This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________
UNITED STATES Appellee

v.

Jacob M. OZBIRN
, Airman First Class
U nited S tates 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 min ors is legally sufficient to sustain a conviction for attempted receipt of child pornography. ” Given t he totality of the circumstances in which Appellant requested
the naked picture s , we answer the question in the affirmative.
We therefore affirm the decis ion of the U nited 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

C ontrary 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 , N o. 20

- 0286/AF Opinion of the Court

2tempted sexual assault of a child, and one specification of attempted receipt of child pornography, in violation of Article 80, Uniform Co de 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 betweenon or about 16 August 2017 and on or about 18 August 2 017, 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 goodorder and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

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

“ sting ” operations to identify and catch potential child predators . The se adults cre ated 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

. The se fake profiles attracted Appellant ’ s attention. O n August 1 6, 17, and 18

, 201 7, Appellant exchanged numerous text messages with the three a dult s. In these exchanges and unbeknownst to Appellant , the adults pretended to be young girls named “ Febes, ” “ Jodie Walsh ,” and “ Jessic a Sa u nders. ”

The messages between Appellant and Febes foc used 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 r epeated ly asked to have sex with her. When Febes said that she didnot 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 m ake
sure that it does not hurt. ” Immediately after this statement, Appellant initiated the following exchange s in which he requested pictures :United States v. Ozbirn , N o. 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 yo u 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

[Febe s:] 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 m essages with the adult who pretended to be a gir l named Jodie were similar. After Jodie told Appellant
that she was thirteen years old, Appellant proposed that they
meet and have sex. He then graphi cally 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 .”
I mmediately after making this statement, Appellant began
the following exchange with her :
[Appellant:] Have you ever sent a naked picture to

anyone or s een 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 , N o. 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

T he m essages between Appellant and the adult who pretended to be a girl name d “ J essic a Sa u nders ” also concern ed sexual topics. After Jessica told Appellant that she was
twelve years old , A ppellant proposed th at they have sex

. When Je ssica 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 ever y [sic] traded naked pictures before?

[Jessica:] no one has seen me naked

[App ellant:] do you want to see a di ck so that you will know what goes in?

[ Jessica ] ok

[Appellant:] So you have to send a picture of you naked then you ge t to see a d i ck

[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 pornogr aphy. 1 The

1 The court members attempted to qualify its finding of guilt with the words “except Jessica Sa u nders.” (The words “Jessica
Sa u nders,” however, do not appear in the specification as charged. The AFCCA accordingly conc luded that the attempted exceptionUnited States v. Ozbirn , N o. 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 dissent ed on this point

, conclud ing 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 defi nition 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. A nalysis

A. Standard of Review

In this appeal, Appellant argues that the evidence is legally in sufficient 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 define d as “[ a]n act, done with specific intent to commit an offense under this chapter, amounting to more than mere prepara tion and tending, even though failing, to effect its commis sion

. ” Article 80(a), UCMJ

. T he 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 e lement s: (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 Sa u nders. But Appellant does not contest the AFCCA’s conclusion that the attempted exception was ineffective.United States v. Ozbirn , N o. 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 “ c hild pornography” means either “an obscenevisual depiction of a minor engaging in sexually explicit conduct” or “a visual depiction of an actual minor engaging in sexually exp licit conduct.” MCM pt. IV, para. 68b

. c

. ( 1 )

. The
first of these two definition s is controlling here because thespecification at issue alleged that Appellant attempted to receive “photographs of what appear to be minors engagi ng in sexually explicit conduc t, ” rather than photographs of actual
minors. ( Emphasis a dded. ) T he 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 a rea. ”

The paragraphs of the MCM addressing the offense of child pornography do not define the term s “ obscene ” or

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

, however, defined these terms in accordance with the standard
instructions in the Military Judge s ’ Benchbook

. Dep ’ t of the Army

, Pam. 27

- 9, Legal S ervices

, 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 w ould find the visual images depicting minors engaging in sexually explicit conduct, when take n as a whole, appeal tothe prurient interest in sex and portray sexual conduct in a patently offensive way; and that a reasonable person would not find serious li terary, artistic,political, or scientific value in the visual images depicting minors engaging in sexually explicit conduct.
Additionally, t he military judge informed t he panel : “ ‘ Lascivious ’ means exciting sexual desires or marked by lust. NotUnited States v. Ozbirn , N o. 20

- 0286/AF Opinion of the Court

7 every exp osure 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

. L egal 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 d efinition s 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, 4 29 (C.A.A.F. 2006) ( combining a review of the f actors 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 pict ures 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 pe rson 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 admission s or by drawing inference s from the person ’ s statement s and actions
and from the context and circumstances . Inferring a specific intent may b e difficult in some cases, but tha t is not always so. As Justice Oliver Wendell Holmes famously recognized,

“ even a dog distinguishes between being stumbled over and being kicked. ” O liver Wendell Holmes Jr.

, The Common Law 3 (1881).United States v. Ozbirn , N o. 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 purpose s

. Id. at 68. Th is Court, however, rejected th e 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 e vidence in th e 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 with out 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 th is 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 f act 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 exc hanges of messages that established a context for understanding those requests. Appellant believe d that he was speaking to
minors. In vulgar language, h e 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 evinc ed a specific focus on genitalia

. In addition, Appellant offered to send explicit pictures of his genitals in exchange for the naked phot os that he requested. V iewing 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 s ide a picture of the appellant ’ s genitalia “ suggest[s] to [the other] theUnited States v. Ozbirn , N o. 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 “ i n 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 wa s not to seek child pornography but to verify the identities of those with whom he was chatting. The argument is unavail ing for two reasons. First, a rational fact finder could disbelieve that this was Appellant ’ s intent based on all the other evidence ci ted 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 rea sonable jur y could have found [the a ppellant] ’ 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 t he 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, w e agree with the A F CCA 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 cons idered child pornography or that a request for such photographs is automatically to be construed as a request for child pornography. T he Government also does

not make any such claim s

. As described above, and as we have
held in Roderick , not all naked pictures of children are child pornography. W e 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 , N o. 20

- 0286/AF Opinion of the Court

10 D. Legal Sufficiency of Proof of a Substantial Step

Appellant also asse rts that the evidence w as legally insufficient for finding him guilty of attempting to commit th e 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 a rgument 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 a ppellant] gestures toward it in [his] reply brie f. ” Republic of Argentina v. NML Capital, Ltd. , 573 U.S. 134, 140 n.2 (2014).

III. Conclusion

The assigned issu e is answered in the affirmative. The
decision of the U nited States A ir Force Court of Criminal Appeals is affirmed.