CAAF decided the Army case of United States v. Moon, No. 13-0536/AR, 73 M.J. 382 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A divided court finds two substantial bases in law and fact to question Appellant’s plea of guilty to wrongful possession of images of nude minors and persons appearing to be nude minors, in violation of Article 134, and sets aside the plea. CAAF reverses the decision of the Army CCA and remands the case for a sentence reassessment.
Judge Stucky writes for the court, joined by Judges Erdmann and Ryan. Judge Ohlson dissents, joined by Chief Judge Baker.
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. He 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.
When Appellant pleaded guilty, the military judge defined child pornography with reference to the federal definition, explaining that “the images [for the child pornography specifications] qualified as child pornography based only on lascivious exhibition of the genitals.” Slip op. at 3-4 (citing 18 U.S.C. 2256(2)). But the nude minors specification was essentially a catchall for other images that – while showing unclothed children – did not meet the definition of child pornography. “With very few exceptions, the images . . . depict minors who appear to be in some sort of nudist colony or camp. They are playing sports, playing on a beach, taking photos with each other, and doing other innocuous and nonsexual activities.” Slip op. at 13
This case is something of a trailer to United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page), in which CAAF reversed a conviction for possession of images that depict minors as sexual objects or in a sexually suggestive way (called “child erotica”) as service discrediting conduct in violation of Article 134, finding that the appellant in Warner was deprived of the due process right to fair notice that his conduct was criminal. Notably, Judge Stucky also wrote for CAAF in Warner, and Chief Judge Baker also dissented (the case was argued before Judge Ohlson joined the court).
In Moon, Appellant petitioned CAAF for review of the case on the merits (identifying no specific issues), but the court specified two issues for review:
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.
Judge Stucky’s discussion begins by assuming, without deciding, that Appellant had fair notice. Slip op. at 10. While not a dispositive issue to the case, Judge Ohlson’s dissent discusses the “deeply rooted practice in the military justice system” of prosecuting offenses under Article 134. Diss. op. at 3. Judge Ohlson also explains that “the determination of whether a reasonable member would know that his or her conduct fell within the reach of Article 134, UCMJ, can be made by the application of common sense.” Diss. op. at 4 (citing United States v. Ashby, 68 M.J. 108, 119 (C.A.A.F. 2009)). Judge Ohlson then concludes that:
Although the images knowingly possessed by Appellant may not meet the definition of child pornography under the provisions of the CPPA, many of these images certainly meet a common sense definition of child pornography.
This is the same position taken by Chief Judge Baker in his dissent in Warner, but it is firmly rejected by the majority with Judge Stucky writing that the majority “wholly reject[s] the dissent’s ‘common sense’ test.” Slip op. at 10 n.1.
But Judge Stucky and the majority reject Appellant’s plea for two other reasons: “[T]he plea contains unresolved inconsistencies,” slip op. at 12, and “there is a substantial basis upon which to question whether either the military judge or Appellant understood how the law related to the facts of his case,” slip op. at 14.
The inconsistencies revolve around what the images showed. “Appellant contradictorily affirmed (1) that the nude minors images fell outside the definition of child pornography, (2) that the nude minors images involved lascivious poses, and (3) that lascivious images would fall into the child pornography category.” Slip op. at 12. Alone these contradictions might not be a problem, but the military judge made special findings identifying which specific images supported the plea however did not review these findings with Appellant. Because of this, Judge Stucky finds that “it is not at all clear from the record that Appellant understood which images constituted images of nude minors as opposed to child pornography.” Slip op. at 13. Judge Stucky also notes, in a lengthy footnote, that confusion about what the images actually show persists into the appeal:
The confusion in the distinction between the images considered under the Charge and Specification 1 of the Additional Charge as being child pornography as defined by 18 U.S.C. 2256(8) and the images considered under Specification 2 of the Additional Charge is illustrated by the Government’s inconsistent position on this issue. At trial, the Government argued that the images associated with Specification 2 of the Additional Charge did not meet the federal definition of child pornography. The military judge tried the case on that basis. However, on appeal to this Court, the Government argues that the images associated with Specification 2 of the Additional Charge did meet the federal definition of child pornography. It matters not whether, as the Government now argues and the dissent would find, some of the photos in the nude minors category could have qualified as child pornography under some other definition that was not provided to Appellant during the plea inquiry: no one treated them as such at trial, and thus the plea inquiry cannot be saved as provident to a different offense on appeal.
Slip op. at 13-14 n.3.
The misunderstanding about the law focuses on the constitutionally-protected nature of the conduct in this case. “Unlike child pornography and obscenity, the conduct at issue in this case – possessing images of nude minors that fall into neither of those categories – implicates the protections of the First Amendment.” Slip op. at 14 (citations omitted). Constitutionally-protected conduct may be punished under Article 134, however “the heightened plea inquiry requirements of Hartman apply: the colloquy ‘must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior.'” Slip op. at 16 (United States v. Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011)). The military judge conducted an insufficient inquiry on this issue in this case. Judge Stucky explains:
In this case, rather than attempting to remove the images of nude minors that were neither child pornography nor obscene from the protection of the First Amendment, the colloquy should have established why the otherwise protected material could still be, and was, prejudicial to good order and discipline or service discrediting in the military context. Without a proper explanation and understanding of the constitutional implications of the charge, Appellant’s admissions in his stipulation and during the colloquy regarding why he personally believed his conduct was service discrediting and prejudicial to good order and discipline do not satisfy Hartman.
Slip op. at 19.
Notably, however, the dissenters don’t agree that images at issue are constitutionally-protected. Judge Ohlson writes:
I do not agree with the majority that these images of nude pubescent and prepubescent girls in sexualized poses had any constitutional protection. I would therefore find that the Hartman providence inquiry requirements did not apply, and I would further find that the military judge did not abuse his discretion when he accepted Appellant’s guilty plea.
Diss. op. at 5. He explains that “the majority opinion presents us with a binary choice: either a given image depicts a ‘lascivious exhibition of the genitals or pubic area’ and is therefore child pornography, or that image is constitutionally protected under the First Amendment.” Diss. op. at 8. But he echoes Chief Judge Baker’s dissent in Warner to define a “constitutional middle ground.” Diss. op. at 8. He would hold that “although the images . . . may not have met the statutory definition of child pornography . . . that does not mean that Appellant had a constitutional right to possess those nude images of young girls in sexualized poses for his own sexual gratification.” Diss. op. at 8-9.
None of these case-specific facts undercut the viability of a guilty plea – conducted in a way that avoids these problems – to the specification at issue (though Warner undercuts the Government’s ability to prosecute such a case in the absence of a plea). A couple of footnotes in Judge Stucky’s majority opinion do grapple with Judge Ohlson’s dissent, asserting that “whether any of the images in this case would meet some judicially created ‘common sense’ definition of child pornography is inapposite,” slip op. at 15 n.4, and that “simply put, the nude minors specification was not aimed at child pornography, under the federal definition or otherwise,” slip op. at 16, n.5. But I think CAAF’s resolution of this case is far more narrow than it’s decision in Warner.
The unanswered question in this case is what sort of images – that aren’t contraband child pornography under existing law – and what circumstances will provide constitutional support for a conviction under the first two prongs of Article 134 (service discrediting and prejudicial to good order and discipline). Chief Judge Baker and Judge Ohlson seek to define a constitutional middle ground between contraband child pornography and constitutionally-protected images of children. I suspect that CAAF will return to this issue, and more directly address the existence of such a middle ground, in the near future.