AFCCA today issued a fascinating published opinion, which I’ve posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel.
Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.
Because his lover was younger than 18, SrA Nerad’s possession of these images violated 18 U.S.C. § 2256(1). Thus, as AFCCA explains, “the appellant was in the unique position of having a relationship with someone he could legally see naked and, but for his existing marriage, legally have sex with, but could not legally possess nude pictures of her that she took and sent to him.” Nerad, No. ACM 36994, slip op. at 5.
AFCCA observes: “Having considered the entire record, we conclude that the appellant’s possession of the photos under these circumstances is not the sort of conduct which warrants criminal prosecution for possessing child pornography and that this conviction unreasonably exaggerates the criminality of his conduct.” Id. The central question in Nerad was whether AFCCA could do anything about what it viewed as this unjust conviction. Yes, held AFCCA. The court concluded that Article 66 authorizes a CCA to set aside a conviction even where that conviction is legally sound and factually sufficient. The court thus assumes a kind of uber-prosecutorial discretion, authorizing it to void a conviction essentially on equity grounds.
AFCCA starts with the plain language of Article 66(c), which provides that a CCA “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Id. (quoting Article 66(c), UCMJ) (emphasis supplied by AFCCA). Relying on this language, AFCCA holds that “it is clear that we can overturn a finding or sentence, even if it is correct in law and fact, if we find that it should not be approved.” Id.
AFCCA then turns to Article 66’s legislative history and concludes that it supports its construction of Article 66(c)’s language. Amusingly, the court relies in part on the Judge Advocate General of the Army’s testimony to the House Armed Services Committee in 1949 complaining that the proposed Article 66(c) gave the Boards of Review too much power. Id., slip op. at 6-7.
After concluding that it has unconstrained discretion to overturn a finding of guilty, AFCCA proceeded to exercise that discretion:
[W]e find that under the unique circumstances of this case, the charge of possession of child pornography to which the appellant pled and was found guilty, though technically accurate, unreasonably exaggerates the criminality of the appellant’s actions. That is particularly true given the fact that a conviction for child pornography would require . . . the appellant to register as a sex offender and the significant consequences of such registration, including the restrictions common to most states on where those registered may reside within any given community.
Id., slip op. at 7.
AFCCA provided no sentence relief. But, as suggested by its discussion of collateral consequences, merely setting aside the finding of guilty to the child pornography offense is quite meaningful.