CAAF will hear oral argument in United States v. Finch, No. 13-5007/AF (CAAFlog case page), on Wednesday, October 9, 2013. It’s the eighth oral argument of the term, and the fifth in a case involving child exploitation offenses (the others being Merritt, Winckelmann, Warner, and Payne).
Appellant pleaded guilty, at a general court-martial composed of a military judge alone, to one specification of possession of child pornography and one specification of distribution of child pornography, both in violation of Clauses 1 and 2 of Article 134. He was sentenced to reduction to E-1, confinement for seven years, and a dishonorable discharge. Appellant’s offense was discovered in 2008 and his court-martial occurred in November 2011, just a month before the President defined a child pornography offense under Article 134.
During the trial the parties agreed that Appellant faced a maximum punishment that included confinement for 30 years. Yet on automatic review at the CCA Appellant asserted that the maximum authorized punishment was dramatically lower because the language of the specifications did not allege that the images he possessed and distributed were of “actual” minors but instead that the specification alleged that the images depicted only what “appeared to be minors” (the specifications alleged images that contained “visual depictions of a minor engaging in sexually explicit conduct”). Appellant also filed petitions for a writ of habeas corpus, seeking his release from confinement pending the outcome of his appeal. The petitions were rejected by the CCA and CAAF, and the CCA disagreed with Appellant’s assertion and found the language of the specifications sufficient to allege “actual” minors.
CAAF then granted review of this issue:
Where the Article 134 child pornography specifications of which Appellant was convicted did not allege that the images depicted actual minors and where the military judge advised Appellant during the providence inquiry that “there is no requirement that the images in this case include actual images of minors,” is the maximum authorized confinement for each specification limited to four months?
Soon after, the Air Force JAG certified an additional issue:
If the court finds that the specifications sufficiently alleged that the visual depictions were of actual minors but that the military judge’s definitions were inconsistent with the alleged specifications, what is the appropriate remedy, if any, to be given?
In United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007) (slip opinion), CAAF revisited the question of the maximum punishment for an offense under Clause 1 or 2 of Article 134 where the President has not specifically enumerated a maximum in the Manual for Courts-Martial. CAAF unanimously (with then-Judge Baker concurring) affirmed existing law that it is not error to look to “a directly analogous federal statute to identify the maximum punishment in [such a] case, when every element of the federal crime, except the jurisdictional element, was included in the specification.” 64 M.J. at 384. In Leonard, the Article 134 offense was “wrongfully and knowingly receiving visual depictions of minors engaging in sexually explicit conduct. . .” and the appellant admitted to receiving “visual depictions of actual minors engaging in sexually explicit conduct. . .” 64 M.J. at 382 (emphasis added).
Four years later, in United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (slip opinion), CAAF considered a slightly but significantly different offense: “. . .wrongfully and knowingly possess[ing] one or more visual depictions of what appears to be a minor engaging in sexually explicit conduct. . .” Beaty, 70 M.J. at 40 (emphasis added). Finding that “[t]he United States Code does not criminalize possession of ‘what appears to be’ child pornography,” Id. at 43, CAAF explained that “[a]n offense comprised of acts that cannot be criminally charged under the United States Code at all is neither ‘directly analogous’ nor ‘essentially the same’ as one that can be,” Id. at 44, and the court concluded that:
when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment “authorized by the custom of the service,” they are punishable as “general” or “simple” disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months.
Id. at 45. Now, with the facts of Finch, CAAF will fill the void between Leonard and Beaty and determine the maximum sentence for a child pornography offense that doesn’t specifically allege depictions of either actual or apparent minors in a case where the military judge at one point during the plea inquiry stated:
There is no requirement that the images in this case include actual images of minors; That is, the wrongful and knowing receipt and possession of visual depictions containing sexually explicit images of persons indistinguishable from minor children, whether actual or virtual, when determined to be service-discrediting conduct and conduct prejudicial to good order and discipline, is an offense under Article 134, UCMJ.
Appellant’s Br. at 4 (emphasis added).
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