United States v. Private Gary D. Warner, 73 M.J. 1, Court of Appeals for the Armed Forces, December, 2013

Private Warner was charged with possession of child pornography, obstruction of justice, and possession of (essentially) child erotica.  This last Charge (Specification, in military speak) is the subject of the appeal.  For non-military prosecutors, a quick overview of the charging authority for this type of crime is warranted.

The Uniform Code of Military Justice (UCMJ) http://www.ucmj.us/ sets out the criminal offenses for the Military.  It is part of the larger Manual for Courts-Martial (MCM)(which include the rules of evidence and procedure, as well as historical documents).  http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf.  Offenses in the Military are referred to by both their Article Number (read: Paragraph of the Code) and their name (i.e., Article 120, Rape and Sexual Assault).  There are a number of enumerated offenses, with elements of proof, and maximum possible punishments.  Unique to the Military are two General Article Crimes: Article 133, Conduct Unbecoming an Officer and Gentlemen; and Article 134, General Article.   It is the latter, which is of discussion here.  Because the UCMJ best describes how Article 134 works, I’ll simply paste it here  “(1) In general. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces.  Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. However, see paragraph 59c for offenses committed by commissioned officers, cadets, and midshipmen.”  Military Justice practitioners typically refer to these as either Clause 1 offenses or Clause 2 offenses.

In the instant case, Private Warner was charged under both Clause 1 and Clause 2 for possessing child erotica.   In that [Appellant] did, at or near Fort Riley, Kansas, between on or about 6 April 2009 and on or about 17 November 2010, knowingly possess a Western Digital hard drive bearing serial number WCASU4440064, containing 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.  In order to prove up this offense, the Government submitted the pictures into evidence.  The majority opinion does little to describe these images, so I’ll borrow from the dissent (more on this amazing dissent later.  Spoiler Alert: this case was reversed.) Chief Judge Baker’s dissent describes these images as:  “The images depict young prepubescent and pubescent girls in sexually suggestive positions. In several of these images, girls are dressed as prostitutes in G-strings; one such image even exposes pubic hair, though not the private parts. Superimposed on these images are aggressive commands such as “POUND HER PU$#Y!” and “MAKE THIS BITCH GIVE HEAD UNTIL HER FACE TURNS RED!””

Appellant did not raise his objection to this Specification at trial, nor did he on appeal to the Army Court of Criminal Appeals (ACCA).  Rather, he raised it in a motion to ACCA for reconsideration (which was denied).  So he raises this issue in front of the Court of Appeals for the Armed Forces (CAAF, the last stop before SCOTUS).   Proceeding on a plain error analysis “Appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F.2012).  The majority was concerned that Private Warner had no notice that possession of child erotica was a crime.  Even in the military (despite Article 134) a member must have “fair notice” that something is a crime.   In its very short opinion, the majority held, “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.” Vaughan, 58 M.J. at 31 (quoting United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F.1998) (brackets in original), and citing Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)). Potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations. Vaughan, 58 M.J. at 31  The test for constitutional notice that conduct is subject to criminal sanction is one of law. It does not turn on whether we approve or disapprove of the conduct in question.”

Private Warner had no such notice.  In fact the majority cite several cases which tend to show that possession of child erotica is “legal content.” United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir.2006).  The majority held “[s]imply put, although child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice set out in Vaughan and available to Appellant. It follows that the Appellant received no such notice.”  It was short work then for the rest of the plain error analysis.

Dissents often don’t contribute a whole lot to case law analysis, but Chief Judge Baker’s dissent is so quotable, I am compelled to paste the opening paragraph here. “The majority concludes that Appellant was not on fair notice that possession of these pictures would bring discredit upon the armed forces. United States v. Warner, ––– M.J. ––––, ––––, –––– (C.A.A.F. 2013). I disagree. Any reasonable member of the armed forces (in fact any member of the armed forces) of any grade or service would know that these pictures were service discrediting, based on the elements of Article 134, UCMJ, and common sense. Therefore, I respectfully dissent.”   Well, at least it’s a “respectful” dissent.

Practitioner Notes:  This issue of concern for military prosecutors is how to handle possession of child erotica from here on out.  The good folks at CAAFLOG http://www.caaflog.com/2013/12/09/opinion-analysis-united-states-v-warner-no-13-0435ar-__-m-j-__/#more-24843 hope that prosecutors just won’t charge this anymore.  I tend to think that the military need only address the “notice” issue (say with rapid revision to a regulation, or a General Order) and then be prepared to address the  “direct and palpable effect on the military mission,” if charged under Article 134. See United States v. Wilcox, 66 M.J. 442 (2008). Or instead charge it as a violation of Article 92 Failure to Obey Order or Regulation.  (This is the preferred method for criminalizing consensual sex between Drill Sergeants and Basic Trainees after all).

Reversed as to that specification only, and remanded for sentence reassessment.


This entry was posted in Charging Document, Child Erotica v. Pornography, Defenses, UCMJ. Bookmark the permalink.

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