United States v. Merritt
72 M.J. 483
C.A.A.F.2013Background
- Merritt was court-martialed and convicted of receiving child pornography and, separately, of viewing child pornography, with the viewing charge later being merged for sentencing.
- The charged viewing specification alleged Merritt viewed images at/near Spangdahlem Air Base between May 6 and May 13, 2006, prejudicial to good order and discipline.
- The defense moved to dismiss the viewing specification for lack of a listed offense under the UCMJ; the military judge denied the motion.
- The government argued that conduct not criminal in civilian settings could be criminalized in the military, citing Medina and general principles of notice.
- The CCA affirmed Merritt’s conviction on the receiving spec and upheld the sentence, but concluded the viewing specification was validly convicted, prompting the issue whether Merritt had fair notice in 2006 that viewing child pornography could be criminalized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there fair notice in 2006 that viewing child pornography could be criminalized under the UCMJ? | Merritt lacked notice; CPPA (2008) and most state laws did not criminalize viewing in 2006. | Government argued Vaughan-based and other authorities provided notice through MCM, federal/state law, and custom. | No fair notice; viewing was not criminal in 2006; Specification 2 (viewing) set aside. |
| Was Merritt's appellate delay a due process violation? | Delay was excessive and prejudicial, constituting due process violation. | Delay, while long, did not prejudice Merritt sufficiently to violate due process; some delay attributable to Merritt’s counsel. | Appellate delay not prejudicial; no relief granted on delay." |
Key Cases Cited
- United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003) (fair notice in Vaughan; sources for notice include MCM, federal/state law, military regulations)
- United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (viewing of child pornography discredits individuals and institutions; cited as notice source)
- United States v. Saunders, 59 M.J. 1 (C.A.A.F. 2003) (Art. 134 notice framework for service-discrediting offenses)
- Moreno, 63 M.J. 129 (C.A.A.F. 2006) (due process right to timely post-trial review; four-factor test)
- United States v. Othuru, 65 M.J. 375 (C.A.A.F. 2007) (four-factor appellate delay analysis; prejudice requires showing)