UNITED STATES, Appellee
v.
Charles J. WOLFORD, Sergeant
U.S. Army, Appellant
No. 04-0578
Crim. App. No. 20001042
United States Court of Appeals for the Armed Forces
Argued November 1, 2005
Decided March 8, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD and EFFRON, JJ., joined. BAKER, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Captain Todd N. George (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, Major Sean S. Park
and Captain Michael L. Kanabrocki (on brief); Colonel John T.
Phelps II.
For Appellee: Captain Edward E. Wiggers (argued); Major William
J. Nelson (on brief); Colonel Steven T. Salata; Lieutenant
Colonel Theresa Gallagher; Captain Mark J. Hamel.
Military Judge: Robert L. Swann
This opinion is subject to revision before final publication.
United States v. Wolford, No. 04-0578/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant Charles J. Wolford entered a plea of not guilty to
sending, receiving, reproducing and possessing child pornography
in violation of the Child Pornography Prevention Act of 1996
(CPPA), 18 U.S.C. § 2252A (2000), charged under clause 3 of
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934 (2000). Wolford was convicted by a special court-martial
comprised of members and was sentenced to be discharged from the
Army with a bad-conduct discharge. The convening authority
approved the sentence and the findings and sentence were
affirmed by the United States Army Court of Criminal Appeals in
an unpublished opinion. United States v. Wolford, No. ARMY
20001042 (A. Ct. Crim. App. Apr. 27, 2004).
A military judge is obligated to “assure that the accused
receives a fair trial.” United States v. Graves, 1 M.J. 50, 53
(C.M.A. 1975). This obligation includes the duty to “provide
appropriate legal guidelines to assist the jury in its
deliberations. . . .” United States v. McGee, 1 M.J. 193, 195
(C.M.A. 1975) (citation omitted). Failure to provide correct
and complete instructions to the panel before deliberations
begin may amount to a denial of due process. United States v.
Jackson, 6 M.J. 116, 117 (C.M.A. 1979).
We granted review in this case to determine whether the
panel was provided with appropriate and constitutionally correct
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United States v. Wolford, No. 04-0578/AR
instructions concerning the definition of the term “child
pornography.” We also considered whether the evidence was
legally sufficient to support Wolford’s conviction on child
pornography charges.1 We find that the military judge’s
instructions did not deprive Wolford of due process and a fair
trial. We also find that images alone can constitute legally
sufficient evidence as to whether an actual child was used to
produce child pornography.
BACKGROUND
From August 1999 to May 2000, Wolford used a Microsoft
Hotmail account to exchange child pornography with individuals
he met through the Internet. One of his emails was discovered
by a woman who contacted the Harris County Sheriff’s Office.
The police, believing that there might be a federal offense
involved, then contacted the U.S. Customs Service, which shares
jurisdiction over CPPA investigations with the Federal Bureau of
1
We granted review of the following issues:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
SUMMARILY AFFIRMING APPELLANT’S CONVICTION UNDER THE CHILD
PORNOGRAPHY [PREVENTION] ACT (CPPA) 18 U.S.C. § 2251 et
seq. (2000) DESPITE THE PRESENTATION OF UNCONSTITUTIONALLY
OVERBROAD INSTRUCTIONS TO THE PANEL THAT, WHEN COUPLED WITH
THE EVIDENCE IN THE RECORD, PERMITTED THE PANEL TO CONVICT
APPELLANT ON BOTH A CONSTITUTIONAL AND UNCONSTITUTIONAL
BASIS.
WHETHER APPELLANT’S CONVICTION UNDER THE CPPA IS NOT
SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE WHERE NO EVIDENCE
WAS INTRODUCED AT TRIAL THAT THE DEPICTIONS WERE, IN FACT,
PRODUCED BY USING REAL CHILDREN AS REQUIRED BY UNITED
STATES v. O’CONNOR, 58 M.J. 450 (C.A.A.F. 2003).
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Investigation and the U.S. Postal Service. The Customs Service
identified Wolford with the help of Microsoft and Wolford’s
Internet service provider. Customs then turned the case over to
the Army’s Criminal Investigation Division (CID).
CID interviewed Wolford, and he admitted to receiving,
viewing, sending and saving approximately 100 images of child
pornography. Wolford later argued that his confession was
coerced and his case went to trial on his plea of not guilty.
At trial, various witnesses testified about how Wolford was
identified, where the images were found on his computer and how
old the girls in the pictures appeared to be based on their
sexual maturity.
DISCUSSION
I. Standard of Review
Defense counsel did not object to the military judge’s
instructions at the time of trial. Even so, “[t]his [c]ourt has
determined that waiver must be established by ‘affirmative
action of the accused’s counsel,’ and not by ‘a mere failure to
object to erroneous instructions . . . .’” United States v.
Smith, 50 M.J. 451, 455-56 (C.A.A.F. 1999) (quoting United
States v. Mundy, 2 C.M.A. 500, 502, 9 C.M.R. 130, 132 (1953))
(emphasis in original). Accordingly, we review Wolford’s
instructional claims de novo. Id. at 455. If instructional
error is found, because there are constitutional dimensions at
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United States v. Wolford, No. 04-0578/AR
play, Wolford’s claims “must be tested for prejudice under the
standard of harmless beyond a reasonable doubt.” United States
v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). “The inquiry for
determining whether constitutional error is harmless beyond a
reasonable doubt is ‘whether, beyond a reasonable doubt, the
error did not contribute to the defendant’s conviction or
sentence.’” Id. (quoting United States v. Kaiser, 58 M.J. 146,
149 (C.A.A.F. 2003)).
With respect to Wolford’s legal sufficiency claim, our test
is “whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
II. Military Judge’s Instructions
Article 51(c), UCMJ, 10 U.S.C. § 851(c) (2000), and Rule
for Courts-Martial (R.C.M.) 920 require the military judge to
instruct the members of the court prior to any deliberations on
findings. The military judge’s instructions are considered a
“vital stage” of any court-martial. United States v. Groce, 3
M.J. 369, 370 (C.M.A. 1977). As we stated above, “[t]he trial
judge’s obligation to provide appropriate legal guidelines to
assist the jury in its deliberations [is] an essential
ingredient of a fair trial.” McGee, 1 M.J. at 195; Graves, 1
5
United States v. Wolford, No. 04-0578/AR
M.J. at 53. The military judge’s instructions are intended to
aid the members in the understanding of terms of art, to
instruct the members on the elements of each offense and to
explain any available defenses. Graves, 1 M.J. at 53; see also
Groce, 3 M.J. at 370-71.
Wolford has made three arguments concerning the military
judge’s instructions. He argued in his brief that the military
judge erred by: (1) using the following introductory language
of 18 U.S.C. § 2256(8) in the instructions -- “any visual
depiction, including . . . [a] computer generated image”; and
(2) using the “conveys the impression” language of § 2256(8)(D)
in the affirmative defense instruction. At oral argument,
Wolford made no reference to the introductory language argument
and conceded that the affirmative defense instruction was not
problematic in the defense’s eyes. He focused instead on the
new argument that even though the military judge omitted the
“conveys the impression” phase from the § 2256(8)(D) definition,
the remaining language in the subsection is unconstitutional.
The military judge gave the following instruction defining
“child pornography”:
Child pornography means any visual depiction,
including any photograph, film, video, picture or
computer generated image or picture, whether made or
produced by electronic, mechanical or other means of
sexually explicit conduct where[:]
6
United States v. Wolford, No. 04-0578/AR
[(A)] the production of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct, or
[(B)] such visual depiction is 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)] such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner
that the material is or contains a visual depiction of
a minor engaging in sexually explicit conduct. The
words child or minor mean any person under the age of
18 years.
At the time of this trial in 2000, the term “child
pornography” was defined in 18 U.S.C. § 2256(8) (amended 2003)
as:
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.
7
United States v. Wolford, No. 04-0578/AR
In United States v. O’Connor, we noted that the Supreme
Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256,
258 (2002), “determined that certain portions of the § 2256(8)
definition are unconstitutional, specifically the ‘or appears to
be’ language of § 2256(8)(B), and the entirety of § 2256(8)(D).”
58 M.J. 450, 452 (C.A.A.F. 2003). We will address each of
Wolford’s arguments in turn.
A. Introductory Language of 18 U.S.C. § 2256(8)
Wolford’s first argument is that the military judge’s use
of the introductory language “any visual depiction, including
. . . [a] computer generated image,” from § 2256(8) was
unconstitutional. The Supreme Court did not address this
introductory language in Free Speech Coalition and instead
focused on the language in 18 U.S.C. § 2256(8)(B) and (D). 535
U.S. at 241-42.
In O’Connor, we noted that the language from § 2256(8) that
was not considered by the Supreme Court “remains subject to
criminal sanction.” 58 M.J. at 452 n.2. Wolford complains that
the reference to “computer generated image” is unconstitutional
based on the Supreme Court’s treatment of § 2256(8)(B) and (D).
However the Supreme Court left intact § 2256(8)(C) which
prohibits computer morphing and therefore some types of
“computer generated images” are not constitutionally protected.
8
United States v. Wolford, No. 04-0578/AR
Thus, it was not error for the military judge to use the
introductory language of § 2256(8) in his instructions.
B. Affirmative Defense Instruction
Wolford next argues that the military judge erred by using
unconstitutional language in his affirmative defense
instructions. During a session pursuant to Article 39(a), UCMJ,
10 U.S.C. § 839(a) (2000), the military judge consulted with
defense counsel before instructing the members and specifically
asked about the need for affirmative defense instructions.
Defense counsel told the military judge that the defense did not
see the need for any affirmative defense instructions. Despite
this response from defense counsel, the military judge included
an affirmative defense instruction based on 18 U.S.C. § 2252A(c)2
for the sending, receiving and reproducing specifications:
You are advised that the evidence has raised the issue
of a defense in relation to this offense. One of the
elements to this offense is that the accused’s act was
wrongful, meaning without legal justification or
excuse. The accused’s act is not wrongful, and the
accused cannot be found guilty of this offense if the
alleged child pornography was produced using an actual
person or persons engaging in sexually explicit
conduct; that each such person was an adult at the
time that the material was produced; and that the
accused did not advertise, promote, present, describe
or distribute the material in such a manner as to
2
Section 2252A(c) was amended in 2003. The statute still
provides an affirmative defense if only actual adults were used
in the production of the images, § 2252A(c)(i)(A)(B) and §
2252A(C)(2), but all reference to the manner in which the images
were advertised, described, presented, promoted or distributed
has been removed from the statute.
9
United States v. Wolford, No. 04-0578/AR
convey the impression it was, or contained, a visual
depiction of a minor engaging in sexually explicit
conduct.
The prosecution’s burden of proof to establish
the guilt of the accused not only applies to the
elements of the offense, but also to the issue of the
defense; therefore, in order to find the accused
guilty, you must be convinced beyond a reasonable
doubt that the defense does not exist.3
Emphasis added.
This affirmative defense instruction contains the language
found in § 2256(8)(D) including the phrase “conveys the
impression” which was found to be unconstitutional. In light of
the Supreme Court’s ruling in Free Speech Coalition, this
language is erroneous. We must decide, however, whether the
error caused material prejudice to any of Wolford’s substantial
rights or whether it was harmless beyond a reasonable doubt.
Kreutzer, 61 M.J. at 298.
We have held that a military judge is “more than a mere
referee.” Graves, 1 M.J. at 53. He is charged with deciding
whether any defense is reasonably raised by the evidence.
United States v. Barnes, 39 M.J. 230, 232-33 (C.M.A. 1994). If
there is “some evidence” of a possible defense –- it does not
have to be compelling or convincing beyond a reasonable doubt –-
the military judge is duty bound to give an instruction even if
3
The military judge used this language in regard to the sending
and receiving specification and referenced it in regard to the
reproducing specification.
10
United States v. Wolford, No. 04-0578/AR
the instruction was not requested by the parties. United States
v. Jackson, 12 M.J. 163, 166-67 (C.M.A. 1981) (citations
omitted). “This [c]ourt reviews a military judge’s decision to
give an instruction . . . de novo.” Smith, 50 M.J. at 455
(citing United States v. Maxwell, 45 M.J. 406, 424-25 (C.A.A.F.
1996)).
The instruction in question provided a defense to Wolford
only if the images in question were created using adult models
who were made to look like children. At trial, a pediatrician,
Lieutenant Colonel Reginald Moore, M.D., testified for the
prosecution. Dr. Moore testified that fifty-five of the eighty-
six images found on Wolford’s computer were of children under
the age of eighteen. Defense counsel’s cross-examination of Dr.
Moore was focused entirely on whether Dr. Moore had seen any of
the pictures he reviewed in Wolford’s case in any previous case.
Defense counsel did not ask any questions that raised the
possibility that any of the images relied upon by the Government
depicted an adult rather than a child. No such evidence or
argument was introduced at any other time. Thus, there was no
evidence in the record of a possible affirmative defense, and
there is simply no danger that the members might have used this
unnecessary, but erroneous, instruction.
The lack of any evidentiary basis combined with defense
counsel’s assurance that no instruction was needed renders the
11
United States v. Wolford, No. 04-0578/AR
military judge’s error harmless beyond a reasonable doubt. Cf.
United States v. Sikorski, 21 C.M.A. 345, 351, 45 C.M.R. 119,
125 (1972) (effect of erroneous instruction need not be
considered where instruction challenged by accused was
specifically requested by him at trial).
C. Constitutionality of 18 U.S.C. § 2256(8)(D) Language
Wolford’s third argument is that the military judge’s use
of the language of § 2256(8)(D) in the instructions is
unconstitutional even though he deleted the “conveys the
impression” phrase. As noted earlier in this opinion, in
O’Connor we stated that the Supreme Court in Free Speech
Coalition had found “the ‘or appears to be’ language of §
2256(8)(B), and the entirety of § 2256(8)(D)” to be
unconstitutional. 58 M.J. at 452. Based upon that language,
Wolford argues that the mere deletion of the phrase “conveys the
impression” from § 2256(8)(D) does not remedy the constitutional
infirmity. However, upon a close reading of Free Speech
Coalition, it is clear that the Supreme Court’s concern with §
2256(8)(D) centered on the “conveys the impression” language.
Their discussion focused on the impact of this language and how
it addressed how speech was presented, not on what was actually
depicted. 535 U.S. at 257-59.
Since the issuance of O’Connor, we have adopted this
narrower interpretation of the Supreme Court’s treatment of §
12
United States v. Wolford, No. 04-0578/AR
2256(8)(D). In both United States v. Cook, 60 M.J. 130
(C.A.A.F. 2004) (summary disposition) and United States v.
Lowrance, 60 M.J. 129 (C.A.A.F. 2004) (summary disposition),
this court affirmed guilty plea convictions under the CPPA where
the military judge omitted the phrase “conveys the impression”
from the language of § 2256(8)(D), but used the remaining
language from the definition. Here the military judge’s
instruction did not use “conveys the impression” language that
was the focus of the Supreme Court’s finding of
unconstitutionality. Accordingly, the military judge’s
instruction on the definition of “child pornography” was not
erroneous.
III. Legal Sufficiency
Wolford argues the evidence that the images were created
using actual children was not legally sufficient. The
Government takes the position that a factfinder has the
prerogative to decide without expert testimony whether images of
child pornography are actual or virtual.
We recently addressed this issue in United States v.
Cendejas, 62 M.J. 334 (C.A.A.F. 2006). In Cendejas, we held
that the finder of fact can make a determination that an actual
child was used to produce the images in question based upon a
review of the images alone. Id. at 338. The images introduced
by the prosecution in Wolford’s case were sufficient to enable a
13
United States v. Wolford, No. 04-0578/AR
reasonable factfinder to find guilt beyond a reasonable doubt.
Turner, 25 M.J. at 324. Accordingly, the evidence was legally
sufficient to support the members’ verdict that Wolford was
guilty of sending, receiving, reproducing and possessing child
pornography.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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BAKER, Judge (concurring in result):
Having previously concluded that the Supreme Court found
“the ‘or appears to be’ language of § 2256(8)(B), and the
entirety of § 2256(8)(D)” to be unconstitutional, United States
v. O'Connor, 58 M.J. 450, 452 (C.A.A.F. 2003), this Court now
takes the view that “the Supreme Court’s concern with §
2256(8)(D) centered on the ‘conveys the impression’ language.”
United States v. Wolford, 62 M.J. __ (12)(C.A.A.F. 2006). As a
result, this Court concludes that the military judge’s
instruction using the other elements of § 2256(8)(D) “was not
erroneous.” Id. at __ (13).
According to the Supreme Court in Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 258 (2002):
Section 2256(8)(D), however, prohibits a substantial amount
of speech that falls outside Ginzburg’s rational.
Materials falling within the proscription are tainted and
unlawful in the hands of all who receive it, though they
bear no responsibility for how it was marketed, sold, or
described. The statute, furthermore, does not require that
the context be part of an effort at “commercial
exploitation.” Ibid. As a consequence, the CPPA does more
than prohibit pandering. It prohibits possession of
material described, or pandered, as child pornography by
someone earlier in the distribution chain. The provision
prohibits a sexually explicit film containing no youthful
actors, just because it is placed in a box suggesting a
prohibited movie. Possession is a crime even when the
possessor knows the movie was mislabeled. The First
Amendment requires a more precise restriction. For this
reason, § 2256(8)(D) is substantially overbroad and in
violation of the First Amendment.
United States v. Wolford, No. 04-0578/AR
Although the Supreme Court’s focus in Free Speech Coalition was
indeed on the “conveys the impression” language, the Court’s
constitutional concern extended beyond this language.
Otherwise, the Court would not have held the entirety of §
2256(8)(D) “substantially overbroad and in violation of the
First Amendment,” nor expressed concern with the section’s
language on pandering. Whatever this Court’s prior views as
expressed in United States v. James, 55 M.J. 297 (C.A.A.F.
2001), as a subordinate court we do not have the luxury of
choosing or delimiting the Supreme Court’s constitutional
conclusion that § 2256(8)(D), as a whole, is overbroad and
unconstitutional. United States v. Irving, 432 F.3d 401, 411
(2d Cir. 2005) (assuming both sections found unconstitutional);
United States v. Bach, 400 F.3d 622, 630 (8th Cir. 2005)
(commenting that Supreme Court held both sections in their
entirety unconstitutional); United States v. Wyatt, 64 F. App’x
350, 351 (4th Cir. 2003) (commenting that Supreme Court
invalidated both sections); United States v. Kelly, 314 F.3d
908, 910 (7th Cir. 2003) (commenting that Supreme Court struck
down “the provisions of the CPPA that expanded the definition of
child pornography to include virtual images”); United States v.
Hall, 312 F.3d 1250, 1259 (11th Cir. 2002) (commenting that
Supreme Court “struck down as unconstitutional the words ‘or
appears to be’ from the definition of child pornography
2
United States v. Wolford, No. 04-0578/AR
contained in § 2256(8)(B) and the entire definition of child
pornography in § 2256(8)(D)”).
Nonetheless, I would affirm Appellant’s conviction on the
ground that any instructional error on the potential defense was
harmless beyond a reasonable doubt. In United States v.
Martinelli, 62 M.J. 52 (C.A.A.F. 2005), albeit in the context of
a guilty plea, we expressly left open the possibility of such a
situation. In upholding Martinelli’s plea we noted “the absence
of any focus on the ‘actual’ versus ‘virtual’ nature of the
images, the use of the unconstitutional definition of ‘child
pornography,’ and the absence of anything in the record that
would demonstrate that Martinelli pled guilty to a
constitutionally defined violation of federal law. Id. at 65.
Applying this same reasoning to this contested case, I am
confident that the use of the erroneous instruction on the
potential defense incorporating some but not all of the language
in § 2256(8)(D) was harmless beyond a reasonable doubt. The
Government did not argue that Appellant had advertised,
promoted, presented, described, or distributed the pictures in
question “in such a manner that the material is or contains a
visual depiction of a minor engaging in sexually explicit
conduct.” 18 U.S.C. § 2256(8)(D) (amended 2003). There was no
evidence presented that Appellant was being charged for
possessing material based on the manner in which someone earlier
3
United States v. Wolford, No. 04-0578/AR
in the pornography food chain described it. Finally, Appellant
did not defend on either basis. Apparently the defense theory
was that the images were of actual children and the defense
focused on challenging Appellant’s knowledge that he possessed
the images. Thus, the record is clear that Appellant was
charged, and convicted, for possessing pictures of actual minors
engaged in sexually explicit conduct.
4