United States v. Warner
2013 CAAF LEXIS 1397
| C.A.A.F. | 2013Background
- Appellant was convicted by a military judge sitting alone as a general court-martial of possession of child pornography, possession of images that depict minors as sexual objects or in a sexually suggestive way, obstruction of justice, and possession of drug paraphernalia under Article 134, UCMJ, 10 U.S.C. § 934 (2012).
- Specifications 2 and 3 involved images seized from a Western Digital hard drive bearing serial number WCASU4440064, collected at Fort Riley, Kansas, between about April 6, 2009 and November 17, 2010.
- Specification 3 charged possession of twenty-three images that depict minors as sexual objects or in a sexually suggestive way; the folder contained twenty unique images, none nude, but with provocative posing and distasteful captions.
- Prosecution Exhibit 7 (images) was admitted at trial; the MJ took judicial notice of the federal definition of child pornography for Specification 2, but provided no definitions for “sexual objects” or “sexually suggestive” and the government’s closing referred to “child erotica.”
- Appellant was convicted of Specification 3, which the Army Court of Criminal Appeals affirmed; the military judge did not include the service-discrediting language in the specification.
- The court reversed the judgment as to Specification 3: the finding of guilty was set aside, the specification dismissed, and remand to reassess sentence for the remaining findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fair notice under Article 134, UCMJ, for possession of images depicting minors as sexual objects or sexually suggestive. | Mason and Vaughan provide notice sources; failure to define terms meant no notice. | Appellant lacked notice that such images were punishable; elements plus common sense do not establish notice. | Fair notice lacking; specification reversed and dismissed. |
Key Cases Cited
- United States v. Saunders, 59 M.J. 1 (C.A.A.F. 2003) (notice can come from sources beyond the listed elements)
- United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003) (additional notice sources possible; elements alone not always enough)
- United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (plea providence; notice issue not centered on Mason's facts)
- United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (discussed scope of Article 134 notice; illustrative elements may be limited)
- United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (common sense notice of conduct discrediting; officer context)
- United States v. Gipson, 16 M.J. 839 (N.M.C.M.R. 1983) (common sense supports fair notice)