IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Robert L. MASON, Jr., Major 

U.S. Air Force, Appellant 

No. 02-0849 

Crim. App. No. 34394 

United States Court of Appeals for the Armed Forces 

Argued March 2, 2004 

Decided June 10, 2004 

ERDMANN, J., delivered the opinion of the Court, in which 

GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a 

separate opinion dissenting in part and concurring in part. 

Counsel 

For Appellant: Major Rachel E. Vanlandingham (argued); Colonel

Beverly B. Knott, Major Terry L. McElyea, and Captain Jennifer 

K. Martwick (on brief). 

For Appellee: Major Shannon J. Kennedy (argued); Colonel 

LeEllen Coacher, Lieutenant Colonel Robert V. Combs, Lieutenant 

Colonel Lance B. Sigmon, and Captain Lane A. Thurgood (on 

brief). 

Military Judge: Thomas G. Crossan, Jr. 

This opinion is subject to editorial correction before final publication.
United States v. Mason, Jr., No. 02-0849/AF 

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Judge ERDMANN delivered the opinion of the Court.

Major Robert L. Mason, Jr., entered guilty pleas and was 

convicted by a general court-martial of violating a lawful 

general order, engaging in conduct unbecoming an officer and a 

gentleman and knowingly receiving child pornography in violation 

of Articles 92, 133 and 134, Uniform Code of Military Justice 

[UCMJ], 10 U.S.C. §§ 892, 933 and 934 (2000), respectively. He 

was sentenced by the military judge to a dismissal, confinement 

for two years and forfeiture of all pay and allowances. In 

accordance with the terms of a pretrial agreement, the convening 

authority approved only so much of the sentence as provided for 

dismissal and six months’ confinement. 

Mason assigned several errors in his appeal to the Air 

Force Court of Criminal Appeals, including a claim that his 

guilty plea to the Article 134 charge was improvident in light 

of the Supreme Court's decision in Ashcroft v. Free Speech 

Coalition, 535 U.S. 234 (2002). The Court of Criminal Appeals 

reviewed Mason's claims, rejected all of them and affirmed his 

conviction and sentence. 

Mason petitioned this Court for review of the Court of 

Criminal Appeals' decision and we granted review of the 

following assigned Issue I and specified review of Issue II: 

I. WHETHER APPELLANT'S PLEAS OF GUILTY TO OFFENSES UNDER 

18 U.S.C. SECTION 2252A WERE INVOLUNTARY BECAUSE HE HAD AN 

INCOMPLETE UNDERSTANDING OF THE OFFENSES WHEN THE MILITARY 

JUDGE EXPLAINED THE OFFENSES USING THE UNCONSTITUTIONALLY 
United States v. Mason, Jr., No. 02-0849/AF 

3

VAGUE AND OVERBROAD DEFINITIONS OF CHILD PORNOGRAPHY 

CONTAINED IN 18 U.S.C. SECTION 2256. 

II. IN THE EVENT THAT APPELLANT'S GUILTY PLEAS ARE 

IMPROVIDENT TO CHARGE III AND ITS SPECIFICATION UNDER 

CLAUSE 3 OF ARTICLE 134, WHETHER HIS PLEA IS PROVIDENT AS 

TO A LESSER-INCLUDED OFFENSE UNDER CLAUSE 1 OR CLAUSE 2 OF 

ARTICLE 134 IN LIGHT OF ASHCROFT V. FREE SPEECH COALITION, 

535 U.S. 234 (2002) AND UNITED STATES V. O'CONNOR, 58 M.J. 

450 (C.A.A.F. 2003). 

We hold that while Mason's guilty plea to the clause 3, Article 

134 offense was improvident, his plea was provident to a lesserincluded offense under clauses 1 and 2 of Article 134. 

BACKGROUND

Mason served as a contracting officer assigned to the 

Defense Supply Center Columbus (DSCC), an arm of the Defense 

Logistics Agency. The DSCC routinely handles highly sensitive 

and classified procurement matters, including multi-million 

dollar contracts. It is primarily staffed with over 2,500 

civilian employees, but is also staffed by a small contingent of 

military members, of which Mason was a part. 

The DSCC monitored its employees' access to the Internet 

and during the course of that general monitoring process, Mason 

was identified as having accessed inappropriate websites. 

Subsequent monitoring and investigation disclosed that Mason had 

utilized two different DSCC computers to (1) view and/or 

download from the Internet various items with pornographic and 

obscene images or language; (2) participate in teen "chat rooms" 
United States v. Mason, Jr., No. 02-0849/AF 

4

and engage in discussions of a sexual nature; and (3) receive 

images of child pornography. 

Mason was ultimately charged under Article 92 with three 

specifications of violating a general regulation pertaining to 

use of government computers, under Article 133 with one 

specification for conduct unbecoming an officer and a gentleman 

based on certain activities that he engaged in on the computers1

and under clause 3 of Article 134 with one specification of 

violating the Child Pornography Prevention Act of 1996 (CPPA), 

18 U.S.C. § 2252A (2000).2

The present appeal concerns the providence of Mason's 

guilty plea to the Article 134 charge. For this Court to reject 

a guilty plea on appellate review, the record of trial must show 

a substantial basis in law and fact for questioning the plea. 

United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)(citing 

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). 

DISCUSSION

A. The Providence Inquiry and Record of Trial 

 

1 This specification involved Mason's conduct in participating in 

teen chat rooms on the Internet and in storing, viewing, 

displaying, or processing various items on both government 

computers, including pornography, erotic stories containing 

obscene language and certain "thumbnail" images of naked 

children. 

2 This specification involved a set of images specifically 

characterized as "child pornography" and distinct from the ones 

referred to in the Article 133 charge. 
United States v. Mason, Jr., No. 02-0849/AF 

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 Under the clause 3 Article 134 specification, Mason was 

charged with a violation of the CPPA. The military judge 

explained that the statutory offense involved the knowing 

receipt of child pornography that had been transported in 

interstate or foreign commerce and was "assimilated into the 

[UCMJ] as another crime or offense not capital" under Article 

134. The military judge advised Mason that the definitions for 

the CPPA offense were found in 18 U.S.C. § 2256 (2000) and went 

on to define numerous terms, specifically including the 

alternative definitions of "child pornography" under §§ 

2256(8)(A)-(D): 

Child pornography means any visual depiction, including any 

photograph, film, video picture, or computer, or computer 

generated image or picture, whether made or produced by 

electronic, mechanical or other means for [sic] sexually 

explicit conduct where: a) the production of such visual 

depiction involves the use of a minor engaging in sexually 

explicit conduct; b) such visual depiction is or appears to 

be of a minor engaging in sexually explicit conduct; c) 

such visual depiction has been created, adapted or modified 

to appear that an identifiable minor is engaging in 

sexually explicit conduct; or, d) such visual depiction is 

advertised, promoted, presented, described, or distributed 

in such a manner that conveys the impression that the 

material is or contains a visual depiction of a minor 

engaging in sexually explicit conduct. 

 In addition to advising Mason of the definitional elements 

of the CPPA offense, the military judge included what he termed 

a “fourth element”: 

Fourth -- and I instruct on this only in this case if it is 

determined that your plea is improvident on the charged 

offense, since the crime has been charged as an other crime 

or offense not capital -- such conduct was of a nature to 
United States v. Mason, Jr., No. 02-0849/AF 

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bring discredit upon the armed forces or was to the conduct 

[sic] of good order and discipline in the armed forces. 

 He went on to specifically ask Mason if he understood that 

"fourth element" and why it had been included. After consulting 

with his defense counsel, Mason answered in the affirmative and 

indicated that he understood the element required that "his 

conduct must also be such to bring discredit upon the Air 

Force." The military judge then further explained to Mason why 

it had been included: 

Now, it's my position with the charged offense as it is 

charged in Charge III, that is not an element of the 

charged offense. However, in the abundance of caution, I 

add that as an element in case for some reason the 

appellate courts, if this case goes to the appeals system, 

determines your plea to the. . . [CPPA] charge is 

improvident, it would find that it was service discrediting 

or armed forces discrediting. That is why I have added 

that element. 

 Mason indicated his understanding as to why that element 

had been added, indicated that he had no questions about any of 

the elements and acknowledged that he believed and admitted that 

the elements and definitions he had been given, taken together, 

correctly described what he had done. He explained to the 

military judge that he had viewed several pictures of "minors 

doing lascivious poses" on his government computers and that he 

understood the movement of those images over the Internet was 

considered movement through interstate commerce. He admitted 

during his discussion with the military judge and in his 

stipulation of fact that the images were "child pornography." 
United States v. Mason, Jr., No. 02-0849/AF 

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He also admitted during his discussion with the military judge 

that his conduct was of a nature to bring discredit upon the 

armed forces or was to the prejudice of good order and 

discipline. 

B. The Impact of Free Speech Coalition and O'Connor

 The granted issue asks whether Mason's plea to the charged 

offense under clause 3 of Article 134 is provident in light of 

the Supreme Court's decision in Free Speech Coalition and our 

subsequent decision in O'Connor. The specified issue asks 

whether, in the event of a negative answer to the granted issue, 

Mason's guilty plea can nonetheless be upheld as provident to a 

lesser-included offense under clauses 1 or 2 of Article 134. We 

turn first to the granted issue. 

 1. The Providence of the Plea Under Clause 3 

 As explained to him by the military judge, Mason's conduct 

in receiving "child pornography" was charged as a "clause 3" 

offense under Article 134, with the "crime or offense not 

capital" being a violation of the CPPA. Thus, the criminal 

nature of Mason's conduct, as charged, derived from violating an 

independent federal criminal statute proscribing the receipt of 

"child pornography." O'Connor, 58 M.J. at 452. 

 The military judge defined the elemental term "child 

pornography" to Mason by using portions of its statutory 

definition that were later struck down by the Supreme Court in 
United States v. Mason, Jr., No. 02-0849/AF 

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Free Speech Coalition. As occurred in O'Connor, the military 

judge's explanation to Mason of the elements of the CPPA offense 

utilized terms that were constitutionally overbroad. The 

judge’s explanation made specific reference to visual depictions 

that "appear to be" of a minor engaging in sexually explicit 

conduct and materials that were pandered in a manner that 

"conveys the impression" that they include images of minors 

engaging in sexually explicit conduct. Finally, as was also the 

case in O'Connor, the record here contains no clear focus or 

discussion on those aspects of the CPPA not affected by the 

Supreme Court's ruling, i.e., "actual" child pornography under 

18 U.S.C. §§ 2256(8)(A)-(B) or "computer morphed" images of an 

identifiable minor under § 2256(8)(C). O'Connor, 58 M.J. at 

452. 

Under our decision in O'Connor, a provident guilty plea to 

a violation of the CPPA must reflect that the accused violated 

those portions of the statute not affected by the Supreme 

Court's ruling in Free Speech Coalition. 58 M.J. at 454. The 

absence of any focus on or discussion concerning those aspects 

of the statute in the present record coupled with the use of the 

unconstitutionally overbroad definition during Mason's plea 

colloquy render this case indistinguishable from O'Connor. 

Accordingly, we cannot view Mason's plea of guilty to violating 
United States v. Mason, Jr., No. 02-0849/AF 

9

the CPPA, and thus to violating clause 3 of Article 134, as 

provident. 

2. The Providence of the Plea Under Clauses 1 and 2 

 That conclusion leads us to the specified issue -- can 

Mason's guilty plea nonetheless be viewed as provident to a 

lesser-included offense under clauses 1 and/or 2 of Article 134? 

As noted in O'Connor, we have recognized in the past that an 

improvident plea to a clause 3 offense based on a federal child 

pornography statute may be upheld as a provident plea to a 

lesser-included offense under clause 2 of Article 134. 58 M.J. 

at 454 (citing United States v. Augustine, 53 M.J. 95 (C.A.A.F. 

2000); United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000)). 

 In O’Connor, we ultimately concluded that the guilty plea 

could not be viewed as provident to a lesser-included offense 

under the approach embodied in Sapp and Augustine. While 

O'Connor had stipulated to the service-discrediting character of 

his conduct, there was no discussion of that element by the 

military judge during the plea inquiry. Both Sapp and Augustine

involved admissions by the accused during the plea inquiry as to 

the service-discrediting character of their conduct and we 

characterized those discussions as demonstrating that the 

accused "clearly understood the nature of the prohibited 

conduct." 58 M.J. at 454 (quoting Sapp, 53 M.J. at 92). 
United States v. Mason, Jr., No. 02-0849/AF 

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The plea colloquy in O'Connor was focused solely on "the 

nature of the prohibited conduct" under the CPPA, without any 

discussion or acknowledgement of the criminal nature of the 

conduct deriving alternatively (and independently) from its 

character as service-discrediting or prejudicial to good order 

and discipline. 58 M.J. at 455. Absent any discussion with the 

military judge as to how his conduct might be criminal under 

clause 1 or 2 as distinct from criminal under clause 3, we could 

not view O'Connor's guilty plea as provident to a lesserincluded offense under clause 2. 

 The record here is clearly distinguishable from O'Connor in 

terms of the discussion between Mason and the military judge 

concerning the character of his conduct as service-discrediting 

and prejudicial to good order and discipline. The military 

judge openly explained that those were not elements of the 

"crime or offense not capital" that Mason was charged with under 

clause 3 and explained why he was including the additional 

element. Mason indicated his understanding as to why the 

element had been added. In the context of his explanations that 

he had viewed pictures of "minors doing lascivious poses" and 

the images of "child pornography" on his government computer, 

Mason then went on to affirmatively admit to the military judge 

that his conduct in doing so was both service-discrediting and 
United States v. Mason, Jr., No. 02-0849/AF 

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to the prejudice of good order and discipline in the armed 

forces. 

 The record here thus contains what was missing in O'Connor

and was present in both Sapp and Augustine. The plea colloquy 

between the military judge and Mason demonstrates that he 

"clearly understood the nature of the prohibited conduct" in 

terms of that conduct being service-discrediting and prejudicial 

to good order and discipline. O'Connor, 58 M.J. at 455. Those 

clause 1 and clause 2 elements were explained to him as a basis 

for finding his conduct criminal apart from clause 3 and his 

discussions with and admissions to the military judge were made 

in that context. 

 Absent some other distinguishing factor, we could deem 

Mason's guilty plea provident as to a lesser-included offense 

under clause 1 and clause 2 under the principles embodied in 

Sapp and Augustine. We recognized in O'Connor, however, that 

there is a distinguishing factor at play here: the impact of 

Free Speech Coalition and its creation of "a constitutional 

dimension that was not at issue in Sapp or Augustine." 58 M.J. 

at 454. 

 That constitutional dimension flows from the Supreme 

Court's extension of First Amendment protection to certain 

depictions of minors engaging in sexually explicit conduct, 

i.e., "virtual" as opposed to "actual" images. Id. at 454-55. 
United States v. Mason, Jr., No. 02-0849/AF 

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We expressly acknowledged in O'Connor, but did not answer, the 

question as to whether, in the wake of Free Speech Coalition, 

the possession, receipt or distribution of images of minors 

engaging in sexually explicit conduct (regardless of their 

status as "actual" or "virtual") could constitute servicediscrediting conduct for purposes of Article 134. Id. at 455. 

Such inquiry must necessarily be undertaken on a case-by-case 

basis. 

In analyzing this constitutional dimension, the ultimate 

question is whether the status of the images in the present case 

as "virtual" or "actual" is of consequence in the context of 

assessing the providence of Mason's guilty plea under clauses 1 

and 2. We conclude that it is not. The receipt or possession 

of "virtual" child pornography can, like "actual" child 

pornography, be service-discrediting or prejudicial to good 

order and discipline. Even if we were to assume that the 

specific images that serve as the basis for Mason's "child 

pornography" charge are "virtual" in nature, this still involves 

a commissioned officer of the United States Air Force receiving 

and viewing such images on a government computer in his 

workplace. Under those circumstances, the distinction between 

"actual" child pornography and "virtual" child pornography does 

not alter the character of Mason's conduct as servicediscrediting or prejudicial to good order and discipline. 
United States v. Mason, Jr., No. 02-0849/AF 

13

 Mason stipulated to a sexual maturity assessment of the 

images at issue here as depicting children between the ages of 

12 and 16. He acknowledged to the military judge that the 

images depicted "minors doing lascivious poses" and constituted 

"child pornography." While the issue as to whether the images 

are "virtual" or "actual" may have a potentially dispositive 

effect in prosecutions under the CPPA in both civilian and 

military settings, it is not inherently dispositive of their 

impact on the esteem of the armed forces or good order and 

discipline. Those are the yardsticks by which the criminality 

of conduct under clauses 1 and 2 are measured. As the Supreme 

Court recognized: 

While the members of the military are not excluded 

from the protections granted by the First Amendment, the 

different character of the military community and of the 

military mission requires a different application of those 

protections. The fundamental necessity for obedience, and 

the consequent necessity for imposition of discipline, may 

render permissible within the military that which would be 

constitutionally impermissible outside it. 

Parker v. Levy, 417 U.S. 733, 758 (1974). Even assuming the 

images at issue here are “virtual,” Mason's conduct in receiving 

those images on his government computer can constitutionally be 

subjected to criminal sanction under the uniquely military 

offenses embodied in clauses 1 and 2 of Article 134. 

Accordingly, we answer the specified Issue II in the 

affirmative and conclude that neither Free Speech Coalition nor 

our subsequent decision in O'Connor provide a substantial basis 
United States v. Mason, Jr., No. 02-0849/AF 

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in law or fact for questioning the providence of Mason's guilty 

plea to a lesser-included offense under clauses 1 and 2 of 

Article 134. 

CONCLUSION

The specification of Charge III is amended to read as 

follows: 

In that MAJOR ROBERT L. MASON, JR., United States Air 

Force, 88th Mission Support Squadron, Wright-Patterson Air 

Force Base, Ohio, did, at or near Defense Supply Center, 

Columbus, Ohio, on divers occasions between on or about 8 

July 1998 and on or about 2 November 1999, knowingly 

receive one or more images of child pornography that had 

been mailed, shipped, or transported in interstate or 

foreign commerce by any means, including by computer, in 

violation of 18 U.S.C. 2252A. 

The decision of the United States Air Force Court of Criminal 

Appeals is affirmed as to Charge III and its specification as 

amended, as well as to the remaining Charges and their 

specifications and the sentence. 
United States v. Mason, Jr., 02-0849/AF 

CRAWFORD, Chief Judge (dissenting in part and concurring in part):

 Because I agree that Appellant’s plea was provident to a 

lesser-included offense under clauses 1 and 2 of Article 134, 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. 

§ 934 (2000), I concur in the majority’s affirmation of 

Appellant’s conviction. Nevertheless, I disagree that 

Appellant’s guilty plea was improvident to the clause 3, Article 

134 offense. 

 First, Appellant waived the Ashcroft v. Free Speech 

Coalition, 535 U.S. 234 (2002), issue by failing to address it 

at trial. 

When Appellant learned of his charge under Article 

134, clause [3], for violating the Child Pornography 

Prevention Act (CPPA), 18 U.S.C. § 2252A (2000), he 

neither took exception to the charge generally, nor 

alleged that the basis for the charge – the CPPA – was 

unconstitutionally vague and overbroad. In so doing, 

Appellant cannot now be afforded relief on the very 

grounds he himself failed to raise, and therefore 

waived. 

United States v. O’Connor, 58 M.J. 450, 456 (C.A.A.F. 2003) 

(Crawford, C.J., dissenting). 

 Moreover, the record establishes Appellant’s understanding 

that the pornographic images based on which he was convicted 

depicted actual minors. 

When evaluating the providence of a guilty plea, 

“[r]ather than focusing on a technical listing of the 

elements of an offense, this Court looks at the 

context of the entire record to determine whether an 

accused is aware of the elements, either explicitly or 
United States v. Mason, Jr., 02-0849/AF 

2

inferentially.” United States v. Redlinski, 58 M.J. 

117 (C.A.A.F. 2002)(emphasis added). “[T]here need 

only be ‘factual circumstances’ on the record ‘which 

“objectively” support’ the guilty pleas, i.e., that 

actual minors were in appellant’s pictures.” United 

States v. James, 55 M.J. 297, 300 (C.A.A.F. 2001) 

(quoting United States v. Shearer, 44 M.J. 330, 334 

(C.A.A.F. 1996)). 

In James, this Court considered the following 

colloquy in evaluating the providence of the 

appellant’s guilty plea to violating the pre-Free 

Speech Coalition CPPA: 

Q. The term “child pornography” [under the CPPA] 

means any visual depiction . . . involv[ing] the 

use of a minor engaging in sexual [sic] explicit 

conduct. Such visual depiction is or appears to 

be of a minor engaging in sexually explicit 

conduct[.] 

 

. . . . 

Q. Now, why do you believe that - as far as 

describes those files - why you believe the files 

to be described as child pornography? 

A. Well, they depicted young females under the 

age of eighteen, which as you stated, that they, 

uh, they are minors. I believe that the pictures 

depicted minors under the age of eighteen and at 

least four contained minors engaged in sexual 

activity. 

. . . . 

Q. Do you believe that one of those persons 

involved in that conduct was a minor? 

A. I believe the person in the picture was under 

eighteen, yes, sir. 

55 M.J. at 301 (emphasis added). The Court noted that 

through these words, the appellant “admitted that 

actual minors were in the charged pictures” and that 

these admissions were “amply supported by the pictures 

themselves.” Id. at 300-01. The Court then concluded 
United States v. Mason, Jr., 02-0849/AF 

3

that “the factual circumstances reflected in the 

record ‘objectively support’ appellant's guilty pleas 

to possessing and transporting child pornography 

depicting actual minors.” Id. (emphasis added). In 

short, although the appellant did not supply the 

adjectives “real” or “actual,” and although the judge 

defined “pornography” in pre-Free Speech Coalition

terms, this Court inferred from the language the 

appellant did use – “young females” and “minors” – 

that the images involved actual minors. See

Redlinski, 58 M.J. at 117 (noting that providence may 

be confirmed by the record inferentially). 

Id. at 456-57. 

 In the instant case, Appellant admitted during the 

providence inquiry that “[s]everal of the pictures [he’s] looked 

at were child pornography, that is, minors doing lascivious 

poses” and that the pictures he viewed on his computer were 

“images of naked children.” Moreover, in his stipulation of 

fact, Appellant listed the internet sites from which he obtained 

child pornography. He then admitted as follows: “All of the 

images listed directly above and as attached to this stipulation 

of fact depict children who are between the ages of 12 and 16

according to a sexual maturity assessment.” The descriptive 

terminology Appellant used – “naked children,” “minors,” and 

“children who are between the ages of 12 and 16” – was very 

similar to the terminology in James, particularly given the near 

equivalency in meaning of the words “minor” and “child.” See

Black’s Law Dictionary 1011 (7th ed. 1999)(defining “minor” as 

“[a] person who has not reached full legal age; a child or 
United States v. Mason, Jr., 02-0849/AF 

4

juvenile”)(emphasis added). Finally, as in James and O’Connor, 

the pictures attached to the record in this case amply support 

Appellant’s awareness that the images involved actual minors. 

 For these reasons, I would hold Appellant’s plea provident 

to the clause 3, Article 134 offense. In any event, I concur in 

the majority’s result, as I would also hold Appellant’s plea 

provident to a lesser-included offense under clauses 1 and 2 of 

Article 134.