UNITED STATES, Appellee
v.
Brendan C. FORNEY, Lieutenant Junior Grade
U.S. Navy, Appellant
No. 05-0647
Crim. App. No. 200200462
United States Court of Appeals for the Armed Forces
Argued October 16, 2008
Decided March 26, 2009
STUCKY, J., delivered the judgment of the Court, in which BAKER,
J., joined. EFFRON, C.J., filed a separate opinion concurring
in the result. ERDMANN, J., filed a dissenting opinion in which
RYAN, J., joined.
Counsel
For Appellant: Eugene R. Fidell, Esq. (argued); Lieutenant
Kathleen L. Kadlec, JAGC, USN, Lieutenant Stephen C. Reyes,
JAGC, USNR, Matthew S. Freedus, Esq., and Brent C. Harvey, Esq.
(on brief); Captain James D. Valentine, USMC.
For Appellee: Lieutenant Elliot W. Oxman, JAGC, USN (argued);
Colonel Ralph F. Miller, USMC, Commander Paul C. LeBlanc, JAGC,
USN, Captain Geoffrey S. Shows, USMC, and Lieutenant Mark H.
Herrington, JAGC, USN (on brief); Commander Charles N. Purnell,
JAGC, USN, Lieutenant Justin E. Dunlap, JAGC, USN, Lieutenant
Jessica M. Hudson, JAGC, USNR, and Lieutenant Lars C. Johnson,
JAGC, USNR.
Military Judge: David M. White
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Forney, No. 05-0647/NA
Judge STUCKY delivered the judgment of the Court.
Appellant was convicted of conduct unbecoming an officer
and a gentleman by possessing child pornography. Article 133,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933 (2000).
We granted review to determine whether the military judge erred
by using a federal statute that the Supreme Court subsequently
held to be unconstitutional to define “child pornography.” The
military judge did not err in using the statute to define child
pornography under these circumstances and the possession of
images of virtual children engaged in sexually explicit conduct
may give rise to a conviction for conduct unbecoming an officer
and a gentleman. Therefore, we affirm.
I. Background
Appellant, an active-duty Navy officer, served on the USS
DAVID R. RAY (DD 971). During routine computer-system
maintenance while the ship was underway, the computer
administrator, a noncommissioned officer, discovered that
Appellant was using government computers to download and view
child pornography. Appellant later admitted to Naval Criminal
Investigative Service (NCIS) agents that, although he primarily
downloaded and viewed such images in his stateroom, he also
sometimes used the engineering log room computer. From November
1999 to March 2000, Appellant downloaded approximately 1,700 to
1,800 images of naked, adolescent girls between the ages of ten
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and fifteen years old. As time went on, the images became
increasingly graphic, depicting exposed genitalia or sexual acts
with adults.
In March 2001, a general court-martial with members
convicted Appellant, contrary to his pleas, of engaging in
conduct unbecoming an officer and a gentleman by receiving and
possessing child pornography, and two specifications of
committing a crime or offense not capital, viz., possessing
child pornography in violation of the Child Pornography
Prevention Act of 1996 (CPPA), 18 U.S.C. § 2252A (2000).
Articles 133 and 134, UCMJ, 10 U.S.C. §§ 933, 934 (2000).
Before sentencing, the military judge merged the Article 134
offenses with the Article 133 offense for sentencing purposes.
The members sentenced Appellant to a dismissal and confinement
for twelve months. The convening authority approved the
sentence. On appeal, the United States Navy-Marine Corps Court
of Criminal Appeals (CCA) set aside the Article 134 charge
because the definition of child pornography used in the military
judge’s instruction had subsequently been held unconstitutional
by the Supreme Court in Ashcroft v. Free Speech Coalition, 535
U.S. 234, 240, 256, 258 (2002). United States v. Forney, No.
200200462, 2005 CCA LEXIS 235, at *11, 2005 WL 1800117, at *3
(N-M. Ct. Crim. App. July 19, 2005). The CCA affirmed the
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findings as to the Article 133 offense and affirmed the
sentence. Id. at *23, 2005 WL 180017, at *8.
We remanded the case to the CCA to reconsider its decision
in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006)
(concerning review of unjust post-trial delay claims), and
United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006) (holding
conviction for possession of child pornography under clause 3 of
Article 134, UCMJ, had to be set aside because the trial court
failed to fully and fairly litigate whether the images depicted
actual or virtual children). United States v. Forney, 64 M.J.
177 (C.A.A.F. 2006) (summary disposition). On remand, the CCA
affirmed the findings of guilty to a violation of Article 133,
but granted relief for post-trial delay by affirming only so
much of the sentence as provided for a dismissal. United States
v. Forney, No. 200200462, 2007 CCA LEXIS 349, at *14, *25, 2007
WL 2579429, at *4, *8 (N-M. Ct. Crim. App. Aug. 30, 2007).
II. The Specification and Instructions
The sole specification upon which Appellant now stands
convicted alleged that he did “wrongfully receive and possess
child pornography, as defined in 18 U.S.C. § 2256, which acts or
conduct constituted conduct unbecoming an officer.” Article
133, UCMJ, provides as follows: “Any commissioned officer,
cadet, or midshipman who is convicted of conduct unbecoming an
officer and a gentleman shall be punished as a court-martial may
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direct.” The military judge instructed the court members that
in order to convict Appellant of the offense alleged, they had
to be convinced beyond a reasonable doubt that:
(1) Appellant received and possessed child pornography;
(2) Appellant knew he received and possessed child
pornography;
(3) Appellant knew what he received and possessed was
child pornography;
(4) Appellant’s receipt and possession of the child
pornography was wrongful; and,
(5) Under all the circumstances, Appellant’s conduct was
unbecoming an officer and a gentleman.
The military judge defined conduct unbecoming an officer
and a gentleman as
behavior in an official capacity which, in dishonoring
or disgracing the individual as a commissioned
officer, seriously detracts from his character as a
gentleman, or behavior in an unofficial or private
capacity which, in dishonoring or disgracing the
individual personally, seriously detracts from his
standing as a commissioned officer.
“Unbecoming conduct” means misbehavior more
serious than slight and of a material and pronounced
character. It means conduct morally unfitting and
unworthy, rather than merely inappropriate or
unsuitable misbehavior which is more than opposed to
good taste or propriety.
The military judge defined child pornography to the court
members based on the then-current language of 18 U.S.C. §
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2256(8),1 as follows:
“Child pornography” means any visual depiction,
including any photograph, film, video, picture, or
computer image 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; or
[(B)] Such visual depiction is or appears to
be of a minor engaging in sexually explicit conduct;
or
[(C)] Such visual depiction has been
created, adapted or modified to appear that an
identifiable minor is engaging in sexually explicit
conduct; or
[(D)] That 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.
The military judge further instructed that “[r]eceipt and
possession of child pornography may be inferred to be wrongful
in the absence of evidence to the contrary; however, the drawing
of this inference is not required.”
1
Congress amended this definition in the wake of Free Speech
Coalition, but the amendments are not relevant in this context.
Pub. L. No. 108-21, § 502, 117 Stat. 650, 678 (2003).
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III. Analysis
In his instructions to the court members, the military
judge employed the definition of child pornography then found in
18 U.S.C. § 2256(8), part of the CPPA. More than a year after
Appellant was sentenced, the Supreme Court held that 18 U.S.C. §
2256(8) violated the First Amendment to the extent that it
criminalized the possession and distribution of certain
“virtual” images -- images that were neither obscene nor
produced by the exploitation of actual children. Free Speech
Coalition, 535 U.S. at 240, 256, 258.
Relying on Free Speech Coalition, this Court has set aside
convictions for violations of the CPPA, as crimes or offenses
not capital under clause 3 of Article 134, UCMJ, in which the
court had defined child pornography as including images of
virtual children. See United States v. Mason, 60 M.J. 15, 18
(C.A.A.F. 2004); United States v. O’Connor, 58 M.J. 450, 454
(C.A.A.F. 2003). On the other hand, we have affirmed
convictions for the possession of child pornography charged as
conduct “to the prejudice of good order and discipline in the
armed forces” or as “conduct of a nature to bring discredit upon
the armed forces” under clauses 1 or 2 of Article 134, UCMJ,
without requiring the prosecution to establish that the images
were of actual children. See United States v. Brisbane, 63 M.J.
106, 116-17 (C.A.A.F. 2006); Mason, 60 M.J. at 20 (stating that
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“[t]he receipt or possession of ‘virtual’ child pornography can,
like ‘actual’ child pornography, be service-discrediting or
prejudicial to good order and discipline”). We now hold that
the receipt and possession of virtual child pornography may also
constitute conduct unbecoming an officer.
A. Conduct Unbecoming an Officer
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); Orloff v.
Willoughby, 345 U.S. 83, 94 (1953). That is because the primary
business of the military is to fight and be ready to fight the
nation’s wars. Levy, 417 U.S. at 743 (citing United States ex
rel. Toth v. Quarles, 350 U.S. 11, 17 (1955)). “‘No question
can be left open as to the right to command in the officer . .
..’” Id. at 744 (quoting In re Grimley, 137 U.S. 147, 153
(1890)). An officer’s conduct that disgraces him 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. That is the
gravamen of the offense Congress proscribed in Article 133.
Further, we have held on numerous occasions 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. E.g., United States v. Norvell, 26 M.J.
8
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477, 481 (C.M.A. 1988); United States v. Taylor, 23 M.J. 314,
318 (C.M.A. 1987). As we stated more than forty years ago:
[I]t is evident that the essence of an Article 133 offense
is not whether an accused officer’s conduct otherwise
amounts to an offense -- although, of course, it may -- but
simply whether the acts meet the standard of conduct
unbecoming an officer . . . .
Clearly, then, the appropriate standard for assessing
criminality under Article 133 is whether the conduct or act
charged is dishonorable and compromising as hereinbefore
spelled out -- this notwithstanding whether or not the act
otherwise amounts to a crime.
United States v. Giordano, 15 C.M.A. 163, 168, 35 C.M.R. 135,
140 (1964).
That the possession of virtual child pornography may be
constitutionally protected speech in civilian society does not
mean it is protected under military law. “While 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.” Levy, 417 U.S. at 758.
“Speech 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
(citing United States v. Gray, 20 C.M.A. 63, 42 C.M.R. 255
(1970)). Appellant’s conduct disgraced him personally and
compromised his fitness to command the obedience of his
subordinates.
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B. The Military Judge’s Instruction
Appellant argues that the military judge erred by
instructing the members using the definition of child
pornography found in 18 U.S.C. § 2256(8) that the Supreme Court
held violated the First Amendment’s free speech provision.
Quoting Cendejas, 62 M.J. at 339-40, Appellant asserts that this
definition “‘relieved the Government of its obligation to prove
that the images were of “actual” children beyond a reasonable
doubt in an evidentiary proceeding,’” and “‘removed any
opportunity for [LTJG Forney] to present a defense based on the
“virtual” constitutionally protected nature of the images.’”
“At the very least,” he argues, “the members must be instructed
that the speech (e.g., possession of images of virtual child
pornography) is constitutionally protected but that it could,
nonetheless, constitute conduct unbecoming an officer.”
Appellant’s arguments are based on Cendejas. In that case,
however, the Government charged the accused with violating the
CPPA under clause 3 of Article 134, UCMJ. Id. at 335. When an
accused is charged with violating a civilian statute under the
rubric of clause 3, we must apply the Supreme Court’s
interpretation of that civilian statute. Where the offense does
not allege that the conduct violated a civilian statute, but
instead alleges the conduct itself is unbecoming an officer and
a gentleman or prejudicial to good order and discipline or of a
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nature to bring discredit upon the armed forces, we apply
Supreme Court precedent in the military context.
Neither the UCMJ nor the Manual for Courts-Martial contains
a definition of child pornography, and this Court has not been
called upon to define the term. The Government could have
avoided this issue by alleging Appellant possessed “images of
children engaged in sexually explicit conduct” rather than
alleging he possessed “child pornography, as defined in 18
U.S.C. § 2256.” Nevertheless, it is clear from the
specification as alleged that the Government was not charging
Appellant with a violation of Title 18, but was merely adopting
the definition in 18 U.S.C. § 2256 to explain the term “child
pornography” in the context of a conduct unbecoming an officer
and a gentleman charge under 10 U.S.C. § 933.
As noted earlier, “[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.” Levy, 417 U.S. at 759 (citing Gray, 20 C.M.A. 63,
42 C.M.R. 255). The First Amendment no more protects a military
officer from prosecution under Article 133 for wrongfully
possessing virtual child pornography on government computers on
a Navy warship underway than it protected Captain Levy from
prosecution for making statements to enlisted personnel that he
would not go to Vietnam if ordered to do so. See Levy, 417 U.S.
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at 739 n.6. The military judge did not err by using 18 U.S.C. §
2256 to define child pornography.2
Appellant also argues that the military judge should have
instructed the members that the possession of virtual child
pornography was constitutionally protected, although it could
constitute conduct unbecoming an officer, and that failure to so
instruct prevented him from presenting a defense. Neither the
Supreme Court nor this Court has imposed a general requirement
to instruct on the state of the law in civilian society, even in
cases raising explicit First Amendment issues. See Levy, 417
U.S. 733; United States v. Howe, 17 C.M.A. 165, 37 C.M.R. 429
(1967) (using contemptuous language toward the President and
conduct unbecoming an officer by participating in a public
2
Even if it were error for the military judge to reference the
federal statute in the instruction -- arguably suggesting that
the possession of virtual child pornography was illegal in
civilian society –- we are confident such error was harmless
beyond a reasonable doubt. See Chapman v. California, 386 U.S.
18, 24 (1967). There is no reasonable possibility that any such
error might have contributed to Appellant’s conviction. Id. In
light of the totality of the circumstances -- his receiving and
possessing such images on government computers on a Navy ship
underway, the discovery of the misconduct by an enlisted person
in the performance of his duties, and the focus of the offense
and the military judge’s instructions on the military nature of
the offense -- any such error would have been unimportant in
relation to everything else the jury considered on the issue in
question. Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled
on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4
(1991). A rational court-martial would have found Appellant
guilty absent the alleged error. United States v. McDonald, 57
M.J. 18, 20 (C.A.A.F. 2002) (citing Neder v. United States, 527
U.S. 1, 18 (1999)).
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demonstration contemptuous of the President). That a civilian
may not be subject to criminal liability under Title 18 for the
same conduct that resulted in Appellant’s conviction under
Article 133 is not determinative of whether his conduct was
unbecoming an officer and a gentleman. Appellant would not have
been entitled to present evidence that possession of virtual
child pornography was not an offense in the civilian community
or to have the military judge so instruct, even if he had
requested the instruction, which he did not. It follows that
the military judge did not err by failing to give such an
instruction.3
3
Appellant’s argument that he should have been able to raise
this issue to the members suggests he believes it is a quasi-
affirmative defense to an Article 133 charge -- the members
could, but would not be required to, acquit if they found the
images were of virtual children. However, before a military
judge is required to give an affirmative defense instruction,
there must be some evidence in the record to which the members
might attach credit. See United States v. Van Syoc, 36 M.J. 461,
464 (C.M.A. 1993); accord United States v. Hibbard, 58 M.J. 71,
72 (C.A.A.F. 2003). In this case, there is absolutely no
evidence that the images were or might have been virtual. Thus,
even if Appellant’s quasi-defense were recognized in military
law, and it is not, the military judge would not have been
required to instruct on it.
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IV. Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.4
4
We do not agree that the CCA improperly affirmed on a theory
not presented to the members, viz., that the images were
virtual. The CCA, having found error, was required to assess
prejudice. It did so by considering the case in the light most
favorable to the defense. Forney, 2007 CCA LEXIS 349, at *13,
2007 WL 2579429, at *4. That is not an alternative theory of
the case.
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EFFRON, Chief Judge (concurring in the result):
I agree with the plurality opinion that receipt and
possession of virtual child pornography may be charged as
conduct unbecoming an officer and a gentleman in violation of
Article 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 933 (2000), even though such conduct is not subject to
prosecution in civilian society. United States v. Forney, __
M.J. __ (8-9) (C.A.A.F. 2009). I respectfully disagree,
however, with the plurality opinion’s approval of the military
judge’s instructions, which cited and relied upon a provision of
the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. §
2252A (2000), that was later held to be unconstitutional in
pertinent part by the Supreme Court in Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 256, 258 (2002). Forney, __ M.J. at __
(10-13). For the reasons set forth below, I would find
instructional error, but hold that any error was harmless beyond
a reasonable doubt under the circumstances of this case.
I. BACKGROUND: CHILD PORNOGRAPHY OFFENSES
A. THE RELATIONSHIP BETWEEN CIVIL CRIMES AND MILITARY
OFFENSES UNDER ARTICLES 133 AND 134
Article 134, UCMJ, has served as the primary vehicle for
prosecuting child pornography offenses under the Uniform Code of
Military Justice. 10 U.S.C. § 134 (2000). Under clause 3 of
Article 134 (“crimes and offenses not capital”), members of the
United States v. Forney, No. 06-0647/NA
armed forces may be charged with violating generally applicable
federal criminal statutes, such as the CPPA. See, e.g., United
States v. Wolford, 62 M.J. 418, 423 (C.A.A.F. 2006).
Child pornography offenses also may be prosecuted under
clause 1 of Article 134 (“all disorders and neglects to the
prejudice of good order and discipline”) or clause 2 of Article
134 (“all conduct of a nature to bring discredit upon the armed
forces”). See, e.g., United States v. Irvin, 60 M.J. 23
(C.A.A.F. 2004). Offenses under clauses 1 and 2 may consist of
violations of military-specific norms as well as violations of
civil law. See Manual for Courts-Martial, United States pt. IV,
paras. 60.c(2)(a), 60.c(3) (2008 ed.) (MCM).
As noted in the plurality opinion, child pornography
offenses involving an officer also may be charged under Article
133, UCMJ, 10 U.S.C. § 933 (“conduct unbecoming an officer and a
gentleman”). See Forney, __ M.J. at __ (8-9). As with offenses
under Article 134, offenses under Article 133 may consist of
violations of military-specific norms, as well as violation of
generally applicable criminal laws. See MCM pt. IV, paras.
59.c(2), 59.c(3).
As a matter of proof, the nature of the standard -- whether
the act or omission violated a military-specific norm or a
generally applicable civilian law -- is important. In a
contested case, the court-martial panel must determine whether
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the act or omission occurred, and whether it constituted a
violation of incorporated federal law under Article 134(3), or
whether it was prejudicial to good order and discipline under
Article 134(1), service discrediting under Article 134(2), or
conduct unbecoming an officer and a gentleman under Article 133.
See, e.g., United States v. Cendejas, 62 M.J. 334, 338-40
(C.A.A.F. 2006). In a guilty plea case, the military judge must
ensure that the accused understands and explains why his or her
conduct violated the applicable element. See, e.g., United
States v. Reeves, 62 M.J. 88, 95-96 (C.A.A.F. 2005); United
States v. Martinelli, 62 M.J. 52, 64-67 (C.A.A.F. 2005).
B. PROSECUTION OF CHILD PORNOGRAPHY CASES UNDER THE UCMJ
IN THE AFTERMATH OF ASHCROFT V. FREE SPEECH COALITION
1. The distinction between images of actual children and images
of virtual children
In the CPPA, Congress sought to permit prosecutions
involving pornographic images of real children, as well as
images created without the use of real children -- that is,
“virtual” child pornography. In United States v. James, 55 M.J.
297 (C.A.A.F. 2001), we considered a constitutional challenge to
a child pornography conviction under the CPPA as incorporated in
clause 3 of Article 134, UCMJ. We concluded that such a
prosecution under the CPPA did not violate the First Amendment’s
free speech protections, noting that our decision was consistent
with the views of the majority of the other federal courts of
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appeals that had considered the same issue. Id. at 299-300.
The Supreme Court subsequently reached a different conclusion,
holding that the CPPA was unconstitutionally overbroad under the
First Amendment to the extent that the statute attempted to
reach virtual images. Free Speech Coalition, 535 U.S. at 244-
56. In the aftermath of the Supreme Court’s decision, we
reversed convictions under clause 3 of Article 134 that relied
on incorporation of the unconstitutional provisions of the CPPA.
See, e.g., Cendejas, 62 M.J. at 339-40.
2. Circumstances under which virtual images of child
pornography may constitute a unique military offense
In a separate set of cases, we considered whether members
of the armed forces could be prosecuted under provisions of
military law that did not rely on incorporation of federal
criminal law, such as clauses 1 and 2 of Article 134. We
concluded that offenses involving virtual child pornography
could be charged as conduct prejudicial to good order and
discipline or as service discrediting conduct under clauses 1
and 2 of Article 134 without violating the constitutional rights
of military personnel, relying on the differing constitutional
standards applicable to unique military offenses. See, e.g.,
United States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004) (citing
Parker v. Levy, 417 U.S. 733, 758 (1974)).
4
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Because charges under clauses 1 and 2 require a case-
specific determination by the factfinder as to whether the
conduct was prejudicial or service discrediting, we have
emphasized that the determination as to whether virtual child
pornography was, in fact, a violation of clauses 1 or 2 must be
made by the factfinder on a case-by-case basis. See id. at 19;
United States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006).
Likewise, we have held that in guilty plea cases, the military
judge must ascertain whether the accused can explain during the
plea colloquy why his or her conduct was prejudicial or service
discrediting. See, e.g., Martinelli, 62 M.J. at 64-67; United
States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003).
II. INCORPORATION OF GENERALLY APPLICABLE CRIMINAL LAW
BY THE MILITARY JUDGE IN THE INSTRUCTIONS PROVIDED
IN APPELLANT’S CASE
The offense of conduct unbecoming an officer and a
gentleman under Article 133 consists of two elements:
(1) That the accused did or omitted to do
certain acts; and
(2) That, under the circumstances, these acts or
omissions constituted conduct unbecoming an
officer and gentleman.
MCM pt. IV, para. 59.b.
In his instructions to the panel on the Article 133 charge,
the military judge relied substantially on the text of the CPPA,
a generally applicable criminal statute. With respect to the
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first element under Article 133, the military judge instructed
the members that to convict Appellant, they must find that “the
accused received and possessed child pornography, as defined in
18 U.S. Code Section 2256.” The military judge then inserted a
series of elements concerning knowing receipt and possession of
child pornography, followed by the element of unbecoming
conduct. In the course of explaining the element of knowledge,
the military judge underscored the relationship between Article
133 and the CPPA by noting that “it is not required that the
accused knew of the criminal statute involved.” The military
judge then returned to the definition of child pornography,
advising the members that they must use the definition in “18
U.S. Code, Section 2256.” He set forth the CPPA definition in
detail, including the portions subsequently found to be
unconstitutional in Free Speech Coalition, 535 U.S. at 256, 258.
Subsequently, the military judge used a similar definition in
the course of instructing the members with respect to separate
charges alleging violation of the CPPA as incorporated through
clause 3 of Article 134.
III. DISCUSSION
A. INSTRUCTIONAL ERROR
The plurality opinion’s conclusion that virtual child
pornography offenses may be charged under both Article 133 and
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Article 134, UCMJ, answers the question of whether Appellant
could be convicted under the charge, but does not answer the
question of whether the military judge properly instructed the
panel. See Forney, __ M.J. at __ (7-10). Likewise, the
plurality opinion’s conclusion that the military judge was not
required on his own motion to instruct the panel as to the
constitutionality of the CPPA does not establish the propriety
of the instructions that were given by the military judge. See
id. at __ (11-13).
In addressing the instructional issue, the plurality
opinion states that “Appellant would not have been entitled to
present evidence that possession of virtual child pornography
was not an offense in the civilian community or to have the
military judge so instruct, even if he had requested the
instruction.” Id. at __ (13). The suggestion that a military
accused cannot introduce such evidence is inconsistent with the
scope of proof permitted under Articles 133 and 134. When a
member of the armed forces is charged with a violation of
Article 133 or 134, the court-martial panel may convict the
member on the ground that the conduct at issue violated the
norms of civilian society set forth in a generally applicable
criminal statute, irrespective of any military-specific norm.
See supra Part I.A. Because the panel may convict a member on
the basis that the conduct violates civil law, the accused is
7
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entitled to present evidence that the conduct does not amount to
an offense in civilian society. Cf. Cendejas, 62 M.J. at 339-40
(discussing the right to defend on the theory of civil legality
in the context of an Article 134, clause 3, case). The problem
with the military judge’s instructions in the present case is
not that he permitted the charge to go to the members or that he
omitted any particular instruction. The problem in this case
arises from the inclusion in the instruction of a generally
applicable federal criminal statute that proved to be invalid in
pertinent part.
In cases arising under Articles 133 and 134, UCMJ, a
military judge may appropriately craft an instruction that
refers to and incorporates a generally applicable civil statute.
In some cases, it may be necessary to do so where the proof of
the Article 133 or 134 violation turns on whether the
unbecoming, prejudicial, or service discrediting conduct
violates a civil law. If, however, the statute is invalid in
whole or in part, reference to the statute becomes problematic.
In such a case, the instruction could leave the members with the
view that the charged conduct would violate a valid civil law,
creating the possibility that the members could convict the
accused on the basis of an incorrect understanding of the law.
The present case raises that concern. The repeated
references to the CPPA and statutory criminal conduct could have
8
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left the members with the view that the conduct at issue
violated a valid generally applicable statute, thereby creating
the potential for convicting on grounds that were undermined by
the Supreme Court’s decision in Free Speech Coalition. As noted
in Part I, the decision in Free Speech Coalition does not
preclude a conviction under Articles 133 or 134 for violation of
a military-specific norm, but it does preclude a court-martial
from relying on the existence of a civil norm as the basis for
such a conviction. See Mason, 60 M.J. at 18-20. Accordingly,
reference to the statutory provisions constituted instructional
error in the present case.1
B. PREJUDICE
Although the instruction was incorrect, the conviction may
be affirmed under the particular circumstances of this case
because the instructional error was harmless beyond a reasonable
doubt. When a military judge’s instruction incorrectly
describes elements of an offense, we analyze that error for
prejudice under a standard of harmlessness beyond a reasonable
doubt. United States v. Upham, 66 M.J. 83, 86 (C.A.A.F. 2008)
1
Judge Erdmann, joined by Judge Ryan, makes a similar point,
noting that the record in this case does not establish that the
members gave fair consideration to the nature of the charged
conduct separate from the nature of the offense as a civilian
crime. See Forney, __ M.J. at __ (3-4) (Erdmann, J., with whom
Ryan, J., joins, dissenting). I agree. The end result is that
three judges, a majority of this Court, agree on the nature of
the instructional error in this case. See id. at 4 n.1.
9
United States v. Forney, No. 06-0647/NA
(citing Neder v. United States, 527 U.S. 1, 17 (1999)). Error
is harmless beyond a reasonable doubt when there is no
“reasonable possibility that the evidence [or error] complained
of might have contributed to the conviction.” United States v.
Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967) (brackets in original)). We
consider two factors in analyzing the harmlessness of an
instructional error: “whether the matter was contested, and
whether the element at issue was established by overwhelming
evidence.” Upham, 66 M.J. at 87.
In this case, the question of whether Appellant’s conduct
was unbecoming was not placed at issue during trial. At trial,
the defense focused its argument on factual matters, attacking
the reliability of Appellant’s confessions and suggesting that
others may have performed the downloading. The defense did not
argue that if Appellant had committed the charged acts, the acts
would not have amounted to conduct unbecoming an officer and a
gentleman.
The element of unbecoming conduct was established by
overwhelming evidence. The Government introduced two separate
confessions in which Appellant admitted to Naval Criminal
Investigative Service agents that he received and possessed
child pornography on government computers on his ship. The
Government also introduced testimony regarding how pornographic
10
United States v. Forney, No. 06-0647/NA
images of children were discovered in Appellant’s storage drive,
forensic analysis of the image files, and copies of the image
files themselves. In this case, even if the instruction led the
members to believe that Appellant’s conduct violated a civil
law, there is no reasonable possibility, in the context of all
other evidence presented, that such a belief contributed to
Appellant’s conviction. Given the significant evidence that
Appellant viewed child pornography on government computers on
board a Navy ship underway, in the context of the issues raised
by the defense at trial, we can be confident that the
instructional error was harmless beyond a reasonable doubt with
respect to the panel’s determination that the charged acts
constituted conduct unbecoming an officer and a gentleman. See
Forney, __ M.J. at __ (12 n.2); Moran, 65 M.J. at 187.
Accordingly, I agree with the plurality opinion that the
findings and sentence may be affirmed.
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ERDMANN, Judge, with whom RYAN, Judge, joins (dissenting):
I agree with Judge Stucky that the possession of
pornographic images of virtual children may give rise to a
conviction under Article 133, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 933 (2000), for conduct unbecoming an
officer and a gentleman, even though the First Amendment
protects civilians from criminal prosecution for engaging in
such conduct. United States v. Forney, ___ M.J. ___ (2)
(C.A.A.F. 2008); see United States v. Mason, 60 M.J. 15, 19
(C.A.A.F. 2004). However, using broad strokes, his opinion
essentially concludes that there are no First Amendment concerns
in the context of an Article 133, UCMJ, offense based on
possession of virtual pornographic images and denies any error
in this case. See Forney, ___ M.J. at ___ (10, 12). I cannot
join in those broad conclusions.
While we “have long recognized that the First Amendment
rights of civilians and members of the armed forces are not
necessarily coextensive[,] . . . we must ensure that the
connection between any conduct protected by the First Amendment
and its effect in the military environment be closely examined.”
United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003).
When confronted with these circumstances our precedents require
a careful examination of the First Amendment concerns. See
generally United States v. Wilcox, 66 M.J. 442, 451 (C.A.A.F.
United States v. Forney, No. 05-0647/NA
2008) (concluding that where the record establishes no direct
and palpable connection between the otherwise protected speech
and the military mission or military environment, there can be
no conviction under Article 134, UCMJ, clause 1 or 2).
In this case, the members convicted Forney under Article
134, UCMJ, § 934 (2000), clause 3, of two specifications of
violating 18 U.S.C. § 2252A (2000), due to possession of “images
of child pornography, as defined by 18 U.S.C. 2256.” The
members also convicted Forney of conduct unbecoming an officer
and a gentleman under Article 133, UCMJ, due to possession of
“child pornography, as defined in 18 U.S.C. § 2256.” After
Forney’s trial and while the case was on direct review, the
Supreme Court struck down portions of the definitions in 18
U.S.C. § 2256 (2000), as unconstitutional; as a result,
civilians could not be prosecuted for possession of virtual
images of child pornography. Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002).
In light of Free Speech Coalition and our precedents
applying that decision in the Article 134, UCMJ, clause 3
context, the United States Navy-Marine Corps Court of Criminal
Appeals dismissed the Article 134, UCMJ, specifications in this
case. United States v. Forney, No. NMCCA 200200462, 2005 CCA
LEXIS 235, at *10-*11, *23, 2005 WL 1800117, at *3, *8 (N-M. Ct.
Crim. App. July 19, 2005) (unpublished). But the lower court
2
United States v. Forney, No. 05-0647/NA
ultimately affirmed the conviction under Article 133, UCMJ,
reasoning in part that “[b]ecause the Government did not have an
obligation to establish that any image was of an actual child,
it is not of constitutional significance whether the appellant
had the opportunity to challenge the nature of the images as
virtual.” United States v. Forney, No. NMCCA 200200462, 2007
CCA LEXIS 349, at *13, 2007 WL 2579429, at *4 (N-M. Ct. Crim.
App. Aug. 30, 2007) (unpublished).
On appeal to this court Forney contends, among other
things, that he was denied the right to argue to the members
that the virtual images were constitutionally protected in the
civilian community and that reasonable doubt therefore exists as
to whether possession of constitutionally protected virtual
images would constitute conduct unbecoming an officer and a
gentleman under Article 133, UCMJ, in the military community.
In light of the unique procedural context of this case, I find
this argument to have merit.
After the Supreme Court decided Free Speech Coalition, this
court recognized that the virtual or actual status of child
pornography images has constitutional significance that may bear
on the service discrediting nature of possessing such images.
O’Connor, 58 M.J. at 454-55. Addressing the issue in the
context of plea inquiries where an Article 134, UCMJ, clause 1
or 2 offense relied on the unconstitutional definitions of 18
3
United States v. Forney, No. 05-0647/NA
U.S.C. § 2256, we would not affirm the conviction unless the
record showed a discussion between the military judge and the
accused conspicuously reflecting that the accused understood the
nature of the prohibited conduct separate and apart from its
standing as a civilian offense. Id. at 455; see also United
States v. Martinelli, 62 M.J. 52, 67 (C.A.A.F. 2005).
A comparable analysis seems warranted in the context of
this contested case charging an Article 133, UCMJ, offense and
relying on the unconstitutional definitions of 18 U.S.C. § 2256.
Here too the constitutional significance of the status of
virtual or actual images may, or may not, bear on whether
Forney’s possession of the images warrants criminal penalties as
conduct unbecoming an officer and a gentleman under Article 133,
UCMJ. In both the charges and the member instructions, the
Article 134, UCMJ, clause 3 specifications were intertwined with
the conduct unbecoming specification by means of their mutual
reliance on the unconstitutional definitions under 18 U.S.C. §
2256.1 Therefore, the record does not establish that the members
1
I agree with Part III.A of Chief Judge Effron’s separate
opinion, which concludes that an accused is entitled to present
evidence to show that the conduct in question does not amount to
an offense in civilian society, that reliance on an invalid
federal criminal statute in member instructions constitutes
error, and that the instructions given by the military judge in
the present case were deficient in that regard. See Forney, ___
M.J. at ___ (7-9) (Effron, C.J., concurring in the result).
4
United States v. Forney, No. 05-0647/NA
gave fair consideration to the nature of the prohibited conduct
separate and apart from its standing as a civilian offense.
Under the unique facts of this case and in light of the
narrow issue before us,2 I would find that Forney was deprived of
the chance to argue to the members that his possession of images
of child pornography was constitutionally protected. Because
Forney did not have the opportunity to develop this First
Amendment-based defense on the record before the members,3 I do
not think this court is in a position to evaluate the merits of
such a defense on appeal in an effort to determine whether the
error was harmless beyond a reasonable doubt.4 Accordingly, even
2
We granted review on the following issue:
WHETHER APPELLANT’S ARTICLE 133 CONVICTION CAN BE
SUSTAINED EVEN THOUGH HE PLEADED NOT GUILTY AND THE
SPECIFICATION ON WHICH HE WAS TRIED EXPRESSLY RESTED
ON A STATUTE THAT THE SUPREME COURT HAS FOUND
UNCONSTITUTIONAL.
66 M.J. 466 (C.A.A.F. 2008).
3
Although not necessary in support of my view of this case, I
would note that a similar argument could have been made on
sentencing in an effort to mitigate the gravity of the offense.
4
Judge Stucky asserts that there is no possibility of such a
defense in this case because there is no evidence in the record
that the images were or could have been virtual. Forney, ___
M.J. at ___ (13) n.3. This assertion, however, conflicts with
United States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006)
(finding in a case tried as an Article 134, UCMJ, clause 3
offense that the appellant was improperly denied the
“opportunity . . . to present a defense based on the ‘virtual’
constitutionally protected nature of the images” because the
question of whether the images were virtual or actual was not
litigated at the court-martial).
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United States v. Forney, No. 05-0647/NA
though I agree that possession of virtual images can constitute
the offense of conduct unbecoming an officer and a gentleman if
the Government proves the unbecoming nature of the possession
under the circumstances, I do not believe the record in this
case justifies affirming the conviction on those grounds. As
such, I would reverse the Court of Criminal Appeals, set aside
the findings of guilty and authorize a rehearing.
6