Impacting military justice practice in child pornography cases

United States v. Mason and United States v. Irvin: impacting military justice practice in child pornography cases

Daniel A. Olson

I. INTRODUCTION

As your installation’s Chief of Military Justice, you’ve just been briefed that an active duty officer has been downloading child pornography from the Internet. (1) You’re tasked to draft charges, but haven’t kept abreast of recent developments pertinent to child pornography prosecutions. (2) This note will provide guidance to military justice practitioners charging and prosecuting child pornography cases by examining two recent decisions from the Court of Appeals for the Armed Forces: United States v. Mason (3) and United States v. Irvin. (4)

II. LANDSCAPE

Federal law has long criminalized the production and distribution of child pornography. (5) Historically, however, these prohibitions have applied only to pornographic images involving actual children. (6) By 1996, however, developments in computer technology had enabled child pornographers to circumvent federal anti-child pornography legislation by creating sexually explicit visual depictions of children without using any actual children in the production process. (7) For example, child pornographers learned to create computer-generated images of children that were essentially indistinguishable from pictures of actual children. (8) Child pornographers also learned to use inexpensive computer software to manipulate (“morph”) innocent pictures of children into sexually explicit images. (9) To combat child pornographers’ newly developed abilities to produce computer-generated (“virtual”) child pornography, Congress passed the Child Pornography Prevention Act of 1996 (hereinafter referred to as the “CPPA”), criminalizing the receipt or distribution of such images by re-defining “child pornography” in the broadest possible terms. (l0) Specifically, to achieve its purpose of proscribing virtual child pornography, Congress defined “child pornography” as follows:

“Child pornography” means any visual depiction,

including any photograph, film, video picture, or

computer or computer generated image or picture,

whether made or produced by electronic, mechanical, or

other means, of sexually explicit conduct where: (A) the

production of such visual depiction involves the use of a

minor engaging in sexually explicit conduct; (B) such

visual depiction is, or appears to be, of a minor engaging

in sexually explicit conduct; (C) such visual depiction

has been created, adapted, or modified to appear that an

identifiable minor is engaging in sexually explicit

conduct; or, (D) such visual depiction is advertised,

promoted, presented, described, or distributed in such a

manner that conveys the impression that the material is

or contains a visual depiction of a minor engaging in

sexually explicit conduct. (11)

Congress’ statutory definition of child pornography, however, was soon challenged by a trade association for the adult entertainment industry. (12) In particular, the trade association argued that the statutory definition of “child pornography” was unconstitutionally overbroad because it proscribed images that merely “appear[ed]” to involve children and merely “convey[ed] the impression” of involving children. (13) In its landmark decision in Free Speech Coalition, the United States Supreme Court agreed. (14) While acknowledging the horrors of child sexual abuse, the Court concluded that Congress had improperly abridged a “substantial amount of lawful speech.” (15) Thus, the Court found the definitions of “child pornography” at 18 U.S.C. [section] 2256(8)(B) and (D) to be overbroad and unconstitutional. (16)

The Supreme Court’s decision in Free Speech Coalition was not without impact on the military services. (17) Indeed, general courts-martial had convicted and sentenced service members for violating the CPPA before the Supreme Court’s decision in Free Speech Coalition rendered some of the CPPA’s definitions invalid. (18) Accordingly, military courts have had to consider the impact of Free Speech Coalition on these convictions. (19) This note seeks to examine two such cases recently decided by the Court of Appeals for the Armed Forces. (20)

III. UNITED STATES. V. MASON

In 1998, investigation revealed that the accused, a contracting officer assigned to the Defense Supply Center Columbus, had visited inappropriate websites on government computers. (21) More specifically, the accused had used government computers to view pornographic images on the Internet, engage in suggestive discussions in teen chat rooms, and receive images of child pornography. (22)

The accused was subsequently charged under Article 92 of the Uniform Code of Military Justice (hereinafter referred to as the “UCMJ”) with three specifications of violating a general regulation pertaining to use of government computers. (23) He was also charged under Article 133 with one specification of conduct unbecoming an officer and a gentleman. (24) Finally, he was charged under clause 3 of Article 134. (25) More specifically, he was charged with one specification of violating the CPPA. (26) Notably, the third charge and specification involved a set of images specifically characterized as “child pornography,” as distinct from the images referred to in the Article 133 charge. (27) The accused entered pleas of guilty and was convicted by a general court-martial. (28) That is, he was convicted of violating a lawful general order in violation of Article 92, of engaging in conduct unbecoming an officer and a gentleman in violation of Article 133, and of knowingly receiving child pornography in violation of Article 134. (29)

Subsequent to the accused’s conviction, however, the United States Supreme Court decided Free Speech Coalition. (30) Thus, the accused argued on appeal that his guilty plea to the Article 134 offense was improvident because the military judge had relied on definitions of “child pornography” that were later found to be unconstitutional. (31) The Air Force Court of Criminal Appeals, however, rejected the accused’s argument and affirmed his conviction, finding it “clear from the record” that the images in question involved actual children, not virtual images. (32) The Court of Appeals for the Armed Forces, however, reversed the lower court’s decision as to the clause 3, Article 134 offense. (33)

The court first noted that the military judge had explained to the accused that his conduct (receipt of child pornography) was charged as a clause 3 offense under Article 134, with the “crime or offense not capital” being a violation of the CPPA. (34) The court then applied the rule it had previously established in United States v. O’Connor, 58 M.J. 450 (2003), in which it held that a provident guilty plea to a violation of the CPPA must reflect that the accused violated those portions of the statute that were not affected by the Supreme Court’s decision in Free Speech Coalition. (35) The Mason court highlighted the fact that the military judge’s explanation of “child pornography” referenced materials that “appear[ed] to” involve children and were marketed in such a manner as to “convey[] the impression” that they included images of children–precisely the language the Supreme Court had struck down as overbroad in Free Speech Coalition. (36) The court also highlighted the fact that the record contained “no clear focus or discussion” on those portions of the CPPA that were not affected by Free Speech Coalition. (37) Because the record contained no discussion of, or focus on, actual child pornography, the court could not view the accused’s plea as provident in Mason. (38)

Having concluded, under a straightforward application of O’Connor, that the accused’s plea to the clause 3, Article 134 offense was improvident, the court next considered whether the accused’s plea could be properly viewed as provident to a lesser-included offense under clauses 1 or 2 of Article 134. (39) Citing its decision in O’Connor, the court first acknowledged that it had “recognized in the past that an improvident plea to a clause 3 offense based on a federal child pornography statute may be upheld as a provident plea to a lesser-included offense under clause 2 of Article 134.” (40) Of note, the court in O’Connor, after determining that the accused’s plea to violating the CPPA under clause 3 of Article 134 was improvident, concluded that the accused’s guilty plea wasn’t even provident as to a lesser-included offense under clause 1 or 2 because, even though the accused had stipulated to the service-discrediting character of his conduct, there was no discussion of that element by the military judge during the plea inquiry. (41) Rather, in O’Connor, the plea colloquy focused only on the CPPA, “without any discussion or acknowledgement of the criminal nature of the conduct deriving alternatively (and independently) from its character as service-discrediting or prejudicial to good order and discipline.” (42) Because the military judge didn’t discuss “how his conduct might be criminal under clause 1 or 2 as distinct from criminal under clause 3, [the court in O’Connor] could not view [the accused’s] guilty plea as provident to a lesser-included offense under clause 2.” (43) The court in Mason, however, found the record “clearly distinguishable” from that in O’Connor “in terms of the discussion between [the accused] and the military judge concerning the character of his conduct as service-discrediting and prejudicial to good order and discipline.” (44) Indeed, in Mason, the military judge had explained that the service-discrediting nature of the accused’s conduct and the prejudicial effect of his conduct on good order and discipline were not elements of the “crime or offense not capital” the accused had been charged with under clause 3, Article 134. (45) The military judge also explained why he was discussing these additional elements. (46) Moreover, the accused admitted to the military judge that his conduct was both service-discrediting and prejudicial to good order and discipline in the armed forces. (47) The court concluded that:

The record here thus contains what was missing in

O’Connor and was present in both Sapp and Augustine.

The plea colloquy between the military judge and [the

accused] demonstrates that he “clearly understood the

nature of the prohibited conduct” in terms of that

conduct being service-discrediting and prejudicial to

good order and discipline. (48)

The court’s analysis did not end there, however. (49) Rather, it acknowledged O’Connor had not addressed the impact of Free Speech Coalition on the propriety of charging service members for child pornography (whether virtual or actual) offenses under clause 1 or 2 of Article 134. (50) The court in O’Connor had acknowledged the question, but did not answer it because it found that the accused hadn’t been properly advised of the “service-discrediting” and/or “prejudicial to good order and discipline” elements of these clauses in the first place. (51) The Mason court, however, tackled the issue. (52) That is, the court addressed the issue of whether possession of child pornography (whether virtual or actual) by service members could constitute service-discrediting conduct (or conduct prejudicial to good order and discipline) under Article 134, clauses 1 and 2, in light of the Supreme Court’s decision in Free Speech Coalition. (53)

The Mason court concluded receipt or possession of even virtual child pornography by service members can be service-discrediting and/or prejudicial to good order and discipline, therefore prosecutable under clauses 1 and 2 of Article 134. (54) The court acknowledged that the issue of “virtual versus actual” imagery “may have a potentially dispositive effect under the CPPA in both civilian and military settings,” but it concluded that the issue “is not inherently dispositive of their impact on the esteem of the armed forces or good order and discipline.” (55) The determination as to whether an accused’s conduct in receiving or possessing child pornography is indeed service-discrediting or prejudicial to good order and discipline, the court emphasized, must be made on a case-by-case basis. (56) The court concluded the accused’s conduct in Mason was indeed service-discrediting and prejudicial to good order and discipline because he was a commissioned Air Force officer and had viewed the images on a government computer in the workplace. (57) Accordingly, the court affirmed the accused’s conviction under clauses 1 and 2 of Article 134. (58)

IV. UNITED STATES V. IRVIN

In 2000, the accused, while stationed at Geilenkirchen Air Base, Germany, used his personal computer in his off-base residence to download at least 80 pictures of young girls engaging in sexually explicit conduct. (59) The accused’s computer was subsequently seized from his off-base residence by agents of Air Force Office of Special Investigations. (60) Pursuant to his guilty plea, the accused was later convicted by a general court-martial of possessing child pornography in violation of clauses 1 and 2 of Article 134. (61)

Although the accused didn’t raise the issue on appeal, the Air Force Court of Criminal Appeals subsequently assessed the providence of his guilty plea in light of the Supreme Court’s decision in Free Speech Coalition. (62) That court concluded that the Supreme Court’s decision did not affect the accused’s guilty plea, and it affirmed the conviction and sentence. (63) The Court of Appeals for the Armed Forces subsequently addressed the issue of whether the accused’s guilty plea to violating the CPPA should be set aside in light of Free Speech Coalition and whether possession of virtual child pornography can properly serve as a basis for a conviction under clause 1 or 2 of Article 134. (64)

The court ultimately concluded that there was no substantial basis for questioning the accused’s guilty plea. (65) The court first highlighted the “critical distinction” between the facts in Irvin and the facts in O’Connor. (66) In 0’Connor, the court noted, the issue concerned the providence of the accused’s plea to violating clause 3 of Article 134 (“crime or offense not capital”), while in Irvin, the accused was charged with violating clauses 1 and 2 of Article 134 (“conduct prejudicial to good order and discipline” or of a “nature to bring discredit upon the armed forces,” respectively). (67) The court then explained that in O’Connor, the accused’s plea was not provident to the clause 3 offense because the Supreme Court had struck down key portions of the definition of “child pornography” that the military judge had used during the plea colloquy. (68) That is, in O’Connor, the court “did not view [the accused’s] plea to violating [the CPPA] as provident where the unconstitutional definition had been used during the plea colloquy and the record contained no discussion or focus on those aspects of the statute that had been upheld by the Supreme Court.” (69) In contrast, the court explained, the criminal conduct in Irwin did not derive from a clause 3, Article 134 charge alleging a violation of the CPPA. (70) Rather, in Irwin, the accused was charged under clauses 1 and 2 of Article 134. (71) More specifically, he was charged with engaging in conduct prejudicial to good order and discipline or of a nature to bring discredit to the armed forces by possessing “visual depictions of minors engaging in sexually explicit conduct.” (72) Thus, the court reasoned, the providence of the accused’s plea should be assessed against the elements of clauses 1 and 2, not the elements of the CPPA offense at issue in Free Speech Coalition and O’Connor. (73)

Specifically addressing any possible impact of Free Speech Coalition on the accused’s plea, the court noted that the military judge, in advising the accused of the elements of the clauses 1 and 2 of Article 134, “did not make any reference to the terms struck down as constitutionally overbroad in Free Speech Coalition.” (74) Rather, the military judge explained the accused’s offense in terms of “visual depictions of minors engaging in sexually explicit conduct.” (75) The court also noted that the accused admitted to the military judge that he knew the images at issue involved actual minors engaging in sexually explicit conduct. (76) The court concluded that these “critical aspects” of how the accused’s case was charged and pleaded served to avoid any impact from Free Speech Coalition or O’Connor. (77)

Having concluded that Free Speech Coalition and O’Connor didn’t impact the accused’s plea, the court addressed the issue of whether “a substantial basis exists for questioning [the accused’s] plea to either the prejudicial to good order and discipline or service-discrediting elements of clauses 1 and 2.” (78) Citing Sapp and Augustine, the court emphasized that the accused had admitted to the military judge that his conduct was service discrediting and prejudicial to good order and discipline. (79) Thus, the court found no substantial basis for questioning the providence of the accused’s guilty plea. (80)

VI. PRACTICALITIES

The Mason and Irvin decisions undoubtedly have practical implications for military justice practitioners charging child pornography cases. The impact may not be as pronounced in cases where the evidence clearly establishes the “actual” character of the images at issue, as the Supreme Court’s decision in Free Speech Coalition didn’t impact Congress’ ban on actual child pornography. (81) However, in cases where the government can reasonably anticipate that defense counsel will contend that the images at issue aren’t real, military justice practitioners would be wise to consider charging the accused’s conduct under clauses 1 and/or 2 of Article 134. (82) Charging the accused’s offense in this manner would eliminate the burden of proving that the images at issue involve actual children. (83) In many cases, the difficulty inherent in proving the “actual” nature of the images at issue may warrant charging the accused’s conduct under clause 1 and/or 2 rather than clause 3, Article 134. (84)

Mason and Irvin also provide practical guidance for trial counsel in guilty plea cases. In cases involving actual child pornography, trial counsel should ensure that the military judge, during the providence inquiry, adequately establishes the “actual” nature of the images at issue, avoiding reference to unconstitutional (or potentially unconstitutional) definitions pertaining to virtual child pornography. (85) Perhaps more importantly, in cases involving virtual pornography, where the offense has been charged under Article 134, clause 1 and/or 2, trial counsel should ensure that the military judge makes the accused aware that his misconduct is being charged under clauses 1 and 2, as conduct that is prejudicial to good order and discipline and/or service-discrediting, rather than as a violation of federal anti-child 86 Trial counsel should also ensure that the military judge pornography statutes. (86) establishes, through the providence inquiry, that the record reflects such facts as are necessary to establish that the accused’s conduct in viewing or possessing the images at issue was indeed prejudicial to good order and discipline and/or service discrediting. (87) Circumstances establishing that an accused’s possession of virtual child pornography was in fact prejudicial to good order and discipline would include, for example, the facts that the accused’s conduct took place while on duty, in uniform, on a government computer, in the workplace, in a foreign county, or in government housing. (88) The accused’s status as an officer (or non-commissioned officer) also appears to be important. (89) Circumstances tending to establish that the accused’s conduct in possessing child pornography was in fact service-discrediting would include, for example, a discussion of the impact on community perception of the military. (90)

VII. CONCLUSION

Like the improvements in computer technology that allowed for the production of virtual child pornography in the first place, the statutory and case law pertinent to child pornography prosecutions are still evolving. (91) Nonetheless, Mason and Irvin provide guidance for military justice practitioners charging or prosecuting these cases. (92) Thus, the astute Chief of Military Justice will, when briefed that an active duty officer has been downloading child pornography from the Internet, turn to Mason and Irvin for guidance in handling the case.

(1) See Todd Carville, The Constitutionality of Criminalizing Virtual Child Pornography, 2002 SYR. J. L. & TECH. 5 (2002) (discussing the Internet’s influence on the proliferation of child pornography).

(2) See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (hereinafter referred to as “Free Speech Coalition”); United States v. O’Connor 58 M.J. 450 (C.A.A.F. 2003).

(3) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004).

(4) United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004).

(5) See, e.g., The Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. [subsections] 2251-2253); The Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204 (1984) (codified as amended at 18 U.S.C. [subsections] 2251-2253).

(6) See Free Speech Coalition, 535 U.S. at 240-42; New York v. Ferber, 458 U.S. 747 (1982). See also John P. Feldmeier, Close Enough for Government Work: An Examination of Congressional Efforts to Reduce the Government’s Burden of Proof in Child Pornography Cases, 30 N. KY. L. REV. 205 (2003) (“For at least 25 years, it has been generally understood that the term ‘child pornography’ applies only to sexually explicit material that depicts actual children, i.e., persons below 18 years of age.”).

(7) Free Speech Coalition, 535 U.S. at 241-42.

(8) See Kelley Bergelt, Comment, Stimulation by Simulation: Is There Really Any Difference Between Actual and Virtual Child Pornography? The Supreme Court Gives Child Pornographers a New Vehicle for Satisfaction, 31 CAP. U. L. REV. 565,566 (2003).

(9) Free Speech Coalition, 535 U.S. at 242.

(l0) 18 U.S.C. [section] 2256(8)(A)-(D) (2000). Although children are not directly harmed by the production of virtual child pornography, Congress concluded that virtual child pornography posed an indirect threat because pedophiles could use such images to entice children to participate in improper sexual activities. Free Speech Coalition, 535 U.S. at 241. Congress further reasoned that proliferation of virtual child pornography might stimulate pedophiles to abuse actual children. Id. Finally, Congress sought to ease the burden on prosecutors who were faced with the challenge of rebutting defendants’ assertions that the images involved in their respective cases were virtual images not involving actual children, Id. at 242. See also Feldmeier, supra note 6, at 205-06.

(11) 18 U.S.C. [section] 2256(8)(A)-(D) (2000).

(12) Free Speech Coalition, 535 U.S. at 243.

(13) Id. Of note, the trade association maintained that its members did not use minors in their sexually explicit productions, but expressed concern that “some of these [productions] might fall within the CPPA’s expanded definition of child pornography.” Id.

(14) Id. at 258.

(15) Id. at 244, 256. The Court noted, for example, that “[e]ven if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie.” Id. at 257.

(16) Id. at 258. That is, the Court found the “appears to be” and “conveys the impression that” language at 18 U.S.C. [section] 2256(8)(B) and (D) to be improper. Id. Of note, following Free Speech Coalition, Congress attempted to correct the constitutional deficiencies identified by the Supreme Court; President Bush signed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT) into law on April 30, 2003. 18 U.S.C. [section] 2252(A)(c) (2000 & Supp. III 2003). In PROTECT, Congress again sought to extinguish the evils of virtual child pornography, this time by proscribing sexually explicit images that are “indistinguishable” from images of actual minors, Id. Congress attempted to alleviate the overbreadth problem inherent in the CPPA by creating the affirmative defense “that the alleged child pornography was not produced using any actual minor or minors. Id. Critics, however, have argued that PROTECT is “largely deficient and will likely be subject to the same fate as the CPPA.” See Feldmeier, supra note 6, at 216-27. Thus, as PROTECT is likely to be challenged, military justice practitioners will need to keep abreast of new developments in this area of law.

(17) See, e.g., United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003).

(18) See, e.g., United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004).

(19) See id.

(20) Id.; United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004).

(21) Mason, 60 M.J. at 16.

(22) Id.

(23) Id. at 17. Article 92 of the UCMJ makes punishable a service member’s failure to obey lawful orders and regulations.

(24) Id. This specification focused on the accused’s participation in the teen chat rooms and his viewing of other materials of a sexual nature. Id. at 17 n. 1.

(25) Id. at 17. Article 134 of the UCMJ prohibits certain improprieties not made punishable by other provisions of the UCMJ. Article 134 contains three clauses that address three categories of offenses: clause 1 proscribes “all disorders and neglects to the prejudice of good order and discipline in the armed forces;” clause 2 proscribes “all conduct of a nature to bring discredit upon the armed forces;” and clause 3 proscribes other “crimes and offenses not capital.”

(26) Id. The military judge explained to the accused that this charge involved child pornography and that the CPPA had been “assimilated” into the UCMJ as “another crime or offense not capital” under Article 134. Id. The military judge also advised the accused of the definitions of “child pornography” contained in the CPPA. Id. Finally, the military judge, in addition to advising the accused of the elements of the CPPA offense, advised the accused of an additional element, stating that “if it is determined that your plea is improvident on the charged offense, since the crime has been charged as an other crime or offense not capital–such conduct was of a nature to bring discredit upon the armed forces or was to the [prejudice] of good order and discipline in the armed forces.” Id.

(27) Id. at n.2.

(28) Id. at 15.

(29) Id. Of note, in the providence inquiry, regarding the Article 134 offense, the accused admitted that he had viewed several pictures of “minors doing lascivious poses” on government computers. Id. at 18. He also admitted in his discussion with the military judge and in his stipulation of fact that the images at issue were “child pornography.” Id. Finally, the accused admitted during his discussion with the military judge that his conduct was of a nature to bring discredit upon the armed forces or was to the prejudice of good order and discipline. Id.

(30) Free Speech Coalition, 535 U.S. 234 (2002).

(31) Mason, 60 M.J. at 15.

(32) United States v. Mason, A.C.M. 34394, 2002 Af. Ct. Crim App. LEXIS 244, at * 29-30 (Jun. 11, 2002) (“While the military judge may have instructed on alternative definitions of child pornography that were later determined to be unconstitutional, those definitions did not play a part in this case.”), aff’d in part and amended in part, Mason, 60 M.J. at 20.

(33) Mason, 60 M.J. at 18.

(34) Id.

(35) Id.; O’Connor, 58 M.J. at 454.

(36) Mason, 60 M.J. at 18.

(37) Id. In this respect, the facts in Mason were indistinguishable from the facts in O’Connor, 58 M.J. 450 (C.A.A.F. 2003). In O’Connor, the accused was convicted of violating the CPPA under Article 134, clause 3. Id. at 452. After the Supreme Court’s decision in Free Speech Coalition, the Court of Appeals for the Armed Forces revisited the case, noting that, in his providence inquiry, the accused, when asked why the materials at issue constituted “child pornography,” explained that the materials “appeared” to involve children. Id. at 453. The military judge inquired no further into the “actual” versus “real” distinction, which the appellate court deemed “perfectly understandable–it had no factual significance to the offenses under the law as it stood at that time.” Id. The court applied the long-standing rule that for a guilty plea to be provident, the accused must be able to articulate all of the facts necessary to establish guilt. Id. Because Free Speech Coalition had made the “actual” character of the pornographic images a necessary element for conviction under the CPPA, and because the record did not sufficiently establish this “actual” character, the court found the accused’s plea improvident. Id. at 454-55. However, the court then inquired into whether the accused’s plea was nonetheless provident to a lesser-included offense under Article 134, clause 2. Id. This issue will be further explored in this note infra.

(38) Mason, 60 M.J. at 18.

(39) Id. As discussed supra at note 25, clause 1 of Article 134 proscribes conduct that is prejudicial to good order and discipline, while clause 2 proscribes service-discrediting conduct.

(40) Mason, 60 M.J. at 18-19; O’Connor; 58 M.J. at 454.

(41) Mason, 60 M.J. at 19; O’Connor, 58. M.J. at 454 (“It is the absence of any discussion of the service-discrediting character of Appellant’s conduct during the providence inquiry coupled with the impact of the Supreme Court’s decision in Free Speech Coalition that gives us pause.”). Notably, the court in O’Connor contrasted the facts in O’Connor with the facts in two similar cases. First, in United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), the Air Force Court of Criminal Appeals had found an accused’s plea to violating the CPPA improvident because the military judge failed to adequately advised the accused of the required elements, but had found his pleas provident to the lesser-included offense of service-discrediting misconduct. Sapp, 53 M.J. at 90. The Court of Appeals for the Armed Forces subsequently upheld the conviction, highlighting the fact that the accused had, during the providence inquiry, “admitted that possession of such depictions of sexually explicit conduct by minors constituted service-discrediting misconduct.” Id. at 91. The court reached a similar conclusion in United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000), where the accused had admitted during the providence inquiry that his conduct was both service-discrediting and prejudicial to good order and discipline. Augustine, 53 M.J. at 96.

(42) Mason, 60 M.J. at 19 (citing O’Connor, 58 M.J. at 455).

(43) Mason, 60 M.J. at 19.

(44) Id.

(45) Id.

(46) Id.

(47) Id. at * 12-13.

(48) Id.; O’Connor, 58 M.J. at 454-55; Sapp, 53 M.J. at 91; Augustine, 53 M.J. at 95.

(49) Mason, 60 M.J. at 19.

(50) Id.

(51) Id. (citing O’Connor, 58 M.J. at 455).

(52) Mason, 60 M.J. at 19-20.

(53) Id.

(54) Id.

(55) Id. The court acknowledged that service members, like civilians, are entitled to First Amendment protections, but it noted that “the different character of the military community and of the military mission requires a different application of those protections.” Id. (quoting Parker v. Levy, 417 U.S. 733, 758 (1947)). Thus, a service member’s conduct in receiving even virtual images of child pornography “can constitutionally be subjected to criminal sanction under the uniquely military offenses embodied in clauses 1 and 2 of Article 134.” Mason, 60 M.J. at 20.

(56) Id. at 19.

(57) Id. at 20.

(58) Id. (finding no “substantial basis in law or fact for questioning the providence of the accused’s plea to a lesser-included offense under clause 1 and 2 of Article 134”).

(59) United States v. Irvin, A.C.M. 34756, 2002 C.C.A. LEXIS 322, at * 2 (Af. Ct. Crim. App. Dec. 13, 2002), aff’d, United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004).

(60) Irvin, 60 M.J. at 24.

(61) Id. at 23. The underlying facts were elicited through a stipulation of fact and an “extensive colloquy” with the military judge, Id. at 25. The accused specifically admitted to the military judge that he knew it was “wrong for an older person to look at minors either nude or partially clothed” and that there was “no doubt” in his mind that the individuals in the images at issue were minors engaged in sexually explicit conduct. Id. Finally, the accused admitted in his stipulation of fact that his possession of the images was prejudicial to good order and discipline and service-discrediting. Id. When the military judge asked the accused why his conduct was prejudicial to good order and discipline and service-discrediting, the ensuing discussion “directly focused on the impact of his conduct on good order and discipline and on community perception of the military.” Id. Of note, prior to accepting the accused’s guilty plea, the military judge also advised him of the elements of the Article 134 offense with which he was charged: first, that he “wrongfully and knowingly possessed visual depictions of minors engaging in sexually explicit conduct;” and, second, that “under the circumstances, [his] conduct was to the prejudice of good order and discipline, or of a nature to bring discredit upon the Armed Forces.” Id. 24. The military judge further advised the accused that “only those acts where the prejudicial effect is reasonably direct and palpable are punishable under Article 134.” Id. The military judge provided a similar explanation with respect to “service-discrediting” conduct. Id.

(62) Id. at 23-24.

(63) Id. at 24.

(64) Id.

(65) Id.

(66) Id. at 25.

(67) Id.

(68) Id.

(69) Id.

(70) Id.

(71) Id. at 25-26.

(72) Id.

(73) Id.

(74) Id.

(75) Id. at 26. More specifically, the military judge defined “visual depiction” using a “blend” of the definition of “visual depiction” contained at 18 U.S.C. [section] 2256(5) and the “opening language” from the definition of “child pornography” at 18 U.S.C. [section] 2256(8). Id. Similarly, the court noted, the military judge’s definition of “sexually explicit conduct” was “drawn from the definition of that term as contained at [section] 2256(2).” The court highlighted that neither of these definitions had been struck down by Free Speech Coalition. Id.

(76) Id.

(77) Id.

(78) Id.

(79) Id.

(80) Id.

(81) Free Speech Coalition, 535 U.S. 234 (2002); O’Connor, 58 M.J. 450 (2003). Thus, in cases where an accused has, for example, admitted to investigators that the children in the images at issue are actual minors, the military justice practitioner could reasonably charge the offense under clause 3, Article 134, with the “crime or offense not capital” being a violation of current federal anti-child pornography legislation. Interview with Christopher M. Schumann, Instructor, Military Justice Division, Air Force Judge Advocate General School, Maxwell AFB (Jun. 29, 2004). Alternately, in cases involving images of a readily identifiable minor (the accused’s neighbor or niece, for example), charging the offense under clause 3 would be reasonable, Id. Of note, even in these cases, the military justice practitioner may reasonably consider charging the offense under clause 1 and/or 2 of Article 134, realizing that trial counsel will have to establish that the accused’s conduct was service-discrediting or prejudicial to good order and discipline (likely not a difficult hurdle in cases involving actual children), Id.

(82) Interview with Christopher M. Schumann, Instructor, Military Justice Division, Air Force Judge Advocate General School, Maxwell AFB (Jun. 29, 2004).

(83) United States v. O’Connor, 58 M.J. 450, 452 (C.A.A.F. 2003) (citing United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F. 2002)) (“The three clauses [of Article 134] do not create separate offenses, but rather provide alternative ways of proving the criminal nature of the charged misconduct.”).

(84) Interview with Christopher M. Schumann, Instructor, Military Justice Division, Air Force Judge Advocate General School, Maxwell AFB (Jun. 29, 2004).

(85) See O’Connor, 58. M.J. at 454-55.

(86) See United States v. Mason, 60 M.J. 15, 19 (C.A.A.F. 2004).

(87) Id. A stipulation of fact as to these elements is not sufficient. O’Connor, 450 M.J. at 454 (holding the accused’s plea improvident to a lesser-included offense under clause 1 or 2, Article 134, even though the accused had stipulated to the service-discrediting nature of his misconduct, because the judge didn’t inquire into this element).

(88) See Mason, 60 M.J. at 20.

(89) See Id.

(90) See Irvin, 60 M.J. at 25. See also United States v. Anderson, — M.J. — (Af. Ct. Crim. App. 2004) (accused admitting, regarding his child pornography offenses, that “what I did, it would make the military look bad” and that the “general public people … view the military partly in light of my actions”).

(91) See Feldmeier, supra note 6, at 216-27.

(92) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004); United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004).

MAJOR DANIEL A. OLSON *

* Daniel A. Olson (B.A., Michigan State University; J.D., Thomas M. Cooley Law School) is a Judge Advocate with the United States Air Force currently assigned as an instructor, Civil Law Division, Air Force Judge Advocate General School, Maxwell AFB. He is a member of the Bar in the state of Michigan.

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