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.