UNITED STATES, Aрpellee, v. Caleb B. BEATY, Airman First Class, U.S. Air Force, Appellant.
No. 10-0494. Crim.App. No. 37478.
U.S. Court of Appeals for the Armed Forces.
Argued Dec. 2, 2010. Decided April 26, 2011.
70 M.J. 39
For Appellant: Major Darrin K. Johns (argued); Lieutenant Colonel Gail E. Crawford (on brief); Major Shannon A. Bennett.
For Appellee: Major Jamie L. Mendelson (argued); Gerald R. Bruce (on brief).
Judge RYAN delivered the opinion of the Court.
Pursuant to his plea, Appellant was convicted by a military judge sitting as a general court-martial on a single specification charged under clauses 1 and 2 of Article 134, Uniform Code of Military Justice (UCMJ),
did, at or near Hurlburt Field, Florida, between on or about 12 May 2008 and on or about 22 July 2008, on divers occasions, wrongfully and knowingly possess one or more visual depictions of what appears to be a minor engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline or of a nature to bring discredit upon the Armed Forces.
Appellant was sentenced to a reduction in grade to E-1, confinement for ten months, and a bad-conduct discharge. The convening authority approved the adjudged sentence, and the Air Force Court of Criminal Appeals (CCA) affirmed. United States v. Beaty, 2010 CCA LEXIS 123, at *7, 2010 WL 4025786, at *2 (A.F.Ct.Crim.App. Mar. 25, 2010). We granted review on the following issue:
WHETHER THE SENTENCE MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE DETERMINED THE SENTENCE BASED ON THE INCORRECT MAXIMUM PUNISHMENT.
United States v. Beaty, 69 M.J. 199 (C.A.A.F. 2010) (order granting review).
Unlike the specification and charge in United States v. Leonard, 64 M.J. 381 (C.A.A.F.2007), the specification in this case charged that Appellant possessed “what appears to be” child pornography. The military judge calculated a maximum punishment of ten years of confinement by reference to
I.
The facts relevant to the granted issue are few. After conducting the providence inquiry, the military judge asked trial counsel to calculate the maximum punishment. Relying on
Defense counsel argued that because the charged specification contained the language “appears to be a minor,” it was not appropriate to look to
The military judge, for sentencing purposes, sua sponte purported to excise the “appears to be” language from this specification as surplusage and then summarily equated the judicially modified offense with a violation of
II.
The maximum punishment authorized for an offense is a question of law, which we review de novo. See United States v. Ronghi, 60 M.J. 83, 84-85 (C.A.A.F.2004); United States v. Ingham, 42 M.J. 218, 229-30 (C.A.A.F.1995). While we review a military judge‘s sentencing determination under an abuse of discretion standard, see Leonard, 64 M.J. at 383-84, where a military judge‘s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion. See United States v. Cowgill, 68 M.J. 388, 390 (C.A.A.F.2010).
This Court has repeatedly held that possession of child pornography, whether actual or virtual, may constitutionally be prosecuted under clauses 1 and 2, Article 134, UCMJ. United States v. Brisbane, 63 M.J. 106, 116-17 (C.A.A.F.2006); United States v. Mason, 60 M.J. 15, 20 (C.A.A.F.2004); see also United States v. Forney, 67 M.J. 271, 274-75 (C.A.A.F.2009). This, however, does not answer the separate question of what the
Article 134, UCMJ, provides:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, sрecial, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
Emphasis added. However, Article 56, UCMJ,
§ 856. Art. 56. Maximum limits
The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.
R.C.M. 1003(c), promulgated by the President, provides the relevant guidance on those limits. Where an offense is listed in the MCM, Part IV, the maximum punishment is set forth therein and sets the maximum limits for authorized punishment. R.C.M. 1003(c)(1)(A)(i). The parties agree that possession of either child pornography or what appears to be child pornography is not a listed offense.6
For offenses not listed in Part IV, the maximum punishment depends on whether or not the offense is included in or closely relаted to a listed offense.7 R.C.M. 1003(c)(1)(B). We already determined in Leonard that possession of child pornography is not included in, or closely related to, a listed offense. 64 M.J. at 383. Similarly, neither is possession of what appears to be child pornography. Therefore, R.C.M. 1003(c)(1)(B)(ii) governs the maximum punishment in this case, and provides:
Not included or related offenses. An offense not listed in Part IV and not included in or closely related to any offense listed therein is punishable as authorized by the United States Code, or as authorized by the custom of the service.
First, we disagree that Leonard resolves the maximum sentence in this case. In Leonard, the specification alleged every element of the act prohibited by the United States Code,
Id. at 384 (emphases added).
In this case, Appellant was charged with, pleaded guilty to, and was found guilty of possessing “one or more visual depictions of what appears to be a minor engaging in sexually explicit activity.” (Emphasis added.) This is not the conduct proscribed by the federal statute referenced by trial counsel and the military judge. The United States Code does not criminalize possession of “what appears to be” child pornography. In fact, while such possession was criminal under a prior version of
The Government nonetheless argues that possession of “what appears to be” child pornography is the “same criminal conduct” as that proscribed in the CPPA. We disagree, as this argument ignores three salient points.
First, in arriving at the maximum authorized sentencе, the military judge relied upon
Second, the prior version of
To reiterate, we do not hold that Ashcroft renders Appellant‘s specification unconstitutional. Rather, we hold that it was error for the military judge to reference the punishment for
III.
The Government posits that even if it was error to arrive at the maximum punishment by reference to the CPPA, it did not prejudice the substantial rights of the accused because, in the absence of a presidential limitation on the punishmеnt for the offense, the military judge was free to award any and all punishment up to the jurisdictional limits of a noncapital general court-martial—namely, life without parole. See Article 18, UCMJ,
Because Appellant‘s offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the United States Code, the maximum punishment is that “authorized by the custom of the service.” See R.C.M. 1003(c)(1)(B)(ii). As in Leonard, we are unaware of any “custom of the service” specific to Appellant‘s offense, see 64 M.J. at 383. In our view this cannot mean that Article 134, UCMJ, can be read to mean that the maximum sentence is the jurisdictional maximum of a general court-martial—life without parole. See Article 18, UCMJ. Permitting “discretion of that court” to include a maximum punishment of life without parole under these circumstances would violate the rule of lenity by permitting the imposition of greater punishment for the possession of what “appears to be” child pornography, an action which Congress now deems, in accord with Supreme Court precedent, not criminal, than Congress saw fit to impose for the possession of actual child pornography. See United States v. Thomas, 65 M.J. 132, 135 (C.A.A.F.2007) (noting that this
Rather, when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment “authorized by the custom of the service,” they are punishable as “general” or “simple” disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months. See, e.g., United States v. Melville, 8 C.M.A. 597, 600-02, 25 C.M.R. 101, 104–06 (1958) (holding that the then-unlisted offense of wrongful cohabitation was a general disorder not “closely related” to the offense of adultery, and that therefore the maximum legal sentence was the four months’ confinement authorized for general disorders instead of the one-year penalty imposed for adultery); United States v. Oakley, 7 C.M.A. 733, 736, 23 C.M.R. 197, 200 (1957) (holding that the unlisted offense of solicitation of another to administer poison is a separate substantive offense under Article 134, UCMJ, not closely related to the listed offenses of solicitation to desert or to commit mutiny, and is thus punishable only as a simple disorder with a maximum punishment of four months’ confinement and forfeiture of two-thirds pay for a like period); United States v. Blue, 3 C.M.A. 550, 552, 556, 13 C.M.R. 106, 108, 112 (1953) (holding that although the MCM sets out a maximum punishment of three years of confinement for the listed Article 134, UCMJ, offense of making, selling, or possessing official documents with intent to defraud, the mere wrongful possession of a false pass is a simple military disorder under Article 134, UCMJ, which сarries a maximum sentence of four months); see also United States v. Sutter, 3 C.M.R. 809 (A.F.B.R.1952) (“The maximum punishment for the disorder ... not being listed in the Table of Maximum Punishments or included within an offense listed or closely related thereto, and not being otherwise fixed, may not exceed confinement at hard labor for four months and forfeitures of two-thirds pay per month for four months.“).
In line with this precedent, the maximum sentence for Appellant‘s offense as charged is four months of confinement and forfeiture of two-thirds pay per month for four months—yet Appellant‘s approved sentence included ten months confinement and a bad-conduct discharge. Because the imposed sentence exceeded the maximum lawful sentence, it materially prejudiced Appellant‘s substаntial rights. See United States v. Sanders, 67 M.J. 344, 345-46 (C.A.A.F.2009); Article 59(a), UCMJ,
IV.
The decision of the United States Air Force Court of Criminal Appeals is affirmed as to the findings, but is reversed as to the sentence. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on the sentence may be ordered.
BAKER, Judge (dissenting):
Introduction
There are three issues in this case. First, is the military offense of “possession of visual depictions of what appears to be a minor engaging in sexually explicit conduct” charged under Article 134, Uniform Code of Military Justice (UCMJ),
Further, the analysis regarding the import of Ashcroft in the context of this case is more nuanced than the majority presents, whether referencing either
In this context, the CPPA is directly analogous to the offense with which Appellant was charged and to which he providently pleaded guilty to committing. Therefore, it served as lawful reference for determining the maximum period of confinement for Appellant‘s offense. As a result, I respectfully dissent.
Discussion
The essence of the majority‘s position is that Ashcroft “specifically held that
I disagree for each of the distinct reasons below. In my view, the Supreme Court‘s concern in Ashcroft was not the mere words, “appears to be.” Rather, the Court was concerned with the fact that these words, in the context of the statute as written at the time, permitted the statute to be read and applied in too broad a manner—potеntially extending the reach to images that had been determined to be protected speech under previous case law. Ashcroft, 535 U.S. at 246, 122 S.Ct. 1389.
This is evident in the Court‘s analysis of
[U]nder [Miller], the Government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value. The CPPA, however, extends to images that appear to depict a minor engaging in sexually explicit activity without regard to the Miller requirements.
Ashcroft, 535 U.S. at 246, 122 S.Ct. 1389 (citations omitted). Regarding Ferber, the Court noted that Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were “intrinsically related” to the sexual abuse of children.” Id. at 249, 122 S.Ct. 1389. It concluded that Ferber “reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment.” Id. at 251, 122 S.Ct. 1389. Thus, although the Court struck down this provision of the CPPA, it was not the literal phrase “appears to be,” read in a vacuum, that posed the problem.
Further, it was on First Amendment grounds that the Court struck the provision containing the offending phrase. But long ago the Supreme Court recognized the distinction between the First Amendment protections of members as compared with members of civilian society. In United States v. Forney, the majority opinion explicitly noted this in the child pornography context: “That the possession of virtual child pornography may be constitutionally protected speech in civilian society does not mean it is protected under military law.” 67 M.J. 271, 275 (C.A.A.F.2009) (opinion announcing the judgment of the Court). This means that the scope of punishable child pornography is broader than that punishable under the CPPA. Thus, the relevant question is not whether the CPPA punishes images that appear to be child pornography, but whether it punishes the possession of child pornography, period. While in civilian law, the accommodation of First Amendment concerns may require distinctions between actual and virtual child pornography to avoid overbreadth, Ashcroft, 535 U.S. at 251, 122 S.Ct. 1389, in the military the First Amendment context is different and the prohibition on possessing images depicting child pornography does not necessarily result in comparable concerns of overbreadth. This is consistent with the Supreme Court‘s assertions that invalidation duе to overbreadth should be used sparingly. See e.g. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
The fact that the military may define child pornography more expansively in the context of military life than the CPPA may do in the context of civilian society, does not mean the offenses are not analogous for the purpose of determining the maximum authorized confinement for the offense. Analogous does not mean “the exact same.” In United States v. Blevens, for example, this Court held that a statute was sufficiently analogous as to be “an appropriate frame of reference for judging the seriousness of the offense charged, and for measuring the punishment” based on the fact that “[t]he evil against which the [statute] protects is essentially the same as the evil inherent in the accusеd‘s conduct.” 5 C.M.A. 480, 492, 18 C.M.R. 104, 116 (1955).5
Blevens is squarely on point: as in the present case, the offense was not an enumerated offense, was neither included in nor closely related to such an offense and was not otherwise listed in the MCM at the time. This Court upheld the use of an analogous statute at sentencing based on the “evil” the statute was to address. Blevens remains valid precedent and the majority‘s reason for discarding it is unpersuasive. The Blevens Court explicitly stated that the concept of a closely related listed offense was not the basis for its ultimate holding that “reference to the Smith Act for the purpose of assessing punishment is entirely proper.” Id.
Congress‘s amendment of
(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
....
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct[.]
the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.
All of this notwithstanding, in the guilty plea context, reliance on exactly what the accused admits during the plеa inquiry removes any issue or doubt and determines the maximum authorized punishment. This is, or was, settled law in this Court. In United States v. James, 55 M.J. 297 (C.A.A.F.2001), decided before Ashcroft, the accused pled guilty to possession of child pornography un-
In the present case, as the majority notes, Appellant‘s plea inquiry revealed that he admitted that the images he possessed were of real children; in fact, Appellant stipulated that “[t]he National Center for Missing and Exploited Children (NCMEC) reviewed the files and identified 14 unique images and nine unique videos on the Accused‘s computer that contained known child pornography victims.” He further stipulated that “[f]ive of the NCMEC-identified images and five videos on the Accused‘s computer were from the ‘Vicky Series’ and showed the sexual abuse of a child victim named [KF] by the victim‘s father, who sexually abused the viсtim orally, vaginally and anally when she was between 10 and 11 years of age.” A statement from KF was attached to the stipulation.
In sum, Appellant was charged with possessing images that were indistinguishable from and thus appeared to be child pornography; there was good reason for this, because Appellant stipulated that the images he possessed consisted of actual children in sexual acts with adult males. As a result, it is my view that the offense alleged in this case is more than just analogous to the offenses set forth in
I would decide this case on this basis. However, the majority not only maintains that the charge was not analogous to the amended CPPA, it has also determined that there was no punishment for this offense authorized by military custom. I take issue with this assertion as well. In my view, there is a need to investigate military practice in this area before concluding there is no service custom. The majority has not done so.
Custom arises from “long established practices which by common usage have attained the force of law in the military or other community affected by them.” MCM pt. IV, para. 60.c.(2)(b) (2008 ed.).7 In United States v. Leonard, we said that it was “at best an open question” whether there was a service custom regarding punishment for receiving child pornography under Article 134(1) or (2) because the proliferation of child pornography via new media technology was “a relatively recent development.” 64 M.J. at 383. The technology that child pornography consumers are using may be new, but the underlying issue—“prevention of sexual exploitation and abuse of children,” Ferber, 458 U.S. at 757, 102 S.Ct. 3348—is not. The Supreme Court has explicitly recognized child pornography‘s harms for decades, including harm to child victims as well as a larger societal harm.8 In military law the maintenance of good order and discipline is an additional foundational impetus for prosecuting child pornography, and this interest does not depend on the identification of a known child victim.
Given the large number of cases involving child pornography in the military, particularly since the Internet age, I do not see how
Thus, as Chief Judge Quinn wrote in characterizing the offense at issue in Blevens, “[i]t shocks reason and conscience to imply that such conduct is punishable only as a simple disorder.” 5 C.M.A. at 492, 18 C.M.R. at 116. All the more so since the offense has not heretofore been punished in that manner.