*1 STATES, Appellee, UNITED FORNEY,
Brendan C. Lieutenant Junior
Grade, Navy, Appellant.
No. 05-0647.
Crim.App. No. 200200462. Appeals
U.S. Court of
the Armed Forces.
Argued Oct.
Decided March
STUCKY, J., judgment of delivered BAKER, J., joined. Court, in which EFFRON, C.J., opinion con- filed J., ERDMANN, filed curring the result. RYAN, J., dissenting opinion which joined. (argued); Eugene R. Fidell Appellant:
For Kadlec, JAGC, USN, L. Kathleen Lieutenant JAGC, USNR, Stephen Reyes, C. Lieutenant Freedus, Harvey and Brent C. Matthew S. Valentine, (on brief); Captain D. James USMC. Elliot W. Appellee:
For Lieutenant Oxman, JAGC, (argued); Colonel USN Miller, USMC, Paul Ralph F. Commander LeBlanc, USN, JAGC, Captain Geoffrey C. Shows, USMC, H. Mark and Lieutenant S. (on brief); JAGC, Com- Herrington, USN Purnell, JAGC, USN, N. mander Charles JAGC, USN, Dunlap, E. Justin Lieutenant Hudson, JAGC, M. Lieutenant Jessica Johnson, USNR, Lieutenant Lars C. JAGC, USNR. judgment of
Judge delivered the STUCKY the Court. of conduct unbe-
Appellant was convicted
pos-
coming an officer and a
pornography. Article
Uni-
sessing child
(UCMJ),
Military
Justice
form Code
(2000).
granted
We
review
military judge erred
whether the
determine
Supreme
by using a federal statute
subsequently held to be unconstitu-
tional to define “child pornography.” The
been held unconstitutional
using
did not err in
Coalition,
statute Court in
v. Free
Ashcroft
234, 240, 256,
to define child
under these cir- 535
cumstances and the
of
(4)
possession of
receipt and
Appellant’s
sexually explicit conduct.
and,
gaging in
wrongful;
circumstances,
(5)
Appel-
all the
Under
further instructed
unbecoming an officer
lant’s
pornogra-
of child
“[r]eceipt and
gentleman.
wrongful
inferred to be
phy
contrary; howev-
of evidence
absence
judge
unbe-
defined conduct
is not re-
er,
drawing of this inference
and a
coming an officer
quired.”
which, in
capacity
in an official
behavior
individual as
disgracing
dishonoring or
Analysis
III.
officer, seriously detracts
commissioned
*4
or be-
gentleman,
as a
character
from his
members,
to the court
In his instructions
capacity
private
or
in an unofficial
havior
employed the definition
which,
disgracing the
dishonoring or
in
found in 18
pornography then
child
seriously detracts
personally,
individual
a
2256(8),
More than
§
of the CPPA.
part
offi-
standing as a commissioned
from
sentenced,
Su-
Appellant was
year after
cer.
2256(8)
§
that 18 U.S.C.
preme Court held
misbehav-
“Unbecoming conduct” means
Amendment to the extent
violated the
slight
of a mate-
than
and
more serious
ior
and
distri-
that it criminalized
It means
character.
pronounced
and
rial
images images
“virtual”
bution of certain
—
unworthy,
morally unfitting and
by
produced
nor
obscene
that were neither
merely inappropriate or unsui-
than
rather
Free
exploitation of actual children.
op-
than
which is more
table misbehavior
240, 256, 258,
Coalition,
at
535 U.S.
Speech
good
propriety.
or
posed to
taste
The Coalition, Speech Free Relying on the then- members based on to the court convictions for viola set aside this Court has 2256(8),1 as language of 18 U.S.C. current CPPA, crimes or offenses tions follows: 134, UCMJ, capital clause 3 of under any means visual pornography” “Child pornog child court had defined which the film, including photograph, depiction, including images of virtual children. raphy as video, computer image or com- picture, or 15, Mason, 60 M.J. v. See United States image picture, or whether puter generated O’Connor, (C.A.A.F.2004); electronic, mechani- produced or made 450, On 58 M.J. sexually explicit cal, other means of or hand, we have affirmed convictions conduct where: possession of child [(A)] production of such visual de- prejudice good order conduct “to the engag- the use of a minor piction involves forces” or as discipline in the armed conduct; or sexually explicit ing upon bring nature to discredit “conduct of a [(B)] depiction ap- or visual is Such clauses 1 or armed forces” under sexually engaging in of a minor pears to be requiring without conduct; explicit or images were to establish that the prosecution [(C)] depiction has been Such visual of actual children. created, appear adapted or modified (C.A.A.F. Brisbane, 106, 116-17 engaging minor that an identifiable is Mason, 2006); (stating at 20 conduct; or sexually explicit possession of ‘virtual’ receipt or “[t]he can, pornogra like ‘actual’ [(D)] ad- depiction visual is That such service-discrediting prejudicial to phy, be vertised, promoted, presented, described hold discipline”). We now good order that con- in such manner or distributed possession of virtual receipt and is or veys impression that the material 108-21, No. this context. Pub.L. wake Congress relevant amended this definition (2003). Coalition, Stat. are but the Free amendments pornography may also constitute con- That the of virtual child duct an officer. constitutionally be protect speech society does not mean it protected is military law. “While the
A. Conduct Unbecoming an Officer
military
members of the
are not excluded
long recognized
“has
protection
from the
granted by the First
is,
military
necessity,
special
Amendment, the different character of the
society separate
ized
society.”
from civilian
military community and of
mis
Levy,
733, 743,
Parker v.
417 U.S.
94 S.Ct.
requires
sion
application
different
of those
(1974);
pornography,
constitutionally protected,
pornography was
The Govern-
the term.
upon to define
called
unbe
although it could constitute
by alleg-
this issue
have avoided
could
ment
officer,
to so
and that failure
coming an
“images of children
possessed
Appellant
ing
presenting a
him from
prevented
instruct
rather
conduct”
sexually explicit
engaged in
nor
Neither
defense.
pornogra-
“child
alleging
possessed
he
than
require
general
imposed
has
Never-
this Court
2256.”
in 18 U.S.C.
phy, as defined
the state of
law
specification
to instruct on
theless,
clear from the
ment
it is
charg-
explicit
raising
society,
even
cases
that the Government
alleged
Title
but
Levy,
Appellant with violation
ing
Amendment issues.
in 18
merely adopting
439;
the definition
41 L.Ed.2d
“child
explain the term
§ 2256 to
Howe,
37 C.M.R.
C.M.A.
a conduct
in the context
pornography”
(1967)
language
contemptuous
toward
(using
unbecoming an officer and
unbecoming an
the President and
§ 933.
charge under 10 U.S.C.
public
in a
by participating
demon
officer
President).
contemptuous of
stration
earlier,
“[sjpeech
noted
As
subject
to criminal
That a civilian
not be
may none
population
protected in the civil
*6
18 for the same conduct
liability under Title
of re
the effectiveness
undermine
theless
under
in
conviction
Appellant’s
that resulted
does, it
constitu
If
sponse to command.
it
of whether
is not determinative
Article 133
759,
Levy, 417 U.S. at
tionally unprotected.”
a
unbecoming an officer and
conduct was
63, 42
(citing Gray, 20 C.M.A.
2547
94 S.Ct.
not have been
gentleman. Appellant would
255).
no more
Amendment
C.M.R.
possession
present
to
evidence
entitled
prosecution
military officer from
protects a
not
of
child
an
of virtual
wrongfully possessing
for
Article 133
under
community
to have
fense
the civilian
government
on
virtual
instruct,
if he had
military judge
even
so
underway than
Navy warship
computers on a
instruction,
he
not.
requested the
which
did
Levy
prosecution
Captain
from
protected
it
military judge did
err
that the
It follows
personnel
making
to enlisted
for
statements
by failing
give
an instruction.3
to
to
such
go
if ordered
he
to
would
Vietnam
391, 403,
Evatt,
question.
500 U.S.
111
Yates v.
if it were error for
Even
1884,
(1991),
on
432
overruled
S.Ct.
114 L.Ed.2d
in the instruction—
the federal statute
reference
62,
McGuire,
U.S.
grounds
502
Estelle
arguably suggesting
of virtual
(1991).
As a matter of the nature of the standard —whether the act or omission vio- I. BACKGROUND: CHILD military-specific lated a generally norm or a PORNOGRAPHY applicable civilian important. law—is In a OFFENSES case, contested panel court-martial must A. THE RELATIONSHIP BETWEEN determine whether the act or omission oc- CIVIL CRIMES AND MILITARY curred, and whether it constituted a violation OFFENSES UNDER ARTICLES of incorporated federal law under Article 133 AND 134 134(3), or prejudicial whether it was good to order discipline 134(1), has served pri- as the and under Article ser- mary vehicle for prosecuting pornogra- discrediting child vice 134(2), under Article or con- phy offenses under the Uniform of duct unbecoming Code officer and might attach credit. See United v. agree States Van 4. We do not improperly that the CCA af-
Syoc, (C.M.A.1993); 36 M.J. theory accord presented firmed aon to the mem- Hibbard, (C.A.A.F. bers, viz., 58 M.J. images that the were virtual. The 2003). case, CCA, In error, this there absolutely no evi having required found to assess images might dence that the prejudice. were or been considering have It did so the case in Thus, Appellant's virtual. quasi-defense even if light most favorable to the defense. law, not, recognized military *13, were and it is 2007 CCALEXIS 2007 WL not have required would been at *4. theory That is not an alternative of the instruct on it. case. rely incorporation did See, v. law that e.g., States United Article 133. under law, clauses (C.A.A.F. such federal 338-40 Cendejas, 62 M.J. that offenses concluded 134. We of Article 2006). guilty plea In a could be involving virtual accused under ensure judge must good order prejudicial as conduct why his or her explains stands discrediting con- See, e.g., discipline or as service element. applicable violated Article 134 2 of clauses 1 and Beeves, 95-96 under 62 M.J. duct v. States United Martinelli, rights violating the constitutional (C.A.A.F.2005); v. without States United differing (C.A.A.F.2005). relying on military personnel, 52, 64-67 62 M.J. unique applicable standards constitutional See, v. e.g., States United offenses. CHILD POR- OF B. PROSECUTION (C.A.A.F.2004) (citing Mason, 60 M.J. THE CASES UNDER NOGRAPHY Levy, 417 U.S. v. Parker AFTERMATH OF THE UCMJ IN (1974)). 2547, L.Ed.2d 439 FREE SPEECH V. ASHCROFT COALITION 1 and clauses charges under Because by the case-specific require a determination images actual between 1. The distinction the conduct was to whether factfinder as children images children discrediting, have we or service prejudicial CPPA, sought permit Congress In the as to emphasized that determination involving pornographic prosecutions was, in virtual child whether children, images created as well as real 2 must be fact, of clauses a violation is, real children —that the use of without case-by-case on a by the factfinder made pornography. “virtual” 19; v. Bris States id. basis. See (C.A.A.F.2001), James, 55 M.J. (C.A.A.F.2006). 106, 116 Like bane, M.J. challenge to a constitutional we considered a cases, plea wise, guilty that in have held we conviction whether military judge must ascertain in clause 3 incorporated CPPA as during plea collo explain can the accused pros- concluded that such We UCMJ. prejudicial why his or her conduct quy did not violate under the CPPA ecution Martinelli, See, e.g., discrediting. or service speech protections, free Amendment’s O’Connor, 64-67; consistent with decision was noting that our 450, 455 majority of the federal the views of had considered appeals that courts of OF GENERAL- II. INCORPORATION Id. at 299-300. issue. same CRIMINAL APPLICABLE LY a different con- subsequently reached BY THE MILITARY JUDGE LAW clusion, unconsti- holding that the CPPA was PROVID- THE INSTRUCTIONS IN Amend- under the First tutionally overbroad CASE IN APPELLANT’S ED attempted that the statute ment to the extent *8 unbecoming an offi- of conduct The offense Speech Coali- images. Free reach virtual to Article 133 con- gentleman under a cer and 244-56, tion, 1389. In 122 S.Ct. U.S. at elements: sists of two deci- the Court’s aftermath of the (1) or omitted to do the accused did That sion, clause 3 convictions under we reversed acts; and certain incorporation of on Article 134 that relied of circumstances, (2) these That, CPPA. provisions of the under the the unconstitutional conduct un- See, e.g., Cendejas, 62 M.J. 339-40. acts omissions constituted becoming gentleman. an officer and im- under which virtual IV, para. Circumstances 59.b. pt. MCM may consti- ages of on the panel In instructions military unique a tute offense military judge relied the charge, Article CPPA, a text of the cases, substantially on the we separate In a set of considered criminal statute. With generally applicable could of the armed forces whether members the first military respect element provisions of prosecuted under be military the judge the mem- instructed Id. at 276. suggestion The military a that Appellant, bers that to convict they must find accused cannot introduce such evidence is that “the accused possessed received and inconsistent scope the proof permit- with of child pornography, as defined in 18 U.S.Code ted under Articles 133 and 134. When a Section military 2256.” The judge then in- member of the armed charged forces is with serted a series of elements concerning know- a violation of Article 133 or the court- ing receipt pornogra- panel may martial convict the member on the phy, followed the element ground that the conduct at issue violated the conduct. In explaining the course of the society norms of civilian set gener- forth in a element knowledge, military judge the un- ally applicable statute, criminal irrespective derscored relationship the between Article military-specific swpra norm. See 133 and noting the CPPA that “it is not Part I.A. panel may Because the convict a required that the accused knew of the crimi- member on the basis that the conduct vio- nal statute involved.” The military judge law, lates civil the accused is entitled to then returned to the por- definition of child present that evidence the conduct does not nography, advising the they members amount to an in society. Cf. must use the U.S.Code, definition “18 Sec- Cendejas, 62 M.J. at (discussing 339-40 the tion 2256.” He set forth the CPPA definition right to theory defend the of civil legality detail, including portions the subsequently context clause found to be unconstitutional in Free ease). problem The with military judge’s the Coalition, instructions in present the case not that he Subsequently, judge used permitted charge go to the members a similar definition in the course of instruct- or that any particular he omitted instruction. ing the respect problem in this ease arises from the charges alleging violation of the CPPA as inclusion the instruction generally of a incorporated through clause 3 of Article 134. applicable federal statute proved to be pertinent invalid part.
III. DISCUSSION In cases arising under Articles 133 and 134, UCMJ, military judge may appropri- A. INSTRUCTIONAL ERROR ately craft an instruction that refers to and plurality opinion’s that vir- conclusion incorporates generally applicable civil stat- tual offenses be cases, ute. In some it necessary charged under both Article 133 and Article proof do so where the of the Article 133 or question answers of whether 134 violation turns on whether the unbecom- Appellant could be convicted under ing, prejudicial, or discrediting service con- charge, but does not answer question If, duct however, violates civil law. whether the judge properly instruct- statute is part, invalid whole or in refer- panel. at 274-76. ence to the problematic. statute becomes Likewise, opinion’s thé plurality conclusion such a the instruction could leave the required members with the view that his own motion to instruct panel as to the law, conduct would violate a valid civil creat- constitutionality of the CPPA does estab- ing possibility the members could lish propriety of the instructions that convict the on the accused basis of an incor- given by were military judge. See id. at *9 understanding rect of the law. issue, present addressing the The instructional case raises that the The concern. plurality opinion repeated states that “Appellant would references to the CPPA and statu- not tory have been present entitled to evidence conduct could left have the of virtual members with the view that conduct at the was not an the community issue applicable violated a valid generally statute, to have judge instruct, thereby the so creating the potential for even if requested he had the convicting instruction.” grounds on that were undermined
280 acts, the acts would charged committed the in Free Supreme Court’s decision by the unbecoming to conduct amounted I, not have the in Part noted Speech Coalition. As gentleman. a an officer and not does Coalition Free decision 133 or Articles under a preclude conviction was unbecoming conduct element The norm, military-specific aof for violation 134 overwhelming evidence. established from a court-martial preclude it does but confes- two introduced Government as the a civil norm relying on existence the to Naval admitted Appellant in which sions Mason, 60 See a conviction. for such basis he agents that Investigative Service Criminal the Accordingly, reference at 18-20. M.J. possessed received instructional constituted statutory provisions ship. computers on government present case.1 error testimony re- introduced also Government images of children pornographic
garding how
drive,
storage
Appellant’s
were discovered
B. PREJUDICE
files,
cop-
image
the
analysis of
forensic
incorrect, the
instruction was
Although the
In this
image files themselves.
the
ies of
partic
the
affirmed under
may be
conviction
members
case,
if
instruction led
even the
because
of this case
circumstances
ular
a
violated
Appellant’s conduct
to believe that
beyond a
harmless
error was
instructional
law,
possibility,
is no reasonable
there
civil
military judge’s
aWhen
reasonable doubt.
presented,
evidence
all other
the context of
elements
incorrectly describes
instruction
Appellant’s
a
contributed
that such
belief
preju
for
offense,
analyze that error
an
we
evidence
significant
conviction. Given
be
a standard
harmlessness
under
dice
Appellant viewed
v.
States
doubt. United
a reasonable
yond
Navy ship
a
computers on board
government
(C.A.A.F.2008)
(citing
Upham, 66 M.J.
raised
the issues
underway, in
context of
States,
1, 17, 119
U.S.
v.
Neder
trial,
confident
can be
we
by the defense
(1999)). Error is
L.Ed.2d
S.Ct.
harmless be-
was
error
that the instructional
doubt when
beyond
reasonable
harmless
respect to the
with
doubt
yond a reasonable
possibility that
is no “reasonable
there
charged acts
that the
panel’s determination
might have
complained of
error]
[or
evidence
unbecoming an officer
constituted conduct
conviction.”
contributed
281 (C.A.A.F. Mason, 15, v. UCMJ, States M.J. 19 60 specifications in this case. United 2004). However, using strokes, broad Forney, his States v. 200200462, No. NMCCA opinion essentially concludes that 235, there are 2005 *10-*11, *23, CCA LEXIS at no First Amendment in 1800117, *3, concerns the context WL *8 (N.M.Ct.Crim.App. 133, UCMJ, of an 2005) Article 19, offense based July (unpublished). But the lower possession of pornographic images court ultimately affirmed the conviction un any and denies error this 133, case. For UCMJ, See der Article reasoning part ney, “[bjecause join M.J. I 275-76. cannot the Government did not have those broad conclusions. obligation an any establish that image was child, of an actual it is not of constitutional long While we “have recognized that the significance whether the appellant had the First Amendment rights of and civilians opportunity to challenge the nature of the of members the armed forces are not neces images as virtual.” United States v. sarily coextensive[,] ... we must ensure that 200200462, No. NMCCA 2007 CCA LEXIS the connection protect between conduct 349, *13, (N.M.Ct. 2007 WL at *4 ed the First Amendment and its effect 2007) Crim.App. Aug. (unpublished). military closely environment be exam O’Connor, ined.” United v. States appeal On to this Forney contends, court (C.A.A.F.2003). When among confronted things, that he was denied the with these precedents circumstances our right re argue the virtu- quire a careful examination of the First al were constitutionally protected in Amendment generally concerns. community and that reasonable Wilcox, (C.A.A.F. States doubt therefore exists as posses- to whether 2008) (concluding that where the es record sion of constitutionally protected virtual im- tablishes no direct palpable and connection ages would constitute conduct unbecoming an between the protected speech otherwise and gentleman officer and a under Article military environment, mission or UCMJ, community. light In can be no there conviction under Article of unique procedural case, context of this 2). UCMJ, clause 1 or I argument find this to have merit. In this the members convicted For Supreme After the Court decided Free ney 134, UCMJ, (2000), § Coalition, Speech this recognized court specifications clause of two violating of 18 the virtual or actual status of pornog (2000), § 2252A possession due to raphy images has significance constitutional “images of pornography, defined bear on the discrediting service 18 U.S.C. 2256.” The members also convict possessing nature of images. such O’Con Forney ed nor, an officer 58 M.J. at Addressing 454-55. the is 133, UCMJ, and under Article sue in plea context inquiries where an due to pornography, “child UCMJ, as Article clause 1 or 2 offense defined in 18 § U.S.C. 2256.” Forney’s After relied on the unconstitutional definitions of review, trial while the case was on direct 18 U.S.C. we would not affirm the portions down struck conviction unless the record showed a dis (2000), the definitions 18 U.S.C. cussion between the and the unconstitutional; result, aas civilians could conspicuously accused reflecting that the ac prosecuted of virtual cused prohibit understood of the nature images of child pornography. apart from its Ashcroft Coalition, Free standing 455; as a civilian offense. Id. at 1389, 152 L.Ed.2d 403 Martinelli, see also light of Free Speech Coalition our precedents applying that decision in Arti- comparable analysis A warranted in seems 134, UCMJ, context, cle clause the United charging context this contested ease Navy-Marine Corps Court of Crimi- relying Appeals nal dismissed the Article the unconstitutional definitions of 18 U.S.C. *11 was constitu- images of child signifi- of too constitutional Here the 2256. Forney not images did or actual Because tionally protected. of the status of virtual cance Forney’s not, on whether
may, may bear develop or this to opportunity the have images warrants the be- the record defense on Amendment-based an officer unbecoming penalties members,3 this I do not think court fore the 133, UCMJ. gentleman under and a merits of such the position in a to evaluate is instruc- charges the member the In both in an effort to determine appeal on a defense specifi- clause 3 tions, the Article beyond a harmless the error was whether with the conduct intertwined were cations though Accordingly, even doubt.4 reasonable by means of their specification unbecoming images can possession of virtual agree I that defi- unconstitutional mutual reliance the offense of constitute Therefore, § 2256.1 under 18 U.S.C. nitions if the Government and a an officer that the mem- does not establish the record posses- of the unbecoming nature proves nature fair consideration gave bers circumstances, I do not be- sion under apart separate and prohibited conduct justifies affirm- case the record this lieve standing a civilian offense. from its grounds. As those conviction on ing the and in unique of this case facts Under such, of Criminal reverse the Court I would us,21 would narrow before light of the issue guilty and findings Appeals, set aside Forney deprived of chance that was find rehearing. authorize that his argue the members to Judge agree of Chief Effron's with Part III.A 1. I an ac- opinion, concludes that which my necessary support view Although present evidence to show entitled to cused is argument note that a similar this I would question does not amount an the conduct sentencing an effort have been could made reliance on an in civilian ^ociety, mitigate gravity of the offense. in member in- statute invalid federal criminal error, and that the instruc- constitutes structions possibility Stucky Judge that there is no asserts present given by in the tions there no case because a defense this of such Fomey, regard. See case were deficient in images were evidence record C.J., (Effron, concurring in the 67 MJ. at 279-80 Forney, M.J. at 276- could have been virtual. result). however, assertion, conflicts n. 3. This Cendejas, 62 M.J. following granted issue: 2. We review on (C.A.A.F.2006) (finding in a case tried as UCMJ, offense that ARTICLE 133 clause 3 WHETHER APPELLANT’S "opportuni appellant improperly EVEN denied the BE SUSTAINED CONVICTION CAN present on the ty AND a defense based ‘virtual’ NOT GUILTY ... THOUGH HE PLEADED images” protected constitutionally nature of the HE ON WHICH WAS THE SPECIFICATION question whether the were RESTED ON A STATUTE because EXPRESSLY TRIED litigated at the or actual court- COURT HAS FOUND THAT THE SUPREME martial). UNCONSTITUTIONAL.