CAAF decided the Army case of United States v. Warner, No. 13-0435/AR, 73 M.J. 1 (CAAFlog case page) (link to slip op.), on December 6, 2013, finding that Appellant was not on notice that possession of images that depict minors “as sexual objects or in a sexually suggestive way” was punishable under Article 134, reversing the Army CCA and remanding the case for reassessment of the sentence.

Judge Stucky writes for the court. Chief Judge Baker dissents.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of obstruction of justice, possession of drug paraphernalia, possession of child pornography, and possession of images that depict minors as sexual objects or in a sexually suggestive way, all in violation of Article 134, UCMJ. He was sentenced to confinement for 100 days and a bad-conduct discharge. The Army CCA summarily affirmed the findings and sentence.

In the specification at issue Appellant was charged with knowingly possessing “some images that depict minors as sexual objects or in a sexually suggestive way, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.” Slip op. at 3. These images are so-called “child erotica.” To prove this offense, the Government introduced “twenty unique images of minor girls, none of which depicts nudity. Rather, these images depict minor girls posing provocatively in revealing clothing, with highly distasteful captions superimposed on the images.” Slip op. at 3. When he convicted Appellant of this specification, the military found only that the conduct was “of a nature to bring discredit upon the armed forces.”

Judge Stucky begins his short opinion of the court by noting that Appellant did not object to the specification at trial, meaning that CAAF reviews for plain error. He explains that “it is settled that a servicemember may be prosecuted for service-discrediting conduct even if the conduct is not specifically listed in the Manual for Courts-Martial,” but that “due process requires that a servicemember have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense.” Slip op. at 5 (marks and citations omitted). “Potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations.” Slip op. at 5 (citing United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (link to slip op.)). But the majority finds that none of these provided notice to Appellant.

Considering each potential source of notice separately, Judge Stucky explains that while federal law “addresses at length and in considerable detail the myriad of potential crimes related to child pornography,” there is no notice of a prohibition on “possession of images of minors that depict no nudity, let alone sexually explicit conduct.” Slip op. at 6. In turn, “the Government has identified no state law that reaches Appellant’s conduct.” Slip op. at 6. Similarly,

nowhere does our case law, customs of the services, or usage provide notice of criminality with respect to such material. Simply put, although child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice set out in Vaughan and available to Appellant. It follows that the Appellant received no such notice.

Slip op. at 7 (citation omitted). Applying the three-prong plain error test (where “Appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” Slip op. at 4.), Judge Stucky explains that the due process error of lack of notice is, and was at the time of trial, well settled law. Further, the majority finds that Appellant “suffered material prejudice to his substantial rights, as he stands convicted of the conduct as to which he lacked notice.” Slip op. at 8.

Of some note, last term Judge Stucky “would [have] adhere[d] to the Supreme Court’s four-prong plain error test as set out in United States v. Olano,” in his concurring opinion in United States v. Tunstall, 72 M.J. 191, 198 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). The fourth prong of the plain error test requires that the error seriously affect the fairness, integrity, or public reputation of the proceedings. A majority of CAAF vigorously rejected the fourth prong in Tunstall, and Judge Stucky does not refer to it in his Warner opinion.

Chief Judge Baker’s dissent begins with the explanation that “[a]ny reasonable member of the armed forces (in fact any member of the armed forces) of any grade or service would know that these pictures were service discrediting, based on the elements of Article 134, UCMJ, and common sense.” Diss. op. at 1. The Chief Judge describes the distasteful images in colorful detail and at length, but avoids discussion of the sources of law in Vaughan “because Article 134, UCMJ, elements provide fair notice where common sense makes their reach obvious as recognized by the extensive case law of military courts.” Diss op. at 2.

Chief Judge Baker’s incredulity is palpable in his opinion, as he repeatedly appeals to “common sense,” and also explains that Appellant’s notice may well be inferred through Appellant’s conduct:

Specifically, after he was reported by a friend and member of the unit, Appellant contacted a friend and member of his unit to request that he destroy these images along with others in his collection. Appellant attempted to destroy the evidence not once, but twice. The second time was while he was in custody. Finally, he did not raise the issue of notice until he sought reconsideration before the CCA.

Diss. op. at 11. He also sounds a warning that the majority’s approach “defeats the disciplinary purpose of Article 134, UCMJ.” Diss op. at 14. While disclaiming any belief that Article 134 is “a catchall as to make every irregular, mischievous, or improper act a court-martial offense,” the Chief Judge calls for “allow[ing] commanding officers the flexibility in dealing with improper behavior from subordinates.” Diss. op. at 16 (marks and citation omitted). And considering the facts of this case, he concludes that, “There was  sufficient notice using the elements and common sense for a reasonable member of the armed forces to understand such conduct to be service discrediting.” Diss. op. at 17.

The majority’s resolution of this case avoids reaching the other granted issue, which involved a legal sufficiency challenge to the evidence presented at trial to prove that possession of the images was actually service discrediting. That challenge was based on an asserted absence of any “direct and palpable effect on the military mission,” a requirement when constitutionally protected conduct is charged as a violation of Article 134. CAAF specifically applied that requirement to conduct alleged as service discrediting in United States v. Wilcox, 66 M.J. 442 (2008) (link to slip op.), where the same four judge majority reversed a conviction under Article 134 for posting extremist views on the internet. And, as his does in Warner, then-Judge Baker dissented in Wilcox.

Sadly, the Wilcox decision isn’t mentioned at all in either opinion in Warner. Reviewing Wilcox, it’s striking how different Chief Judge Baker’s two dissents are. In Wilcox he dispassionately reviewed the military’s various compelling interests in prosecuting that appellant for his extremist views. But in Warner the Chief Judge lingers over the salacious details of the images Appellant possessed, seemingly writing for shock value more than anything else, and he focuses on a need to provide “flexibility” to commanders rather than identifying compelling Government interests to justify a novel application of the awesome power of the sovereign. Chief Judge Baker’s dissent in Warner is practically didactic, and he ignores the legal sufficiency issue (that the majority’s approach didn’t need to consider) in a manner reminiscent of a man on a moral crusade. And it’s hard not to see the majority’s decision as a rejection of prosecutorial crusading, not so much because of what the majority says, but because of the loneliness of the dissent.

The images Appellant possessed are unquestionably tasteless and crude, but these are not the hallmarks of a criminal offense in the modern era. Whether the Government will even try to learn from CAAF’s rejection of the made-up offense of “possession of images that depict minors as sexual objects or in a sexually suggestive way,” or whether it will stubbornly repeat the same mistakes in future cases, is an interesting parallel to the various high-profile issues facing a military that is seen by a growing number of people as out of sync with the nation it serves.

Case Links:
ACCA opinion (summary disposition)
Blog post: CAAF grant on issue exploring boundaries of service discrediting conduct
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
CAAF argument audio
CAAF opinion
Blog post: Opinion Analysis

7 Responses to “Opinion Analysis: United States v. Warner, No. 13-0435/AR”

  1. GovHack says:

    Zack- nice article, but you are losing some credibility because everything you post is defense friendly.  At least pretend to be neutral sometimes.  :)
    “Whether the Government will even try to learn from CAAF’s rejection of the made-up offense of ‘possession of images that depict minors as sexual objects or in a sexually suggestive way,’ or whether it will stubbornly repeat the same mistakes in future cases, is an interesting parallel to the various high-profile issues facing a military that is seen by a growing number of people as out of sync with the nation it serves.”

  2. Contract Lawyer says:

    Perhaps part of the reassessment will be reduction of the confinement.  Heck, eliminate all the confinement.  No skin of the Government’s teeth.

  3. Charlie Gittins says:

    Zack is spot on.  Commanders have the flexibility to enforce good order and discipline short of a criminal trial.  Letter of reprimand, Article 15, non-punitive corrective measures, counseling, etc.  Shoe-horning what may be tasteless but not child porn into a criminal forum exceeds the commander’s authority, IMO (and apparently that of the majority).  Not everything improper is a crime.  Sometimes bad manners are just . . .  bad manners . . . and not a crime.

  4. RKincaid3 says:

    And we wonder why Congress is questioning a commander’s authority to handle “criminal” issues vice “discipinary” issues, and whether Congress’s attempt to revamp the UCMJ is necessary.  This kind of charging lacks good faith, in my opinion, but scarily, this kind of “making up” charges or being “overly creative” in drafting charges simply to get out a particular case out of the “discipline” arena and into “criminal” trial arena is arguably the kind of aggressive prosecutions that some in Congress want to see in sex assault cases.   CAAFs result was appropriate, as is the analysis by Mr. Spilman.  Sadly, it is a lesson that I fear will be lost on Congress.

  5. RKincaid3 says:

    Clarifying my prior comment’s conclusion, “sadly it is a lesson that I fear will be lost on Congress….” as they continue to tinker with enacting “catch-all” offenses, such as they have tried with the newest (3rd newest???) version of Art 120, which now is so broad that it can criminalize conduct which is not of a sexual nature, and thus can be creatively charged by aggressive commanders who are now under pressure by Congress to do more in charging.  The lesson that I fear that Congress will miss is that sometimes, a statute is so broad and overinclusive that it becomes so void for vagueness that a person simply isn’t and can’t ever reasonably be on notice that the specific conduct at issue is a crime. 

  6. Matt says:

    RKincaid, I highly doubt that some commander sat down and came up with the charges in Warner.  Almost certainly, this was a creative charging attempt by the trial counsel or chief of justice.  Removing MJ decisions from the commander will not eliminate these kinds of charging decisions.

  7. RKincaid3 says:

    Matt:  I concur…a commander didn’t put together those charges.  Some clever Trial Counsel did.  And I concur, too, that removing the commander will not stop creative charging…it goes on in the civilian world, too.  My main point in this string was the fallibility of “catch-all” statutes and how they encourage creative charging.  But it is also not too speculative to picture a commander telling his Trial Counsel to find a way to prosecute a case–no matter how creative–so that the commander doesn’t look bad to either his boss or Congress at a future rating/promotion opportunity.  And, we must consider this–why were two lower levels of courts (trial level and ACCA) so eager to support the creative charging on appeal?  One could argue that the system is hardwired to support the commander-centric structure by giving great latitude in charging, but whatever the reason, the lower level courts certainly weren’t applying the law…and a review finds significant creative reasoning even on appeal to avoid the ultimate conclusion…that the charges weren’t legally sufficient.  And that begs another question…how come a commander is supposed to be responsible for maintaining good order and discipline, especially through intimate involvement with deciding whether to prosecute, but when it doesn’t work out on appeal, it is not the commander’s fault…it is some JAGs fault?  Huh??  Can they really have it both ways?