CAAFlog » September 2013 Term » United States v. Merritt

CAAF’s second authored opinion of the term is in the Air Force case of United States v. Merritt, No. 13-0283/AF, 72 M.J. 483 (CAAFlog case page) (link to slip op.). CAAF decided the case on December 5, 2013, finding that Appellant was not on notice that viewing child pornography could be prosecuted under Article 134, reversing the trial judge and the AFCCA, and dismissing the charge. The court also finds excessive delay in the processing of Appellant’s appeal by the AFCCA but no legal prejudice to Appellant from that delay, and denies Appellant any other relief.

Judge Erdmann writes for the court. Chief Judge Baker writes separately, concurring.

In September 2009, Appellant, a Master Sergeant in the Air Force, was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of receiving child pornography and one specification of viewing child pornography, both in violation of Article 134, UCMJ. The convening authority approved the adjudged sentence of reduction to E-2, confinement for 24 months, and a bad-conduct discharge. Appellant was stationed in Germany, and the convictions arose from an investigation by German authorities in which Appellant was identified as a potential recipient of child pornography. He was eventually questioned and admitted to viewing “nineteen pornographic images . . . with children between three and seventeen years of age.” App. Br. at 4. He was charged with both receipt and possession of these images, and the possession specification at issue read:

In that [Appellant] did, at or near Spangdahlem Air Base, Germany, on divers occasions, between on or about 6 May 2006 and on or about 13 May 2006, wrongfully and knowingly view one or more visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Before trial, Appellant moved to dismiss the specification, arguing that “[n]o offense of ‘wrongful and knowing viewing’ of such depictions is listed in the UCMJ, 10 USC §§ 877-934, (Punitive Articles), nor is such an offense enumerated under Article 134,” and that “there was no federal law, military case law, custom or usage which prohibited the mere viewing of child pornography in 2006.” Slip op. at 4-5. The military judge denied Appellant’s motion, and then convicted him, by exceptions, of only the service discrediting element of this specification. On sentencing, “the military judge merged the two specifications for sentencing and applied a maximum sentence of twenty years, which was the maximum punishment for receipt of child pornography under the federal statute.” Slip op. at 6.

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Audio from today’s oral arguments at CAAF is available at the following links:

United States v. Winckelmann, No. 11-0280/AR (Winckelmann IV) (CAAFlog case page): Audio here.

United States v. Merritt, No. 13-0283/AF (CAAFlog case page): Audio here.

CAAF’s second oral argument of the term, in the Air Force case of United States v. Merritt, No. 13-0283/AF (CAAFlog case page), will occur on Tuesday, September 17, 2013, after the court hears argument in Winckelmann.

The case involves two distinct issues, both of which were considered and rejected by the AFCCA in a published opinion (71 M.J. 699). The first challenges Appellant’s conviction under Article 134 for viewing child pornography in Germany in 2006 on the basis that Appellant was not on notice that the act of viewing child pornography was wrongful. The second involves a 1,024 day delay in the review of Appellant’s case at the Air Force CCA. We’ve covered the second issue in many posts already, such as in this post discussing an order from CAAF to the Government to show cause in response to a petition from Appellant for extraordinary relief from the delay (the petition was eventually denied), and in this post discussing another case involving the same type of delay. We’ve also noted that McClatchy reporter Michael Doyle wrote about this issue a year ago.

The issues before CAAF are:

I. Whether Appellant’s constitutional right to fair notice that an act is criminal was violated in Specification 2 of the Charge, where the alleged offense occurred in May 2006 but Congress did not criminalize the intentional viewing of child pornography until October 2008.
II. Whether Appellant’s due process right to timely appellate review was violated where the Air Force court decided Appellant’s case one thousand and twenty-four days after it was docketed.

Appellant, a Master Sergeant in the Air Force, was convicted contrary to his pleas in September 2009, by a general court-martial composed of a military judge alone, of one specification of receiving child pornography and one specification of viewing child pornography, in violation of Article 134, UCMJ. The convening authority approved the adjudged sentence of reduction to E-2, confinement for 24 months, and a bad-conduct discharge. Appellant was stationed in Germany, and the convictions arose from an investigation by German authorities in which Appellant was identified as a potential recipient of child pornography. He was eventually questioned and admitted to viewing “nineteen pornographic images . . . with children between three and seventeen years of age.” App. Br. at 4. He was charged with both receipt and possession of these images, and the possession specification at issue read:

In that [appellant] did, at or near Spangdahlem Air Base, Germany, on divers occasions, between on or about 6 May 2006 and on or about 13 May 2006, wrongfully and knowingly view one or more visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

App. Br. at 4. Notably, the trial judge convicted Appellant, by exceptions, of only the service discrediting element.

Appellant’s brief notes that viewing child pornography was not an enumerated offense under Article 134 in 2006 (that didn’t happen until 2011). And it’s well-settled that not just anything under the sun can be punished under Article 134, but instead that “Due process requires ‘fair notice’ that an act is forbidden and subject to criminal sanction. It also requires fair notice as to the standard applicable to the forbidden conduct.” App. Br. at 8 (citations and marks omitted). And Appellant’s brief makes a strong argument, beginning with the fact that:

The Congress enacted the Child Pornography Prevention Act (CPPA) in 1996. At that time, §§ 2252 and 2252A of the CPPA prohibited “certain activities relating to material involving the sexual exploitation of minors.” These “certain activities” . . . did not include viewing child pornography. In other words, the CPPA expressly excluded viewing child pornography as a punishable offense. Because federal law did not prohibit the mere viewing of child pornography at the time of the offense in May 2006, appellant had no fair notice that such conduct was criminal.

From 1996 until October 8, 2008, no CPPA provision even referenced the viewing of child pornography. . .

App. Br. at 11. Appellant also argues that while multiple states prohibited possession of child pornography, “appellant’s alleged conduct occurred in Germany, such that state laws are wholly inapplicable and any reliance on state law is misguided.” App. Br. at 14. The Government seizes on this point in its response, arguing that Appellant’s location doesn’t change the effect of notice that may be found in a state statute. Gov’t Br. at 4-5. The Government then conducts something of a survey of relevant state laws regarding child pornography (Gov’t Br. at 5-25) and Congressional pronouncements on child pornography in general (Gov’t Br. at 25-28), before discussing another case from Germany where (and I’m not making this up) “Private Sanchez penetrated a chicken in August of 1957.” Gov’t Br. at 31.

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