CAAF decided United States v. Bowersox, No. 12-0398/AR, (opinion) (CAAFlog case page) on April 2, 2013, affirming the ACCA and the Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), which criminalizes obscene visual representations of the sexual abuse of children, as imported through clause 3 of Article 134, UCMJ.

The granted issue was:

Whether Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), as imported through clause 3 of Article 134, UCMJ, is unconstitutional as applied to him because the minors depicted in the material at issue were not actual minors. See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); United States v. Whorley, 550 F.3d 326 (4th Cir. 2008).

Judge Ryan writes for the court, with only Judge Stucky dissenting. She makes two key holdings. First, she finds that the express language of the statute provides that the minors depicted need not actually exist. Second, she finds that the individual right to possess obscene materials in the home, recognized in Stanley v. Georgia, 394 U.S. 557, 568 (1969), does not extend to Appellant’s possession of obscene materials in his shared barracks room.

The Appellant was convicted, contrary to his pleas, by a general court-martial composed of a military judge alone, of two specifications of possessing obscene visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 1466A(b)(1) (2006) and which conduct was of a nature to bring discredit upon the armed forces, in violation of Article 134, UCMJ. In accordance with his pleas, he was acquitted of one specification of possession of child pornography. He was sentenced to a bad-conduct discharge, confinement for four months, forfeiture of all pay and allowances, and reduction to the grade of E-1.

The visual depictions at issue were computer generated images of children engaged in sexually explicit acts. The CCA affirmed the Appellant’s convictions in a published opinion, noting that: “There is no constitutionally recognized right to possess such material, under these circumstances, on property within the special maritime and territorial jurisdiction of the United States and no authority to extend Stanley into this province. The threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home.” United States v. Bowersox, 71 M.J. 561, 564 (A.Ct.Crim.App. 2012). I discussed that opinion last March in this post.

Writing for the court, Judge Ryan begins with some significant additional facts:

One day in early February 2009, after entering the shared barracks room, SPC Bryant observed Appellant abruptly stand up, and step in front of his computer, obscuring SPC Bryant’s view of the computer screen. SPC Bryant testified that he found Appellant’s behavior “odd.”

Shortly thereafter, Appellant asked SPC Bryant for the phone number of their superior, Sergeant (Sgt) Clark. When SPC Bryant asked Appellant why he wanted the phone number, Appellant said that he wanted to report a web site and asked SPC Bryant to come over and see the web site for himself. Appellant then showed SPC Bryant his computer screen, on which there were images of minors engaged in sexual activities. Appellant asked SPC Bryant if he should report the web site. SPC Bryant told Appellant to report the web site and left the room.

Approximately one week later, SPC Bryant asked Sgt Clark if Appellant had reported the web site; Appellant had not. After confronting Appellant, who feigned ignorance of the web site, SPC Bryant reported the incident to his first sergeant, who immediately sent him to Criminal Investigation Command (CID) to make an official report.

Slip op. at 3-4. The Appellent’s computer was subsequently seized pursuant to a search authorization, and the images leading to the convictions were discovered.

18 U.S.C. § 1466A(b)(1) prohibits, within the special maritime and territorial jurisdiction of the United States, the knowing possession of “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that (A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene.” An additional subsection of the statute provides that “[i]t is not a required element of any offense under this section that the minor depicted actually exist.” 18 U.S.C. § 1466A(c). Judge Ryan begins by rejecting the Appellant’s argument that this language “does not mean what it says, but rather means that Congress intended subsection (c) to ‘reliev[e] the Government from the burden of exhaustively searching the country to identify conclusively the children involved in the production of the child pornography.’” Slip op. at 8 (quoting App. Br. at 9). She does this for two reasons.

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Here is a link to CAAF”s decision in United States v. Bowersox, 12-0398/AR (Apr. 2, 2013).  I am sure Zee will correct my technical errors, but here is the substance of Judge Ryan’s opinion, from which only Judge Stucky dissented:

First, we hold that § 1466A(b)(1) applies to Appellant’s conduct because the statute expressly provides that the minors depicted need not actually exist. 18 U.S.C. § 1466A(c) (“It is not a required element of any offense under this section that the minor depicted actually exist.”). Second, § 1466A(b)(1) is constitutional as applied to Appellant because the statute requires that the proscribed visual depiction be obscene, 18 U.S.C. § 1466A(b)(1)(B) (“is obscene”), and the limited holding of Stanley v. Georgia, 394 U.S. 557, 568 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home,” does not extend to Appellant’s possession of obscene materials in his shared barracks room. For these reasons, the decision of the ACCA is affirmed.

The shared barracks room concept seems to be somewhat problematic and possibly too broad given that the material was password protected.  Does an officer have the right to possess said materials in a non-shared BOQ room?  If the enlisted soldier has no roommate and the computer is password protected (or not)?

The audio for the last three oral arguments of the calendar year is posted on CAAF’s website at the following links:

United States v. Bowersox, No. 12-0398/AR

United States v. Clifton, No. 12-0486/AR

United States v. Tunstall, No. 12-0516/AF

On Monday, December 3, 2012, at 9:00, CAAF will hear oral argument in United States v. Bowersox, No. 12-0398/AR, which presents the following issue:

Whether Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), as imported through clause 3 of Article 134, UCMJ, is unconstitutional as applied to him because the minors depicted in the material at issue were not actual minors. See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); United States v. Whorley, 550 F.3d 326 (4th Cir. 2008).

The Appellant was convicted, contrary to his pleas, by a general court-martial composed of a military judge alone, of two specifications of possessing obscene visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 1466A(b)(1) (2006) and which conduct was of a nature to bring discredit upon the armed forces, in violation of Article 134, UCMJ. In accordance with his pleas, he was acquitted of one specification of possession of child pornography. He was sentenced to a bad-conduct discharge, confinement for four months, forfeiture of all pay and allowances, and reduction to the grade of E-1.

The visual depictions at issue were a “particular kind of anime” consisting of “computer generated images of children engaged in various sexually explicit acts.” Gov’t Br. at 3. The CCA affirmed the Appellant’s convictions in a published opinion (United States v. Bowersox, 71 M.J. 561 (A.Ct.Crim.App. 2012)), noting that: “There is no constitutionally recognized right to possess such material, under these circumstances, on property within the special maritime and territorial jurisdiction of the United States and no authority to extend Stanley into this province. The threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home.” Bowersox, 71 M.J. at 564 (marks omitted) (emphasis added).

The Appellant’s brief uses five-and-a-half pages to discuss the 4th Circuit’s opinion in United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), cert. denied, 130 S.Ct. 1052 (2010). In Whorley, the court “reject[ed] [Whorley's] arguments that . . . cartoons depicting minors in sexually explicit conduct must depict real-life minors to violate § 1466A(a)(1).” Whorley, 550 F.3d at 330. But Whorley involved a violation of § 1466A(a)(1), and the Appellant in Bowersox was convicted of violating Article 134 by possessing images in violation of § 1466A(b)(1). The differences between these statutes is slight, the court decided Whorley in a way that works against the Appellant in Bowersox, and I had trouble following the Appellant’s analysis (which focuses on the dissenting opinion in Whorley).

The Appellant’s brief also discusses the holding in United States v. Stanley, 394 U.S. 557, 559 (1969), that “the mere private possession of obscene matter cannot constitutionally be made a crime.” The Appellant argues that this makes § 1466A(b)(1) “unconstitutional as applied to [A]ppellant.” Appellant’s Br. at 12. The brief also emphasizes that the obscene material was found in Appellant’s password-protected computer, and not in plain view or other physical form within his barracks room. Appellant’s Br. at 13. Finally, citing United States v. Wilcox, 62 M.J. 442, 448-449 (C.A.A.F. 2008), the Appellant’s brief argues that because there is a First Amendment right to possess obscene materials, the Government was required (but failed) to show that there was a “direct and palpable connection between [the] speech and the military mission or military environment” in order to establish the service discrediting nature needed to constitute a violation of Article 134. Appellant’s Br. at 15-16.

The Government’s response begins with this whopper: “Section 1466A(b) (1) is constitutional as applied because (1) it only applies to unprotected obscenity; and (2) appellant’s shared barracks room on federal land is not a home.” Gov’t Br. at 1 (emphasis added). Lance Corporals keep telling me that the barracks isn’t home; now we know that the Government agrees. Because the Government contends that a barracks room is not a home, is concludes that the possession of obscene material under the circumstances of this case is not constitutionally protected. Gov’t Br. at 13. Thus, the Government advises CAAF:

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We noted that CAAF granted review of seven cases from Tuesday to Thursday last week, four of which appear destined for oral argument next term.  On Friday, CAAF granted an eighth case for the week.  This one also appears heading for oral argument.

The granted issue in United States v. Bowersox, No. 12-0398/AR is:

WHETHER APPELLANT’S CONVICTION OF VIOLATING 18 U.S.C. 1466A(b)(1), AS IMPORTED THROUGH CLAUSE 3 OF ARTICLE 134, UCMJ, IS UNCONSTITUTIONAL AS APPLIED TO HIM BECAUSE THE MINORS DEPICTED IN THE MATERIAL AT ISSUE WERE NOT ACTUAL MINORS.  SEE ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234 (2002); UNITED STATES v. WHORLEY, 550 F.3d 326 (4th Cir. 2008).

ACCA’s opinion is published at 71 M.J. 561 (A. Ct. Crim. App. 2012).

We received a very nice note from ACCA today letting us know that United States v. Bowersox, No. ARMY 20100580, is a published opinion.  While WESTLAW still lists it as “Not Reported in M.J.,” I expect that to be corrected soon.

In a decision published on 24 February, the Army CCA affirmed a conviction for possession of obscene visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 1466A(b)(1), as incorporated by Article 134. The case, United States v. Bowersox, No. 20100580; __ M.J. __ (ACCA, 2012), involves a soldier who possessed obscene images (cartoons or drawings) of children, though none of the depictions were of actual children. He was convicted, contrary to his pleas, by a military judge sitting as a general court-martial, and sentenced to confinement for four months, total forfeitures, reduction to E-1, and a bad-conduct discharge.

At the CCA the accused argued, inter alia, that 18 U.S.C. § 1466A is unconstitutional as applied because he has a constitutional right to possess obscene visual depictions in these circumstances.The CCA rejected this claim, reasoning:

In this case, the government charged and proved appellant’s possession of obscene visual depictions of a minor engaging in sexually explicit conduct occurred in a shared barracks room in the special maritime and territorial jurisdiction of the United States. There is no constitutionally recognized right to possess such material, under these circumstances, on property within the special maritime and territorial jurisdiction of the United States and no authority to extend Stanley into this province. “[T]he threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home.” United States v. Conklin, 63 M.J. 333, 337 (C.A.A.F. 2006) (quoting United States v. McCarthy, 38 M.J. 398, 403 (C.M.A. 1993)). As such, the circumstances of appellant’s case remove it from the circumscribed protections afforded in Stanley. Accordingly, we hold that 18 U.S.C. § 1466A(b)(1) is not unconstitutional as applied to appellant.

Slip op. at 6.