UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

ALDYKIEWICZ, SALUSSOLIA, and WALKER

Appellate Military Judges

UNITED STATES, Appellee

v.

Sergeant CHRISTOPHER S. GILBERT

United States Army, Appellant

ARMY 20190766

Headquarters, Eighth Army

Robert L. Shuck, Military Judge

Colonel Dean L. Whitford, Staff Judge Advocate

For Appellant: Major Benjamin A. Accinelli, JA; Captain Jason X. Hamilton, JA.

For Appellee: Pursuant to A.C.C.A. Rule 17.4, no response filed.

31 July 2020

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WALKER, Judge:

While appellant’s attempts to persuade a teenage victim to send him nude 

“selfies” may have constituted the offense of solicitation, they did not amount to the 

offense of attempt to possess child pornography.

1

 For reasons discussed below, we 

find a substantial basis in law and fact to question the providence of appellant’s plea 

 1 A military judge sitting as a general court-martial convicted appellant, in 

accordance with his pleas, of one specification each of attempt to possess child 

pornography, sexual abuse of a child, and possession of child pornography, in 

violation of Articles 80, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. 

§§ 880, 920b, 934 [UCMJ]. The convening authority approved the adjudged 

sentence to a bad-conduct discharge, confinement for nine months, forfeiture of all 

pay and allowances, and reduction to the grade of E-1. This case is now before this 

court pursuant to Article 66, UCMJ.
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2

to The Specification of Charge I. Accordingly, we set aside appellant’s conviction 

of attempted possession of child pornography and reassess his sentence.

BACKGROUND

A. Appellant Requests Nude “Selfies” from MN

Appellant met Miss MN online playing the video game “Fortnite” on 28 May 

2018. Using the voice chat feature in the game, MN told appellant she was thirteen 

years old and appellant told her he was twenty-two. The two traded Instagram 

account names and began exchanging private messages through the Instagram text 

messaging feature. MN would borrow her step-mother’s cell phone in order to 

exchange messages with appellant. 

In the messages, appellant engaged in inappropriate sexual conversations with 

MN and repeatedly asked her to send him a “selfie,” including a nude “selfie” 

(pictures taken of oneself) through Instagram. When MN denied appellant’s requests 

for photos, appellant sent her a digital video and photos of his penis in an attempt to 

persuade her to reciprocate. MN eventually said she would send appellant a picture 

over the weekend when her parents were gone and she was home alone, but 

suggested that it may not be a nude photo but rather, a photo of her breasts. When 

MN inquired as to why appellant would be mad if she did not send him an unclothed 

photo of herself, appellant replied, “. . . I mean it’s only fair you like seeing me 

naked so I should be able to see some of you.”

On 1 June 2018, MN’s step-mother intercepted messages that were sexual in 

nature from appellant to MN. MN’s father reported the messages to local law 

enforcement, who conducted an investigation including a download of the Instagram 

messages between appellant and MN. 2

B. The Military Judge Is Not Convinced Appellant’s 

Requests Constitute Attempts to Possess Child Pornography

During appellant’s guilty plea providency inquiry, the military judge 

expressed concern over whether appellant’s description of his actions toward MN

met the definition of attempt to possess child pornography, as charged by the 

government. Appellant explained, “My request to see her naked was a substantial 

step and a direct movement toward what I hoped would result in [MN] actually 

 2 The police department also seized appellant’s phone and upon searching it, 

discovered the material which was the basis for the possession of child pornography 

specification of which appellant was convicted.
GILBERT—ARMY 20190766

3

sending me, not only a nude image of herself, but an image where she was actually 

touching her breast or vagina.”

The military judge asked appellant whether he actually asked MN to send him 

a picture of her touching her breasts or vagina. Appellant replied that he had not, 

but likely would have, had MN’s parents not intervened when they did. 

The military judge then defined the categories of “sexually explicit conduct” 

to appellant. He specifically asked appellant whether he had requested MN send him 

photos of herself engaged in any of the categories of sexually explicit conduct: (a) 

sexual intercourse or sodomy; (b) bestiality; (c) masturbation; (d) sadistic or 

masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any 

person. Appellant provided that he had not specifically asked MN to send him 

pictures of herself engaged in any of the categories of sexually explicit conduct. 

Appellant explained he was initially only asking MN to send a picture of herself so 

he could see what she looked like, though he was “intending” for their message 

exchange to escalate to MN sending him an image of herself masturbating.

The military judge explained to appellant “not every picture of a nude 

underage person constitutes child pornography.” Before taking an extended break to 

allow the parties to confer, the military judge concluded, “I’m not convinced based 

on reading the stipulation of fact that the accused was intending to possess sexually 

explicit photographs of [MN]. And that he was in fact only wish—desiring to 

possess nude selfies, and I don’t think that meets the definition of child pornography 

without anything else.”

In an attempt to provide further context, the government entered into evidence 

the complete exchange of Instagram messages between appellant and MN. Appellant 

then explained each of the messages to the military judge and his intent behind them. 

Appellant admitted that his intent was to first get MN to send a selfie and then 

something more explicit to which he could masturbate. Finally, the military judge 

asked appellant, “What would’ve been sufficient for you to meet that requirement?” 

Appellant replied, “Your honor, it would be a nude image of her depicting her 

breasts without clothes on or her either exposing her vagina or her with her panties 

on, touching her vagina.” The military judge asked appellant why the image he 

ultimately desired to receive would have been lascivious, based on the factors 

provided in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).

Appellant explained that an image such as that which he desired from MN

would have been lascivious “because it would be designed to get [him] sexually 

excited,” and would have suggested “sexual willingness to engage in sexual 

activity.”
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Before finally accepting appellant’s plea, the military judge asked appellant 

what prevented him from actually committing the offense of possession of child 

pornography with regard to MN. Appellant replied that MN never sent him any

images of herself and then her parents intervened.

LAW AND DISCUSSION

Asking a minor child to share naked pictures of herself and hoping the images

will contain sexually explicit conduct does not satisfy the elements of the offense of 

attempted possession of child pornography. We conclude the military judge abused

his discretion by accepting appellant’s guilty plea to the offense of attempted 

possession of child pornography.

A. Standard of Review

The military judge at a guilty plea is “charged with determining whether there 

is an adequate basis in law and fact to support the plea before accepting it.” United 

States v. Inabinette, 66 M.J. 320, 321-322 (C.A.A.F. 2008) (citations omitted). We 

review a judge’s decision to accept a guilty plea for abuse of discretion. United 

States v. Weekes, 71 M.J. 44, 46 (C.A.A.F. 2012) (citing Inabinette, 66 M.J. at 321. 

A military judge abuses his discretion if he accepts a guilty plea “without an 

adequate factual basis to support it” or if he accepts a guilty plea based upon “an 

erroneous view of the law.” Id. (citation omitted).

In reviewing a military judge’s decision to accept a guilty plea, “appellate 

courts apply a substantial basis test: Does the record as a whole show a substantial 

basis in law and fact for questioning the guilty plea?” Inabinette, 66 M.J. at 322

(internal quotations and citations omitted). “If an accused’s admissions in the plea 

inquiry do not establish each of the elements of the charged offense, the guilty plea 

must be set aside.” Weekes, 71 M.J. at 46 (citing United States v. Gosselin, 62 M.J. 

349, 352-53) (C.A.A.F. 2006)).

B. The Definition of Child Pornography

As the military judge aptly explained to appellant, “not every picture of a 

nude underage person constitutes child pornography.” “‘Child pornography’ means 

material that contains either an obscene visual depiction of a minor engaging in 

sexually explicit conduct or a visual depiction of a minor engaging in sexually 

explicit conduct.” Manual for Courts-Martial, United States (2016 ed.) [MCM], pt. 

IV, ¶ 68b.c.(1). “Sexually explicit conduct means actual or simulated: (a) sexual 

intercourse or sodomy . . .; (b) bestiality; (c) masturbation; (d) sadomasochistic or 

masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any 

person.” MCM, pt. IV, ¶ 68b.c.(7). 
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In United States v, Roderick, our superior court adopted the six “Dost factors” 

developed by the Southern District of California for determining when an image 

constitutes a “lascivious exhibition” of the genitals or pubic area. 62 M.J. 425, 430 

(C.A.A.F. 2006)(citing United States v. Dost, 636 F. Supp. at 828, 832 (S.D. Cal. 

1986(C.A.A.F. 2006). The non-exclusive list of the “Dost factors” are:

(1) whether the focal point of the visual depiction is on 

the child's genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually 

suggestive, i.e. in a place or pose generally associated 

with sexual activity;

(3) whether the child is depicted in an unnatural pose, or 

in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness 

or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to 

elicit a sexual response in the viewer.

Id. at 429. If an image of a child does not depict the genitals or pubic 

area, that ends the “lascivious exhibition” analysis as such a depiction 

is a prerequisite to the application of the Dost factors. Id. at 430.

Since the military court system adopted the Dost factors, courts have analyzed 

material on a case-by-case basis to determine whether it meets the definition of 

lascivious exhibition of the genitals or pubic area. Such an analysis is a highly factspecific determination with legal consequences. See United States v. Piolunek, 74 

M.J. 107, 108 (“Whether any given image does or does not display the genitals or 

pubic region is a question of fact, albeit one with legal consequences.”) We are not 

prohibited from considering evidence outside the four corners of the image(s) in 

question when making a determination as to whether an image constitutes child 

pornography. United States v. Updegrove, ARMY 20160166, 2017 CCA LEXIS 36,

at *7 (23 Jan. 2017) (mem. op.) (discussing Roderick, 62 M.J. 425). The “objective 

facts surrounding the image’s creation may be considered.” Id.

However, in appellant’s case, we have no images to analyze, and instead only 

the objective facts surrounding appellant’s requests for a hypothetical image that 

was never produced, let alone possessed. There is no application of the Dost factors

or analysis to perform. While we may consider objective facts surrounding an 
GILBERT—ARMY 20190766

6

image’s creation, we cannot wholly substitute such facts for an analysis of the 

material in question. It seems the military judge was satisfied that appellant’s 

request for any selfie, with the goal of eventually convincing MN to send him an 

image of herself containing a lascivious exhibition of her genitals or engaging in 

masturbation was sufficient. We disagree and find the military judge abused his 

discretion in accepting appellant’s plea on that basis. By appellant’s own admission, 

MN hinted she might send him a photo of her breasts, which would not meet the 

prerequisite of genital or pubic area depiction to even begin an analysis of whether

the photo would constitute child pornography. As we cannot be sure what type of 

image MN might have sent appellant had her parents not intervened (or if she would 

have sent him anything), we turn our analysis toward appellant’s actions in 

attempting to procure photos from MN.

C. Attempt Offenses and the Substantial Step

“[A]n act, done with specific intent to commit an offense under this chapter, 

amounting to more than mere preparation and tending, even though failing, to effect 

its commission, is an attempt to commit that offense.” UCMJ art, 80. The statute 

specifically requires that an offense of attempt must include the specific intent to 

commit the offense coupled with “an overt act that directly tends to accomplish the 

unlawful purpose.” MCM, pt. IV, ¶ 4c.(1). The overt act must go beyond mere 

preparation, which may consist of “devising or arranging the means or measures 

necessary for the commission of the offense.” MCM, pt. IV, ¶ 4c.(2). 

In United States v. Winckelmann, our Superior Court drew the “elusive line 

separating mere preparation from a substantial step.” 70 M.J. 403, 407 (C.A.A.F. 

2011) (internal quotation marks and citations omitted). The court relied on federal 

cases that defined a “substantial step” as “more than mere preparation but less than 

the last act necessary before actual commission of the crime.” United States v. Hale, 

78 M.J. 268, 272 (C.A.A.F. 2019) (citing Winckelmann, 70 M.J. 403). Quoting the 

9th Circuit, the Winckelmann court stated the substantial step must “unequivocally 

demonstrate[e] that the crime will take place unless interrupted by independent 

circumstances.” 70 M.J. 407. (quoting United States v. Goetzke, 494 F.3d. 1231, 

1237 (9th Cir. 2007)(citations omitted)).

In the context of attempted child enticement cases where an accused has not 

traveled to meet the target child victim and the interactions occurred over the 

internet, “courts analyze the factual sufficiency of the requisite substantial step 

using a case-by-case approach.” Winckelmann, 70 M.J. at 407. Where an accused 

has not actually met the child victim or engaged in “concrete conversations” making 

plans to do so, courts have still found “defendants have taken a substantial step 

toward enticement of a minor where there is a course of more nebulous conduct, 

characterized as ‘grooming’ the victim.” Id. at 408. We likewise consider 

appellant’s overall grooming actions toward MN in analyzing whether his strictly 
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online message exchanges with her amounted to an attempt to possess child 

pornography.

D. Hoping is Not a Substantial Step

Appellant’s hope and desire that MN would eventually send him a photo of 

herself that constituted child pornography, despite not having requested such a 

photograph, was nothing more than mere preparation. As our Superior Court 

recognized, "preparation consists of devising or arranging the means or measures 

necessary for the omission of the offense; the attempt is the direct movement toward 

the commission after preparations are made.” United States v. Schoof, 37 M.J. 96, 

103 (C.M.A. 1993)(internal quotation omitted)). In the context of a guilty plea, our 

Superior Court further commented:

Quite simply, where an accused pleads guilty and during 

the providence inquiry admits that he went beyond mere 

preparation and points to a particular action that satisfies 

himself on this point, it is neither legally nor logically 

well-founded to say that actions that may be ambiguous on 

this point fall short of the line ‘as a matter of law’ so as to 

be substantially inconsistent with the guilty plea.

Schoof, 37 M.J. at 103. We acknowledge that we are bound to accept an appellant’s

guilty plea explanation of his substantial step toward the commission of his target 

offense. However, in this case, appellant’s actions toward MN simply did not 

amount to more than mere preparation and hoping. 

Though appellant explained his desire to escalate the message exchanges with 

MN, he never actually asked MN to send him an image of herself engaged in 

sexually explicit conduct. Appellant’s honest admission at his providence inquiry 

that he had hoped MN would eventually send him a picture of herself masturbating 

or touching her breasts or vagina does not constitute a substantial step toward 

possession of child pornography. 

“When a charge against a servicemember may implicate both criminal and 

constitutionally protected conduct, the distinction between what is permitted and 

what is prohibited constitutes a matter of ‘critical significance.’” United States v, 

Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011) (quoting United States v. O'Connor, 58 

M.J. 450, 453 (C.A.A.F. 2003)). The military judge’s initial instinct was correct: 

appellant asking thirteen-year-old MN for nude “selfies” did not constitute an 

attempt to possess child pornography. When the military judge tried to discuss with 

appellant his understanding of the critical distinction between permissible and 

prohibited behavior, appellant’s responses evidenced a belief that his conduct was 

prohibited because he intended to eventually persuade MN to send him photos that 
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would sexually excite him and satisfy his masturbatory preferences. The military 

judge accepted this context as a substitute for appellant taking a substantial step 

toward possession of material that would actually meet the definition of child 

pornography.

But appellant’s hope that MN would eventually send him a photo of herself 

engaged in sexually explicit conduct (such as masturbation) did not change the 

nature of his actions toward MN. Appellant had inappropriate sexual conversations 

with MN, sexually abused her by sharing images and videos of his penis with her, 

and asked her to send him nude pictures of herself. He admitted that it was all 

preparatory work toward his ultimate goal of procuring photos that might have met 

the legal definition of child pornography. But he never actually asked or instructed 

MN to send him material that would constitute child pornography. Desiring images 

of MN to aid in his masturbation did not transform his preparation into a substantial 

step toward commission of the target offense of possession of child pornography.

In United States v. Moon, our Superior Court reversed a conviction of 

“knowingly possess[ing] multiple images of nude minors and persons appearing to 

be nude minors, which possession was to the prejudice of good order and discipline 

in the armed forces and was of a nature likely to bring discredit upon the armed 

forces,” charged in violation of Article 134, UCMJ, but not as a possession of child 

pornography offense. 73 M.J. 382 (C.A.A.F. 2014). The military judge in Moon

attempted to have the accused explain why the images he possessed were prohibited, 

rather than constitutionally protected such as nude images of children in works of 

art. Id. at 388-89. The appellant admitted he possessed the nude images of minors 

to satisfy his own sexual gratification and that was the reason the nude images of 

children, not amounting to actual child pornography, were not protected under the 

First Amendment and their possession was criminal. Id. at 389. Reversing the 

conviction, the court clarified that the military judge’s statement of the law was 

incorrect: “possession of images for one’s sexual gratification does not itself remove 

such images from First Amendment protection. If it did, ‘a sexual deviant’s quirks 

could turn a Sears catalog into pornography.’” Id. (quoting United States v. 

Amirault, 173 F.3d 28, 34 (1st Cir. 1999)). 

As our Superior Court did in Moon, we similarly conclude that 

notwithstanding appellant’s anticipated sexual arousal to the nude “selfies” he 

wanted MN to send to him, the military judge misapplied the law and failed to 

clearly distinguish prohibited from protected conduct. The closest appellant came to 

possessing child pornography of MN was hoping for it. We do not find his general 

request for nude “selfies” of MN to be a substantial step toward the offense of 

possession of child pornography, as images of nude minors are not per se child 

pornography. We therefore set aside appellant’s conviction of attempt to possess 

child pornography.