AFCCA issues published child pornography decision
AFCCA today issued this published opinion rejecting a defense argument that the accused didn’t have sufficient notice that viewing child pornography could be prosecuted as service discredting conduct under Article 134(2). United States v. Merritt, __ M.J. __, No. ACM 37608 (A.F. Ct. Crim. App. Dec. 14, 2012). Senior Judge Roan the Great wrote for a unanimous panel.
Merritt gained noteriety earlier this year when CAAF issued a show cause order in response to Merritt’s petition for a writ of mandamus arguing that his case had been unreasonably delayed and that CAAF should order AFCCA to decide it. Merritt v. United States, __ M.J. __, No. 13-8002/AF (C.A.A.F. Sept. 18, 2012). CAAF denied the Merritt mandamus petition on the same day that it issued a show case order in Carter. See Merritt v. United States, __ M.J. __, No. 13-8002/AF (C.A.A.F. Oct., 2012). CAAF subsequently ordered AFCCA to either decide Carter’s case by 11 January 2013 or explain the need for further consideration. Carter v. United States, __ M.J. __, No. 13-8006/AF (C.A.A.F. Nov. 27, 2012). Carter’s case remains undecided.
I don’t find the court’s analysis of viewing CP compelling. The federal statute, even now, does not prosecute viewing CP at all. It prohibits accessing with intent to view (whether or not actually viewed), receipt and possession among others, none of which require viewing as an element. That is not even addressed by the court. Further, I’m not sure the court fully realized the distinction between Due Process notice at the time of the offense and through the spec. It does not matter that Merritt may have been disgusted with it, which is something the court discusses. Fair notice is that a reasonable person would know, despite no federal cases prohibiting viewing alone, that viewing is a separate punishable offense from receipt, possession, or otherwise accessing. Further, I believe NY has found viewing not to be an offense. In short, they make some leaps and analogies that don’t fit. Viewing need not be a separate offense anyway because the purpose of the CPPA and related statutes is well accomplished through the prohibition of receipt, possession, distro, etc. Viewing becomes problematic as well since it creates immunity issues often overlooked by the government. A substantial number of CP cases come to light because a wife or roommate or someone notices pictures they suspect to be CP. If viewing is an offense, they all commit the offense by viewing in on the computer. That’s not what’s intended, which is why I think the federal statute focuses on retention, requesting, and seeking rather than just viewing by chance. IMHO, it’s a weak opinion, especially for published opinion.
Further, because “viewing” is not a federal offense, I bet this case is remanded at some point for review of the impact of the miscalculation of the maximum sentence. AFCCA never addressed it but I find it improbable that pre-Beaty, the trial court used a simple disorder for the viewing offense. Consequently, this should get further review and come back to AFCCA for at least one issue. BTW – not seeing much in the opinion that justifies the extended delay for a decision.
Bill C – thoughts??
This opinion offends me. It offends me on many different levels because its sophistry rises to the level of that used to deny Dred Scott his freedom. I refer to the Scott case because of its connection to the military. (Scott’s “master” was an Army surgeon, Dr. John Emerson. Scott’s wife, Harriet, was a slave owned by Army Major Lawrence Taliaferro, who then sold her to Dr. Emerson.)
Many CCA opinions are nothing more than semantical exercises in how to justify affirming an otherwise defective conviction. Indeed, the running joke among defense practitioners is that “CCA” stands for “Courts of Criminal Affirmance.” This is not an across-the-board indictment of the military judiciary as I have (and over the years have had) many good friends and legal scholars sitting on a military Bench. Rather, Merritt is a symptom of the cancer that has come to infect our military justice system, just as an unfortunate number of military judges have become infected with “Black Robe Fever.” For CAAFlog’ers too young to recall the origin of that phrase, it was coined by an Army Defense Counsel, John Stevens Berry, in his book, Those Gallant Men: On Trial in Vietnam,
http://www.amazon.com/Those-Gallant-Men-Trial-Vietnam/dp/0891411860
The Specification at issue in Merritt accused him of having “wrongfully and knowingly view[ed]” kiddie porn in 2006. Notably, Congress did not get around to criminalizing the intentional viewing of kiddie porn until 2008, when 18 U.S.C. § 2252A, was amended, as RY correctly notes. Merritt’s court-martial took place in August of 2009. It appears that the Constitution’s Ex Post Facto clause has been excised for Air Force members. The AFCCA tries to sneak by this with its language that “the appellant knew, or should have known, that his conduct [viewing] was service discrediting.” Really? Aside from the fact that Merritt wasn’t charged with the “should have known” standard [harmless error, right?], just how was he supposed to have known two years before Congress criminalized it? Rather than the ex post facto problem, the Court solves it (in part) by using the in futuro, clairvoyance standard of what Congress will criminalize next, which can now serve as a basis to affirm conduct in the past.
Let me posit a rhetorical question adding to RY’s oberservations: has the Merritt panel just judicially confessed to a crime? How could they have conducted their duty under Article 66(c), UCMJ, without “viewing” the images at issue themselves – or if they didn’t, then is that dereliction? Lack of intent? Whoops, Merritt’s specification did not allege any “intent” element either (but the current version of § 2252A(a)(5)(B) has that statutory requirement). The NY case btw is People v. Kent, 970 N.E.2d 833 (NY 2012).
One could go on and on, but the section on “Hearsay” compels one to wonder whether or not MRE 901(a) and 901(b)(1), have any viability these days in the AF. The issue addressed by the AFCCA appears to be one of “authentication,” but it’s difficult to glean that from the opinion. See, e.g., U.S. v. Blanchard, 48 M.J. 306, 309-10 (CAAF 1998); and U.S. v. Brandell, 35 M.J. 369, 371-72 (CMA 1992). Finally, one would have hoped that the opinion, after citing the Sweeney and Blazier opinions [slip opn. at 7], would have addressed the obvious issue of whether or not Sweeney and Blazier have any continued constitutional viability after Bullcoming v. New Mexico, 131 S.Ct. 2705, 2716-17 (2011).
Just my 2 cents, and I hear my buddy, the Grinch, calling.
https://www.jagcnet.army.mil/Portals/Files/ACCAOther.nsf/OD/E27325275C5E9B8A8525758B00420BFF/$FILE/oc-amazaki%20jr.,%20km.doc.pdf
Here is an opinion from ACCA on a similar issue–negligent possession of child pornography, and this was a guilty plea. ACCA held that MAJ Amazaki wasn’t put on sufficient notice that failing to check the disk to make sure there wasn’t anything illegal on it was a crime.