This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Jacob M. OZBIRN, Airman First Class

United States Air Force, Appellant

No. 20-0286

Crim. App. No. 39556

Argued February 9, 2021—March 23, 2021

Military Judge: John C. Harwood

For Appellant: Captain Alexander A. Navarro (argued); Major David A. Schiavone.

For Appellee: Captain Alex B. Coberly (argued); Colonel 

Shaun S. Speranza, Lieutenant Colonel Matthew J. Neil, 

and Mary Ellen Payne, Esq. (on brief).

Judge MAGGS delivered the opinion of the Court, in 

which Chief Judge STUCKY, and Judges OHLSON, 

SPARKS, and HARDY, joined.

_______________

Judge MAGGS delivered the opinion of the Court.

The sole assigned issue in this case is “[w]hether the evidence that Appellant asked for ‘naked pictures’ from adults 

pretending to be minors is legally sufficient to sustain a conviction for attempted receipt of child pornography.” Given the 

totality of the circumstances in which Appellant requested 

the naked pictures, we answer the question in the affirmative. 

We therefore affirm the decision of the United States Air 

Force Court of Criminal Appeals (AFCCA). United States v. 

Ozbirn, No. ACM 39556, 2020 CCA LEXIS 138, 2020 WL 

2114230 (A.F. Ct. Crim. App. May 1, 2020).

I. Background

Contrary to his pleas, a general court-martial composed of 

officers found Appellant guilty of two specifications of attempted sexual abuse of a child, one specification of at-
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

2

tempted sexual assault of a child, and one specification of attempted receipt of child pornography, in violation of Article 

80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880

(2012). The court members sentenced Appellant to a dishonorable discharge, confinement for three years, and reduction 

to the grade of E–1. The convening authority approved the 

sentence as adjudged.

This case concerns the specification of attempted receipt 

of child pornography. The specification alleged that:

[Appellant] did, at or near Royal Air Force Mildenhall, United Kingdom, on divers occasions between 

on or about 16 August 2017 and on or about 18 August 2017, attempt to knowingly and wrongfully receive child pornography, to wit: photographs of what 

appear to be minors engaging in sexually explicit 

conduct, such conduct being to the prejudice of good 

order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

To prove this specification, the Government presented evidence that three adults in the United Kingdom carried out 

“sting” operations to identify and catch potential child predators. These adults created fake profiles of young girls on internet chatting applications. When members of the public attempted to contact the girls, the adults communicated with 

them by sending messages. 

These fake profiles attracted Appellant’s attention. On 

August 16, 17, and 18, 2017, Appellant exchanged numerous 

text messages with the three adults. In these exchanges and 

unbeknownst to Appellant, the adults pretended to be young 

girls named “Febes,” “Jodie Walsh,” and “Jessica Saunders.”

The messages between Appellant and Febes focused on 

sexual topics. Even though Febes told Appellant that she was 

only twelve years old, Appellant asked her whether she had 

had sex before; he described the feeling of sex; and he repeatedly asked to have sex with her. When Febes said that she did 

not know whether she wanted to have sex with Appellant, Appellant responded: “Okay just let me know when you feel like 

it and I will show you the ropes and don’t worry I will make 

sure that it does not hurt.” Immediately after this statement, 

Appellant initiated the following exchanges in which he requested pictures:
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

3

[Appellant:] have you seen naked guys or every [sic] 

sent naked pictures? I would have sex with you carefully

[Febes:] never seen no

[Appellant:] Oh I could show you if you want and I 

would like to see you too

[Febes:] I don’t have a camera

. . . .

[Appellant:] There is nothing to be afraid of I will 

take care of you! And please can I have on[e] more 

picture

[Febes:] U can take tom[orrow]

[Febes:] With ur phone

[Febes:] We can do selfy

[Appellant:] Can I take naked ones?

[Febes:] I’m very shy

[Appellant:] We are having sex tomorrow and only I 

will see them

[Febes:] Kk

[Febes:] If u promise

[Appellant:] I do

Appellant’s messages with the adult who pretended to be 

a girl named Jodie were similar. After Jodie told Appellant 

that she was thirteen years old, Appellant proposed that they 

meet and have sex. He then graphically described various sexual acts that he would perform on her. Appellant told Jodie 

that he would “[k]iss you take your clothes off lick you down 

there and when you are wet and ready stick my part in you.”

Immediately after making this statement, Appellant began 

the following exchange with her:

[Appellant:] Have you ever sent a naked picture to 

anyone or seen a guys part?

[Jodie:] No

. . . .

[Appellant:] Can you send me a naked picture?

[Jodie:] No I can’t do that

[Appellant:] Why?
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

4

[Appellant:] It will help

[Appellant:] How about a regular picture with you 

holding a peace sign up?

. . . .

[Jodie:] I’m not sending naked pictures of me

[Appellant:] I mean any pictures

[Jodie:] Oh ok

[Jodie:] [Sends clothed photo]

[Appellant:] Yeah I was hoping the naked one would 

help but any will do

The messages between Appellant and the adult who pretended to be a girl named “Jessica Saunders” also concerned

sexual topics. After Jessica told Appellant that she was 

twelve years old, Appellant proposed that they have sex. 

When Jessica expressed concern that having sex would hurt,

Appellant assured her: “It won’t if I go slow and am careful I 

won’t hurt you.” When Jessica asked what he meant about 

going slow, Appellant responded: “Well my dick has to go in 

your vagina during sex so I will put it in slowly.” Some messages later, Appellant began the following exchange:

[Appellant:] have you every [sic] traded naked pictures before?

[Jessica:] no one has seen me naked

[Appellant:] do you want to see a dick so that you 

will know what goes in?

[Jessica] ok

[Appellant:] So you have to send a picture of you naked then you get to see a dick

[Jessica:] I haven’t got any naked photos

[Appellant:] you have to take one

[Jessica:] I can’t my sister is sleeping and my camera 

is broke

The court members found Appellant guilty of the specification of attempting to receive child pornography.1 The 

 1 The court members attempted to qualify its finding of guilt 

with the words “except Jessica Saunders.” (The words “Jessica 

Saunders,” however, do not appear in the specification as charged. 

The AFCCA accordingly concluded that the attempted exception 
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

5

AFCCA affirmed, determining that the evidence was legally 

and factually sufficient to support the finding of guilt. See

Ozbirn, 2020 CCA LEXIS 138 at *27, 2020 WL 2114230 at 

*10. One judge dissented on this point, concluding that the 

evidence was both legally and factually insufficient. Id. at 

*66, 2020 WL 2114230 at *23 (Key, J., concurring in part and 

dissenting in part). The dissenting judge reasoned that “Appellant made no request for images which would meet the legal definition of child pornography under the UCMJ, and 

none of the people he was messaging suggested they would 

send such images.” Id. at *69, 2020 WL 2114230 at *25.

II. Analysis

A. Standard of Review

In this appeal, Appellant argues that the evidence is legally insufficient to support the finding that he is guilty of

attempting to receive child pornography. “The test for legal 

sufficiency is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond 

a reasonable doubt.” United States v. Robinson, 77 M.J. 294, 

297–98 (C.A.A.F. 2018) (quoting United States v. Rosario, 76 

M.J. 114, 117 (C.A.A.F. 2017)). 

B. Essential Elements of the Offense

The parties agree on what the essential elements of the 

offense are. An “attempt” is defined as “[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.” Article 80(a), UCMJ.

The President has listed receipt of child pornography as an 

offense under Article 134, UCMJ, 10 U.S.C. § 934 (2012).

Manual for Courts-Martial, United States pt. IV, para. 

68b.b.(1) (2016 ed.) (MCM). This offense has two elements: (a) 

 

had no legal effect. See Ozbirn, 2020 CCA LEXIS 138 at *27 n.7, 

2020 WL 2114230 at *9 n.7 (citing R.C.M. 918(a), (b); United States 

v. Nicola, 78 M.J. 223, 226, n.2 (C.A.A.F. 2019).) Appellant asserts 

in this appeal that the members sought to find Appellant not guilty 

of the attempted receipt of child pornography offense as it relates 

to Jessica Saunders. But Appellant does not contest the AFCCA’s 

conclusion that the attempted exception was ineffective.
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

6

“[t]hat the accused knowingly and wrongfully . . . received . . 

. child pornography”; and (b) “[t]hat, under the circumstances, 

the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring 

discredit upon the armed forces.” MCM pt. IV, para. 68b.b.(1).

The term “child pornography” means either “an obscene 

visual depiction of a minor engaging in sexually explicit conduct” or “a visual depiction of an actual minor engaging in 

sexually explicit conduct.” MCM pt. IV, para. 68b.c.(1). The 

first of these two definitions is controlling here because the 

specification at issue alleged that Appellant attempted to receive “photographs of what appear to be minors engaging in 

sexually explicit conduct,” rather than photographs of actual 

minors. (Emphasis added.) The term “sexually explicit conduct” means, in relevant part, a “lascivious exhibition of the 

genitals or pubic area of any person.” MCM pt. IV, para. 

68b.c.(7).(e). Accordingly, the parties agree that the Government was required to prove, beyond a reasonable doubt, that 

Appellant had a specific intent to receive photographs that 

were both “obscene” and that included a “lascivious exhibition 

of the genitals or pubic area.” 

The paragraphs of the MCM addressing the offense of 

child pornography do not define the terms “obscene” or 

“lascivious.” MCM pt. IV, para. 68b. The military judge, 

however, defined these terms in accordance with the standard 

instructions in the Military Judges’ Benchbook. Dep’t of the 

Army, Pam. 27-9, Legal Services, Military Judges’ 

Benchbook, ch. 3, para. 3-68b-1.d. (2020). The military judge 

informed the panel:

“Obscene” means that the average person applying 

contemporary community standards would find the 

visual images depicting minors engaging in sexually 

explicit conduct, when taken as a whole, appeal to 

the prurient interest in sex and portray sexual conduct in a patently offensive way; and that a reasonable person would not find serious literary, artistic, 

political, or scientific value in the visual images depicting minors engaging in sexually explicit conduct.

Additionally, the military judge informed the panel: “ ‘Lascivious’ means exciting sexual desires or marked by lust. Not 
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

7

every exposure of the genitals or pubic area constitutes a lascivious exhibition. Consideration of the overall content of the 

visual depiction should be made to determine if it constitutes 

a lascivious exhibition.” The military judge also identified factors for the members to consider in making this determination. Id. The parties do not contest the correctness of these 

definitions.

C. Legal Sufficiency of the Proof of Specific Intent

Appellant contends that the evidence was not legally sufficient to prove beyond a reasonable doubt that he had the

requisite specific intent. Appellant asserts that in his text 

messages, he asked for nothing more than “naked pictures.”

Under the definitions above, Appellant contends that naked 

pictures are not necessarily obscene and do not necessarily 

contain a “lascivious exhibition of the genitals or pubic area.”

See United States v. Roderick, 62 M.J. 425, 429 (C.A.A.F. 

2006) (combining a review of the factors listed in United 

States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), with an overall consideration of the totality of the circumstances in determining what constitutes child pornography). Appellant emphasizes that he did not specifically request pictures of the 

girls’ genitals or videos of them masturbating. He asserts that 

the “main purpose” of his request for naked photos was not to 

obtain child pornography but instead “to verify he was speaking to a real person.” He points out that he specifically requested that Jodie send him a non-pornographic image (“I 

mean any pictures”) after she expressly said, “I’m not sending 

naked pictures of me.” 

The question of what a person specifically intended at a 

particular time is a question of what thoughts the person actually had in his or her head at the time. Because actual mind 

reading is impossible, a person’s specific intent generally can 

be determined only by the person’s own admissions or by 

drawing inferences from the person’s statements and actions

and from the context and circumstances. Inferring a specific 

intent may be difficult in some cases, but that is not always 

so. As Justice Oliver Wendell Holmes famously recognized, 

“even a dog distinguishes between being stumbled over and 

being kicked.” Oliver Wendell Holmes Jr., The Common Law

3 (1881).
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

8

In United States v. Webb, 38 M.J. 62, 68 (C.M.A. 1993), the 

appellant challenged a finding that he was guilty of “housebreaking with intent to peep.” He argued that any conclusion

about his specific intent was “pure speculation” given a lack 

of “clear evidence” about his purposes. Id. at 68. This Court, 

however, rejected the contention. It held that the specific intent required for an offense “ ‘may be inferred from the totality of circumstances’ including ‘the nature, time, or place of’

appellant’s ‘acts before and during’ the crime alleged.” Id. at 

69 (quoting Goldman v. Anderson, 625 F.2d 135, 137 (6th Cir. 

1980)). There was evidence in the case that the appellant had 

“secreted himself in a storage room with a view of the shower 

room in the female officers’ billet during the early morning 

hours without any apparent lawful purpose” and that he

“knocked down and fled from the female officer who accidentally discovered him.” Id. Based on these circumstances,

the Court determined that this evidence was legally sufficient 

to prove the appellant’s specific intent to commit the offense 

of peeping. Id.

As in Webb, after viewing the evidence in the light most 

favorable to the prosecution, we think that a rational fact 

finder could infer from the circumstances that Appellant had 

the requisite specific intent. Even though Appellant only 

asked for “naked pictures,” he made the request in exchanges 

of messages that established a context for understanding 

those requests. Appellant believed that he was speaking to 

minors. In vulgar language, he graphically described very 

specific sexual conduct with them. He asked Febes, Jodie, and 

Jessica Saunders to engage in sexual relations with him.

Throughout, Appellant’s words evinced a specific focus on 

genitalia.

In addition, Appellant offered to send explicit pictures of 

his genitals in exchange for the naked photos that he requested. Viewing the evidence in the light most favorable to 

the prosecution, a rational trier of fact could reasonably infer 

that Appellant intended the other half of the proposed bargain to include sexual images of genitalia. See United States 

v. Isabella, 918 F.3d 816, 835 (10th Cir. 2019) (concluding

that “suggest[ing] a quid pro quo” involving on one side a picture of the appellant’s genitalia “suggest[s] to [the other] the 
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

9

kinds of photos [the appellant] wanted”). To be sure, other inferences about Appellant’s specific intent might also be possible. But “in resolving questions of legal sufficiency, we are 

bound to draw every reasonable inference from the evidence 

of record in favor of the prosecution.” United States v. Barner, 

56 M.J. 131, 134 (C.A.A.F. 2001).

Finally, we address Appellant’s argument that his main 

purpose in asking for naked pictures was not to seek child 

pornography but to verify the identities of those with whom 

he was chatting. The argument is unavailing for two reasons. 

First, a rational fact finder could disbelieve that this was Appellant’s intent based on all the other evidence cited above.

Second, an intent to verify that he was speaking with real 

young girls would not preclude him from also having a specific 

intent to seek child pornography from them. See United States 

v. Lee, 603 F.3d 904, 918 (11th Cir. 2010) (“A reasonable jury 

could have found [the appellant]’s concern for whether Candi 

was a law enforcement agent proved that he was interested 

in using her minor daughters to produce child pornography, 

which is a crime.”) A rational fact finder reasonably could conclude that the evidence viewed in the light most favorable to 

the Government established that Appellant desired sexualized images of minors that would simultaneously allay any 

concerns he had that the people with whom he was texting 

were not in fact minors. 

In sum, we agree with the AFCCA that a rational fact 

finder could conclude from these facts that Appellant had the 

specific intent to obtain photographs that were both “obscene” 

and that included a “lascivious exhibition of the genitals or 

pubic area.” In reaching this conclusion, we do not hold that 

naked photographs of persons who appear to be children are 

automatically to be considered child pornography or that a request for such photographs is automatically to be construed 

as a request for child pornography. The Government also does 

not make any such claims. As described above, and as we have 

held in Roderick, not all naked pictures of children are child 

pornography. We simply reaffirm what we held in Webb, 

namely, that inferences about specific intent depend on the 

totality of the circumstances, and those circumstances in this 

case are such that a rational finder of fact reasonably could 

infer that Appellant had the requisite specific intent.
United States v. Ozbirn, No. 20-0286/AF

Opinion of the Court

10

D. Legal Sufficiency of Proof of a Substantial Step

Appellant also asserts that the evidence was legally insufficient for finding him guilty of attempting to commit the offense of receipt of child pornography because there was insufficient evidence that he took a “substantial step” toward 

committing that offense. We decline to consider the merits of 

this argument because it is not within the scope of the granted 

issue and because Appellant raised the argument for the first 

time in his reply brief. See United States v. Phillips, 64 M.J. 

410, 414 n.* (C.A.A.F. 2007). This Court “will not revive a forfeited argument simply because [an appellant] gestures toward it in [his] reply brief.” Republic of Argentina v. NML 

Capital, Ltd., 573 U.S. 134, 140 n.2 (2014). 

III. Conclusion

The assigned issue is answered in the affirmative. The 

decision of the United States Air Force Court of Criminal Appeals is affirmed.