United States v. Beaty
2011 CAAF LEXIS 338
C.A.A.F.2011Background
- Appellant pled guilty to a single Article 134(1) spec alleging possession of visual depictions that appear to be a minor engaging in sexually explicit conduct, at Hurlburt Field, FL, between May 12 and July 22, 2008.
- Military judge calculated the maximum punishment by referencing 18 U.S.C. § 2252; the CCA affirmed a 10-year maximum; this court granted review on the maximum-punishment issue.
- The spec used the phrase “appears to be” a minor; CPPA amendments narrowed the federal offense to “indistinguishable from” a minor, affecting the maximum punishment referenced.
- The military judge sua sponte excised the “appears to be” language and equated the offense to § 2252 for sentencing purposes, resulting in a ten-month confinement sentence and bad-conduct discharge.
- The CAAF held the maximum punishment was not authorized by the statute applicable to this offense and that the sentence exceeded the permissible limits, necessitating a four-month confinement ceiling absent a service custom; the case was remanded for potential sentence rehearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Maximum punishment for the offense charged under Article 134, UCMJ, can be set by reference to CPPA/§2252A. | Beaty argued the charge involves what appears to be a minor and should not invoke §2252A. | Beaty relied on Leonard and analogies to federal statutes to set maximums. | Maximum must be governed by a custom of the service; not authorized by CPPA/§2252A. |
| Whether Ashcroft v. Free Speech Coalition invalidates reliance on CPPA language to determine punishment. | Beaty contends Ashcroft precludes use of the amended CPPA for maximum punishment. | Government argues Ashcroft did not render the charge unconstitutional, but the use of the statute was improper. | Error to use CPPA as the punishment reference; wrong statute for the offense. |
| Whether the offense not listed or closely related to listed offenses permits a life-without-parole punishment under Article 134. | Beaty asserts no service custom limits punishment, potentially up to jurisdictional max. | Beaty argues four-month ceiling applies absent custom; the majority finds no custom here. | Maximum is four months confinement and two-thirds pay for four months absent a service custom. |
Key Cases Cited
- United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007) (discussed maximums for unlisted offenses under Article 134; Leonard governs analogical approach)
- United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006) (possession of child pornography under Article 134; supports analogy to federal statute)
- United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (possession of child pornography under Article 134; precedent on analogy)
- United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009) (military law scope of child pornography offenses beyond First Amendment civilian limits)
- United States v. Melville, 8 C.M.A. 597 (1958) (unlisted offense punished as general disorder with four months max)