United States v. Moon
2014 CAAF LEXIS 832
| C.A.A.F. | 2014Background
- Appellant (Specialist Moon) pleaded guilty at a general court-martial to two specifications of possession of child pornography (18 U.S.C. § 2256(8)) and one specification charging possession of “multiple images of nude minors and persons appearing to be nude minors” in violation of Article 134, UCMJ.
- The military judge made special findings identifying which images supported each specification; the MJ and parties treated Specification 2 as alleging images that did not meet the federal child-pornography definition.
- During the plea colloquy the MJ expressed repeated concern that images charged under Specification 2 could be constitutionally protected nudity (artistic/innocuous nudity) and queried whether possession for sexual gratification removed First Amendment protection.
- The colloquy contained shifting and at times contradictory descriptions of the conduct that would constitute Specification 2 versus child pornography (notably reliance on Dost factors, la[c]iviousness, and statements that lascivious images would instead qualify as child pornography). Appellant made admissions that were inconsistent with the MJ’s earlier statements about which images were child pornography.
- The CAAF assumed, without deciding, Appellant had notice of criminality but found substantial bases in law and fact to question the providence of Appellant’s plea to Specification 2 (Article 134), set that specification aside and dismissed it, and remanded for sentence reassessment as to the remaining findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Fair notice under Article 134 | Government (and dissent): any reasonable service member would know these images were service-discrediting; common‑sense notice exists | Appellant: (assumed) lack of clear statutory or judicial definition made notice uncertain | Court: assumed, without deciding, Appellant had notice; majority rejects a nebulous “common sense” test but did not resolve notice here |
| 2. Providence of guilty plea to Spec. 2 (Article 134) | Government: plea was provident based on MJ’s review and Appellant’s admissions | Appellant: plea was not provident because MJ’s colloquy was inconsistent, confused, and failed to resolve conflicts about which images were charged and legal standards | Court: substantial basis to question plea providence for Spec. 2; MJ abused discretion in accepting plea; Spec. 2 dismissed |
| 3. First Amendment implications | Government (trial): images were not protected because they lacked artistic/medical purpose and were possessed for sexual gratification | Appellant: possession might be protected unless images are child pornography or obscene; Hartman enhanced inquiry required | Court: images that fall outside child-pornography/obscenity implicate First Amendment; MJ’s colloquy erroneously equated possession-for-gratification with unprotected status and failed Hartman inquiry |
| 4. Legal standard for “nude minors” vs. child pornography | Government/dissent: a broader, constitutionally permissible definition (lewd/lascivious beyond CPPA’s text) can govern in military prosecutions | Appellant: parties and MJ treated Spec. 2 as non‑CPPA images, so plea inquiry had to explain why otherwise protected images were criminal in military context | Court: MJ gave inconsistent explanations and failed to establish how otherwise protected material was prejudicial to good order and discipline; confusion unresolved |
Key Cases Cited
- Parker v. Levy, 417 U.S. 733 (1974) (Article 134 upheld against facial vagueness; military law narrowed by precedent and regulations)
- New York v. Ferber, 458 U.S. 747 (1982) (child pornography unprotected due to harm to children; acceptable statutory definition includes specific sexual conduct)
- Miller v. California, 413 U.S. 15 (1973) (obscenity not protected speech; statutory standards for obscenity)
- Osborne v. Ohio, 495 U.S. 103 (1990) (possession of child pornography may be criminalized; ‘‘lewd exhibition of nudity’’ can be proscribable)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (struck down overbroad prohibition on virtual child pornography; speech outside enumerated categories retains protection)
- United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011) (enhanced plea inquiry required where charged conduct may implicate constitutional protections)
- United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (recognizes First Amendment protection for some depictions that are neither child pornography nor obscene)
- United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008) (standard of review for acceptance of guilty pleas: abuse of discretion)
- United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (providence depends on accused’s understanding of how law applies to facts)
- United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006) (use of Dost factors and totality-of-circumstances approach for lewd/lascivious determination)