UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 39340

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UNITED STATES

Appellee

v.

Daniel J. POSTELL

Staff Sergeant (E-5), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 28 February 2019

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Military Judge: Christina M. Jimenez.

Approved sentence: Bad-conduct discharge and reduction to E-4. Sentence adjudged 29 June 2017 by GCM convened at Joint Base Pearl Harbor-Hickam, Hawaii.

For Appellant: Major Jarett F. Merk, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain 

Zachary T. West, USAF; Mary Ellen Payne, Esquire.

Before HUYGEN, MINK, and POSCH, Appellate Military Judges.

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

HUYGEN and Judge MINK 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This is an unpublished opinion and, as such, does not serve as 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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POSCH, Judge:

A general court-martial composed of officer and enlisted members found 

Appellant guilty of attempted sexual abuse of a child by indecent communication, in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 
United States v. Postell, No. ACM 39340

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U.S.C. § 880.

1 Appellant was sentenced to a bad-conduct discharge and reduction to the grade of E-4. The convening authority approved the adjudged sentence.

Appellant raises one issue on appeal: whether the military judge abused 

her discretion by not giving the members an instruction that defined “indecent 

language” as requested by the Defense. We find no error and affirm the findings and sentence.

I. BACKGROUND

In November 2016, Appellant was reassigned to Joint Base Pearl HarborHickam (JBPHH), Hawaii, and discovered a personal advertisement on the Internet entitled “New to base – w4m2

(JBPHH).” The ad read, in part, “I just 

moved here and I am looking for some military guys to show me around the 

area. . . . Maybe you could show me a secluded beach somewhere where we 

could have some fun.” Appellant replied to the ad and began communicating 

with “Emily,” who told Appellant she was a 14-year-old dependent child of a 

military family new to JBPHH and living in the on-base lodging facility. Unbeknownst to Appellant, “Emily” was an agent of the Air Force Office of Special 

Investigations (AFOSI) posing as a child as part of an undercover operation to 

identify servicemembers seeking to have sex with children.

For two days Appellant exchanged emails and other written messages with 

“Emily.” Appellant asked, “Are you into married men?” “Emily” responded that 

she had “no problem with married men” and that she “kn[e]w how to keep 

things a secret.” Appellant sent “Emily” a photo of himself standing in front of 

a bathroom mirror, shirtless, and wearing low-waist athletic shorts covering 

his groin. In response, “Emily” sent Appellant an image of a female adult that 

had been digitally manipulated to make her appear younger. “Emily” told Appellant, “I hope you like what you see. I am about to turn 15 but I have done 

this before and I know how to keep a secret.” Appellant replied, “[Y]ou[’]r[e] 

super cute[.] [S]end some more pics please.” Appellant sought proof that 

“Emily” was not a “cop” and repeatedly asked her to send him a “naked picture.” The agent responded by sending Appellant a file purporting to be a naked picture of “Emily” but incapable of being viewed. 

In the afternoon of the first full day of their communication, Appellant discussed meeting “Emily” after her parents left for work the next day. Appellant 

asked, “Do you want a quickie at your place?” Appellant said that he liked

 

1 Appellant was acquitted of a separate specification of attempted sexual assault of a 

child in violation of Article 80, UCMJ.

2 The abbreviation “w4m” is generally understood to refer to “woman looking for man.”
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“[g]iving oral or receiving [oral sex]” and asked, “[H]ave you gotten off before[?]”

Appellant told “Emily” he “like[d] to give it rough if you like that,” he “would 

love to become a f**k buddy,” and “[i]t’s ok” if she would “still seek other guys.”

Appellant told her he had bought condoms and would be in uniform when they 

met.

The next morning Appellant indicated he was excited about their planned

sexual encounter, telling “Emily” that he “hope[d] this won’t be the only time 

we do this.” He elaborated he would “try to be really good for” her, “maybe we 

can go more than once,” and he would bring three condoms. “Emily” gave Appellant directions to her lodging room and confirmed her parents would be gone 

when he arrived. After Appellant knocked on the door of her room, he was apprehended by AFOSI agents. A search of Appellant revealed three condoms in 

his pants pocket.

II. DISCUSSION

Appellant asserts that the military judge abused her discretion by not giving the members an instruction that defined “indecent language” as requested 

by the Defense. We conclude the military judge did not abuse her discretion.

A. Additional Background and Defense-Requested Instruction

Appellant was charged with attempted sexual abuse of a child by indecent 

communication in violation of Article 80, UCMJ. Because Appellant was 

charged with an offense of attempt, the Government was required to prove beyond a reasonable doubt that Appellant intended to commit every element of 

the offense of sexual abuse of a child under Article 120b, UCMJ, 10 U.S.C. § 

920b, including inter alia that Appellant intended to commit a lewd act upon 

a child by communicating sexually explicit language to gratify Appellant’s sexual desire.3 See Article 80(a), UCMJ, 10 U.S.C. § 80(a) (“An 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.”). 

 

3 The elements of the underlying charged offense of sexual abuse of a child by indecent 

communication are: (1) that Appellant committed a lewd act upon “Emily,” by communicating sexually explicit language to “Emily” to gratify Appellant’s own sexual desire and (2) that, at the time, “Emily” had not attained the age of 16 years. See Manual 

for Courts-Martial, United States (2016 ed.), pt. IV, ¶ 45b.b.(4)(d). The specification 

alleged the communication of “sexually explicit” language vice “indecent language” and 

did not further describe the language Appellant communicated to “Emily.”
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Before the members began deliberations, the military judge instructed 

them that “‘[l]ewd act’ means intentionally communicating indecent language

to a child by any means, including via any communication technology, with an 

intent to abuse, humiliate or degrade any person, or to arouse or gratify the 

sexual desires of any person.” (Emphasis added). This instruction was taken 

verbatim from the definition of “lewd act” in Article 120b(h)(5)(C), UCMJ, and 

the Military Judges’ Benchbook, Dept. of the Army Pamphlet 27–9 at 624–25 

(10 Sep. 2014).

However, the military judge declined to define “indecent language” and give

a Defense-requested instruction from a selected portion of the definition of “indecent language,” as it appears in the explanation to the Article 134, UCMJ, 

10 U.S.C. § 934, offense of communicating indecent language. See Manual for 

Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 89.c. The proposed 

instruction would have defined “indecent language” as “that which is grossly 

offensive to modesty, decency or propriety or shocks the moral sense because 

of its vulgar, filthy or disgusting nature or its tendency to incite lustful 

thought. The language must violate community standards.” As requested, the 

definition left out, “Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts.” Id.; see also Benchbook, at 870. The military 

judge explained to counsel that she declined to give the Defense-requested instruction because the requested definition of “indecent language” was for “a[n 

Article] 134 offense, rather than [an offense] under [Article] 120b and the 

charge isn’t [communicating] indecent language. The charge is a lewd act.”

B. Law

Whether a military judge appropriately instructed a court-martial panel is 

a question of law we review de novo. United States v. McClour, 76 M.J. 23, 25 

(C.A.A.F. 2017) (quoting United States v. Medina, 69 M.J. 462, 465 (C.A.A.F 

2011)). “The military judge has an independent duty to determine and deliver 

appropriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 

2008) (citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A. 

1990)). While trial defense counsel may request specific instructions from the 

military judge, the judge has substantial discretionary power in deciding on 

the instruction to give. United States v. Damatta-Olivera, 37 M.J. 474, 478 

(C.M.A. 1993) (citing Rule for Courts-Martial 920(c), Discussion; United States 

v. Smith, 34 M.J. 200 (C.M.A. 1992)).

Denial of a defense-requested instruction is reviewed for abuse of discretion. United States v. Carruthers, 64 M.J. 340, 345–46 (C.A.A.F. 2007) (citing 

United States v. Rasnick, 58 M.J. 9, 10 (C.A.A.F. 2003); Damatta-Olivera, 37 

M.J. at 478). The United States Court of Appeals for the Armed Forces (CAAF) 

applies a three-prong test to evaluate whether the failure to give a requested 
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instruction is error: “(1) [the requested instruction] is correct; (2) it is not substantially covered in the main [instruction]; and (3) it is on such a vital point 

in the case that the failure to give it deprived [Appellant] of a defense or seriously impaired its effective presentation.” Carruthers, 64 M.J. at 346 (first and 

second alteration in original) (quoting United States v. Gibson, 58 M.J. 1, 7 

(C.A.A.F. 2003)). All three prongs of the Carruthers test must be satisfied for 

this court to find error. United States v. Barnett, 71 M.J. 248, 253 (C.A.A.F. 

2012).

C. Analysis

We consider if the Defense-requested instruction meets each of the three 

prongs of the Carruthers test and find that it meets none of them. 

1. First Carruthers Prong

We first address whether the proposed instruction was a correct statement 

of the law and find that it was not. In all respects but one, trial defense counsel’s requested instruction was identical to the definition of “indecent language” contained in the offense of communicating indecent language, Article 

134, UCMJ, except for the omission of the sentence, “Language is indecent if it 

tends reasonably to corrupt morals or incite libidinous thoughts.” MCM, pt. IV, 

¶ 89.c. The CAAF has explained that this sentence operates to “modify and 

further explain” the two sentences from the definition of “indecent language”

that the Defense did request. United States v. Green, 68 M.J. 266, 269 (C.A.A.F. 

2010). Because of this omission, the Defense-requested instruction was an incomplete statement of the law and thus incorrect.

2. Second Carruthers Prong

On the second Carruthers prong, we find that the Defense-requested instruction was substantially covered by the instructions on the elements and 

definitions of the charged offense given to the members by the military judge.

Appellant argued at trial and again on appeal that without the requested instruction the factfinder could not determine whether the sexually explicit language that the Government charged crossed the legal threshold for indecent 

language. Put another way, Appellant argues that the requested instruction 

was necessary because the elements and definitions of Article 120b, UCMJ, 

were inadequate to separate wrongful conduct from innocent speech. We disagree.

Appellant’s proposed instruction was substantially covered by the military 

judge’s instruction on the elements of the offense because, as the judge instructed, the Government had to prove beyond a reasonable doubt that Appellant intended to commit a lewd act by communicating indecent language to a 

child with the intent to gratify his sexual desire. See MCM, pt. IV, ¶ 
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45b.b.(4)(d). The Government had to prove not only that Appellant uttered indecent speech but also that Appellant communicated language to a child with 

the specific intent to gratify Appellant’s sexual desire. The Defense-requested 

instruction was unnecessary because the elements of the offense of sexual 

abuse of a child by indecent communication and the definition of “lewd act” 

were adequate for the members to separate wrongful conduct from innocent 

speech. Thus, we find that the Defense-requested instruction was substantially 

covered by the instruction on the elements and definitions of the offense Appellant was charged with attempting to commit.

3. Third Carruthers Prong

On the third Carruthers prong, we find the requested instruction did not 

cover such a vital point in the case that the failure to give it either deprived 

Appellant of a defense or seriously impaired the effective presentation of a defense. The Government was required to prove that Appellant intended to commit every element of the offense of sexual abuse of a child, including inter alia

that Appellant intended to commit a lewd act upon a child by communicating 

indecent language to that child by any means. See MCM, pt. IV, ¶ 45b.b.(4)(d).

Although the Defense at trial focused on entrapment and mistake of fact as to 

age, the Defense also challenged whether the Government met its burden of 

proof and in argument asked rhetorically, “What’s the definition of ‘indecent 

language?’ What’s indecent?” The Defense answered these questions by calling 

on the members to consider Appellant’s language in the context of “the community that we have” and arguing “[t]here’s worse language on the radio” than 

in the messages Appellant sent to “Emily.”

We find the Defense, even without the requested instruction, was not denied the ability to challenge the Government’s proof that the language Appellant communicated to “Emily” was indecent. Consequently, the military judge’s 

decision not to give the Defense-requested instruction neither deprived Appellant of a defense nor seriously impaired the effective presentation of a defense. 

Thus, we conclude that the military judge did not abuse her discretion when 

she declined to give the Defense-requested instruction defining the term “indecent language.”

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) (2016). 
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Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court