CAAF decided the Army case of United States v. Moon, No. 13-0536/AR, 73 M.J. 382 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A divided court finds two substantial bases in law and fact to question Appellant’s plea of guilty to wrongful possession of images of nude minors and persons appearing to be nude minors, in violation of Article 134, and sets aside the plea. CAAF reverses the decision of the Army CCA and remands the case for a sentence reassessment.
Judge Stucky writes for the court, joined by Judges Erdmann and Ryan. Judge Ohlson dissents, joined by Chief Judge Baker.
Appellant was convicted pursuant to his pleas of guilty, by a general court-martial composed of a military judge alone, of two specifications of wrongful possession of child pornography and one specification of wrongful possession of images of nude minors and persons appearing to be nude minors, all in violation of Article 134. He was sentenced to confinement for six months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The “nude minors” specification was charged as a simple disorder with a maximum punishment of confinement for four months. Gov’t Br. at 3.
When Appellant pleaded guilty, the military judge defined child pornography with reference to the federal definition, explaining that “the images [for the child pornography specifications] qualified as child pornography based only on lascivious exhibition of the genitals.” Slip op. at 3-4 (citing 18 U.S.C. 2256(2)). But the nude minors specification was essentially a catchall for other images that – while showing unclothed children – did not meet the definition of child pornography. “With very few exceptions, the images . . . depict minors who appear to be in some sort of nudist colony or camp. They are playing sports, playing on a beach, taking photos with each other, and doing other innocuous and nonsexual activities.” Slip op. at 13
This case is something of a trailer to United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page), in which CAAF reversed a conviction for possession of images that depict minors as sexual objects or in a sexually suggestive way (called “child erotica”) as service discrediting conduct in violation of Article 134, finding that the appellant in Warner was deprived of the due process right to fair notice that his conduct was criminal. Notably, Judge Stucky also wrote for CAAF in Warner, and Chief Judge Baker also dissented (the case was argued before Judge Ohlson joined the court).
In Moon, Appellant petitioned CAAF for review of the case on the merits (identifying no specific issues), but the court specified two issues for review:
I. Whether Specification 2 of the Additional Charge is void for vagueness because Appellant was not given fair notice that the charged conduct of possessing “multiple images of nude minors and persons appearing to be nude minors” was forbidden and subject to criminal action.
II. Whether there is a substantial basis in law to question Appellant’s guilty plea to Specification 2 of the Additional Charge, which alleges that Appellant possessed “multiple images of nude minors and persons appearing to be nude minors.
Judge Stucky’s discussion begins by assuming, without deciding, that Appellant had fair notice. Slip op. at 10. While not a dispositive issue to the case, Judge Ohlson’s dissent discusses the “deeply rooted practice in the military justice system” of prosecuting offenses under Article 134. Diss. op. at 3. Judge Ohlson also explains that “the determination of whether a reasonable member would know that his or her conduct fell within the reach of Article 134, UCMJ, can be made by the application of common sense.” Diss. op. at 4 (citing United States v. Ashby, 68 M.J. 108, 119 (C.A.A.F. 2009)). Judge Ohlson then concludes that:
Although the images knowingly possessed by Appellant may not meet the definition of child pornography under the provisions of the CPPA, many of these images certainly meet a common sense definition of child pornography.
This is the same position taken by Chief Judge Baker in his dissent in Warner, but it is firmly rejected by the majority with Judge Stucky writing that the majority “wholly reject[s] the dissent’s ‘common sense’ test.” Slip op. at 10 n.1.
But Judge Stucky and the majority reject Appellant’s plea for two other reasons: “[T]he plea contains unresolved inconsistencies,” slip op. at 12, and “there is a substantial basis upon which to question whether either the military judge or Appellant understood how the law related to the facts of his case,” slip op. at 14.