UNITED STATES, Appellee, v. Charles J. WOLFORD, Sergeant, U.S. Army, Appellant.
No. 04-0578
U.S. Court of Appeals for the Armed Forces
Argued Nov. 1, 2005. Decided March 8, 2006.
Crim.App. No. 20001042.
For Appellant: Captain Todd N. George (argued); Colonel Mark Cremin, Lieutenant Colonel Mark Tellitocci, Major Sean S. Park and Captain Michael L. Kanabrocki (on brief); Colonel John T. Phelps II.
For Appellee: Captain Edward E. Wiggers (argued); Major William J. Nelson (on brief); Colonel Steven T. Salata; Lieutenant Colonel Theresa Gallagher, and Captain Mark J. Hamel.
Judge ERDMANN delivered the opinion of the court.
Sergeant Charles J. Wolford entered a plea of not guilty to sending, receiving, reproducing and possessing child pornography in violation of the Child Pornography Prevention Act of 1996 (CPPA),
A military judge is obligated to “assure that the accused receives a fair trial.” United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975). This obligation includes the duty to “provide appropriate legal guidelines to assist the jury in its deliberations ....” United States v. McGee, 1 M.J. 193, 195 (C.M.A. 1975) (citation omitted). Failure to provide correct and complete instructions to the panel before deliberations begin may amount to a denial of due process. United States v. Jackson, 6 M.J. 116, 117 (C.M.A. 1979).
We granted review in this case to determine whether the panel was provided with appropriate and constitutionally correct instructions concerning the definition of the term “child pornography.” We also considered whether the evidence was legally sufficient to support Wolford‘s conviction on child pornography charges.1 We find that the military judge‘s instructions did not deprive Wolford of due process and a fair trial. We also find that images alone can constitute legally sufficient evidence as to whether an actual child was used to produce child pornography.
BACKGROUND
From August 1999 to May 2000, Wolford used a Microsoft Hotmail account to exchange child pornography with individuals he met through the Internet. One of his emails
CID interviewed Wolford, and he admitted to receiving, viewing, sending and saving approximately 100 images of child pornography. Wolford later argued that his confession was coerced and his case went to trial on his plea of not guilty. At trial, various witnesses testified about how Wolford was identified, where the images were found on his computer and how old the girls in the pictures appeared to be based on their sexual maturity.
DISCUSSION
I. Standard of Review
Defense counsel did not object to the military judge‘s instructions at the time of trial. Even so, “[t]his [c]ourt has determined that waiver must be established by ‘affirmative action of the accused‘s counsel,’ and not by ‘a mere failure to object to erroneous instructions....‘” United States v. Smith, 50 M.J. 451, 455-56 (C.A.A.F. 1999) (quoting United States v. Mundy, 2 C.M.A. 500, 502, 9 C.M.R. 130, 132 (1953)) (emphasis in original). Accordingly, we review Wolford‘s instructional claims de novo. Id. at 455. If instructional error is found, because there are constitutional dimensions at play, Wolford‘s claims “must be tested for prejudice under the standard of harmless beyond a reasonable doubt.” United States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). “The inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is ‘whether, beyond a reasonable doubt, the error did not contribute to the defendant‘s conviction or sentence.‘” Id. (quoting United States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003)).
With respect to Wolford‘s legal sufficiency claim, our test is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
II. Military Judge‘s Instructions
Wolford has made three arguments concerning the military judge‘s instructions. He argued in his brief that the military judge erred by: (1) using the following introductory language of
Child pornography means any visual depiction, including any photograph, film, video, picture or computer generated image or picture, whether made or produced by electronic, mechanical or other means of sexually explicit conduct where[:]
[(A)] the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct, or
[(B)] such visual depiction is of a minor engaging in sexually explicit conduct, or
[(C)] such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct, or
[(D)] such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct. The words child or minor mean any person under the age of 18 years.
At the time of this trial in 2000, the term “child pornography” was defined in
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-
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.
In United States v. O‘Connor, we noted that the Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256, 258, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), “determined that certain portions of the
A. Introductory Language of 18 U.S.C. § 2256(8)
Wolford‘s first argument is that the military judge‘s use of the introductory language “any visual depiction, including ... [a] computer generated image,” from
In O‘Connor, we noted that the language from
B. Affirmative Defense Instruction
Wolford next argues that the military judge erred by using unconstitutional language in his affirmative defense instructions. During a session pursuant to
You are advised that the evidence has raised the issue of a defense in relation to this offense. One of the elements to this offense is that the accused‘s act was wrongful, meaning without legal justification or excuse. The accused‘s act is not wrongful, and the accused cannot be found guilty of this offense if the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; that each such person was an adult at the time that the material was produced; and that the accused did not advertise, promote, present, describe or distribute the material in such a manner as to convey the impression it was, or contained, a visual depiction of a minor engaging in sexually explicit conduct.
The prosecution‘s burden of proof to establish the guilt of the accused not only applies to the elements of the offense, but also to the issue of the defense; therefore, in order to find the accused guilty, you must be convinced beyond a reasonable doubt that the defense does not exist.3
Emphasis added.
This affirmative defense instruction contains the language found in
We have held that a military judge is “more than a mere referee.” Graves, 1 M.J. at 53. He is charged with deciding whether any defense is reasonably raised by the evidence. United States v. Barnes, 39 M.J. 230, 232-33 (C.M.A. 1994). If there is “some evidence” of a possible defense-it does not have to be compelling or convincing beyond a reasonable doubt-the military judge is duty bound to give an instruction even if the instruction was not requested by the parties. United States v. Jackson, 12 M.J. 163, 166-67 (C.M.A. 1981) (citations omitted). “This [c]ourt reviews a military judge‘s decision to give an instruction ... de novo.” Smith, 50 M.J. at 455 (citing United States v. Maxwell, 45 M.J. 406, 424-25 (C.A.A.F. 1996)).
The instruction in question provided a defense to Wolford only if the images in question were created using adult models who were made to look like children. At trial, a pediatrician, Lieutenant Colonel Reginald Moore, M.D., testified for the prosecution. Dr. Moore testified that fifty-five of the eighty-six images found on Wolford‘s computer were of children under the age of eighteen. Defense counsel‘s cross-examination of Dr. Moore was focused entirely on whether Dr. Moore had seen any of the pictures he reviewed in Wolford‘s case in any previous case. Defense counsel did not ask any questions that raised the possibility that any of the images relied upon by the Government depicted an adult rather than a child. No such evidence or argument was introduced at any other time. Thus, there was no evidence in the record of a possible affirmative defense, and there is simply no danger that the members might have used this unnecessary, but erroneous, instruction.
The lack of any evidentiary basis combined with defense counsel‘s assurance that no instruction was needed renders the military judge‘s error harmless beyond a reasonable doubt. Cf. United States v. Sikorski, 21 C.M.A. 345, 351, 45 C.M.R. 119, 125 (1972) (effect of erroneous instruction need not be considered where instruction challenged by accused was specifically requested by him at trial).
18 U.S.C. § 2256(8)(D) Language
Wolford‘s third argument is that the military judge‘s use of the language of
Since the issuance of O‘Connor, we have adopted this narrower interpretation of the Supreme Court‘s treatment of
III. Legal Sufficiency
Wolford argues the evidence that the images were created using actual children was not legally sufficient. The Government takes the position that a factfinder has the prerogative to decide without expert testimony whether images of child pornography are actual or virtual.
We recently addressed this issue in United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006). In Cendejas, we held that the finder of fact can make a determination that an actual child was used to produce the images in question based upon a review of the images alone. Id. at 338. The images introduced by the prosecution in Wolford‘s case were sufficient to enable a reasonable factfinder to find guilt beyond a reasonable doubt. Turner, 25 M.J. at 324. Accordingly, the evidence was legally sufficient to support the members’ verdict that Wolford was guilty of sending, receiving, reproducing and possessing child pornography.
DECISION
The decision of the United States Army Court of Criminal Appeals is affirmed.
BAKER, Judge (concurring in result):
Having previously concluded that the Supreme Court found “the ‘or appears to be’ language of
According to the Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002):
Section 2256(8)(D), however, prohibits a substantial amount of speech that falls outside Ginzburg‘s rational. Materials falling within the proscription are tainted and unlawful in the hands of all who receive it, though they bear no responsibility for how it was marketed, sold, or described. The statute, furthermore, does not require that the context be part of an effort at “commercial exploitation.” Ibid. As a consequence, the CPPA does more than prohibit pandering. It prohibits possession of material described, or pandered, as child por-
nography by someone earlier in the distribution chain. The provision prohibits a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a more precise restriction. For this reason, § 2256(8)(D) is substantially overbroad and in violation of the First Amendment.
Although the Supreme Court‘s focus in Free Speech Coalition was indeed on the “conveys the impression” language, the Court‘s constitutional concern extended beyond this language. Otherwise, the Court would not have held the entirety of
Nonetheless, I would affirm Appellant‘s conviction on the ground that any instructional error on the potential defense was harmless beyond a reasonable doubt. In United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005), albeit in the context of a guilty plea, we expressly left open the possibility of such a situation. In upholding Martinelli‘s plea we noted “the absence of any focus on the ‘actual’ versus ‘virtual’ nature of the images, the use of the unconstitutional definition of ‘child pornography,’ and the absence of anything in the record that would demonstrate that Martinelli pled guilty to a constitutionally defined violation of federal law.” Id. at 65.
Applying this same reasoning to this contested case, I am confident that the use of the erroneous instruction on the potential defense incorporating some but not all of the language in
Notes
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN SUMMARILY AFFIRMING APPELLANT‘S CONVICTION UNDER THE CHILD PORNOGRAPHY [PREVENTION] ACT (CPPA)
WHETHER APPELLANT‘S CONVICTION UNDER THE CPPA IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE WHERE NO EVIDENCE WAS INTRODUCED AT TRIAL THAT THE DEPICTIONS WERE, IN FACT, PRODUCED BY USING REAL CHILDREN AS REQUIRED BY UNITED STATES v. O‘CONNOR, 58 M.J. 450 (C.A.A.F. 2003).