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_______ _______ __________
No. ACM 38975

_______ _______ __________
UNITED STATES Appellee

v.
Jacob A. CHAMBERS Airman First Class ( E

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

_______ _______ __________ Appeal from the Unite d S tates Air Force Trial Judiciary

Decided 4 May 2017

_______ _______ __________ 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

. Senten ce adjudged 1 October 2015 by G CM 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

. B efore MAYBERRY

, SANTORO , and HARDING Appellate Military Judges

. Judge SANTORO delivered the opinion of the c ourt, in which Senior Judge MAYBERRY and Judge HARDING joined.

_______ _______ __________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________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 abu se 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 i n violation of Arti cle s 8 0
, 120b , and
134
, Uniform Code of M ilitary Justice (UCMJ) , 10 U.S.C. §§ 8 80, 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. B ACKGROUND
Appellant repeatedly raped his 11

- year old steps ister , RC, by penetrating her vulva and mouth with his penis and penetrating her anus with his finger. He also touched her g enitalia, 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. D ISCUSSION

A. Sentencing Evidence
Appellant asserts that the military ju dge 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 , 6 8 M.J. 243, 248 (C.A.A.F. 2010), Appell ant 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 hisabuse of her prior to his Air Force service. Appellant waived this issue because trial defense counsel affirmatively told the military judge that there

was n o 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 vis ual 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 r eference 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 gui lty’ 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 wh ich 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

4 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 i n sexua lly explicit conduct for the purpose of producing a visual depiction of such conduct, to wit: requesting that [each victim] create and then send sexually expli cit images of herself to you.
Two, that at the time [each victim] w as under the age of 18

years. And three, under the circumstances your cond uct was of a nature to bring discredit upon the armed for ces. 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. A pp. 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 su perior 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 specificpunitive articles of the code, another offense may not be created and pun ished 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

preemp tion 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

5 Accordingly, the preemption doct rine 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 charge d 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 add ressed 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 eng age 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 charg e 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 occu rs with the minor. See United States v. Nerad , ACM 36994 (rem), 2011 CCA LEXIS 346, *4 (A.F. Ct. Crim. App. 9March 2011) (affirming a finding of guilty to a violation of Article 134, UCMJ, for possessing child pornography when “ the appellant was in the un ique 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” ), vacate d on other grounds , 70 M.J. 356 (C.A.A.F. 2011). The changes to Article 120b, UCMJ, have notincorporated 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 activityUnited States v. Chambers , No. ACM 38975

6 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 . N or 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. C ONCLUSION
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