UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 38975

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UNITED STATES

Appellee

v.

Jacob A. CHAMBERS

Airman First Class (E-3), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 4 May 2017

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Military Judge: Shaun S. Speranza.

Approved sentence: Dishonorable discharge, confinement for 50 years, 

total forfeiture of all pay and allowances, and reduction to E-1. Sentence adjudged 1 October 2015 by GCM convened at Robins Air Force 

Base, Georgia. 

For Appellant: Major Lauren A. Shure, USAF; Major Annie W. Morgan, USAF; Brian L. Mizer, Esquire.

For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire.

Before MAYBERRY, SANTORO, and HARDING Appellate Military 

Judges.

Judge SANTORO delivered the opinion of the court, in which Senior

Judge MAYBERRY and Judge HARDING joined.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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United States v. Chambers, No. ACM 38975

2

SANTORO, Judge:

A military judge sitting as a general court-martial convicted Appellant, 

consistent with his pleas, of attempted receipt of child pornography, sexual 

abuse of a child (six specifications), rape of a child (four specifications), 

wrongful possession of child pornography, and wrongfully inducing a minor to 

create sexually-explicit visual depictions in violation of Articles 80, 120b, and 

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920b, 934. 

The adjudged and approved sentence consisted of a dishonorable discharge, 

confinement for 50 years, total forfeiture of all pay and allowances, and reduction to E-1.

Appellant raises two assignments of error: (1) the military judge erred in 

admitting sentencing evidence; and (2) three specifications charged under Article 134, UCMJ, were preempted by Article 120b, UCMJ. We disagree and 

affirm.

I. BACKGROUND

Appellant repeatedly raped his 11-year old stepsister, RC, by penetrating 

her vulva and mouth with his penis and penetrating her anus with his finger. 

He also touched her genitalia, breasts, and buttocks; caused her to touch his 

penis; rubbed his penis against her genitalia; and showed her a video of an

adult woman performing fellatio as an “instructional tool.” He searched for, 

received, and possessed child pornography and asked three other minors to 

create child pornography for him. 

II. DISCUSSION

A. Sentencing Evidence

Appellant asserts that the military judge committed plain error “when he 

sentenced Appellant for conduct that occurred [before the charged period].” 

However, he fails to identify with any specificity the testimony or evidence he 

claims was erroneously admitted. We are thus left to speculate as to the evidence at issue and why Appellant believes it was not admissible.

Although we ordinarily review a military judge’s decision to admit sentencing evidence for an abuse of discretion, United States v. Ediger, 68 M.J. 

243, 248 (C.A.A.F. 2010), Appellant may not raise on appeal an error that 

was waived at trial. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 

2009); Rule for Courts-Martial 1001(b)(2). When an issue is forfeited, howev-
United States v. Chambers, No. ACM 38975

3

er, we review for plain error. United States v. Harcrow, 66 M.J. 154, 156 

(C.A.A.F. 2006).1

Trial defense counsel raised only one objection, and that was to a photograph of RC taken several years before the charged period. The military 

judge sustained the objection.

As best we can infer from Appellant’s one-paragraph discussion of this issue, he appears now to object to portions of RC’s testimony that describe his 

abuse of her prior to his Air Force service. Appellant waived this issue because trial defense counsel affirmatively told the military judge that there 

was no objection to what they called “414 evidence,” apparently in reference 

to Mil. R. Evid. 414.2 United States v. Ahern, __ M.J. __, No. 17-0032/AR, 

2017 C.A.A.F. LEXIS 292, at *7 (C.A.A.F. 20 Apr. 2017) (citing United States 

v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).3

B. Preemption

Appellant pleaded guilty to three specifications alleging that he did 

“knowingly and wrongfully persuade, induce, and entice” three different 

named minors “to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, to wit: requesting that [each victim] 

create and then send sexually explicit images of herself” to him. These offenses were charged as violations of clause 2 of Article 134, UCMJ, which 

proscribes conduct that discredits the service.

 

1 “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the 

timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment 

of a known right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson 

v. Zerbst, 304 U.S. 458, 464 (1938)).

2 We presume this reference to Mil. R. Evid. 414 was merely a shorthand reference to 

acts not charged, as the admissibility of sentencing evidence is governed by Rules for 

Courts-Martial 1001 and 1001A.

3 Even if the issue was forfeited rather than waived, there was no plain error. 

“[W]hen uncharged misconduct is part of a continuous course of conduct involving 

similar crimes and the same victims, it is encompassed within the language ‘directly 

relating to or resulting from the offenses of which the accused has been found guilty’ 

under RCM 1001(b)(4).” United States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001). 

RC’s testimony about the abuse she suffered at Appellant’s hands prior to his enlistment certainly falls within this definition: she was a victim named in offenses to 

which Appellant pleaded guilty and the pre-service abuse she described was similar 

to that to which Appellant pleaded guilty.
United States v. Chambers, No. ACM 38975

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During the providence inquiry,4 the military judge defined the elements of 

each challenged specification as follows:

One, that [at the time and place alleged], you did knowingly 

and wrongfully persuade, induce, and entice [each victim] to 

engage in sexually explicit conduct for the purpose of producing 

a visual depiction of such conduct, to wit: requesting that [each 

victim] create and then send sexually explicit images of herself 

to you. 

Two, that at the time [each victim] was under the age of 18

years.

And three, under the circumstances your conduct was of a nature to bring discredit upon the armed forces. 

Appellant contends that the Government was preempted from charging 

an Article 134, Clause 2 offense in this case because Congress intended to

limit prosecution for such conduct to Article 120b(c). We review questions of 

statutory interpretation, including preemption, de novo. United States v. 

Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015); United States v. Benitez, 65 M.J. 

827, 828 (A.F. Ct. Crim. App. 2007).

The preemption doctrine “prohibits application of Article 134 to conduct 

covered by Articles 80 through 132.” Manual for Courts-Martial, United 

States (MCM), pt. IV, ¶ 60.c.(5)(a) (2012). In United States v. Kick, 7 M.J. 82 

(C.M.A. 1979), our superior court referred to the preemption doctrine as the

legal concept that where Congress has occupied the field of a 

given type of misconduct by addressing it in one of the specific 

punitive articles of the code, another offense may not be created and punished under Article 134, UCMJ, by simply deleting 

a vital element. However, simply because the offense charged 

under Article 134, UCMJ, embraces all but one element of an 

offense under another article does not trigger operation of the 

preemption doctrine. In addition, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way.

Id. at 85 (citations omitted); see also United States v. Erickson, 61 M.J. 230 

(C.A.A.F. 2005).

 

4 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
United States v. Chambers, No. ACM 38975

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Accordingly, the preemption doctrine only precludes prosecution under 

Article 134, UCMJ, where two elements are met: “(1) ‘Congress intended to 

limit prosecution for . . . a particular area’ of misconduct ‘to offenses defined 

in specific articles of the Code,’ and (2) ‘the offense charged is composed of a 

residuum of elements of a specific offense.’” United States v. Curry, 35 M.J. 

359, 360–61 (C.M.A. 1992) (omission in original) (quoting United States v. 

McGuinness, 35 M.J. 149, 151–52 (C.M.A. 1992)); see also United States v. 

Wright, 5 M.J. 106 (C.M.A. 1978).

We have previously addressed similar arguments. In United States v. 

Hill, No. ACM 38848, 2016 CCA LEXIS 291, at *5 (A.F. Ct. Crim. App. 9 May 

2016) (unpub. op.), we held that a specification alleging the enticement of a

minor to engage in lewd acts for the purpose of producing a visual depiction 

did not constitute a residuum of the elements of sexual abuse of a child under 

Article 120b(c). 

The following month we decided United States v. Costianes, No. ACM 

38868, 2016 CCA LEXIS 391 (A.F. Ct. Crim. App. 30 Jun. 2016) (unpub. op.). 

Although Costianes primarily considered whether a state-law offense was 

preempted from assimilation under Clause 3 of Article 134, we reaffirmed 

Hill’s holding that preemption did not bar an Article 134 charge for enticing a 

minor to produce child pornography. We noted:

Even before it was a listed Article 134, UCMJ, offense, military 

case law had distinguished child pornography offenses under 

Article 134, UCMJ, as distinct from the underlying conduct 

that occurs with the minor. See United States v. Nerad, ACM 

36994 (rem), 2011 CCA LEXIS 346, *4 (A.F. Ct. Crim. App. 9 

March 2011) (affirming a finding of guilty to a violation of Article 134, UCMJ, for possessing child pornography when “the appellant was in the unique position of having a relationship with 

someone he could legally see naked and, but for his existing 

marriage, legally have sexual intercourse with, but could not 

legally possess nude pictures of her, several of which she took 

and sent to him”), vacated on other grounds, 70 M.J. 356 

(C.A.A.F. 2011). The changes to Article 120b, UCMJ, have not 

incorporated the listed Article 134, UCMJ, offense of child pornography. Therefore, the preemption doctrine does not apply to 

Article 134, UCMJ, child pornography specifications.

Costianes, unpub. op. at *19-20.

Finally, we recently decided United States v. Wheeler, No. ACM 38908,

___ M.J. ___ (A.F. Ct. Crim. App. 19 Apr. 2017), in which we held that “persuading, inducing, enticing, or coercing” a minor to engage in sexual activity 
United States v. Chambers, No. ACM 38975

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is “a harm that the UCMJ does not specifically address.” Wheeler, ___ M.J. at 

___.

We see no reason to deviate from our treatment of this issue in Hill,

Costianes, and Wheeler. Nor is Appellant’s case meaningfully factually distinguishable. We therefore conclude that the challenged Article 134, UCMJ, 

specifications were not preempted by Article 120b, UCMJ.

III. CONCLUSION

The findings of guilt and the sentence are correct in law and fact and no 

error materially prejudicial to the substantial rights of Appellant occurred. 

Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the

findings and sentence are AFFIRMED.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court