UNITED STATES, Appellee
v.
Gary D. WARNER, Private
U.S. Army, Appellant
No. 13-0435
Crim. App. No. 20120499
United States Court of Appeals for the Armed Forces
Argued September 18, 2013
Decided December 6, 2013
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., and EFFRON, S.J., joined. BAKER, C.J., filed a
separate dissenting opinion.
Counsel
For Appellant: Major Jacob D. Bashore (argued); Colonel Kevin
M. Boyle, Lieutenant Colonel Peter Kageleiry, Jr., Lieutenant
Colonel Jonathan F. Potter, and Captain Susrut A. Carpenter (on
brief); Lieutenant Colonel Imogene M. Jamison.
For Appellee: Captain Kenneth W. Borgnino (argued); Lieutenant
Colonel James L. Varley (on brief); Lieutenant Colonel Amber J.
Roach.
Military Judge: Jeffery R. Nance
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Warner, No. 13-0435/AR
Judge STUCKY delivered the opinion of the Court.
Appellant was convicted, inter alia, of possessing images
“that depict minors as sexual objects or in a sexually
suggestive way,” in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2012). We granted
review to determine (1) whether Appellant had fair notice that
the charged conduct was prohibited and subject to criminal
sanction and (2) whether the evidence of the charged conduct was
legally sufficient. We hold that Appellant was not provided
fair notice that his conduct was subject to criminal sanction.
We therefore need not and do not reach the second issue.
I. Posture of the Case
Contrary to his pleas, Appellant was convicted by a
military judge sitting alone as a general court-martial of one
specification each of possession of child pornography,
possession of images “that depict minors as sexual objects or in
a sexually suggestive way,” obstruction of justice, and
possession of drug paraphernalia, all in violation of Article
134, UCMJ, 10 U.S.C. § 934 (2012). He was sentenced to a bad-
conduct discharge and one hundred days of confinement. The
convening authority approved the adjudged sentence and the
United States Army Court of Criminal Appeals (CCA) affirmed in a
per curiam opinion. United States v. Warner, No. 20120499 (A.
Ct. Crim. App. Feb. 14, 2013) (per curiam).
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II. Background
With respect to the granted issues, Appellant was charged
with the following specifications related to images seized from
certain digital media:
Specification 2: 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 of child pornography, 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.
Specification 3: 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.
To prove these specifications at trial, the Government
introduced the charged images into evidence as Prosecution
Exhibit 7. Prosecution Exhibit 7 contains folders of images
specific to each specification. The folder for Specification 3
contains twenty unique images1 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.
1
The folder contains twenty-three total images, but three are
duplicates.
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While the military judge (MJ) took judicial notice of the
federal definition of child pornography found in 18 U.S.C. §
2252A (2006), for Specification 2, the record contains no
definitions for “sexual objects” or “sexually suggestive.” The
only mention at trial of the conduct charged in Specification 3
occurred during closing arguments, where the Government argued:
And, Your Honor, Specification 3 is child erotica, which
minors portrayed [sic] in sexually suggestive ways, or as
sexual objects, but they may be fully clothed. The photos
on that disc, Prosecution Exhibit 7, contain several images
of child erotica. This is also prejudicial to good order
and discipline, and service discrediting.
The MJ convicted Appellant of both specifications, excepting the
words “being prejudicial to good order and discipline in the
armed forces”; thus the Appellant was convicted of service-
discrediting conduct.
III. Law
Appellant did not object to Specification 3 at trial.
Rather, he first presented the arguments set out in the granted
issues in a motion for reconsideration before the CCA, which was
summarily denied. When not objected to at trial, defects in an
indictment are reviewed for plain error. See United States v.
Cotton, 535 U.S. 625, 631 (2002). Under plain error review,
“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.”
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United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012)
(citation and quotation marks omitted).
IV. Discussion
A. Error
The first and second clauses of Article 134, UCMJ, permit
the criminalization of certain conduct not otherwise prohibited
that is either prejudicial to good order and discipline or
service discrediting. Article 134, UCMJ. 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. United States v. Saunders, 59 M.J. 1, 6
(C.A.A.F. 2003) (citing United States v. Vaughan, 58 M.J. 29, 31
(C.A.A.F. 2003)). However, 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 (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 31.2 The
2
Appellant also contends that the specification is void for
vagueness. While the due process concepts of fair notice and
vagueness are related, see Parker v. Levy, 417 U.S. 733, 757
(1974), we need not decide whether a specification is
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United States v. Warner, No. 13-0435/AR
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.
None of the potential sources identified in Vaughan
provided notice to Appellant that possession of images that
depict minors “as sexual objects or in a sexually suggestive
way” was subject to sanction under Article 134. Although Title
18 of the United States Code addresses at length and in
considerable detail the myriad of potential crimes related to
child pornography, these sections provide no notice that
possession of images of minors that depict no nudity, let alone
sexually explicit conduct, could be subject to criminal
liability. See generally 18 U.S.C. ch. 110 (2012); see also
United States v. Vosburgh, 602 F.3d 512, 538 (3d Cir. 2010)
(noting, in a prosecution for possessing child pornography, that
images of “child erotica” were legal to possess, and admitted
only to show intent to commit the charged offense); United
States v. Gourde, 440 F.3d 1065, 1070 (9th Cir. 2006)
(recognizing that adult pornography and child erotica constitute
“legal content”). Similarly, the Government has identified no
state law that reaches Appellant’s conduct; on the contrary,
each state law identified by the Government requires at least
unconstitutionally vague where, as here, Appellant lacked fair
notice that the alleged conduct was forbidden.
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United States v. Warner, No. 13-0435/AR
that nudity be depicted. This assumes, without deciding, that
state statutes could provide meaningful notice under Article 134
in the face of extremely detailed regulation of this area by
Congress. Finally, nowhere does our case law, customs of the
services, or usage provide notice of criminality with respect to
such material. Cf. United States v. Barberi, 71 M.J. 127, 130
(C.A.A.F. 2012) (holding that images that do not depict a
lascivious exhibition of the genitals or pubic area cannot
constitute child pornography as defined by the federal statute).3
Simply 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.
3
The Government argues that Appellant should have had notice
that his conduct was subject to punishment under Article 134,
UCMJ, based on this Court’s decision in United States v. Mason,
60 M.J. 15 (C.A.A.F. 2004). However, Mason was a case about
plea providence which involved child pornography; notice was
never discussed. There was no question in Mason that the
accused was on notice that the charged conduct was subject to
criminal sanction; he was charged with receipt of child
pornography as defined by the Child Pornography Prevention Act
of 1996, 18 U.S.C. § 2252A (2000). Id. at 17.
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B. Obvious and Prejudicial
At a minimum, an error is “plain” when it is “obvious” or
“clear under current law.” United States v. Olano, 507 U.S.
725, 734 (1993) (quotation marks omitted); see also Henderson v.
United States, 133 S. Ct. 1121, 1130 (2013) (holding that
“whether a legal question was settled or unsettled at the time
of trial, it is enough that an error be plain at the time of
appellate consideration” (quotation marks omitted)). Here, the
due process error -- charging Appellant with conduct which he
lacked fair notice was subject to criminal sanction -- is
obvious under current law: It is well settled, and was well
settled at the time of Appellant’s court-martial, that a
servicemember must have fair notice that an act is criminal
before being prosecuted. See Saunders, 59 M.J. at 6; Vaughan,
58 M.J. at 31. Appellant has further suffered material
prejudice to his substantial rights, as he stands convicted of
the conduct as to which he lacked notice.
V. Decision
The judgment of the United States Army Court of Criminal
Appeals is reversed as to Specification 3 of Charge I and the
sentence. The finding of guilty to Specification 3 of Charge I
is set aside and the specification is dismissed. The judgment
as to the remaining findings is affirmed. The record of trial
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is returned to the Judge Advocate General of the Army for remand
to the Court of Criminal Appeals to reassess the sentence.
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BAKER, Chief Judge (dissenting):
The question presented by this case is whether a reasonable
member of the armed forces would have fair notice that
possession of images charged under Specification 3 were of a
nature to bring discredit upon the armed forces and thus subject
to Article 134 sanction. Article 134, UCMJ, 10 U.S.C. § 934
(2012). Specification 3 charged Appellant with possession of
“some images that depict minors as sexual objects or in a
sexually suggestive way.” 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 PUSSY!” and “MAKE THIS BITCH GIVE
HEAD UNTIL HER FACE TURNS RED!”
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. __ (2,
8) (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. My analysis
follows.
United States v. Warner, No. 13-0435/AR
Section I describes the pictures at issue. Section II
demonstrates that the additional forms of notice discussed in
Vaughan and Saunders are not required because Article 134, UCMJ,
elements provide fair notice where common sense makes their
reach obvious as recognized by the extensive case law of
military courts. United States v. Vaughan, 58 M.J. 29 (C.A.A.F.
2003); United States v. Saunders, 59 M.J. 1 (C.A.A.F. 2003). In
Section III, I discuss the repercussions of this Court’s
adoption of a literal and mechanistic interpretation of Article
134, UCMJ, notice.
I. The Pictures
The questions we need to answer are not whether “child
erotica” is constitutionally protected, whether it is an offense
under Title 18, or whether Appellant was on fair notice that
“child erotica” was service discrediting.1 That is not this
case. Rather, this case is about a specific defendant
possessing specific pictures depicting specific children as
1
Courts examining these questions have struggled to define the
term “child erotica” as well as to define the reach of the law
in civilian context with respect to “child erotica.” I would
too. However distasteful the concept of “child erotica,” the
term covers such a wide range of possible images that it would
be hard to pinpoint just what is included. Moreover, in the
context of the broader child pornography field that is both
highly regulated and nuanced as a result of Supreme Court case
law, it would be hard to determine in the abstract what “child
erotica” would violate Title 18, or for that matter Article 134,
UCMJ, even if one could agree on what the term meant. But that
is not this case.
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charged in a particular specification under Article 134(2),
UCMJ.
Here, Appellant was charged with the possession of twenty-
three specific pictures that depict minor children as sexual
objects or in a sexually suggestive way.2 The majority of these
images feature young girls with barely developed breasts wearing
flimsy G-strings in blatantly sexual poses, often lying atop a
bed, straddling a chair, or pushing up against the floor or
wall. In one such image, a prepubescent girl is shown in split
panels wearing high-heeled red patent leather boots that are
laced to her knees. On the right-hand side panel, she is
standing atop a red, white, and blue-colored banner,
provocatively tugging on a skimpy, flag-themed G-string. Her
legs are slightly bent, and she has hyperextended her torso. On
the left-hand panel of the same image, the girl is shown in a
side-profile bending over with her hands on her knees, glancing
provocatively at the viewer. The following captions are
superimposed on the images, respectively: “YOU WANT SOME PUSSY,
HUH?!” and “WHITE BITCHES GIVE HEAD!”
Another split-image shows a young girl draped across a bed,
her hand resting on her exposed buttocks, and pubic hair visible
through the G-string. To the left of this image, the same girl
is shown in a short skirt and top standing with her legs parted
2
Three images were duplicates.
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and her hands are on her hips edging up her skirt. The
superimposed captions say: “GET SOME PUSSY!” and “WHITE GIRLS
GIVE HEAD!,” respectively.
Indeed, most of the images include aggressive, graphic
commands like “POUND HER PUSSY!,” “100% PUSSY PLUNGING FUN!,”
“PLOW HER PUSSY!!,” “MAKE THIS BITCH GIVE HEAD UNTIL HER FACE
TURNS RED!,” and “THIS GIRL LOVES SUCKING COCK!” The folder and
file names for these images are equally graphic and sexually
charged, consisting of a series of keywords such as “STUPID
YOUNG GIRLS IN THONGS,” “9yo 10yo 11yo,” “White Girl Jailbait
BANG,” “Ass in a THONG,” “kdquality pedo,” and “preteen pussy.”
The question is: would a reasonable servicemember have
fair notice that possession of these images was of a nature to
discredit the armed forces? Answer: Yes.
II. Fair Notice
The majority and the dissent agree that “conduct that is
not specifically listed in the [Manual for Courts-Martial] may
be prosecuted under Article 134.” Saunders, 59 M.J. at 6
(citing Vaughan, 58 M.J. at 31; see Manual for Courts-Martial,
United States pt. IV, para. 60.c(6)(c) (2012 ed.) (MCM)
(permitting the use of specifications not listed in the MCM to
allege offenses not listed in paras. 61–113 as offenses under
clause 1 or 2 of Article 134, UCMJ)). Moreover, “Manual
provisions describing offenses cognizable under Article 134 are
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merely illustrative.” United States v. Johnson, 14 M.J. 1029,
1031 (A.C.M.R. 1982), aff’d, 17 M.J. 251 (C.M.A. 1984) (citing
United States v. McCormick, 12 C.M.A. 26, 28, 30 C.M.R. 26, 28
(1960)).
We also agree that it is an elemental principle of due
process that a defendant charged with an Article 134, UCMJ,
service-discrediting offense must have fair notice that his
conduct was punishable. Vaughan, 58 M.J. at 31 (citing United
States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). Fair
notice can be actual notice, as in the case of a highway speed
limit sign. It can also be constructive in nature. As
reflected in the truism that “ignorance of the law is no
defense,” fair notice and actual notice are not coterminous.
The law provides fair notice where a reasonable person reading
the law and any supporting sources would have knowledge that the
conduct was prohibited.
Notice derives primarily from the elements of the offense
itself. For Article 134(2), UCMJ, the elements are:
(1) That the accused did or failed to do certain
acts; and
(2) That, under the circumstances, the accused’s
conduct was . . . of a nature to bring discredit
upon the armed forces.
MCM pt. IV, para. 60.b.
“Discredit” is defined in the MCM as “to injure the
reputation of.” Id. at para. 60.c(3). The MCM further
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explains, “[t]his clause of Article 134 makes punishable conduct
which has a tendency to bring the service into disrepute or
which tends to lower it in public esteem.” Id.
At the same time, it is well settled at this Court and the
service appellate courts that one can apply common sense to
determine whether a reasonable military member had fair notice
that conduct fell within the reach of Article 134, UCMJ. One
such court held that, “[c]ommon sense, if nothing else, tells us
that appellant’s conduct constitutes a violation of Article 134,
notwithstanding the fact that paragraph 213f of the MCM does not
describe the [specific] offense.” United States v. Gipson, 16
M.J. 839, 841 (N.M.C.M.R. 1983).
Likewise, and most recently, in United States v. Ashby,
this Court held that “common sense supports the conclusion that
[Appellant] was on notice that his conduct violated the UCMJ”
and that there was “no doubt that [Appellant], as a seasoned
officer and aircraft pilot, understood that under the
circumstances his actions would reflect poorly upon him as an
officer and would discredit the service.” United States v.
Ashby, 68 M.J. 108, 119 (C.A.A.F. 2009). In that case, this
Court held that the Appellant -- who was the pilot of an EA–6B
Prowler aircraft that struck weight-bearing cables of a cable
car killing twenty people -- had reasonable notice that taking a
videotape from the aircraft, hiding it in his quarters, and
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United States v. Warner, No. 13-0435/AR
eventually providing the tape to a colleague to “get rid of it”
was both service discrediting and conduct unbecoming an officer
and a gentleman. Id. at 118. In fact, this Court determined
that Appellant’s conduct in “failing to hand over a videotape
that he knew would have evidentiary value in an Italian
investigation violated his official duties.” Id. at 119. Thus,
this Court held that the Appellant could not claim that “he
lacked notice of the criminality of his conduct by virtue of the
absence of the inclusion of foreign criminal proceedings in the
MCM.” Id. at 118.
Similarly, in Anderson, the Air Force Court of Criminal
Appeals held:
In all these instances, before a military member can
be charged with an offense under Article 133 or
Article 134, due process requires that the member have
‘fair notice’ that the conduct at issue is forbidden
and subject to criminal sanction. . . . Put another
way, in the context of Article 134, the issue is
whether a reasonable military member would know that
his or her conduct was service-discrediting (and,
therefore, punishable under the Article).
United States v. Anderson, 60 M.J. 548, 554 (A.F. Ct. Crim. App.
2004) (emphasis added), review denied, 60 M.J. 403 (C.A.A.F.
2004).
Moreover, there is extensive case law supporting common
sense and reasonableness as grounds for fair notice. See United
States v. Sullivan, 42 M.J. 360, 366 (C.A.A.F. 1995) (“Finally,
we turn to appellant’s claim that he was not on fair notice that
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United States v. Warner, No. 13-0435/AR
the conduct alleged in the amended specification was criminal.
In our view, any reasonable officer would know that asking
strangers of the opposite sex intimate questions about their
sexual activities, using a false name and a bogus publishing
company as a cover, is service-discrediting conduct under
Article 134.”); United States v. Hartwig, 39 M.J. 125, 130
(C.M.A. 1994) (“Any reasonable officer would recognize that
sending sexual overtures to a stranger . . . risk[s] bringing
disrepute upon himself and his profession.”); United States v.
Frazier, 34 M.J. 194, 198-99 (C.M.A. 1992) (“Accordingly, we
conclude that a reasonable military officer would have no doubt
that the activities charged in this case constituted conduct
unbecoming an officer.”). See also United States v. Weller, No.
NMCCA 201100043, 2012 CCA LEXIS 154, 2012 WL 1514821 (N-M. Ct.
Crim. App. Apr. 30, 2012), review denied, 71 M.J. 380 (C.A.A.F.
2012) (“The crime of negligent discharge of a firearm is meant
to address a failure to follow well-established safety
precautions as well as common sense, the result being a weapons
discharge that threatens good order and discipline or tends to
discredit the armed forces.”); United States v. McCreight, 39
M.J. 530, 533–34 (A.F.C.M.R. 1994), aff’d, 43 M.J. 483 (C.A.A.F.
1996) (“Customs of the service provide notice to an officer of
what limits exist on relationships with enlisted subordinates
when other regulatory or statutory guidance does not. Customs
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United States v. Warner, No. 13-0435/AR
of the service also provide notice to officers of what behavior
is unbecoming an officer and gentleman, prejudicial to good
order and discipline, and service discrediting.”); United States
v. Johnson, 39 M.J. 1033, 1037–38 (A.C.M.R. 1994) (“Some acts
are inherently prejudicial to good order and discipline or
discrediting to the service. Others require an assessment of
the circumstances surrounding the commission of the offense in
making the determination. Generally, offenses involving moral
turpitude are inherently prejudicial or discrediting.” (internal
citations omitted)). United States v. Guerrero, 33 M.J. 295,
297 (C.M.A. 1991) (agreeing with the appellate court that “it is
reasonable to assume that [Appellant] was well aware that there
were appropriate standards of civilian attire to which sailors
must adhere” and that the “UCMJ had been explained to appellant,
so that he had ‘fair notice’ that conduct prejudicial to good
order and discipline in the armed forces and all conduct of a
nature to bring discredit upon the armed forces were
punishable”).
Where, however, the elements and common sense would not put
a reasonable person on notice as to what is proscribed, some
additional source of notice is required before a person can be
said to be on fair notice that conduct is subject to criminal
sanction. In the context of Article 134, UCMJ, this is of
particular concern given its potential breadth and indeterminate
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United States v. Warner, No. 13-0435/AR
nature. On this basis, this Court looked to additional sources
of notice beyond the elements in two recent cases -- Vaughan and
Saunders -- because it was not obvious and apparent from the
elements of Article 134, UCMJ, alone whether the conduct was
prohibited.
In Vaughan, the defendant was charged with leaving her
forty-seven-day-old baby unattended in a crib at an off-base
residence while she spent nearly six hours at a night club
located ninety minutes away. Vaughan, 58 M.J. at 30. This
Court affirmed the accused’s conviction of child neglect despite
her claim that she did not have fair notice that her conduct [of
child neglect] was subject to criminal sanction under Article
134, UCMJ, and that she did not receive proper notice as to the
specific elements of the offense. Id. at 35–36. In holding
there was sufficient notice, we identified additional potential
sources of notice beyond the elements including the “MCM,
federal law, state law, military case law, military custom and
usage, and military regulations.” Id. at 31. Writing for the
majority, I drew upon Department of Defense (DOD) regulations to
give contextual support for “military custom and usage”
involving the care of dependents. Id. However, Vaughan also
noted with care that these were potential sources of notice, not
required sources of notice. Id. at 33. Six months after
Vaughan, this Court elaborated in Saunders that it “did not
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require notice of specific elements set down in writing before
the offense is committed, only ‘fair notice’ that conduct was
criminal. . . . [s]uch notice could arise from military custom
and usage, which is clearly not defined by elements or with mens
rea specificity.” 59 M.J. at 8.
In the present case -- in addition to fair notice through
the elements and common sense -- we are also able to infer
Appellant had notice through his conduct. Specifically, after
he was reported by a friend and member of the unit, Appellant
contacted a friend and member of his unit to request that he
destroy these images along with others in his collection.
Appellant attempted to destroy the evidence not once, but twice.
The second time was while he was in custody. Finally, he did
not raise the issue of notice until he sought reconsideration
before the CCA. In other words, he was on fair notice until
this Court’s decision in Barberi raised for the first time the
possibility that possession of these types of images did not
meet the definition of pornography under the Child Pornography
Prevention Act (CPPA).3
3
In Barberi -- before the MCM codified the definition -- the
majority qualified its holding by conceding that, “[c]harges for
the possession of child pornography could be brought pursuant to
clauses (1) or (2) of Article 134 without reference to the
definitions laid out in the CPPA, thereby creating a completely
different set of elements required for conviction.” United
States v. Barberi, 71 M.J. 127, 131 (C.A.A.F. 2012).
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Accordingly, the fair notice question in this case is as
follows: Is it obvious and apparent based on the elements and
common sense whether Article 134, UCMJ, would apply to the
charge and images? Or are the charge and images of a sort
requiring some additional source of fair notice? I take the
former position based on the nature of the images described
above. The majority takes the latter position.
III. Implications
The majority’s rigid and formalistic approach to fair
notice in the context of Article 134, UCMJ, if sustained, is
problematic for three reasons.
First, it transforms the test for fair notice by focusing
exclusively on the words contained in a specification rather
than the underlying conduct they describe. Thus, the majority
does not address the pictures in this case at all, but looks
only to the specification’s use of the term “sexually
suggestive” to determine that Appellant was not on fair notice
that his conduct was of a nature to discredit the armed forces.
However, notice is a question that can only be answered by
considering Appellant’s conduct in the context of the
specification; that is, by looking at the images. In short, the
question is not whether an accused is on fair notice that
possession of sexually suggestive pictures is an offense. After
all, much if not most advertising -- including advertising
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geared towards children -- might fall into this description.
The question is whether the possession of these images as
described in the specification as sexually suggestive is an
offense. Yet there is no analysis of the pictures by the
majority.
Second, the majority fails to consider whether and how the
elements of the offense and common sense as applied to these
images would or would not have placed a reasonable member of the
armed forces on notice that his conduct was service
discrediting. Indeed, the elements of the offense and common
sense are the threshold sources of fair notice, before one turns
to the additional sources of notice described in Vaughan and
Saunders. These cases provide a possible reference point to
other sources such as military custom and usage; they do not
artificially curtail all future considerations of custom and
usage to a prefabricated set of formalized, regulatory guidance.
To emphasize, the list in Vaughan and Saunders was inclusive and
not collectively exhaustive such that no other source might
exist, including -- most significantly -- plain English
understanding of the elements of the offense and common sense.
However, the majority appears to require a specific
reference in a specific regulation to the specific conduct --
here, a graphic description of which sexually suggestive images
are prohibited and which portray children as sexual objects.
13
United States v. Warner, No. 13-0435/AR
That is not what Vaughan and Saunders -- or the extensive
history of Article 134, UCMJ, case law, for that matter --
require. In short, an accused is entitled to “fair notice” of
the criminality of conduct charged as service discrediting under
Article 134, UCMJ, but this does not require published notice of
the precise wording of the elements as applied in each and every
context. Saunders, 59 M.J. at 9. “Such a view is consistent
with Article 134’s purpose of capturing service discrediting
conduct that might not have been foreseen by the drafters of the
UCMJ or those charged with its subsequent implementation in
changing and complex military circumstances.” Id.
More fundamentally, however, such a view defeats the
disciplinary purpose of Article 134, UCMJ. The Supreme Court
“has long recognized that the military is, by necessity, a
specialized society separate from civilian society.” Parker v.
Levy, 417 U.S. 733, 743 (1974). At a basic level, this is
because the purpose of the military is to fight the nation’s
wars and “[n]o question can be left open as to the right to
command in the officer.” Id. at 744 (quoting United States v.
Grimley, 137 U.S. 147, 153 (1890)). And “[w]hile the members of
the military are not excluded from the protection granted by the
First Amendment, the different character of the military
community and of the military mission requires a different
application of those protections.” Id. at 758. Accordingly,
14
United States v. Warner, No. 13-0435/AR
“[s]peech that is protected in the civil population may
nonetheless undermine the effectiveness of response to command.
If it does, it is constitutionally unprotected.” Id. at 759
(citations omitted).
This Court recently applied this rationale to an Article
133, UCMJ, violation governing conduct unbecoming to an officer
which functions as a companion to Article 134, UCMJ.4 In broadly
interpreting Article 133, UCMJ, we held conduct that “disgraces
[an officer] personally or brings dishonor to the military
profession affects his fitness to command the obedience of his
subordinates so as to successfully complete the military
mission.” United States v. Forney, 67 M.J. 271, 275 (C.A.A.F.
2009). Finding that conduct “need not be a violation of any
other punitive article of the Code, or indeed a criminal offense
at all, to constitute conduct unbecoming an officer,” this Court
found the accused’s conduct of downloading virtual child
pornography to be a violation of Article 133, UCMJ, even though
“possession of virtual child pornography may be constitutionally
4
In fact, the drafters of the UCMJ noted that the clause
“conduct of a nature to bring discredit upon the armed forces”
was essentially added to the general articles after World War I
by the Judge Advocate General of the Army who urged its
inclusion so as to try retired noncommissioned officers and
soldiers in the same manner as officers would be tried under
Article 133, UCMJ, for conduct unbecoming an officer. Article
134, UCMJ; Charles L. Decker et al., Dep’t of Defense, Legal and
Legislative Basis, Manual for Courts-Martial, United States 294-
95 (1951).
15
United States v. Warner, No. 13-0435/AR
protected speech in civilian society.” Id. I argue this
approach is applicable to Article 134, UCMJ, as well.
To be sure, Article 134, UCMJ, is not a “catchall as to
make every irregular, mischievous, or improper act a court-
martial offense.” United States v. Sadinsky, 14 C.M.A. 563,
565, 34 C.M.R. 343, 345 (1964). But it does serve to allow
commanding officers the flexibility in dealing with improper
behavior from subordinates. For example, the accused in
Sadinksy argued that he did not have fair notice that jumping
from the ship into the sea was violative of Article 134, UCMJ.
The majority of the board of review members agreed that the
specification did not “allege facts bringing the accused’s act
within the prohibition of some order, regulation, or statute
limiting conduct or defining the offense sought to be charged”
thus concluding the specification failed to allege a cognizable
offense. 14 C.M.A. at 566, 34 C.M.R. at 346. But this Court
disagreed. In doing so, we noted that “[t]o superimpose a
requirement that conduct be prohibited by some order,
regulation, or statute in order to fall within the proscription
of the first category of Article 134 would be contrary to the
clear and fair meaning of its terms.” Id. (emphasis added).
Moreover, “[i]f certain acts fell within other specific articles
of the Code, they would, manifestly, be ‘specifically mentioned’
elsewhere in the Code, and be outside the scope of the General
16
United States v. Warner, No. 13-0435/AR
Article.” Id. This Court concluded, “applying such a standard
would effectively emasculate the very essence of Article 134.”
Id.
Nearly fifty years later, we are at risk of doing just
that. As such, I respectfully dissent. There was sufficient
notice using the elements and common sense for a reasonable
member of the armed forces to understand such conduct to be
service discrediting.
17