CAAF decided United States v. Bowersox, No. 12-0398/AR, 72 M.J. 71 (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.