CAAF will hear oral argument in United States v. Finch, No. 13-5007/AF (CAAFlog case page), on Wednesday, October 9, 2013. It’s the eighth oral argument of the term, and the fifth in a case involving child exploitation offenses (the others being Merritt, Winckelmann, Warner, and Payne).

Appellant pleaded guilty, at a general court-martial composed of a military judge alone, to one specification of possession of child pornography and one specification of distribution of child pornography, both in violation of Clauses 1 and 2 of Article 134. He was sentenced to reduction to E-1, confinement for seven years, and a dishonorable discharge. Appellant’s offense was discovered in 2008 and his court-martial occurred in November 2011, just a month before the President defined a child pornography offense under Article 134.

During the trial the parties agreed that Appellant faced a maximum punishment that included confinement for 30 years. Yet on automatic review at the CCA Appellant asserted that the maximum authorized punishment was dramatically lower because the language of the specifications did not allege that the images he possessed and distributed were of “actual” minors but instead that the specification alleged that the images depicted only what “appeared to be minors” (the specifications alleged images that contained “visual depictions of a minor engaging in sexually explicit conduct”). Appellant also filed petitions for a writ of habeas corpus, seeking his release from confinement pending the outcome of his appeal. The petitions were rejected by the CCA and CAAF, and the CCA disagreed with Appellant’s assertion and found the language of the specifications sufficient to allege “actual” minors.

CAAF then granted review of this issue:

Where the Article 134 child pornography specifications of which Appellant was convicted did not allege that the images depicted actual minors and where the military judge advised Appellant during the providence inquiry that “there is no requirement that the images in this case include actual images of minors,” is the maximum authorized confinement for each specification limited to four months?

Soon after, the Air Force JAG certified an additional issue:

If the court finds that the specifications sufficiently alleged that the visual depictions were of actual minors but that the military judge’s definitions were inconsistent with the alleged specifications, what is the appropriate remedy, if any, to be given?

In United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007) (slip opinion), CAAF revisited the question of the maximum punishment for an offense under Clause 1 or 2 of Article 134 where the President has not specifically enumerated a maximum in the Manual for Courts-Martial. CAAF unanimously (with then-Judge Baker concurring) affirmed existing law that it is not error to look to “a directly analogous federal statute to identify the maximum punishment in [such a] case, when every element of the federal crime, except the jurisdictional element, was included in the specification.” 64 M.J. at 384. In Leonard, the Article 134 offense was “wrongfully and knowingly receiving visual depictions of minors engaging in sexually explicit conduct. . .” and the appellant admitted to receiving “visual depictions of actual minors engaging in sexually explicit conduct. . .” 64 M.J. at 382 (emphasis added).

Four years later, in United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (slip opinion), CAAF considered a slightly but significantly different offense: “. . .wrongfully and knowingly possess[ing] one or more visual depictions of what appears to be a minor engaging in sexually explicit conduct. . .” Beaty, 70 M.J. at 40 (emphasis added). Finding that “[t]he United States Code does not criminalize possession of ‘what appears to be’ child pornography,” Id. at 43, CAAF explained that “[a]n offense comprised of acts that cannot be criminally charged under the United States Code at all is neither ‘directly analogous’ nor ‘essentially the same’ as one that can be,” Id. at 44, and the court concluded that:

when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment “authorized by the custom of the service,” they are punishable as “general” or “simple” disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months.

Id. at 45. Now, with the facts of Finch, CAAF will fill the void between Leonard and Beaty and determine the maximum sentence for a child pornography offense that doesn’t specifically allege depictions of either actual or apparent minors in a case where the military judge at one point during the plea inquiry stated:

There is no requirement that the images in this case include actual images of minors; That is, the wrongful and knowing receipt and possession of visual depictions containing sexually explicit images of persons indistinguishable from minor children, whether actual or virtual, when determined to be service-discrediting conduct and conduct prejudicial to good order and discipline, is an offense under Article 134, UCMJ.

Appellant’s Br. at 4 (emphasis added).

Appellant’s position is essentially a call for strict construction of the language of the specification, using Bart Simpson, a baby Wookiee, and Achilles as illustrative examples to explain the vagueness of “visual depictions of a minor. . .”:

 The plain meaning of the phrase “visual depiction of a minor” includes an image of Bart Simpson. And the plain meaning of the phrase, “visual depiction of . . . any person under the age of 18 years” includes an image of Bart Simpson, while excluding an image of a child animal (such as Donald Duck’s nephews Huey, Dewey, and Louie), child alien (such as a baby Wookiee), or child anthropomorphic inanimate object (such as Chip from Disney’s Beauty and the Beast movie). Thus, when describing visual images, neither the word “minor” nor the word “person” is limited to actual children. A painting of Becky Thatcher, a sculpture of Achilles being dipped into the River Styx, and a drawing of Jack and Jill going up a hill are all visual depictions of minor persons. Yet an allegation, without more (such as an allegation that the image was obscene), that someone possessed or distributed a sexually explicit image of Becky Thatcher, Achilles as a baby, or Jack and Jill would be insufficient to state any offense under Title 18 of the United States Code. Because both the charged specifications and the providence inquiry allowed for Appellant to be convicted of just such conduct, no Title 18 offense can provide the maximum punishment for Appellant’s offenses.

App. Br. at 13-14. This is an entertaining argument, but the point Appellant is desperate to make is that he was charged with, pleaded to, and convicted of offenses involving only what “appears to be” minors, therefore limiting his sentence to the 4-months per specification maximum discussed in Beaty (applying the escalator clause in R.C.M. 1003(d), Appellant’s maximum sentence would be confinement for 8 months, total forfeitures, and a bad-conduct discharge).

Unfortunately for Appellant, and despite his clever petitions for habeas, waiver (or at least forfeiture) is a big issue, as there wasn’t just no objection at trial, but:

The parties and the military judge agreed that the maximum authorized sentence was confinement for 30 years, reduction to the grade of E-1, forfeiture of all pay and allowances, and a dishonorable discharge.

App. Br. at 5. Additionally, throughout the plea inquiry Appellant “consistently and unequivocally admitted to receiving, possessing and distributing sexually explicit images of minors.” Gov’t Br. at 18. It’s also not insignificant that analysis of digital media seized from Appellant “revealed over 170,000 images of suspected child pornography,” Gov’t Br. at 2, making him an “experienced, dedicated, and knowledgeable collector of child pornography,” Gov’t Br. at 4. One might say that the element of “actual” minors was “essentially uncontroverted.”

Appellant also doesn’t argue that his pleas were improvident to offenses involving “apparent” minors (specifically arguing otherwise in a footnote), because he knows that an improvident plea would be set aside and he would just be retried. Of course, he could be retried anyway, because if his conviction really was just for possession of images of what “appears to be” minors, then double jeopardy shouldn’t prohibit prosecution for the uncharged offense of possession of images of “actual” minors.

Ultimately, Appellant’s argument that he was convicted of an offense different from the offense that everyone at trial thought he was convicted of is a difficult proposition. Unfortunately, neither of Appellant’s briefs nor the Government’s brief discusses United States v. Watkins, 21 M.J. 208, 209-210 (C.M.A. 1986), which stated the principle that, “A flawed specification first challenged after trial . . . is viewed with greater tolerance than one which was attacked before findings and sentence.” Watkins has found new life recently in the Fosler line of cases (see United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (citing Watkins)).

Appellant’s challenge in this case is basically a challenge to the sufficiency of the specification to allege (through necessary implication) that the “minors” were “actual minors.” It’s a hard sell, and when considering the tolerant view under Watkins, it’s a long shot.

Case Links:
AFCCA opinion
Blog post: CAAF grant on issue dealing with maximum punishment for child pornography offenses
Blog post: An unusual Air Force certification
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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