CAAF’s second authored opinion of the term is in the Air Force case of United States v. Merritt, No. 13-0283/AF, 72 M.J. 483 (CAAFlog case page) (link to slip op.). CAAF decided the case on December 5, 2013, finding that Appellant was not on notice that viewing child pornography could be prosecuted under Article 134, reversing the trial judge and the AFCCA, and dismissing the charge. The court also finds excessive delay in the processing of Appellant’s appeal by the AFCCA but no legal prejudice to Appellant from that delay, and denies Appellant any other relief.

Judge Erdmann writes for the court. Chief Judge Baker writes separately, concurring.

In September 2009, Appellant, a Master Sergeant in the Air Force, was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of receiving child pornography and one specification of viewing child pornography, both in violation of Article 134, UCMJ. The convening authority approved the adjudged sentence of reduction to E-2, confinement for 24 months, and a bad-conduct discharge. Appellant was stationed in Germany, and the convictions arose from an investigation by German authorities in which Appellant was identified as a potential recipient of child pornography. He was eventually questioned and admitted to viewing “nineteen pornographic images . . . with children between three and seventeen years of age.” App. Br. at 4. He was charged with both receipt and possession of these images, and the possession specification at issue read:

In that [Appellant] did, at or near Spangdahlem Air Base, Germany, on divers occasions, between on or about 6 May 2006 and on or about 13 May 2006, wrongfully and knowingly view one or more visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Before trial, Appellant moved to dismiss the specification, arguing that “[n]o offense of ‘wrongful and knowing viewing’ of such depictions is listed in the UCMJ, 10 USC §§ 877-934, (Punitive Articles), nor is such an offense enumerated under Article 134,” and that “there was no federal law, military case law, custom or usage which prohibited the mere viewing of child pornography in 2006.” Slip op. at 4-5. The military judge denied Appellant’s motion, and then convicted him, by exceptions, of only the service discrediting element of this specification. On sentencing, “the military judge merged the two specifications for sentencing and applied a maximum sentence of twenty years, which was the maximum punishment for receipt of child pornography under the federal statute.” Slip op. at 6.

Appellant renewed his dismissal argument at the Air Force CCA, but the court affirmed the judge’s ruling in a published opinion, finding that Appellant:

“knew, or should have known” that his conduct was service discrediting based on his statement that he was “deeply a shamed [sic] for having even looked at such images,” and “[i]t is to great horror that [I] have to recall these images.” Id. (first and third set of brackets in original). The CCA also found that military case law on possession of child pornography provided support for the conviction, reasoning “[w]e can find no logical distinction between the knowing possession and the viewing of such images with regard to the service discrediting nature of the act.”

Slip op. at 6-7 (quoting United States v. Merritt, 71 M.J. 699, 705 (A.F.Ct.Crim.App. 2012)). The CCA reached this decision over one thousand days after the case was docketed at that court. CAAF then granted review of two issues:

I. Whether Appellant’s constitutional right to fair notice that an act is criminal was violated in Specification 2 of the Charge, where the alleged offense occurred in May 2006 but Congress did not criminalize the intentional viewing of child pornography until October 2008.
II. Whether Appellant’s due process right to timely appellate review was violated where the Air Force court decided Appellant’s case one thousand and twenty-four days after it was docketed.

Judge Erdmann’s analysis begins by noting that “[t]he UCMJ did not criminalize the viewing of child pornography at the time of the charged conduct in May of 2006. Nor did the federal [Child Pornography Prevention Act (CPPA)] which criminalized the knowing transport, receipt, distribution, production, sale, or possession of child pornography.” Slip op. at 8. And two footnotes explain that while the President listed viewing child pornography under Article 134 effective in 2012, a “2008 amendment to 18 U.S.C. § 2252(a)(4)(B) did not criminalize ‘viewing’ but rather criminalized ‘knowingly access[ing] with intent to view’ child pornography.” Slip op. at 8 N.3 and N.4. Judge Erdmann also notes that while the AFCCA found “various federal circuits have held that the act of viewing child pornography violated the [CPPA],” CAAF has been able to find “no federal court decision which interpreted the CPPA to criminalize the viewing of child pornography in 2006.” Slip op. at 9-10.

Judge Erdmann then addresses the Government’s argument that various state statutes provided notice to Appellant, and rejects this argument noting that, “as the government’s own research indicates, only a handful of states explicitly criminalized viewing child pornography in 2006.” Slip op. at 11. This leads to the conclusion that:

under the circumstances of this case, where the “viewing” of child pornography was not criminalized under the UCMJ, the MCM, military custom or usage, the comprehensive federal statutes, or the majority of state statutes, the fact that three states criminalized the conduct does not satisfy the constitutional requirement of fair notice.

Slip op. at 11. This analysis concludes by summarizing that in 2006, “there was no federal statute or federal judicial decision interpreting federal law which prohibited the viewing of child pornography and only a few states even mentioned viewing in their respective child pornography statutes. In addition, neither the MCM nor military courts interpreting its provisions gave notice that the act of viewing child pornography without more was prohibited in 2006 and the government has not established that such a prohibition was a custom or usage of the service.” Slip op. at 13. Accordingly, Appellant “did not have sufficient notice that the viewing of child pornography was subject to criminal sanction in 2006.” Slip op. at 12-13.

Turning to the second issue, Judge Erdmann begins by noting the numerous requests for enlargements of time by both sides, including six enlargements filed by Appellant’s counsel. He then applies the four-factor test from United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006):

(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice.

Slip op. at 15. The most interesting part of this analysis is found in the second factor, where Judge Erdmann notes that while CAAF has “declined to attribute to individual appellants the periods of appellate delay resulting from military appellate defense counsels’ requests for enlargements of time where the basis for the request is excessive workload,” slip op. at 16 (emphasis added), “in this case, however, Merritt was represented by civilian counsel and the government opposed his requests for enlargement,” slip op. at 17. Accordingly, CAAF attributes the appellate filing delays requested by defense counsel to Appellant.

But Judge Erdmann does have some sharp words for the CCA:

The lengthy briefing period of over a year and a half, as well as the time taken by the CCA to decide this case, are troubling. . . . Given the delays in this case, and the lack of institutional vigilance by the Air Force CCA, this factor weighs in Merritt’s favor.

Slip op. at 18. Later he also writes, “While we find the length of appellate delay was clearly unreasonable and the trend of delay at the Air Force CCA is troublesome. . .” Slip op. at 23. It’s not a particularly stern rebuke, but it’s hardly a free pass for the Air Force court.

On the question of prejudice, Judge Erdmann notes that the now-reversed viewing specification was merged for sentencing with the “receiving” specification, and the court is convinced that Appellant would have received a sentence at least as great had he been charged with the receipt alone. The court also rejects Appellant’s argument that he was prejudiced by the requirement to register as a sex offender for the viewing specification, determining that “[b]ecause Merritt remains convicted of receiving child pornography, he would be required to register as a sex offender upon release from confinement regardless of any delay.” Slip op. at 22. And finally, while Appellant complained that the long delay would make it harder to present a defense at any rehearing, Judge Erdmann explains that because the viewing specification is set aside “for lack of due process notice, there can be no rehearing on that charge.” Slip op. at 22-23.

Judge Erdmann concludes his opinion of the court by approving the remaining finding and the sentence, because CAAF finds “that Merritt would not have received a lesser sentence if the military judge had dismissed Specification 2.” Slip op. at 23.

In a short concurring opinion, Chief Judge Baker “would reach the same result, but on narrower grounds, addressed to the specific circumstances of this case.” Concur. op. at 1. Specifically:

I would not rule out the possibility that, under certain circumstances, other factors including the elements, custom and common sense could have put a reasonable servicemember on notice that viewing child pornography was of a nature to be service discrediting, especially where viewing involved actions akin to the possession of child pornography. The notice problem in this case is that Appellant was charged with possessing and viewing the same child pornography, and in that context, he was not on notice as to what distinct criminal conduct was included within the viewing specification that was not subsumed within or implied by the possession specification.

Concur. op. at 1-2.

In my argument preview I suspected that the multiple requests for enlargements of time were going to be a problem for Appellant, and in the end they’re a big problem. But the absence of prejudice seems to have its strongest basis in CAAF’s determination that Appellant would have received a sentence just as great had the judge granted his motion to dismiss. Even if there had been no enlargements, this prejudice calculus would be the same. Accordingly, the delay didn’t deprive Appellant of a substantial right (the “legal prejudice” required to entitle Appellant to relief).

But CAAF seems to have a very large, if not limitless, supply of patience for the Air Force CCA’s troubles with its docket. The court avoids any grand pronouncement on the CCA, beyond Judge Erdmann’s comment that “the trend of delay . . . is troublesome.” It will be interesting to see if CAAF revisits this issue later this term.

As for child pornography prosecutions under Article 134, it’s hard to see this case as much more than a narrow application of the law of notice to particular facts. While CAAF’s decision is a reminder to prosecutors that not just anything may be prosecuted under Article 134 (and is also a bad sign for the Government’s position in United States v. Warner, No. 13-0435/AR (CAAFlog case page)), the President’s listing of child pornography offenses in the Manual makes similar fact patters less likely with each passing day.

Case Links:
Blog post: Did the Air Force Court Not Learn Anything from Its Sea Service Sister Court?
Blog post: Government files its answer to appellate delay petition for extraordinary relief
Blog post: Merritt reply brief
Blog post: Is judicial imitation still the highest form of flattery?
AFCCA opinion (71 M.J. 699)
Blog post: AFCCA issues published child pornography decision
Blog post: CAAF grants review of Air Force appellate delay issue
Blog post: McClatchy article on Air Force appellate delay
Appellant’s brief
Appellee’s (Government) Brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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