United States v. Phillips
2011 CAAF LEXIS 521
| C.A.A.F. | 2011Background
- Appellant was convicted by a military judge at a general court-martial of larceny and, contrary to his plea, of wrongfully possessing child pornography (clause 1) and conduct of a nature to bring discredit upon the armed forces (clause 2) under Article 134, UCMJ.
- CCA partially affirmed, reinstating clause 2 conviction but setting aside clause 1 and upholding the larceny conviction and sentence.
- NCIS investigated related conduct; during a consent search, Appellant admitted possible possession of child pornography.
- Investigation revealed LimeWire file-sharing activity with filenames consistent with child pornography; examiner linked several files to known child victims.
- No witnesses testified that the conduct was service-discrediting or that they knew of it; public knowledge of the conduct was not established.
- The case then raised whether possession of child pornography is per se service discrediting and whether the terminal element can be proven without public awareness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of clause 2 conviction | Government: sufficient to show nature of conduct would discredit service. | Appellant: cannot prove discrediting without public awareness; per se presumption invalid. | Evidence sufficient; conviction sustained but remanded for factual sufficiency review. |
| Whether the CCA erred by treating possession as per se service discrediting | CCA did not create conclusive presumption; relied on nature of conduct alone. | Per se conclusion improperly conclusive and unconstitutional. | Cannot sustain conclusive presumption; remand for proper factual sufficiency review. |
| Must terminal element be proven beyond a reasonable doubt independently of trial theory | Terminal element proven by evidence of conduct's nature; no additional knowledge required. | No independent determination or theory of service discredit shown in record. | Terminal element must be proven beyond a reasonable doubt; remand for factual sufficiency review. |
Key Cases Cited
- Sullivan v. Louisiana, 508 U.S. 275 (1993) (beyond-reasonable-doubt standard for elements)
- In re Winship, 397 U.S. 358 (1970) (conclusive presumptions unconstitutional)
- Sandstrom v. Montana, 442 U.S. 510 (1979) (conclusive presumptions violate due process)
- County Court of Ulster County v. Allen, 442 U.S. 140 (1979) (limits on presumptions affecting guilt)
- Williams, 8 U.S.C.M.A. 325, 24 C.M.R. 135 (1957) (terminal element must be proved beyond a reasonable doubt)
- Neder v. United States, 527 U.S. 1 (1999) (due-process constraints on evidentiary presumptions)
- Harper, 22 M.J. 157 (C.A.A.F.1986) (sufficiency of evidence; allowable inferences)
- Miller, 67 M.J. 385 (C.A.A.F.2009) (treatment of terminal elements post-Miller)
- Medina, 66 M.J. 21 (C.A.A.F.2008) (terminal elements not implied from enumerated offense)
- Davis, 26 M.J. 445 (C.M.A.1988) (conduct need not violate other statutes to violate clause 1 or 2)
- Phillips, 70 M.J. 161 (C.A.A.F.2011) (Jackson v. Virginia standard for sufficiency)