With a published decision in United States v. Contreras-Ramos, __ M.J. __, No. 20160182 (A. Ct. Crim. App. Jan. 30, 2018) (link to slip op.), a three-judge panel of the Army CCA affirms that morphed images – created by combining elements from multiple sources – can constitute contraband child pornography.

The images at issue were created by the appellant when he “took existing pictures of his daughters, ages eight and thirteen, and made them appear sexual.” Slip op. at 4. He also manipulated images to make them appear to show him committing sexual acts with his daughters. Slip op. at 5.

For these acts he was charged with a novel specification under Article 134 that alleged:

In that Staff Sergeant Fredyshernan Contreras-Ramos, U.S. Army, did, at an unknown location, between on or about 2 July 2012 and on or about 10 June 2014, knowingly and wrongfully create visual depictions of his minor daughters, A.C. and M.C., and other children engaging in indecent conduct, such conduct being of a nature to bring discredit upon the armed forces.

Slip op. at 2. His defense counsel moved to dismiss, asserting that the specification failed to state an offense, but the military judge denied the motion. Contreras-Ramos then pleaded guilty to that offense, to a separate specification of possessing child pornography (other images), and to unauthorized absence. The approved sentence included confinement for four years, reduction to E-1, and a bad-conduct discharge.

Writing for the three-judge panel, Judge Salusollia explains that such morphed images are punishable as contraband child pornography. This specific conviction is reversed, however, because child pornography offenses are enumerated under Article 134 in the MCM (and have been since 2011) and the MCM prohibits using a novel specification to charge conduct covered by an enumerated offense. See United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

Judge Salusollia explains that:

Within federal jurisprudence, morphed images and organic images of child pornography are overwhelmingly treated the same and do not implicate First Amendment concerns. For example, the U.S. Court of Appeals for the Eighth Circuit, in United States v. Bach, 400 F.3d 622 (8th Cir. 2005), held that morphed images using bodies and faces of actual minors are not protected speech. . . .

Similarly, the U.S. Court of Appeals for the Second Circuit, in United States v. Hotaling, 634 F.3d 725 (2d Cir. 2011), rejected appellant’s claim that his conviction for a violation of 18 U.S.C. §§ 2252(a)(5)(B) and 2256(8)(c) was unconstitutional because putting faces of actual minors on the bodies of adult females was protected speech under the First Amendment. Rather, the court held that in cases such as this, “the interests of actual minors are implicated when their faces are used in creating morphed images that make it appear that they are performing sexually explicit acts.” Id. at 729-30. . . .

While only persuasive authority, we note one of our sister courts has also faced a similar issue and treated morphed images the same as organic images of child pornography, though this was not a case charged under the current listed Article 134, UCMJ, offense. See United States v. Bell, NMCCA 201200517, 2014 CCA LEXIS 117 (N.M. Ct. Crim. App. 2014) (finding that appellant’s possession of a morphed image “was but one of many other images of child pornography knowingly possessed by the appellant”).

In short, the pernicious harm to the child victims featured in child pornography, organic or morphed, has the same potential to be everlasting. Thus we see no difference between morphed images and organic images and find that possessing, producing, or distributing either constitutes the offense of child pornography under Article 134, child pornography.

Slip op. at 6.

But while the images are punishable as child pornography, Contreras-Ramos wasn’t actually punished for child pornography:

Despite the applicability of the President’s listed Article 134 offense, child pornography, the government elected not to charge appellant’s conduct as such; instead it chose to charge him with a novel offense under clause 2 of Article 134, UCMJ. The novel offense appears to be a hybrid of child pornography and indecent conduct, using a service discrediting approach.

As our superior court recently held, the President has limited the ways in which the government can charge offenses under Article 134, UCMJ. Guardado, 77 M.J. at _, 2017 CAAF LEXIS 1142, at *13. Namely, when an offense is specifically listed as an Article 134, UCMJ, offense the government cannot charge the conduct in a manner that reduces the government’s burden of proof by charging it as “a ‘novel’ general disorder offense.” Id. (citing United States v. Reese, 76 M.J. 297, 302 (C.A.A.F. 2017)). See also MCM, pt. IV, ¶ 60.c.(6)(c).

Slip op. at 6-7 (emphasis added). Three important footnotes apply to this reasoning. First,

the record clearly reflects that appellant did not believe or agree he was pleading guilty to producing child pornography. Further, during a discussion of the maximum punishment, appellant’s counsel affirmed appellant was not pleading to child pornography with respect to [the novel specification]. Consequently, we also find there was not a knowing and voluntary plea to child pornography.

Slip op. at 6-7 n.6. Put differently, even though the military judge found that the morphed images are child pornography and the CCA agrees, Contreras-Ramos didn’t actually plead guilty to a child pornography offense in connection with the morphed images. Second,

To the extent that appellant’s guilty plea waived whether the specification alleged an offense, we choose to exercise our Article 66(c) authority to notice the issue. See generally, Rule for Courts-Martial 907(b)(2)(E) (2016 MCM waivable grounds to dismiss).

Slip op. at 7 n.7. With so much waiver mania these days, I think this a very good move by the CCA because it allows the court to actually resolve the legal issue. Third,

This court notes ¶ 60.c.(6)(c) has been removed from the 2016 MCM. Because this case is decided under the 2012 MCM, we need not address the significance, if any, of this change.

Slip op. at 1 n.1. This is true, but omits the fact that the prohibition formerly in ¶ 60.c.(6)(c) is now found at the end of ¶ 60.c.(6)(a).

Despite the reversal of the novel specification, Contreras-Ramos remains convicted of the separate child pornography offense and of the unauthorized absence, and so the CCA reassesses the sentence. The majority reduces the confinement by six months, from 4 years to 42 months. Judge Flemeing dissents from this reduction, however, and would affirm the sentence as approved by the convening authority.

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