CAAF will hear oral argument in the Army case of United States v. Moon, No. 13-0536/AR (CAAFlog case page), on Monday, April 28, 2014, at 9:30 a.m. In the wake of its decision in United States v. Warner, the court will again consider the issue of notice of the possibility of criminal prosecution for possession of images involving child nudity but not meeting the federal definition of child pornography, with the following two issues:

I. Whether Specification 2 of the Additional Charge is void for vagueness because Appellant was not given fair notice that the charged conduct of possessing “multiple images of nude minors and persons appearing to be nude minors” was forbidden and subject to criminal action.
II. Whether there is a substantial basis in law to question Appellant’s guilty plea to Specification 2 of the Additional Charge, which alleges that Appellant possessed “multiple images of nude minors and persons appearing to be nude minors.”

Appellant was convicted pursuant to his pleas of guilty, by a general court-martial composed of a military judge alone, of two specifications of wrongful possession of child pornography and one specification of wrongful possession of images of nude minors and persons appearing to be nude minors, all in violation of Article 134, and was sentenced to confinement for six months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The “nude minors” specification was charged as a simple disorder with a maximum punishment of confinement for four months. Gov’t Br. at 3.

Earlier this term, in United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page), CAAF reversed a conviction for possession of images that depict minors “as sexual objects or in a sexually suggestive way” (so-called child erotica) as service discrediting conduct in violation of Article 134, finding that the appellant was deprived of the due process right to fair notice that his conduct was criminal. Writing for the majority, Judge Stucky explained:

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 inVaughan and available to Appellant. It follows that the Appellant received no such notice.

Warner, 73 M.J. at __, slip op. at 7. Notably, Chief Judge Baker authored a vigorous dissent in Warner, writing in part that “any 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.” Warner, 73 M.J. at __, diss. op. at 1. The Chief Judge’s dissent was a poignant reminder that the focus of any prosecution under Article 134 is prejudice to good order and discipline in, or conduct of a nature to bring discredit upon, the armed forces. See Article 134, 10 U.S.C. § 934.

When CAAF granted review in Moon, it didn’t order briefs. But CAAF ordered briefs on December 23, 2013 (17 days after it decided Warner), and those briefs reveal numerous differences between Moon and Warner, starting with the fact that Warner was a contested case while during the plea inquiry in Moon:

the military judge stated that “ordinarily the possession of images of nude minors or persons appearing to be nude minors is not criminalized under the federal code nor under the [UCMJ].” The military judge defined the nude minors specification as a ‘catchall’ and as all other images that do not otherwise qualify as child pornography under the federal statute.

App. Br. at 5 (citations to record omitted).

The military judge issued specific findings on all of the images at issue. If an image did not meet the definition of child pornography, the military judge evaluated the image to see if it fell within the catchall definition of a nude minor. Many of the images the military judge determined were charged under [the nude minors specificaton] featured nude children playing games, walking or dancing on the beach, or featured only the child’s breasts or buttocks.

App. Br. at 6. “[A]ppellant detailed that he obtained the images from a naturalist (nudist) website.” App. Br. at 4.

Despite the efforts by the military judge to parse the images into categories during Appellant guilty plea, Appellant’s brief asserts that “there is no relevant statute in the federal, state, or military system that proscribes the conduct charged. As such, appellant could not have had fair notice that possessing the charged content was illegal.” App. Br. at 10.

Appellant’s brief adopts many points seen in Warner and in other recent cases involving nude or sexualized images of children that do not meet the rather technical definition of child pornography found in places like 18 U.S. Code § 2256 and in ¶ 68b of Part IV of the MCM (added after Appellant’s trial). I discussed one such case decided by the NMCCA last year in a post titled: Pictures of children without clothes are not necessarily “child pornography.” In Moon, Appellant’s brief argues that:

Federal law, military law, and relevant state law do not prohibit the possession of these types of images without sexually explicit conduct. Additionally, several federal circuit courts have noted this content to be legal, while this Court has stated this content is constitutionally protected.

App. Br. at 7. Appellant argues that “instead, [the images] depict nude minors engaged in otherwise innocuous activities. Possessing this material is not prohibited by statute and is constitutionally protected.” App. Br. at 8. Further, his brief analogizes the images at issue to child erotica (i.e., images that depict minors as sexual objects or in a sexually suggestive way), and notes that “at least three federal circuits have recognized child erotica as legal to possess.” App. Br. at 12. “Thus, there is no way appellant should have known that this content was illegal to possess.” App. Br. at 13.

However, even if Appellant had fair notice, there is also the issue of the sufficiency of his plea. Because possession of images that are not contraband child pornography is constitutionally-protected conduct, there must be a direct and palpable effect on the military mission for such conduct to constitute a violation of Article 134. See United States v. Wilcox, 66 M.J. 442 (2008) (link to slip op.) (reversing a conviction under Article 134 for posting extremist views on the internet). This was also an issue in Warner, but CAAF did not reach it because it resolved the case on the notice issue.

Appellant’s brief asserts two primary deficiencies in the plea inquiry in this case. First is the assertion that “appellant confused images of nude minors with those that were charged as child pornography.” App. Br. at 17. This is bolstered by the assertion that while the judge made detailed findings with respect to each image, he “never questioned appellant on whether appellant’s understanding was consistent with these findings.” App. Br. at 17. But second is the absence of an inquiry into the constitutionally-protected nature of this activity:

Finally, as discussed below, these images are constitutionally protected material. As such, the military judge was required to discuss with appellant the distinction between permissible and prohibited conduct.

App. Br. at 18 (citing United States v. Hartman, 69 M.J 467, 468-469 (C.A.A.F. 2011) (link to slip op.)). Hartman has gotten a lot of discussion recently, and was the basis for CAAF’s reversal of a plea of guilty to consensual sodomy in United States v. Medina, 72 M.J. 148 (C.A.A.F. 2013) (CAAFlog case page). Even if Appellant had notice for a criminal prosecution under Article 134, the words of Judge Ryan’s opinion of the court in Medina predict a difficult fight for the Government:

Here, pursuant to Appellee’s guilty plea to consensual sodomy, the military judge and Appellee engaged in a dialogue during which the military judge elicited facts in an attempt to demonstrate that Appellee’s sexual activity was subject to criminal sanction. However, the dialogue did not meet the requirements of Hartman or Care, which are different from the standard for legal sufficiency, because the military judge failed to ensure Appellee’s personal understanding of matters critical to his guilt; namely, why these additional facts removed his sexual activity from the protection recognized in Lawrence and Marcum and subjected that activity to criminal sanction.

Medina, 72 M.J. at __, slip op. at 5-6.

But the Government’s brief adds a surprising twist, asserting that the images at issue do meet the definition of child pornography:

As appellant and his defense counsel readily acknowledged throughout the providence inquiry, Specification 2 of the Additional Charge covered conduct that was criminal under federal statutes and case law regulating child pornography. Appellant therefore had fair notice that his conduct was criminal, even when charged as a simple disorder under Article 134, UCMJ, without explicit reference in the specification to 18 U.S.C. § 2256.

Gov’t Br. at 15. The case law the Government mentions is primarily the Dost factors, from United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986). These are six factors used to determine if an image involves a “lascivious exhibition of the genitals or pubic area” sufficient to meet the definition of child pornography. These factors, which were adopted by CAAF in United States v. Roderick, are:

(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
(2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (link to slip op.).

If the images in this case do meet the Dost factors, then they are child pornography and the plea will be affirmed – a sure win for the Government. Curiously though, the Government doesn’t really hedge its position. Its brief is an all-or-nothing focus on the assertion that the images are child pornography, and were acknowledged as child pornography during the plea inquiry because the definition employed by the judge amounted to lascivious exhibition of the genitals or pubic area under the Dost factors. In this context it doesn’t matter that the images at issue were prosecuted as a simple disorder, and not as an incorporated violation of the federal child pornography statute, except so far as that charging decision reveals the technicality of the definition of what is and what isn’t contraband child pornography.

But along this line, the Government’s brief does discuss the images in question, and it acknowledges that there are some images that present a close call. But the Government asserts that if any of the images fail to meet the Dost factors then “that error concerns the sufficiency of the evidence, not fair notice or void for vagueness.” Gov’t Br. at 20. This argument only works because this is a guilty plea; even one image failing to meet the Dost factors in a contested case will lead to reversal under CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page). But see United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013), rev. granted, __ M.J. __ (C.A.A.A.F. 2014) (last discussed here).

The Government’s brief continues this approach in its analysis of the second issue, arguing that “because appellant’s conduct, as defined and admitted, did not involve protected speech, no Wilcox analysis or discussion was required.” Gov’t Br. at 29.

But assuming that the images do not meet the Dost factors and are constitutionally protected, the Government’s brief does provide some facts that could support affirming this conviction despite the lack of a Wilcox inquiry:

Appellant acknowledged and admitted that his conduct “might cause problems in good order and discipline in the armed forces” because it would be “kind of creepy” to the “average Soldier” and that they would “look down on [him],” “avoid [him],” and “be a little frightened of [him] with regard to their children and family. ” Appellant also acknowledged and admitted that his conduct was “of a nature to bring discredit upon the armed forces” because “[i]t’s just something that is Army standards” and that “a person in the general public knowing” of his conduct “might lower their esteem for the armed forces. ” Appellant also agreed that society attached a “stigma” to “people who have naked pictures of children. ”

In a stipulation of fact entered into evidence without objection, appellant admitted that his conduct “tends to harm the reputation of the Service” and “lowers the public esteem about the Armed Services. ” Appellant specifically admitted that a civilian who came into possession of appellant’s hard drive saw the charged images contained on the drive and found them “shocking, sexual, and unacceptable.”” The civilian was “mortified and feared for the safety and security of her child. “

Gov’t Br. at 7-8. Unfortunately, the Government doesn’t address these facts in its all-or-nothing approach.

But, even with these other facts, the application of the Dost factors to the images at issue will likely cause this case to end like one of two certified Coast Guard cases from last term addressing guilty pleas to sodomy, in violation of Article 125, under circumstances that were asserted on appeal as constitutionally-protected: United States v. Medina, 72 M.J. 148 (C.A.A.F. 2013) (CAAFlog case page), and United States v. Whitaker, 72 M.J. 292 (C.A.A.F. 2013) (CAAFlog case page). The CGCCA reversed in both cases after finding that the military judges conducted an insufficient plea inquiry into the appellants’ understanding of the constitutional protections afforded consensual sexual conduct between adults. The JAG certified, and CAAF affirmed in Medina, finding the conduct protected and the inquiry insufficient, but it reversed in Whitaker, noting that the sodomy was without consent – and thus not constitutionally-protected – because the victim was asleep.

Next week’s oral argument will undoubtedly focus on the Dost factors and whether or not the images at issue are child pornography that is not constitutionally-protected. How hard CAAF presses the Government to address what the court should do if it rejects the Government’s primary (and really only) argument that the images are not constitutionally-protected may well predict the outcome of this case.

Case Links:
ACCA opinion
Appellant’s Brief
Appellee’s (Government) Brief
Blog post: Argument preview

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