The Court of Appeals for the Armed Forces recently released its opinion in United States v. Simpson. Gunnery Sergeant (GySgt) Simpson had communicated with a woman, MB, whom he encouraged to take pictures and videos of another individual while in various states of undress without that individual’s consent. MB had complied and, at GySgt Simpson’s direction, emailed the pictures and videos to him. As a result of this conduct, GySgt Simpson pled guilty to various offenses. One of the offenses to which GySgt Simpson pled guilty was the distribution of an indecent visual recording. The Court examined whether it was proper for GySgt Simpson to be found guilty of a distribution offense where he was the individual receiving the recording and not the one sending it.
The Court looked to Article 77 of the Uniform Code of Military Justice (UCMJ) to determine whether GySgt Simpson was properly convicted. This Article states that any person who commits an offense punishable under the UCMJ, or aids, abets, counsels, commands, or procures its commission is a principle to an offense and may be found guilty of that offense. The Government theory at trial was that GySgt Simpson had counseled MB to distribute the pictures and videos and was therefore guilty as an aider and abettor.
GySgt Simpson’s attorneys argued that he could not be convicted of essentially distributing something to himself when the definition of distribute is to deliver to the possession of another. The Court determined that MB had actually distributed the recordings by delivering them to the possession of GySgt Simpson, another. This satisfied the elements of the offense. GySgt Simpson was guilty of the offense because he counseled the behavior, but his guilt as an aider and abettor did not change how the transaction actually occurred.
GySgt Simpson’s attorney’s also argued that making GySgt Simpson guilty of distributing a recording he actually received was contrary to Congress’s intent in creating the law. They argued that Congress intentionally did not make the receipt of such a recording an offense, only the distribution. The Court agreed that ordinarily the government could not charge an individual who receives such a recording with the distribution offense. However, when the recipient “sufficiently associates himself with the purpose of the actual distributor” so that he becomes an aider and abettor, he can be charged.
The Court’s decision clarifies the treatment of those charged with offenses as an aider or abettor. Although they can be found guilty of the offense as if they had committed the actual offense themselves, the courts will not overlook the true facts as to how the offense occurred in determining guilt. Also, the recipient or buyer of an illegal item can be charged with the distribution of that item if they act as an aider and abettor to the distributor.
If you or your loved one is facing a court-martial or is appealing a court-martial conviction, you need someone with experience who knows the rules and the system. I have the experience you need. Please call Bill Cassara at (706) 445-2915 for a free consultation.