UNITED STATES, Appellee 

v. 

Marc R. REEVES, Sergeant 

U.S. Army, Appellant 

No. 03-0595 

Crim. App. No. 20010497 

United States Court of Appeals for the Armed Forces 

Argued February 23, 2005 

Decided September 29, 2005 

ERDMANN, J., delivered the opinion of the court, in which EFFRON 

and BAKER, JJ., joined. GIERKE, C.J., filed a separate opinion 

concurring in part and dissenting in part. CRAWFORD, J., filed 

a dissenting opinion. 

Counsel 

For Appellant: Captain Karen W. Riddle (argued); Colonel Mark 

Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G. 

Lambert (on brief); Colonel Robert D. Teetsel and Captain 

Gregory M. Kelch. 

For Appellee: Captain Mason S. Weiss (argued); Colonel Steven 

T. Salata, Lieutenant Colonel Mark L. Johnson, and Lieutenant 

Colonel Theresa A. Gallagher (on brief); and Captain Janine P. 

Felsman. 

Amicus Curiae for Appellee: Damian P. Richard (law student) 

(argued); Gregory M. Huckabee (supervising attorney) (on brief) – 

for the University of South Dakota School of Law. 

Military Judge: Kenneth H. Clevenger 

This opinion is subject to revision before final publication. 
2

Judge ERDMANN delivered the opinion of the court.1

 Sergeant Marc R. Reeves was convicted of violating certain 

provisions of the Child Pornography Prevention Act of 1996 

(CPPA),2 charged as a “crime or offense not capital” under the 

third clause of Article 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 934 (2000). This is the same statute we 

addressed in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 

2003), and more recently United States v. Martinelli, 61 M.J. 

___ (C.A.A.F. 2005). As in Martinelli, the conduct underlying 

Reeves’ convictions occurred in Germany. We granted review of 

this case to examine the extraterritorial application of the 

CPPA and the effect of that issue on the underlying charges in 

this case. 

In Martinelli we considered whether the CPPA had 

extraterritorial application and concluded that it did not. 

Consistent with Martinelli, we hold that the three sections of 

the CPPA under which Reeves was charged do not extend to his 

conduct in Germany. We further hold that none of Reeves’ 

conduct in Germany continued into the United States. Thus, none 

 

1

 We heard oral argument in this case at the University of South 

Dakota School of Law, Vermillion, South Dakota, as part of this 

court’s “Project Outreach.” This practice was developed as part 

of a public awareness program to demonstrate the operation of a 

Federal Court of Appeals and the military justice system. 

2

 The CPPA consists of §§ 18 U.S.C. 2251, 2252, 2252A, 

2260(b)(2000). 
3

of Reeves’ conduct falls within the domestic application of the 

CPPA. We also hold that Reeves’ guilty pleas to the CPPA-based 

Article 134, clause 3 specifications cannot be deemed provident 

as to lesser included offenses under either Article 134, clauses 

1 or 2. 

PROCEDURAL BACKGROUND

Reeves entered guilty pleas and was convicted by a general 

court-martial in April and May of 2001 of violating a lawful 

general regulation in violation of Article 92, UCMJ, 10 U.S.C. § 

892 (2000), and possessing child pornography, receiving child 

pornography, and using a minor to engage in sexually explicit 

conduct for the purpose of producing a visual depiction of such 

conduct in violation of the CPPA as a “crime or offense not 

capital” under clause 3 of Article 134, UCMJ. 

Reeves was sentenced to a dishonorable discharge, 

confinement for fifty-six months, forfeiture of $250.00 pay per 

month for twelve months, reduction to pay grade E-1, and a 

reprimand. Pursuant to a pretrial agreement, the convening 

authority reduced the confinement to thirty-six months and 

approved the balance of the sentence. The United States Army 

Court of Criminal Appeals affirmed the findings but deleted a 

portion of the reprimand3

 and affirmed the remaining sentence. 

 

3

 The Court of Criminal Appeals deleted that portion of the 

reprimand that referred to “distributing” child pornography 
4

We granted review to determine whether Reeves’ conviction of 

possessing, receiving, and producing child pornography, charged 

under clause 3 of Article 134, could be upheld in light of 

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).4

 We 

specified five additional issues addressing whether the CPPA had 

extraterritorial application.5

 

because Reeves did not distribute child pornography. United 

States v. Reeves, No. ARMY 20010497, slip op. at 2 (A. Ct. Crim. 

App. May 30, 2003). 

4

 We granted review of the following issue raised by appellate 

defense counsel: 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS 

ERRED IN UPHOLDING APPELLANT’S CONVICTION 

UNDER THE CHILD PORNOGRAPHY PROTECTION [sic] 

ACT, 18 U.S.C. § 2251, ET SEQ., DESPITE THE 

SUPREME COURT’S PRONOUNCEMENT THAT THE CPPA 

DEFINITION OF CHILD PORNOGRAPHY IS 

UNCONSTITUTIONAL, ASHCROFT v. FREE SPEECH 

COALITION, 535 U.S. 234 (2002), AND THIS 

COURT’S DECISION THAT ASHCROFT v. FREE 

SPEECH COALITION REQUIRES THAT ACTUAL MINORS 

WERE USED IN PRODUCING THE PORNOGRAPHIC 

IMAGES. SEE UNITED STATES v. O’CONNOR, 58 

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

United States v. Reeves, 60 M.J. 376-77 (C.A.A.F. 2004)(order). 

5

 The specified issues were: 

I. WHETHER 18 U.S.C. § 2252A(a)(2), WHICH IN PART 

PROSCRIBES KNOWING RECEIPT OF CHILD PORNOGRAPHY 

THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS 

EXTRATERRITORIAL APPLICATION. 

II. WHETHER 18 U.S.C. § 2252A(a)(5), WHICH PROSCRIBES 

KNOWING POSSESSION OF CHILD PORNOGRAPHY “ON ANY 

LAND OR BUILDING OWNED BY, LEASED TO, OR 

OTHERWISE USED BY OR UNDER THE CONTROL OF THE 
5

FACTUAL BACKGROUND

A. Specifications 1 and 2: Receiving and Possessing Child 

Pornography

 Sergeant Reeves was assigned to the 502d Engineer Company 

of the 565th Engineer Battalion located at Pioneer Kaserne, a 

United States Army installation, in Hanau, Germany. He resided 

with his family at New Argonner Kaserne, another U.S. Army 

installation in Hanau. On a number of occasions from March to 

December 2000, Reeves went to the public library at Pioneer 

Kaserne and used the library computers to sign on to the 

Internet. 

 

U.S. GOVERNMENT,” HAS EXTRATERRITORIAL 

APPLICATION. 

III. WHETHER 18 U.S.C. § 2251(a), WHICH IN PART 

PROSCRIBES USING A MINOR TO ENGAGE IN SEXUALLY 

EXPLICIT CONDUCT FOR THE PURPOSE OF PRODUCING A 

VISUAL DEPICTION OF THAT CONDUCT USING MATERIAL 

THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS 

EXTRATERRITORIAL APPLICATION. 

IV. WHETHER 18 U.S.C. § 2252A(a)(2) IS BEING APPLIED 

DOMESTICALLY OR EXTRATERRITORIALLY WHEN APPLIED 

TO THE ACT OF DOWNLOADING AND RECEIVING CHILD 

PORNOGRAPHY AT A COMPUTER LOCATED IN GERMANY WHEN 

THAT MATERIAL WAS “SENT FROM THE U.S. THROUGH THE 

INTERNET.” 

V. WHAT EFFECT, IF ANY, IS THERE ON APPELLANT'S 

GUILTY PLEA TO RECEIVING CHILD PORNOGRAPHY IN 

VIOLATION OF 18 U.S.C. § 2252A(a)(2), FROM 

APPELLANT’S ADMISSION DURING THE PROVIDENCE 

INQUIRY THAT THE IMAGES “WERE SENT FROM THE U.S. 

THROUGH THE INTERNET TO ME.” 
6

Once on the Internet, Reeves would enter “teen” chat rooms 

where he would communicate with individuals who indicated they 

were twelve to fifteen years old. Reeves received e-mail that 

contained digital images, including images of minors “in a state 

of nudity involving a lewd exhibition or graphic focus on a 

minor’s genitals.” Reeves also belonged to “e-mail distribution 

groups” from which he automatically received child pornography. 

Reeves would download and view these images on the library 

computers and print them out on the library printers. After his 

conduct was discovered and reported to law enforcement, various 

printed images containing child pornography were found in 

Reeves’ vehicle and in his quarters. 

 Based upon these facts, Reeves was charged with the 

following violations of the CPPA under clause 3 of Article 134: 

Specification 1: . . . at or near Hanau, Germany, on land 

used by and under the control of the United States 

Government, to wit: New Argonner Kaserne, between on or 

about 01 March 2000 and 05 December 2000, knowingly and 

wrongfully possess[ed] about 46 computer printouts 

containing child pornography in violation of Title 18 U.S. 

Code § 2252A(a)(5)(A). 

Specification 2: . . . at or near Hanau, Germany, between 

on or about 01 March 2000 and 05 December 2000, knowingly 

and wrongfully receive[d] child pornography that had been 

transported in interstate commerce or foreign commerce by 

means of a computer to wit: downloading electronic files 

containing child pornography from the internet and copying 

said files onto the hard drive of a computer located at the 

Pioneer Library in Hanau, Germany in violation of 18 U.S. 

[Code] § 2252A(a)(2). 

 
7

B. Specification 3: Producing a visual depiction of a minor 

engaged in sexually explicit conduct

 The facts underlying this offense occurred in the summer of 

2000 when Reeves used a camcorder to videotape “two little 

German girls” near the Main River in Hanau, Germany. (PE 1). 

From a distance of about 200 feet, Reeves filmed the girls, 

focusing in on their “genital areas”, and focusing in particular 

on one of the girls “in a way to see into the little girl’s 

shorts” and intending “to satisfy [his] lust.” 

 Based upon these facts, Reeves was charged with the 

following violation of the CPPA under clause 3 of Article 134: 

Specification 3: at or near Hanau, Germany, on or about 

between May 2000 and August 2000, use[d] a minor to engage 

in sexually explicit conduct for the purpose of producing a 

visual depiction of such conduct using material that had 

been mailed, shipped or transported in interstate commerce 

or foreign commerce in violation of 18 U.S. [Code] § 

2251(a). 

DISCUSSION

A. Standard of Review

This case involves a guilty plea. 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)). 

Whether Congress intended 18 U.S.C. §§ 2251(a) and 2252A(a)(2) 

and (a)(5)(A) to have extraterritorial application is a question 
8

of statutory interpretation. Interpretation of a statute and 

its legislative history are questions of law that we review de 

novo. United States v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999); 

Martinelli, 61 M.J. at ___ (8). 

B. The Nature of the Charge under Article 134

 Reeves’ possession, receipt and production of child 

pornography were charged as violations of Article 134, UCMJ -- 

the “General Article.” Conduct is punishable under Article 134 

if it prejudices “good order and discipline in the armed forces” 

(clause 1), if it is “of a nature to bring discredit upon the 

armed forces” (clause 2), or if it is “a crime or offense not 

capital” (clause 3). O’Connor, 58 M.J. at 452; Martinelli, 61 

M.J. at __ (8). As was the case in both O’Connor and 

Martinelli, Reeves’ offenses under Article 134 were specifically 

charged as “clause 3” offenses, with 18 U.S.C. §§ 2251(a) and 

2252A(a)(2) and (a)(5)(A) serving as the “crimes or offenses not 

capital.” 

As in Martinelli, the principal issue that we specified for 

review is whether the CPPA applies to Reeves’ conduct in 

Germany. If we find that the CPPA is not applicable to Reeves’ 

conduct in Germany, we must then consider whether, due to the 

nature of his usage of the Internet, his conduct fell within the 

domestic application of the CPPA. Finally, if we find that 

Reeves’ pleas were improvident under clause 3 of Article 134, we 
9

must determine whether they would be provident to a lesser 

included offense under clause 1 or 2 Article 134. 

C. The Extraterritorial Application of the CPPA

 (1) Extraterritorial Application of § 2252A

 In Martinelli this court determined that § 2252A did not 

apply extraterritorially to Martinelli’s conduct in Germany. 

Under the rationale of United States v. Bowman, 260 U.S. 94 

(1922) and Equal Employment Opportunity Commission v. Arabian 

American Oil Co. (Aramco), 499 U.S. 244, 248 (1991), we 

concluded that the CPPA is subject to a presumption against 

extraterritoriality and that there was nothing in the language 

of the statute or the legislative history to overcome this 

presumption. Martinelli, 61 M.J. at __ (25-26). As a result 

there was a substantial basis on which to question the 

providence of Martinelli’s guilty plea to the CPPA-based clause 

3 offenses resulting from conduct occurring in Germany. 

 Reeves’ receipt and possession of child pornography –- 

charged under § 2252A –- also occurred in Germany and in that 

respect this case is indistinguishable from Martinelli. 

Therefore, consistent with our holding in Martinelli, we find 

that § 2252A does not have extraterritorial application and is 

inapplicable to Reeves’ conduct in Germany. 
10

(2) Extraterritorial Application of § 2251(a)

Unlike Martinelli, Reeves was also charged with producing a 

visual depiction of sexually explicit conduct by a minor in 

violation of § 2251(a). We have not previously considered the 

question of the extraterritorial application of § 2251(a).6

As with § 2252A, we begin with a presumption against 

extraterritoriality. The Supreme Court has recognized as a 

longstanding principle of American law “that legislation of 

Congress, unless a contrary intent appears, is meant to apply 

only within the territorial jurisdiction of the United States.” 

Aramco, 499 U.S. at 248 (quoting Foley Bros. v. Filardo, 336 

U.S. 281, 285 (1949)). As we stated in Martinelli, we must 

assume that Congress legislates against the backdrop of this 

presumption. Martinelli, 61 M.J. at ___ (10). Moreover, 

offenses created by the CPPA do not fall within the Bowman

exception to the presumption against extraterritoriality. Id. 

at ___ (12) (citing United States v. Bowman, 260 U.S. at 97-98, 

for the proposition that certain “criminal statutes which are, 

as a class, . . . enacted because of the right of the government 

to defend itself against obstruction, or fraud wherever 

perpetrated” are not accorded a presumption of 

 

6

 Section 2251(a) was originally enacted in 1978 as part of the 

Protection of Children Against Sexual Exploitation. It was 

amended a number of times over the years and in 1996 it was 

incorporated into the CPPA. 
11

extraterritoriality). We look next “to see whether ‘language in 

the [relevant statute] gives any indication of a congressional 

purpose to extend its coverage beyond places over which the 

United States has sovereignty or some measure of legislative 

control.’” Aramco, 499 U.S. at 1230 (quoting Foley Bros., 226 

U.S. at 285); see also Small v. United States, 125 S. Ct. 1752 

(2005). To answer this question we look at the text of the 

statute, its structure and its legislative history. Martinelli, 

61 M.J. at __ (15-16). 

(a) Text and Structure

 As in Martinelli, the statutory section in question 

includes references to “interstate and foreign commerce.” This 

language is “not, in and of [itself], a ‘clear expression’ of 

any congressional intention that the acts proscribed by the 

statute constitute a federal crime no matter where in the world 

they occur.” Id. at __ (18). As in Martinelli, we decline to 

find congressional intent for extraterritorial application based 

solely on the use of the words “interstate and foreign 

commerce.”7

 

7

 Our discussion of Congress’ intent is also informed by an 

analysis of the “Territory or Possession of the United States” 

language in § 2251. Although this phrase refers to physical 

locations outside of the fifty United States, it is not a broad 

or all encompassing phrase. The “territories” of the United 

States are generally defined as including Guam, the United 

States Virgin Islands and American Samoa, as well as the 

Commonwealths of Puerto Rico and the Northern Mariana Islands. 
12

In addition, Congress’ intent to limit the reach of 

§ 2251(a) is made more clear by reference to § 2260. In 1994, 

Congress adopted § 2260, which specifically targets “[a] person 

who, outside the United States, employs, uses, persuades, 

induces, entices, or coerces any minor to engage in . . . any 

sexually explicit conduct for the purpose of producing any 

visual depiction of such conduct . . . .” Emphasis supplied. 

In other words, there is another statutory section that 

addresses all of the same acts when such acts are committed 

outside of the United States with the intent that the materials 

be sent into the United States. If Congress intended § 2251(a) 

to apply extraterritorially, there would have been no need for 

§ 2260 because such behavior would already have been 

criminalized regardless of whether the accused intended to 

import the visual depictions into the United States. 

 

See Daniel H. MacMeekin, The Overseas Territories and 

Commonwealths of the United States of America (2000), available 

at http://www.macmeekin.com/Library/terr+commonw2.htm. The 

United States also asserts sovereignty over, and administers, a 

number of small islands which do not have permanent populations. 

These islands are often referred to as “possessions”. These 

include Howland, Baker, and Jarvis Islands; Kingman Reef; and 

Johnson, Palmyra, Wake, and Midway Atolls, all in the Pacific; 

and Navassa Island in the Caribbean. Id. Congress’ decision to 

use the phrase “Territories and Possessions of the United 

States” suggests that Congress wished to limit the statute’s 

application rather than to broaden it. 
13

(b) Legislative History

 Having concluded that the text and structure of § 2251(a) 

do not express any clear intent by Congress that the statute 

apply extraterritorially, we turn to its legislative history. 

We conclude that it too gives no indication that Congress 

intended § 2251(a) to apply extraterritorially. The clear focus 

of that legislative history is on the patent evils of child 

pornography and the concern that “child pornography and child 

prostitution have become highly organized multimillion dollar 

industries that operate on a nationwide scale.” S. Rep. No. 95-

438, at 5 (1977). Although the history of § 2251(a) contains 

extensive discussion of the nationwide problem of child 

pornography, it does not discuss issues of extraterritoriality, 

much less include any clear expression of congressional intent 

in that regard. 

D. The Domestic Application of the CPPA

 In Martinelli, we also considered whether any of 

Martinelli’s conduct could be characterized as domestic conduct 

as he had stipulated that all of the e-mails that he sent or 

received were routed through servers in the United States. 61 

M.J. at ___ (26-27). We concluded in that case that the act of 

“sending” e-mails containing child pornography was a “continuing 

offense” because Martinelli’s conduct continued as the e-mail 

traveled through the Internet to its destination. Id. at ___ 
14

(29). Because the e-mails in Martinelli traveled through the 

United States en route to their destination, we found that the 

sending offense occurred in both Germany and the United States 

and therefore the CPPA applied domestically to that 

specification. Id. 

We went on to conclude that other specifications, which 

charged Martinelli with “receiving child pornography” and 

“reproducing child pornography for distribution”, were not 

“continuing offenses” as they did not involve any conduct that 

started in Germany and continued into the United States. 

Therefore, there was no domestic application of the CPPA 

available for those offenses. Here, as in Martinelli, each 

specification alleges different conduct and each must be 

examined individually. 

Specification 1 (possession): This specification charged 

Reeves with violating 18 U.S.C. § 2252A(a)(5)(A) by possessing 

child pornography on land used by and under the control of the 

United States Government. This specification is a “situs” based 

possession charge and does not allege movement of child 

pornography through the Internet. The principle of “continuing 

jurisdiction” is therefore inapplicable to this specification 

and there is no basis for finding a domestic application of the 

CPPA. 
15

 Specification 2 (receiving): This specification charged 

Reeves with violating 18 U.S.C. § 2252A(a)(2) by receiving child 

pornography that had been transported through the Internet. 

Reeves admitted during his providence inquiry that the images 

were “sent from the U.S. through the Internet to me.” Had 

Reeves been charged with “sending” e-mails containing child 

pornography through the Internet, the principle of a “continuing 

offense” may have established domestic U.S. application of the 

CPPA. However, Reeves was charged with “receiving”8

 e-mails 

containing child pornography. Here, Reeves did not knowingly 

receive the images until he accessed the pictures in Germany and 

the act of opening the images did not trigger a chain of events 

that continued into the United States. His conduct therefore 

can not be subject to a domestic U.S. application of the CPPA. 

Martinelli, 61 M.J. at ___ (30).9

 

 

8

 The military judge defined “receiving” as “to take into one’s 

possession and control or accept custody of . . . .” 

9 With respect to the question of whether all of the email 

messages in Reeves’ Excite account were “resident” on Internet 

servers located in the United States, Excite.com (which was 

operated by At Home or Excite@Home until the company declared 

bankruptcy in late 2001) had both domestic and international 

operations during the time period in which Reeves was using his 

excite.com account to receive child pornography. See At Home 

Corporation, Form 10-K, Annual Report for Fiscal Year 2000, 

available at 

http://www.sec.gov/Archives/edgar/data/1020620/00010128700100149

8/0001012870-01-001498-0001.txt (“We also lease space at smaller 

facilities in various locations throughout the 
16

 Specification 3 (production): This specification charged 

Reeves with violating 18 U.S.C. § 2251(a) by using a minor to 

engage in sexually explicit conduct for the purpose of producing 

a visual depiction of such conduct. Although Reeves admitted 

that the camcorder he used to videotape the German girls had 

been manufactured in Japan, purchased in the United States and 

transported by him to Germany, in videotaping the girls he did 

not begin any conduct that continued into the United States. 

His conduct occurred entirely in Germany and there can be no 

domestic application of the CPPA. Martinelli, 61 M.J. ___ (29-

30). 

In summary, none of acts identified in the specifications 

in Charge II constitute a “continuing offense” and therefore 

there can be no domestic application of the CPPA in this case. 

E. The Possibility of Lesser Included Offenses 

The conclusion that Reeves’ guilty pleas are not provident 

under clause 3 of Article 134 does not end our inquiry. We have 

recognized in the past that an improvident plea to a CPPA-based 

clause 3 offense may, under certain circumstances, be upheld as 

a provident plea to a lesser included offense under clause 2 of 

Article 134. See, e.g., United States v. Augustine, 53 M.J. 95 

 

United States as well as in several international locations.”). 

Reeves admitted only that images were sent to him from the U.S. 

“through the Internet . . . .” The record does not include any 

information about where the servers on which his opened and 

unopened email messages were located. 
17

(C.A.A.F. 2000); United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F. 

2000); O’Connor, 58 M.J. at 454–55; United States v. Mason, 60 

M.J. 15, 20 (C.A.A.F. 2004); Martinelli, 61 M.J. at __ (35). 

The question is whether those circumstances are present in 

Reeves’ case. 

Augustine and Sapp were two pre-Free Speech Coalition10

cases where: 

the guilty pleas . . . were entered to a violation of 

Article 134, clause 3, based on possession of child 

pornography in violation of the CPPA. As in this case, the 

guilty pleas were found to be improvident as to the clause 

3 offense in light of certain requirements under the CPPA 

that were not established in the record. In those cases, 

however, we concluded that the guilty pleas were provident 

as to the lesser-included offense of engaging in “conduct 

of a nature to bring discredit upon the armed forces” under 

clause 2 and upheld the convictions under Article 134. 

Augustine, 53 M.J. at 96; Sapp, 53 M.J. at 92. 

O’Connor, 58 M.J. at 454. Sapp and Augustine dealt with the 

possibility of a lesser included offense under clause 2 of 

Article 134 where a guilty plea to a CPPA-based clause 3 Article 

134 charge was found improvident. In those cases, where no 

 

10 In Free Speech Coalition the Supreme Court determined that 

certain portions of the definition of term “child pornography” 

used in § 2252A were unconstitutional, specifically the “or 

appears to be” language of § 2256(8)(B) and the entirety of 

§2256(8)(D), specifically the “conveys the impression” language. 

535 U.S. at 256, 258. Prior to Free Speech Coalition, knowing 

possession and receipt of images of child pornography, actual or 

virtual, was sufficient to establish one of the factual 

predicates for a provident guilty plea under the CPPA. 

Following the decision, the actual character of the visual 

depictions is a factual predicate to any plea of guilty under 

the CPPA therefore requiring an inquiry into the “virtual” or 

“actual” nature of the images. O’Connor, 58 M.J. at 453. 
18

constitutional considerations were involved, we found the pleas 

provident to a violation of clause 2 of Article 134. 

After the Free Speech Coalition decision, we explained in 

O’Connor, Mason and Martinelli that where the constitutional 

rights of a servicemember could come into play, we will apply 

closer scrutiny to the providence inquiry before upholding a 

plea as provident to a lesser included offense under clause 1 or 

2 of Article 134. See O’Connor, 58 M.J. at 454–55; Mason, 60 

M.J. at 19; Martinelli, 61 M.J. at ___ (36-37). The difference 

between our review of a providence inquiry under the 

O’Connor/Mason/Martinelli standard and our review under the less 

strict Augustine/Sapp standard is a qualitative difference. 

“Although the understanding required of the servicemember 

remains the same, we require a clearer more precise articulation 

of the servicemember’s understanding under O’Connor than we 

require in cases where the accused’s First Amendment rights are 

not implicated.” Martinelli, 61 M.J. at ___ (37). 

During Reeves’ providence inquiry the military judge 

defined the term “child pornography” for purposes of 

Specifications 1 and 2 without utilizing the language determined 

to be unconstitutional by the Supreme Court in Free Speech 
19

Coalition.11 Specification 3 charged a violation of 18 U.S.C. § 

2251(a) which does not contain the term “child pornography”.12 

With no constitutional dimension at play in the providence 

inquiry, our analysis into the possibility of a lesser included 

offense is governed by the principles embodied in Augustine and 

Sapp rather than O’Connor, Mason, or Martinelli. 

Nevertheless, the providence inquiry must reflect that the 

accused “clearly understood the nature of the prohibited 

conduct.” Sapp, 53 M.J. at 92. In both Augustine and Sapp the 

accused admitted the service discrediting character of his 

conduct during the plea inquiry and we characterized those 

discussions as demonstrating that the accused “clearly 

understood the nature of the prohibited conduct.” Augustine, 53 

M.J. at 96; Sapp, 53 M.J. at 92. 

In this case, however, there is an absence of any inquiry or 

discussion of service discrediting conduct or conduct that is 

prejudicial to good order and discipline. The military judge 

did not list service discrediting conduct or conduct that is 

prejudicial to good order and discipline as an element of any of 

 

11 Here the military judge did not use the “or appears to be” or 

the “conveys the impression” language focused on by the Supreme 

Court. 

12 The phrase “engaged in sexually explicit conduct” as found in 

§ 2251(a) is defined in § 2256 to be a depiction of “lascivious 

exhibition of the genitals.” That term has been held to be 

constitutional. United States v. Wiegand, 812 F.2d 1239 (9th 

Cir. 1987). 
20

the child pornography offenses. The plea inquiry focused 

entirely on the elements of the clause 3 offenses. Thus, the 

providence inquiry simply does not provide a sufficient basis 

for determining that Reeves’ pleas are provident to the lesser 

included offenses of conduct that is service discrediting or 

prejudicial to good order and discipline under clause 1 or 2 of 

Article 134. 

DECISION

The decision of the United States Army Court of Criminal 

Appeals as to Charge II and its specifications and the sentence 

is reversed, but is affirmed in all other respects. The 

findings of guilty to Charge II and its specifications and the 

sentence are set aside and the record of trial is returned to 

the Judge Advocate General of the Army for a rehearing on Charge 

II and its specifications and the sentence.13 If a rehearing on 

Charge II and its specifications is deemed impracticable, that 

charge and those specifications may be dismissed and a rehearing 

held on the sentence alone. Thereafter, the provisions of 

Articles 66(b) and 67(a), UCMJ, 10 U.S.C. §§ 866(b), 867(a) 

(2002), shall apply. 

 

13 Because of our decision in this case, the specifications of 

Charge II will necessarily have to be amended prior to any 

rehearing to allege lesser included offenses of conduct 

prejudicial to good order and discipline in the armed forces, or 

of a nature to bring discredit upon the armed faces in violation 

of clauses 1 and/or 2 of Article 134, UCMJ. 
United States v. Reeves, No. 03-0595/AR 

 GIERKE, Chief Judge (concurring in part and dissenting in 

part): 

The bottom line is that I agree with the majority as to both 

reasoning and result to affirm only Appellant’s guilty plea to 

Charge I and its sole specification. Therefore, I concur in 

part. 

 But with respect to the three Child Pornography Prevention 

Act (CPPA) offenses all in Charge II, I disagree with the 

majority as to either its reasoning (Charge II, specifications 1 

and 2) or to both its reasoning and result (Charge II, 

specification 3). So I also respectfully dissent in part. 

The result that I reach is not so different from the 

majority, but the judicial path to resolve this case is both 

different and important. As we agree to the disposition as to 

Charge I, I focus only on the three specifications under Charge 

II. 

In United States v. Martinelli,1

 I concluded that the CPPA 

has extraterritorial application. I disagree with the conclusion 

that the Congress that enacted the CPPA did not intend it to 

apply extraterritorially to reach the actions of a servicemember 

when he possesses, receives, and produces child pornography2

 

1

 61 M.J. __, __ (1-23)(C.A.A.F. 2005) (Gierke, C.J., concurring 

in part and dissenting in part). 

2

 Section 2252A(a)(2) of Title 18 of the U.S. Code proscribes the 

knowing receipt of child pornography, 18 U.S.C. § 2252A(a)(5) 

prohibits the knowing possession of child pornography, and 18 

U.S.C. § 2251(a) makes it a crime to use a minor to engage in 

sexually explicit conduct for the purpose of producing a visual 

depiction of that conduct. 
United States v. Reeves, No. 03-0595/AR 

2

merely because he is outside the territorial boundaries of the 

United States. 

Also as I stated in Martinelli, I do not read the language 

in Bowman3 as narrowly as does the majority.4 I believe that to 

do so, the majority incorrectly interprets the underlying 

rationale of the exception to the presumption against 

extraterritoriality and also misevaluates the nature and impact 

of the offenses in this case. Given the limitless boundaries of 

cyberspace, child pornography over the Internet is just the type 

of offense to which the exception to the presumption against 

extraterritoriality should apply. 

And, as I fully discussed in Martinelli,5

 interpreting the 

plain language of the statute, its legislative history, and the 

comprehensiveness of the scheme of the entire statute, I believe 

Congress clearly meant the CPPA to reach the acts of a United 

States servicemember who possesses and receives child pornography 

on a U.S. military base in Germany. For the same reasons, I 

believe Congress intended the statute to reach Appellant’s 

offense of involving young German girls in the production of 

child pornography that occurred off-base in Germany. 

 Additionally, § 2260 clearly pertains to the production 

of child pornography with the intent to import that pornography 

 

3

 United States v. Bowman, 260 U.S. 94, 96 (1922). 

4

 See Martinelli, 61 M.J. at __, __ (3-11)(Gierke, C.J., 

concurring in part and dissenting in part).

5

 Id. at __ (11-23)(Gierke, C.J., concurring in part and 

dissenting in part). 
United States v. Reeves, No. 03-0595/AR 

3

into the United States. Under that statute, the Government is 

required to prove the additional element of intent to import the 

child pornography into the United States in order to prosecute an 

accused. Thus, I am not persuaded by the majority’s argument 

that § 2260 eliminates the need to decide if § 2251(a) applies 

extraterritorially to cover Appellant’s act of producing a visual 

depiction of a minor engaged in sexually explicit conduct.6 

Rather, I believe that § 2251(a) reaches Appellant’s CPPA-based 

offenses in this case precisely because it does have 

extraterritorial application. 

As I conclude that the three CPPA-based specifications under 

which Appellant was charged extend to Appellant’s criminal 

conduct in Germany, I respectfully dissent in part. Having 

established this point, Appellant’s guilty plea to all three 

CPPA-based offenses under Charge II initially appears provident. 

But, unlike the majority, I view Appellant’s guilty pleas to the 

possessing and receiving pornography (Charge II, specifications 1 

and 2) to be improvident in light of the Supreme Court’s decision 

in Ashcroft v. Free Speech Coalition.7

 This conclusion results 

in my agreeing with the majority’s decision to remand the 

specifications, but for the different reason I have stated. 

 As to specification 3 of Charge II, I disagree with the 

majority that Appellant’s guilty plea is provident only to the 

lesser included offense. I view Appellant’s plea to the charged 

 

6

 See United States v. Reeves, 61 M.J. __ (12-13) (C.A.A.F. 

2005). 
United States v. Reeves, No. 03-0595/AR 

4

offense provident because the constitutionally-objectionable 

“child pornography” language is not included in that 

specification. Therefore, I would affirm Appellant’s guilty plea 

to this offense. 

In summary, I concur with the disposition of Charge I and the 

majority’s result in addressing Charge II, specifications 1 and 

2. I dissent from the disposition of Charge II, specification 3. 

 

7

 535 U.S. 234 (2002). 
United States v. Reeves, 03-0595/AR 

 CRAWFORD, Judge (dissenting): 

 For the reasons thoroughly explained in United States v. 

Martinelli, 61 M.J. __, __ (C.A.A.F. 2005) (Crawford, J., 

dissenting), I respectfully dissent and offer a few additional 

comments. 

 Like Specialist Martinelli, Appellant was stationed at a 

United States military installation in Germany, subscribed to a 

web-based e-mail account, and used a public computer to commit 

violations of 18 U.S.C. § 2252A, as well as Article 92, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2000). Unlike 

Martinelli, who used an off-post Internet café, Appellant used 

U.S. Government-owned computers in the post library to effect 

receipt of, as well as to view and print, pornographic images of 

actual children. In addition, Appellant, while among the German 

civilian populace near Hanau, used actual German children to 

produce a sexually explicit videotape in violation of 18 U.S.C. 

§ 2251(a). 

DOMESTIC ASPECT OF APPELLANT’S CRIMES 

 Prosecution Exhibit 1, Appellant’s stipulation of fact 

(including the documents comprising TAB B) and his responses 

during the Care inquiry,1

 establish that Appellant had a webbased e-mail account at Excite.com which afforded him electronic 

“space” on Excite.com’s servers in the United States. Using a 

 

1

 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). 
United States v. Reeves, 03-0595/AR 

2

web browser on the library’s computers, Appellant gained access 

to his e-mail account which he then used as an address at which 

to receive pornographic images, view them, store them, and 

download them to the hard drives of the library computers for 

printing. He admitted that these images had been “transported 

in interstate or foreign commerce” because “they were sent from 

the U.S. through the Internet to me.”2 Appellant’s receipt of 

child pornography occurred in the United States, just as it did 

on a U.S. military post in Germany. 

APPLICATION OF § 2252A TO OVERSEAS MILITARY INSTALLATIONS 

 After printing images of child pornography, using the 

library’s printers, Appellant stored numerous images of child 

pornography at his family quarters, in his automobile, and his 

quarters storage area, all on a U.S. Army Kaserne near Hanau, 

Germany. All of the theories I voiced in Martinelli pertain a 

fortiori to Appellant’s possession of child pornography on a 

U.S. military installation. 

APPLICATION OF § 2251(a) TO OVERSEAS CONDUCT 

 While the jurisdictional theories I advanced in Martinelli

also apply to Appellant’s prosecution under this statute, I must 

reject the majority’s attempt to distinguish the jurisdictional 

language in this statute from that in § 2260. The majority 

 

2

 Appellant’s use of “Me” refers to his web-based address on the 

servers of Excite.com. Some of these images clearly indicate 

that they were routed through commerce repeatedly. 
United States v. Reeves, 03-0595/AR 

3

contends that territorial application of § 2251(a) was not 

intended by Congress because § 2260, with express 

extraterritorial application “addresses all of the same acts.” 

United States v. Reeves, 61 M.J. __, __ (12) (C.A.A.F. 2005). 

Not quite. First, § 2260 carries with it no requirement that 

any of the criminal acts be connected to interstate or foreign 

commerce, giving § 2260 far greater breadth. Second, it is 

clear to my reading that § 2260 was enacted not only to expand 

the scope of existing prohibitions, but to serve as an emphatic 

statement of congressional intent to exercise jurisdiction over 

non-U.S. citizens who may produce child pornography in their own 

countries for importation into the territory or waters of the 

United States. Even if there is overlap between these statutes, 

I believe they have related but different purposes. 

WAIVER 

 Appellant has waived this issue, both as to § 2252A and 

§ 2251(a). See United States v. Martin, 147 F.3d 529, 533 (7th 

Cir. 1988).3

 In the stipulation of fact, Appellant stipulated 

that “there are no impediments to the jurisdiction of the 

court.” 

 

3

 “A challenge to the indictment based on the adequacy of the 

interstate commerce stipulation had no relation to subject 

matter jurisdiction –- the power to adjudicate –- but instead 

went only to an alleged failure of proof.” 
United States v. Reeves, 03-0595/AR 

4

JURISDICTION UNDER § 2252A BASED ON COMMERCE 

Appellant also stipulated that these images were sent from 

or through a site in the United States and that he knowingly 

received and transported the pictures “in interstate or foreign 

commerce.” When questioned by the military judge, he said the 

images “were sent from the United States through the Internet to 

me.” When the military judge asked Appellant whether he was 

satisfied that this amounted to interstate or foreign commerce, 

he agreed. 

PROVIDENCE TO CLAUSES (1) AND (2) OFFENSES 

 Appellant, a sergeant with a high school diploma, over five 

years of active duty, and then serving at his fourth permanent 

duty station, pleaded guilty to violating a lawful general 

regulation by viewing child pornography. He admitted to 

understanding that the regulation prohibiting viewing of child 

pornography was lawful because it was “reasonably necessary to 

safeguard and protect the morale, discipline, and usefulness of 

the members of the command and is directly connected to the 

maintenance of good order and discipline.” He admitted that his 

conduct in viewing child pornography was wrongful and that he 

had no legal justification or excuse. He stipulated to leaving 

images of child pornography on the printer at the installation 

library where soldiers, civilians, and dependents could find it, 

and to taking his very young daughter with him to the library 
United States v. Reeves, 03-0595/AR 

5

where he would view and print images of child pornography. He 

stipulated to standing on one side of the Main River and, for 

between twenty and thirty minutes, training his video camera on 

the genital area of two young German girls, while accompanied by 

his own young daughter. All of these images and films he 

secreted in his vehicle, quarters, and quarters storage area. 

Even if these were the only facts we had to go on, I would 

find it impossible to conclude that Sergeant Reeves did not 

understand “the nature of the prohibited conduct.” Said another 

way, how could Sergeant Reeves admit that the Commander of U.S. 

Army, Europe, could lawfully prohibit the viewing of child 

pornography so as to “promote the morale, discipline, and 

usefulness of the members of the command” and that such 

prohibition was “directly connected to the maintenance of good 

order and discipline” without knowing that using the post 

library’s computers and printers to receive, download, and print 

child pornography in front of his two and one-half-year-old 

daughter and leaving child pornography on the printer for all to 

see was prejudicial to good order and discipline? He could not. 

And it is only the smallest of steps to conclude that, on 

this record, Appellant also knew that openly focusing his video 

camera, for twenty to thirty minutes on the pubic area of sevenyear-old German national children as they played by a public 

river, was equally prejudicial and service discrediting as well. 
United States v. Reeves, 03-0595/AR 

6

This record overwhelmingly supports affirmation of a lesser 

included offense under either or both clauses (1) and (2) of 

Article 134, UCMJ. 

CONCLUSION 

 There is no substantial basis in law or fact to question 

the providence of Appellant’s pleas. Even if the record were 

insufficient to uphold Appellant’s pleas to violations of §§ 

2252A and 2251(a), however, the record strongly supports 

conviction for disorders on the same facts. For all these 

reasons, I respectfully dissent.