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.

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

United States v. Warner, No. 13-0435/AR (CAAFlog case page): Audio here.

United States v. Moss, No. 13-0348/AR (CAAFlog case page): Audio here.

CAAF will continue its first week of oral arguments in the September 2013 Term on Wednesday, September 18, 2013, at 9:30 a.m., when it hears oral argument in United States v. Warner, No. 13-0435/AR (CAAFlog case page). The issues before the court are:

I. Whether Specification 3 of Charge I is void for vagueness because the appellant was not given fair notice that the charged conduct of possessing “sexually suggestive” material of minors as “sexual objects” was forbidden and subject to criminal action.
II. Whether Specification 3 of Charge I is legally insufficient when the government failed to prove that the possession of constitutionally protected images of minors as “sexual objects” and in “sexually suggestive” poses had a direct and palpable effect on the military mission and therefore was actually service discrediting as required by United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008).

Appellant was convicted contrary to his pleas in May 2012, 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.

The depictions at issue include “numerous images and videos of minor girls in various stages of undress [Appellant possessed] on his digital media.” Gov’t Br. at 2-3. The Government introduced these images into evidence. “Relevant to this appeal are 23 images which do not directly display the exposed genitalia or pubic region of the minor girl pictured. Three of those images depict a very young, minor girl directly exposing her naked breasts. The remaining 20 all display multiple shots of very young, minor girls posing provocatively in highly revealing clothing.” Gov’t Br. at 3. Unfortunately, a reply brief from Appellant makes these facts less clear, explaining that there is no nudity in any of the 23 images related to the “sexual objects” and “sexually suggestive” specification. Reply Br. at 2.

It’s clear that the images at issue do not meet the definition of child pornography found in either 18 U.S.C. § 2256 or as enumerated under Article 134 in 2011, both of which contain the same basic requirement that the image involve a minor engaged in “sexually explicit conduct,” which is defined as:

(a) sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(b) bestiality;

(c) masturbation;

(d) sadistic or masochistic abuse; or

(e) lascivious exhibition of the genitals or pubic area of any person.

Because these images are not child pornography (Appellant’s child pornography conviction is not challenged in this appeal), Appellant was charged with the novel 134 specification of “possessing images that depict ‘minors as sexual objects or in a sexually suggestive way,’ otherwise known as ‘child erotica.'” Gov’t Br. at 7. And the Government’s ability to criminalize such images under Article 134 – recently mnentioned by the NMCCA in United States v. Rapp, No. 201200303 (N-M.Ct.Crim.App. Apr. 30, 2013) (unpub. op.) (discussed in this post) – is at stake in this appeal.

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CAAF today granted review of these two issues:

I.   WHETHER SPECIFICATION 3 OF CHARGE I IS VOID FOR VAGUENESS BECAUSE THE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

II.  WHETHER SPECIFICATION 3 OF CHARGE I IS LEGALLY INSUFFICIENT WHEN THE GOVERNMENT FAILED TO PROVE THAT THE POSSESSION OF CONSTITUTIONALLY PROTECTED IMAGES OF MINORS AS “SEXUAL OBJECTS” AND IN “SEXUALLY SUGGESTIVE” POSES HAD A DIRECT AND PALPABLE EFFECT ON THE MILITARY MISSION AND THEREFORE WAS ACTUALLY SERVICE DISCREDITING AS REQUIRED BY UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

 United States v. Warner, __ M.J. __, No. 13-0435/AR (C.A.A.F. May 20, 2012).