CAAF decided the Army case of United States v. Warner, No. 13-0435/AR, 73 M.J. 1 (CAAFlog case page) (link to slip op.), on December 6, 2013, finding that Appellant was not on notice that possession of images that depict minors “as sexual objects or in a sexually suggestive way” was punishable under Article 134, reversing the Army CCA and remanding the case for reassessment of the sentence.
Judge Stucky writes for the court. Chief Judge Baker dissents.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of obstruction of justice, possession of drug paraphernalia, possession of child pornography, and possession of images that depict minors as sexual objects or in a sexually suggestive way, all in violation of Article 134, UCMJ. He was sentenced to confinement for 100 days and a bad-conduct discharge. The Army CCA summarily affirmed the findings and sentence.
In the specification at issue Appellant was charged with knowingly possessing “some images that depict minors as sexual objects or in a sexually suggestive way, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.” Slip op. at 3. These images are so-called “child erotica.” To prove this offense, the Government introduced “twenty unique images of minor girls, none of which depicts nudity. Rather, these images depict minor girls posing provocatively in revealing clothing, with highly distasteful captions superimposed on the images.” Slip op. at 3. When he convicted Appellant of this specification, the military found only that the conduct was “of a nature to bring discredit upon the armed forces.”
Judge Stucky begins his short opinion of the court by noting that Appellant did not object to the specification at trial, meaning that CAAF reviews for plain error. He explains that “it is settled that a servicemember may be prosecuted for service-discrediting conduct even if the conduct is not specifically listed in the Manual for Courts-Martial,” but that “due process requires that a servicemember have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense.” Slip op. at 5 (marks and citations omitted). “Potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations.” Slip op. at 5 (citing United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (link to slip op.)). But the majority finds that none of these provided notice to Appellant.