- martial composed of officer and enlisted members found Appellant guilty of two specifications of attempted lewd acts upon a person whom he believed to be a child under the age of 16, by indecent communication and exposing his genitalia, in violation of Article 80 of the Uniform Code ofUnited States v. Smith , No. ACM 39116

2 Military Justice (UCMJ), 10 U.S.C. § 880

. 1 The court

- martial sente nced Appellant to a dishonorable discharge, confinement for one year , and reduction to the grade of E

- 1. The convening authority approved the sentence as adjudged.

On appeal, Appellant raises two assignments of error: (1) w hether the findings of guilt are incorrect as a matter of law because Appellant was entrapped by the G overnment; and (2) w hether the mili tary judge erred when he declined to instruct on the “due process” ent rapment defense and denied the d efense motion to dismiss based on egregious government conduct. We find no prejudicial error and affirm.

I. B ACKGROUND

While statione d at Ramstein Air Base, Germany

, Appellant responded to

an online ad vertisement in the Casual Encounters section of Craigslist .com (Craig s list) o n 14 November 2014

. Casu a l Encounters is a commonly known communication platform for persons seeking to engage in casual sexual relationships. The particular ad vertisement , “Dependent Looking for Company

– W4M (Ramstein)

, ” 2 was in fact a ruse posted by Air Force O ffice of Special Investigations ( AF OSI) Spe cial Agent (SA) TK as part of an undercover operation aimed at catching online military sexual predators

. SA TK was stationed

at AFOSI headquarters in Quantico , V irginia, and was the Air Force liaison to the Internet Crimes Agains t Children T ask F orce (ICAC) in Northern Virginia. 3

SA TK used the persona “Tina,” a 14

- year

- old female military dependent of a single mother. The November 2014 “Tina” posting advertised , in part, “Looking for an Air Force man with common interest in mind

. . . lets chat, swap pics,
share some stories and t ake it from there.” Appellant responded “Hey I’m Nick, how are you? I’m 24 years old in the air force. What do you like to do for fun? I am 6’1 in athletic shape with blonde hair blue eyes.” Appellant al so included a picture of himself.

SA TK , as “Tina

, ” replied

, “I am a dependent but probably not what your [sic] 4 thinking. I’m a 14 year old, very mature

. . . looking for a mature Air

1 Appellant was acquitted of two separate specifications of attempt to commit a sexual act upon a child in violation of Article 80

, UCMJ

.

2 “W4M” stands for “women for men.”

3 During the investigation, SA TK conducted the online chatting from Virginia, while
AFOSI agents in Germany conducted all other investigative duties

.

4 The nature of text messag ing is that it typically features brevity over traditional grammatical correctne ss. The text exchange between “Tina” and Appellant contains many typos and grammatical errors. These errors will not be pointed out individually with “[sic]” unless the intended meaning is not clear.United States v. Smith , No. ACM 39116

3 Force m an to nurture and teach my [ wink emoji ] .” The advertisement al so provided the Yahoo .com M essenger (Yahoo) address of “daddyluver3” for interested individuals to respond to “Tina

. ” App ellant responded to “daddyluver 3”
via Yahoo and began corresponding with “Tina

. ” The tone quickly became flirtatious and continued over several days even after “Tina” reiterated that she was 14 years old

. T he two continued to correspond and eventually discuss ed “meeting up” until A ppel lant stopped responding to “Tina” on 11 December

2014

. However, Appellant reinit i ated contact on 27 January 2015, after SA TK posted a second , similar ad vertisement on Craigslist. They continued to talk
over the course of several days . During this time Appellant wrote, “Hmm what

turns u on most

. . . I ’m just laying in bed

. . . you should come here

. . . [ I ] f only you could drive lol.” On 28 January 2015, “Tina” asked

, “y u into yng girls lol,” to which Appellant responded, “I’m usually not lol age doesn’t matter to

me

. . . I’m so horny right now.” “Tina” eventually sent digitally age

- regressed photos to Appellant of another AF OSI agent, representing them to be herself

, to which Appellant replied, “Your so pretty

. . . How old are you again?” “Tina” responded “14

, ” to which Appellant wrote, “Ugh : /” and “ That’s anno u ying.”

At the end o f January 2015, Appellant coordinated meeting with “Tina” in February

. On 19 February 2015

, Appellant sent two pictures of his naked penis
and asked

, “do you wa nna see it in person [wink emoji ]” and continued to engage “Tina” in overtly sexual conversation. On Wednesday, 25 Februa ry 2015

, “Tina” confirmed the plan to meet Appellant and provided an address where
she would be located

. Appellant proceeded to the vacant house and was apprehended by AF OSI

. T wo unopened condoms were lawfully seized from Appellant’s person at that time

.

II. D ISCUSSION

A. Entrapment: Subjective Test and Legal Sufficiency

At trial, the military judge instructed on and Appellant argued the affirmative defense of entrapment. As t he members convicted Appellant of the two attempted lewd act specifications , implicitly they were convinced beyond a reasonable doubt that Appellant was not entrapped as to those specifications

. Appellant now raises the entrapment defense on appeal.

“Since the trier of fact found against him on t he entrapment issue, appellant can only prevail by showing that these findings are incorrect as a matter
of law.” United States v. Vanzandt, 14 M.J. 332, 345 (C.M.A. 1982) (citing United States v. Albright, 2 6 C.M.R. 408, 411 (C.M.A. 1958)). Appellant asserts
the finding s of guilt are incorrect as a matter of law because he was entrapped.United States v. Smith , No. ACM 39116

4 We review issues of legal sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002).
Our assessment of legal sufficiency is limited to the evidence produced at trial. United States v. Dykes , 38 M.J. 270, 272 (C.M.A. 1993). “The test for legal sufficiency is ‘whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.’” United States v. Wheeler , 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (quoting United States v. Humpherys

, 57 M.J. 83, 94 (C.A.A.F. 2002)). Importantly, “[t]he term reasonab le doubt

. . . does not
mean that the evidence must be free from conflict.” Id. (citing United States v. Lips , 22 M.J. 679, 684 (A.F.C.M.R. 1986)). “In applying this test, ‘we are bound to draw every reasonable inference from the evidence of record in favo r of the prosecution.’” Id . (quoting United States v. Barner , 56 M.J. 131, 134 (C.A.A.F. 2001); United States v. McGinty , 38 M.J. 131, 132 (C.M.A. 1993) ) ; see also United States v. Rogers , 54 M.J. 244, 246 (2000).

A successful claim of entrapment requires evidence that the criminal design or suggestion to commit the offense originated with the G overnment, not the accused, and the accused was not predisposed to commit the offense. See R.C.M. 916(g) ; see also United States v. Dowd , No. ACM 39073, 2017 CCA LEXIS 738, at *5

– 7 (A.F. Ct. Crim. App. 29 Nov. 2017) (unpub. op.)

. In litigating the entrapment defense, applying what is known as the “subjective” test for entrapment, the Defense has the initial burden of showing some evidence that an agent of the Gover nment originated the suggestion to commit the
crime. United States v. Whittle , 34 M.J. 206, 208 (C.M.A. 1992). Once that hurdle is met, “the burden then shifts to the Government to prove beyond a reasonable doubt that the criminal design did not originate with the Government or that the accused had a predisposition to commit the offense.

. . .” Id . (citations omitted).

“The question of predisposition relates to a law

- abiding citizen. ‘A law

- abiding person is one who resists the temptations, which abound in our society today, to commit crimes.’” Id . (quoting United States v. Evans , 924 F.2d 714, 717 (7th Cir. 1991)). One who accepts an invitation to commit a crime without being offered an extraordinary inducement shows a predisposition to commit the
crime. I d . (quoting Evans , 924 F.2d at 718). Extraordinary i nducement means more than merely providing A ppellant the means or opportunity to commit a
crime. Id

. at 358. Instead, the G overnment’s conduct must:

create[ ] a substantial risk that an undisposed person or otherwise law

- abiding citizen would commit the offense . . . . Inducement may take different forms, including pressure, assurancesthat a person is not doing anything wrong, persuasion, fraudulent representations, threats, coercive tactics, harassment,United States v. Smith , No. ACM 39116

5promises of reward, or pleas based on need, sympathy, or friendship.

Id. at 359

– 60 ( alteration in original) ( citations omitted). Indeed, t he G overnment may use undercover agents and informants to ferret out crime and afford opportunities or facilities for criminals to act upon. Jacobson v. United States, 503 U.S. 540, 548 (1992); see also United States v. Howell , 36 M.J. 354,

358 (C.M.A. 1993) ; Whittle

, at 208. “Artifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States , 287 U.S. 435, 441 (1932) (citations omitted) ; see also United States v. Russell , 411 U.S. 423, 435

– 36 (1973). For example, law enforcement may pretend to be someone other than a government agent. See Howell , 36 M.J. at 358.

We have reviewed the evidence of record in this cas e and find Appellant
has not met his initial burden of showing that the original design or suggestion originated with the G overnment . Although it was SA TK who originally posted both Craigslist ad vertisement s , neither contai n ed any sexually explicit content, and Appellant, along with many others, voluntarily contacted SA TK

. In
her first respons e, “Tina” told Ap pellant she was 14 years old

. O ther responders ceased contact after learning this ; however, Appellant continued to converse with “Tina,” initiated sexually explicit discussion s, and later sent her two pictures of his naked penis. Exhibits containing the photos and the text messages between Appel l ant and “Tina” were admitted into evidence. While SA TK provided opportunities for Appellant to commit the offense, nothing in the record indicates that Appellant was induced by SA TK to commit the offense by such persuasion that would cause an ordinarily law

- abiding person of average resistance to commit the charged crime. E ven though SA TK falsely represented facts such as his gender and age, and went as far as to inquire whether Appellant had condoms, these actions do not amount to overreaching by the Government. SA TK did not pressure or coerce Appellant to commit the offense of attempted lewd acts upon a person whom he believed to be a child under the age of 16

. Appellant made the decisions to respond to the ad vertisement s , and despite some initial reticence he continue d sexually explicit com municati on with someone he believed to be a 14

- year

- old girl

. As such, we find beyond a reasonable doubt that there was no improper Government inducement and therefore, Appellant failed to satisfy his initial burden of showing that the criminal design originated with the G overnment.

Recognizing, however, that the military judge found a sufficient basis to
instruct the court members on the defense of entrapment

, we will assume, without deciding, that the burden shifted to the Government for purposes of our analysis

. Under that assumption, w e nevertheless find beyond a reasonable doubt that Appellant was predisposed to com mit the offense s of which he

wa s convicted

. Appellant initiated the communications regarding sex withUnited States v. Smith , No. ACM 39116

6 someone whom he believed was a child. Although he may have been wary at the outset, it took only six days of banter for Appellant to ask “Tina” when she
was free to meet to engage in se xual intercourse. The Government need not present evidence that Appellant committed or attempted to commit a similar offense on a previous occasion. A person’s readiness and willingness to commit the offense is evidence of predisposition. See Whittle , 34 M .J. at 208.

Appellant, by his actions, demonstrated his predisposition to commit the underlying offense. Accordingly, considering the evidence in the light most favorable to the prosecution, a reasonable fact finder could have found Appellant

was not entr apped beyond a reasonable doubt. Therefore, the finding s of guilt

are not incorrect as a matter of law.

B. “Due Process” Entrapment Defense

Appellant argues that the military judge erred when he “declined to provide a ‘due process’ entrapment defense instruction and denied the defense motion to dismiss based on egregious government conduct.” During trial, Appellant
made a motion to dismiss und er the “due process version of entrapment,” asserting that Appellant’s Fifth Amend ment 5 right to due process was violated
because the G overnment engaged in outrageous behavior. Appellant also submitted a proposed instruction on the “due procedural entrapme nt issue.” The military judge expressed doubt as to whether there even existed a separate “due process” defense to entrapment ; however, he treated it as valid. We address first whether this separate defense does exist, then the motion to dismiss,
and final ly the D efense ’s proposed jury instruction.

1. Objective Test

In addition to the “subjective” test for entrapment described above, the military courts have recognized an “objective” test whereby a court may find the Government’s conduct so outrageous or shocking to the judicial conscience that
it amounts to a violati on the Due Process clause of the Fifth Amendment of the
Constitution and thereby constitutes entrapment as a matter of law. United
States v. Berkhimer , 72 M.J. 676, 680 (A.F. Ct. Crim. App. 2013); see Vanzandt

, 14 M.J. at 343 n.11

. We note, at the outset, that we are not aware of any case from our superior court finding outrageous conduct such that it violated an accused’s right to due process under the Fifth Amendment. Yet, Vanzandt implied an application of the objective, constitutional test for entrapmen t. Id

. To establish entrapment a s a matter of due process, A ppellant must show either excessive Government involvement or significant Government coercion

5 U.S. C ONST . amend. V.United States v. Smith , No. ACM 39116

7 in causing the crime to occur under the totality of the circumstances.
Berkhimer , 72 M.J. at 680. In Berkhimer we further explained:

This is an “extraordinary defense reserved for only the most egregious circumstances” and is not to be invoked every time the government acts in a deceptive manner or participates in a crime it is investigating. .

. . To me et the threshold standard of being fundamentally unfair or shocking, the accused must generally show the government acted with coercion, violence or brutality to the person.

Id . (citations omitted). “The issue of whether an accused’s due process rights wer e violated is a question of law that this court reviews de novo

. . . . When doing so, we give substantial deference to the military judge’s findings of fact and will not overturn them unless they are clearly erroneous.” Id. (citati ons omitted).

2. M otion t o D ismiss

This court reviews a military judge’s ruling on a motion to dismiss for an
abuse of discretion. United States v. Douglas , No. ACM 38935, 2017 CCA LEXIS 407, at *19 (A.F. Ct. Crim. App. 15 Jun. 2017) (citing United States v.
Gore , 60 M.J. 178, 187 (C.A.A.F. 2004)). “ An abuse of discretion occurs when a court’s findings of fact are clearly erroneous or the decision is influenced by an

erroneous view of the law.” United States v. Lubich

, 72 M.J. 170, 173 (C.A.A.F. 2013) (citation omitted). “T he abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States

v. Lloyd

, 69 M.J. 95, 99 (C.A.A.F. 2010) (internal quotation marks and citations omitted).

T his case involved a sting

- type operation, wherein the members ultimately found Appellant availed himself of an opportunity offered by a G overnment agent. On cross

- examination, trial defense counsel elicited testimony from SA TK about his training, the plans fo r the undercover operation, and the scope of the authority he had to run it as he did. 6 Appellant made a motion to dismiss,arguing SA TK failed to adhere to an authorized operation, and that those actions violated Appellant’s due process right.

Counsel d id not point to any specific abuse, but instead focused only on the operational aspect, asserting that entrapment occurred when SA TK placed the advertisement on Craigslist because “the lustfulness is put into that ad,

6 Appellate E xhibit IV, the oper ational plan , was sealed by the trial judge. All the information about that exhibit used herein is from the transcript that was provided in
open court.United States v. Smith , No. ACM 39116

8 the sexuality and the unusual nature of a woman seeking a man,” and in part because it was not in a place “reasonably designed to” capture “pedophiles” orothers in “our society who are seeking to engage in sex with underage individuals.” The military judge disagreed, “not[ing] that the oper ation that was contemplated, approved, and in fact used in this case was specifically approved by the AFOSI general, at least in a broad sense, and specifically that ad [that SA TK posted] was in there.” N oting further during argument that every stealth

or deceptive t echnique does not need approval

, the m ilitary judge found that
the ad vertisement placed by SA TK was executed in accordance with the approved plan. The military judge also addressed cases in which the government
conduct had been outrageous, and found they differed greatly from the instant

case:
Stealth and deception are authorized for law enforcement agents. The cases that specifically offend the appellate courts
have to do with facts that are much different and much more

e gregious than anything in this particular case. They typically involve undercover or confidential informants working for thegovernment who have gone far beyond the bounds of what is considered decent and acceptable in treating people . . . they are tryin g to trap . . . But those particular cases . . . have so offended the appellate courts they felt action needed to be taken, however, they did not specifically come out and say it was a violation of
the due

- process clause of the Fifth Amendment to the Cons titution . . . . This case is just much different.

We agree with the military judge and find that the undercover operation,

as executed , was generally approved. Any incongruity between the plan and
the manner in which SA TK conducted the online portion of the investigation is not shocking. While there may be some question as to the currency of SA TK’s undercover chat training, we have reviewed the entire record, and find the facts do not support a claim that the agent’s conduct was such outrageous
behavior that, “ reversal would be required on due process grounds.” Vanzandt, 14 M.J. at 345 (citing Hampton v. United States , 425 U.S. 484 (1976)).

The military judge clearly detailed his factual and legal findings. There is nothing “ arbitrary, fanciful, clearly unreasonable, or clearly erroneous” about
his decision. Lloyd, 69 M.J. at 99 (internal quotation marks and citations omitted). Instead, this appears to be exactly the type of “simple” sting operation contemplated by the LeMaster court, and the military ju dge’s decision that the
behavior was not outrageous

— warranting a dismissal

— was justified. United
States v. LeMaster, 40 M.J. 178 (C.M.A. 1994). Thus, we find no abuse of discretion in the military judge’s denial of the defense motion to dismiss based on the Due Process Clause.United States v. Smith , No. ACM 39116

9 Appellant furthers the same argument on appeal. He once again contends
that the Government’s conduct was sufficiently out rageous to justify dismissal
of all the charges in his case. We are not persuaded. At the outset of their correspondence, “Tina” informed Appellant that she was only 14 years old. Despite this, Appellant willingly sent “Tina” sexually explicit messages and two unrequested photographs of his penis . The record indicates he did so not because he was coerced or fearful, but in order to gratify his sexual desires. The arguably salacious nature of “Tina’s” Craigslist advertisements and further
communications did not coerce Appellant’s behavior, and it fails to outrage orshock the judicial conscience to the point of establishing a due process violation.

3

. D efense Proposed I nstruction

The military judge denied the D efense request for its proposed instruction “consistent with note four” of the Military Judge’s Benchbook Instruction 5

- 6 (entrapment), that if the members found a “due

- process violation [as] a result of shocking police abuses that have been outrageous, fundamentally unfair and shocking to the universal sense of justice” that “they can acquit on that notion.” The judge did instruct the members on entrapment. 7

“ Military judges have substantial discretionary power to decide which instructions to give panel members. ” United States v. Gurne y , 73 M.J. 587, 598 (A.F. Ct. Crim. App. 2014). Whether a panel is properly instructed is a question
of law reviewed de novo. United States v. Killion , 75 M.J. 209, 214 (C.A.A.F. 2016).

“ A military judge must instruct panel members on any affir mative defe nse that is ‘ in issue .’” United States v. Schumacher , 70 M.J. 387, 389 (C.A.A.F. 2011) (quoting R.C.M. 920(e)(3) ) . “A matter is considered ‘in issue’ when ‘some evidence, without regard to its source or credibility, has been admitted upon
which memb ers might rely if they choose.’” R.C.M. 920(e), Discussion. Relying on authority from the Supreme Court, our s uperior court has stated that “‘some
evidence’ entitling an accused to an instruction , has not been presented until

‘ there exists evidence sufficient for a reasonab le jury to find in [the accused’s]
favor.’” Schumacher , 70 M.J. at 389 (quoting Mathews v. United States , 485 U.S. 58, 63 (1988)). The Schumacher c ourt further ex plained: “ [T]he military judge must answer the legal question of whether there i s some evidence upon which members could reasonably rely to find that each element of the defense
has been established . This test is similar to that for le gal sufficiency.” Schumacher , 7 0 M.J. at 389

– 90 (emphasis added).

7 Defense did not object to this instruction.United States v. Smith , No. ACM 39116

10 T he record does not disclose outrageous police misconduct

. The trial ju dge appropriately answered the legal question that the affirmative defense of due
process entrapment had not been established . Such a legal question should not be posed to the members in an instruction or otherwise

. Accordingly, we find the military judge did not err in deciding not to give the instruction

.
III. C ONCLUSION
The approved findings and sentence are correct in fact and law, and no error materially prejudicial to the substantial rights of Appellant occurred. A rticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c)

. Accordingl y, the findings and sentence are AFFIRMED

.

FOR THE COURT

KATHLEEN M. POTTER Acting Clerk of the Court