On Monday, December 3, 2012, at 9:00, CAAF will hear oral argument in United States v. Bowersox, No. 12-0398/AR, which presents the following issue:

Whether Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), as imported through clause 3 of Article 134, UCMJ, is unconstitutional as applied to him because the minors depicted in the material at issue were not actual minors. See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); United States v. Whorley, 550 F.3d 326 (4th Cir. 2008).

The Appellant was convicted, contrary to his pleas, by a general court-martial composed of a military judge alone, of two specifications of possessing obscene visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 1466A(b)(1) (2006) and which conduct was of a nature to bring discredit upon the armed forces, in violation of Article 134, UCMJ. In accordance with his pleas, he was acquitted of one specification of possession of child pornography. He was sentenced to a bad-conduct discharge, confinement for four months, forfeiture of all pay and allowances, and reduction to the grade of E-1.

The visual depictions at issue were a “particular kind of anime” consisting of “computer generated images of children engaged in various sexually explicit acts.” Gov’t Br. at 3. The CCA affirmed the Appellant’s convictions in a published opinion (United States v. Bowersox, 71 M.J. 561 (A.Ct.Crim.App. 2012)), noting that: “There is no constitutionally recognized right to possess such material, under these circumstances, on property within the special maritime and territorial jurisdiction of the United States and no authority to extend Stanley into this province. The threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home.” Bowersox, 71 M.J. at 564 (marks omitted) (emphasis added).

The Appellant’s brief uses five-and-a-half pages to discuss the 4th Circuit’s opinion in United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), cert. denied, 130 S.Ct. 1052 (2010). In Whorley, the court “reject[ed] [Whorley’s] arguments that . . . cartoons depicting minors in sexually explicit conduct must depict real-life minors to violate § 1466A(a)(1).” Whorley, 550 F.3d at 330. But Whorley involved a violation of § 1466A(a)(1), and the Appellant in Bowersox was convicted of violating Article 134 by possessing images in violation of § 1466A(b)(1). The differences between these statutes is slight, the court decided Whorley in a way that works against the Appellant in Bowersox, and I had trouble following the Appellant’s analysis (which focuses on the dissenting opinion in Whorley).

The Appellant’s brief also discusses the holding in United States v. Stanley, 394 U.S. 557, 559 (1969), that “the mere private possession of obscene matter cannot constitutionally be made a crime.” The Appellant argues that this makes § 1466A(b)(1) “unconstitutional as applied to [A]ppellant.” Appellant’s Br. at 12. The brief also emphasizes that the obscene material was found in Appellant’s password-protected computer, and not in plain view or other physical form within his barracks room. Appellant’s Br. at 13. Finally, citing United States v. Wilcox, 62 M.J. 442, 448-449 (C.A.A.F. 2008), the Appellant’s brief argues that because there is a First Amendment right to possess obscene materials, the Government was required (but failed) to show that there was a “direct and palpable connection between [the] speech and the military mission or military environment” in order to establish the service discrediting nature needed to constitute a violation of Article 134. Appellant’s Br. at 15-16.

The Government’s response begins with this whopper: “Section 1466A(b) (1) is constitutional as applied because (1) it only applies to unprotected obscenity; and (2) appellant’s shared barracks room on federal land is not a home.” Gov’t Br. at 1 (emphasis added). Lance Corporals keep telling me that the barracks isn’t home; now we know that the Government agrees. Because the Government contends that a barracks room is not a home, is concludes that the possession of obscene material under the circumstances of this case is not constitutionally protected. Gov’t Br. at 13. Thus, the Government advises CAAF:

Since being decided, Stanley has only applied to one place, the home. Stanley did not create any other correlative rights not already addressed in the original decision. Just as the Supreme Court rejected expanding Stanley to areas outside the confines of the home, this Court should likewise resist expanding its narrow holding to a shared barracks within the territorial jurisdiction of the United States.

Gov’t Br. at 16. The Government explains why it views a barracks room as not a home.

Stanley was simply a reaffirmation that a person’s home is his or her castle; the same cannot be said of a shared barracks room. This Court has unequivocally held that “the threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home.” The D.C. Circuit has also recognized that a Soldier “cannot reasonably expect the Army barracks to be a sanctuary like his civilian home. ” Although these cases address the Fourth Amendment’s reasonable expectation of privacy they are nonetheless instructive to show that a Soldier’s barracks is not his home (or castle).

Gov’t Br. at 18. Additionally,

Appellant’s shared barracks room lacks other archetypical hallmarks of the home. A Soldier does not have a titled property right to a barracks room. For this and other reasons, the Soldier cannot sell, rent out, improve, or otherwise transfer the property. Likewise, the Soldier has no right of quiet enjoyment that a lessee would have. The command may lawfully order the Soldier to abandon quarters or order the Soldier to move to new quarters. In addition, a Soldier’s barracks are always subject to military inspection to ensure military readiness. Similar to United States v. McCarthy, appellant likely did not choose his barracks room or his roommate. Typical inside most barracks, it is also likely that appellant was prohibited from having overnight guests or even cooking in his room. In sum, the need for discipline means that the barracks will always be subject to more military regulation and oversight than the home.

Finally, the Government briefly discusses why this statute should not be interpreted to require a visual depiction of an actual minor, but it also argues that even if the statute is unconstitutional as applied to this Appellant, “clear precedent permits this court to affirm appellant’s conviction under clause 2, Article 134.” Gov’t Br. at 22.

While mere possession of virtual child pornography in the home might be allowed for a civilian, this does not mean it is entirely protected under military law. In United States v. Mason, CAAF unequivocally held that virtual child pornography offenses could be charged as conduct prejudicial to good order and discipline or service-discrediting without violating the constitutional rights of servicemembers. The Mason Court, concluded that the limited constitutional protections afforded to virtual child pornography are of no consequence when deciding whether to affirm child pornography cases under clauses 1 or 2.

Gov’t Br. at 23. The Government also cites to United States v. Barberi, 71 M.J. 127, 313 (C.A.A.F. 2012), to support this argument, but Barberi (that involved an appellant who possessed images of his naked, young-teenage stepdaughter, some of which CAAF found to be constitutionally-protected) doesn’t really help the Government’s argument on this point.

In a reply brief, the Appellant’s counsel doesn’t directly challenge the Government’s contention that a barracks room isn’t a home, but instead argues that the difference between a “home” and a “privately owned, password protected, laptop in a barracks room . . . amounts to a distinction without a difference.” Reply Br. at 3. The Appellant’s counsel concludes with this privacy argument:

The Supreme Court has recognized a right to possess obscene material in one’s home. This holding is based on the concept that a man is free to think and view materials as he wishes without fear of government intrusion. Although application of constitutional rights may differ in a military context, they are not, and ought not be, completely forsaken. The appellant is not seeking to expand this recognized right, he is merely seeking its application. Appellant’s conduct in this case, even assuming arguendo that it is of a nature to bring discredit upon the armed forces, should not be the basis of a criminal conviction without sufficient evidence that his conduct had a direct and palpable connection to his military service. There is no such evidence in this case.

Reply Br. at 7-8.

I’ve been highlighting privacy, and the existence of private lives of servicemembers, as a recurring theme this term (see, for example, Spicer, Irizarryand Goings). That theme continues in this case, with the Government’s alternative argument that even if the federal criminal statute is unconstitutional as applied, the conviction can still be salvaged as a novel application of Article 134. But I wonder, if Article 134 can be used to criminalize private activity that is the subject of a federal statute that is unconstitutional as applied to that private activity, then doesn’t privacy have no meaning, and Article 134 no limit? Put differently, is constitutionally-protected conduct by a service member ever prejudicial to good order and discipline or service discrediting?

Case Links:
ACCA opinion (71 M.J. 561 (A.Ct.Crim.App. 2012)
Blog post: Reminder from the ACCA: you’re special
Blog post: Bowersox granted
Appellant’s Brief
Appellee’s (Government) Brief
Appellant’s Reply Brief
Blog post: Argument preview

4 Responses to “Argument Preview: United States v. Bowersox, No. 12-0398/AR”

  1. OPLAW-LCDR says:

    It’s a bit early, and I’m rushebut so I will make this short.

    The closest analogy to a barracks room, at least what we call a barracks room these days, in the civilian world, is a hotel room.  It would seem to me that US v. Abel, the case of the Soviet spy circa 1960, would be fairly close to being on point.  

    Was Abel even mentioned? 

  2. Cap'n Crunch says:

    A few things… first, I think the notion of essentially arguing that constitutional rights to privacy and such are completely shed at the door of the barracks, where soldiers, sailors, marines, and airmen sleep, is a preposterous proposition.  Were I on CAAF, I’d eat government counsel alive with that one.  Second, every court that has analyzed this particular statute has agreed that section (b)(1) (of which this appellant was convicted) and section (a)(1) of the statute, was valid and constitutional (other sections have not survived scrutiny).  United States v Schales (2008, CA9 Cal) 546 F3d 965; United States v Whorley (2008, CA4 Va) 550 F3d 326; United States v Handley (2008, SD Iowa) 564 F Supp 2d 996.   But the problem, as I see it, is there is arguably no violation of (b)(1) here — this is a case that involves not actual children, but instead images that appear to be children, which is (b)(2) of the statute, and which has not been upheld uniformly (though I acknowledge the later section that indicates that nothing in the statute indicates a requirement that actual children be involved).  See  United States v Handley (2008, SD Iowa) 564 F Supp 2d 996.  In my view, this case should never have been affirmed, or charged, under (b)(1) grounds.  Then there is Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243; 22 L. Ed. 2d 542 (1969).  The ACCA seems to try to draw the distinction that transportation is not protected — and that argument is correct so far as it goes, but Bowersock wasn’t charged with transporting the images — he was charged with possessing them.  Also, notable in my view is that this barracks room is not an open bay case, but rather a situation where it is the appellant, and one roommate.  Taken to its logical extreme, are we to assume that anyone who lives in an apartment or condo with a roommate loses constitutional protections?  Were I on CAAF, I think it likely I’d be voting for a reversal.  But I am defense oriented to begin with.

  3. stewie says:

    I guess I’m dumb…the federal law requires certain elements, one of those elements is the requirement of a real child, the government could have either charged this simply as a clause 1 or 2 offense (and won) OR charged it as a clause 1, 2, and 3 offense (and won).

    But ACCA saves the government by saying well the clear constitutional holding of Ashcroft be darned, there’s no right to this in the barracks?

    OK, so there’s a barracks exception to Ashcroft? You can have anime kiddie porn in your civilian house, or I suppose on civilianized housing on post and avoid trouble under clause 3, but in government barracks room it’s a crime under clause 3?

    Such a bad precedent all to save a non-child child porn convictoin.

  4. commentary says:

    Is this guy going to have collateral sex offender consequences for cartoons?

    This is awfully dumb.  The military doesn’t have to let you look at this stuff in your barracks, fine, but that doesn’t mean it’s a criminal offense.