United States v. Beaty , 70 M.J. 39 ( 2011 )

UNITED STATES, Appellee
v.
Caleb B. BEATY, Airman First Class
U.S. Air Force, Appellant
No. 10-0494
Crim. App. No. 37478
United States Court of Appeals for the Armed Forces
Argued December 2, 2010
Decided April 26, 2011
RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and ERDMANN and STUCKY, JJ., joined. BAKER,
J., filed a separate dissenting opinion.
Counsel
For Appellant: Major Darrin K. Johns (argued); Lieutenant
Colonel Gail E. Crawford (on brief); Major Shannon A.
Bennett.
For Appellee: Major Jamie L. Mendelson (argued); Gerald R.
Bruce, Esq. (on brief).
Military Judge: W. Thomas Cumbie
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Beaty, No. 10-0494/AF
Judge RYAN delivered the opinion of the Court.
Pursuant to his plea, Appellant was convicted by a
military judge sitting as a general court-martial on a
single specification charged under clauses 1 and 2 of
Article 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 934 (2006). The specification charged that
Appellant:
did, at or near Hurlburt Field, Florida, between on or
about 12 May 2008 and on or about 22 July 2008, on
divers occasions, wrongfully and knowingly possess one
or more visual depictions of what appears to be a
minor engaging in sexually explicit conduct, which
conduct was prejudicial to good order and discipline
or of a nature to bring discredit upon the Armed
Forces.
Appellant was sentenced to a reduction in grade to E-1,
confinement for ten months, and a bad-conduct discharge.
The convening authority approved the adjudged sentence, and
the Air Force Court of Criminal Appeals (CCA) affirmed.
United States v. Beaty, 2010 CCA LEXIS 123, at *7, 2010 WL
4025786, at *2 (A.F. Ct. Crim. App. Mar. 25, 2010). We
granted review on the following issue:
WHETHER THE SENTENCE MUST BE SET ASIDE BECAUSE THE
MILITARY JUDGE DETERMINED THE SENTENCE BASED ON THE
INCORRECT MAXIMUM PUNISHMENT.
United States v. Beaty, 69 M.J. 199 (C.A.A.F. 2010) (order
granting review).
2
United States v. Beaty, No. 10-0494/AF
Unlike the specification and charge in United States
v. Leonard, 64 M.J. 381 (C.A.A.F. 2007), the specification
in this case charged that Appellant possessed “what appears
to be” child pornography. The military judge calculated a
maximum punishment of ten years of confinement by reference
to 18 U.S.C. § 2252 (2006), which criminalizes possession
of images involving the “use of a minor engaging in sexual
conduct.” § 2252(a)(4)(B).1 The CCA held that a maximum
punishment of ten years of confinement was appropriate by
reference to the Child Pornography Prevention Act of 1996
(CPPA), 18 U.S.C. § 2252A (2006), which was amended to
excise the “appears to be” language in light of the Supreme
Court’s decision in Ashcroft v. Free Speech Coalition, 535
U.S. 234 (2002), see PROTECT Act, Pub. L. No. 108-21, tit.
V, § 502(a)(1), 117 Stat. 650 (2003), and criminalizes only
possession of an image that is or is “indistinguishable
from”2 a minor engaging in sexually explicit conduct.3 See
1
Although the military judge did not state which subsection
of § 2252 he relied upon, the only conduct for which a ten-
year maximum sentence is authorized under § 2252 is
described in subsection (a)(4)(B). See § 2252(b)(2)
(authorizing a ten-year maximum sentence for violations of
subsection (a)(4)).
2
A depiction is not “indistinguishable” unless “an ordinary
person viewing the depiction would conclude that the
depiction is of an actual minor engaged in sexually
explicit conduct.” 18 U.S.C. § 2256(11) (2006).
Moreover, the term “does not apply to depictions that are
drawings, cartoons, sculptures, or paintings depicting
3
United States v. Beaty, No. 10-0494/AF
18 U.S.C. § 2256(8)(B) (2006). Thus, in contrast to
Leonard, the charge and specification here does not
“include the conduct and mens rea proscribed by directly
analogous federal criminal statutes.” 64 M.J. at 384.
I.
The facts relevant to the granted issue are few.
After conducting the providence inquiry, the military judge
asked trial counsel to calculate the maximum punishment.
Relying on 18 U.S.C. § 2252, the federal statute that
prohibits the knowing possession of any visual depiction of
a minor engaging in sexually explicit conduct, and this
Court’s decision in Leonard, trial counsel stated that the
maximum punishment was “a dishonorable discharge, 10 years
confinement, reduction to the rank of E-1, and total
forfeitures.”
Defense counsel argued that because the charged
specification contained the language “appears to be a
minor,” it was not appropriate to look to 18 U.S.C. § 2252for the maximum punishment because the federal statute only
criminalizes visual depictions of actual minors. Instead,
minors or adults.” Id. An image that simply “appears to
be” child pornography, on the other hand, might be a
Renaissance painting. See Ashcroft, 535 U.S. at 241.
3
Contrary to the suggestions by the dissent, United States
v. Beaty, __ M.J. __ (1, 11) (C.A.A.F. 2011) (Baker, J.,
dissenting), the words “indistinguishable from” appear
nowhere in the charge or specification in this case.
4
United States v. Beaty, No. 10-0494/AF
he argued that the charged specification “would be more
akin [to] disorderly conduct where the maximum punishment
would be four months and two-thirds forfeitures.” The
military judge agreed with the Government but gave
Appellant an opportunity to withdraw his guilty plea -- an
opportunity Appellant declined.4
The military judge, for sentencing purposes, sua
sponte purported to excise the “appears to be” language
from this specification as surplusage and then summarily
equated the judicially modified offense with a violation of
18 U.S.C. § 2252.5 The military judge proceeded to find
4
The Government has not argued waiver. Moreover, while it
is apparent from the stipulation of fact and the providence
inquiry that Appellant’s conduct could have supported a
specification alleging possession of visual depictions of
minors engaging in sexual activity, and while the
specification could have been amended by the agreement of
the parties so as to eliminate the “appears to be”
language, see Rule for Courts-Martial (R.C.M.) 603, that
was not done here, and Appellant could only be convicted of
what he was charged with. See United States v. Morton, 69
M.J. 12, 16 (C.A.A.F. 2010) (recognizing that while “an
accused may choose, with convening authority approval, to
plead guilty to any amended specification,” an appellate
court may not “affirm guilt based on an offense with which
the accused has not been charged”).
5
Such unilateral action might constitute a prohibited
substantial change to the charge, see generally R.C.M.
603(d), or otherwise conflict with this Court’s case law.
See generally United States v. Hemingway, 36 M.J. 349, 352
(C.M.A. 1993) (holding that punishment under the Manual for
Courts-Martial, United States (MCM) is to be determined on
the basis of the language of the specification). In any
event, this purported change was not reflected in the
promulgating order and so was, in effect, a nullity.
5
United States v. Beaty, No. 10-0494/AF
Appellant guilty of the specification and the charge, and
sentenced him to be reduced to the grade of E-1, to be
confined for ten months, and to receive a bad-conduct
discharge.
II.
The maximum punishment authorized for an offense is a
question of law, which we review de novo. See United
States v. Ronghi, 60 M.J. 83, 84-85 (C.A.A.F. 2004); United
States v. Ingham, 42 M.J. 218, 229-30 (C.A.A.F. 1995).
While we review a military judge’s sentencing determination
under an abuse of discretion standard, see Leonard, 64 M.J.
at 383-84, where a military judge’s decision was influenced
by an erroneous view of the law, that decision constitutes
an abuse of discretion. See United States v. Cowgill, 68
M.J. 388, 390 (C.A.A.F. 2010).
This Court has repeatedly held that possession of child
pornography, whether actual or virtual, may
constitutionally be prosecuted under clauses 1 and 2,
Article 134, UCMJ. United States v. Brisbane, 63 M.J. 106,
116-17 (C.A.A.F. 2006); United States v. Mason, 60 M.J. 15,
20 (C.A.A.F. 2004); see also United States v. Forney, 67
M.J. 271, 274-75 (C.A.A.F. 2009). This, however, does not
answer the separate question of what the maximum authorized
punishment is in this particular case.
6
United States v. Beaty, No. 10-0494/AF
Article 134, UCMJ, provides:
Though not specifically mentioned in this chapter,
all disorders and neglects to the prejudice of
good order and discipline in the armed forces, all
conduct of a nature to bring discredit upon the
armed forces, and crimes and offenses not capital,
of which persons subject to his chapter may be
guilty, shall be taken cognizance of by a general,
special, or summary court-martial, according to
the nature and degree of the offense, and shall be
punished at the discretion of that court.
Emphasis added. However, Article 56, UCMJ, further
provides:
§ 856. Art. 56. Maximum limits
The punishment which a court-martial may direct
for an offense may not exceed such limits as the
President may prescribe for that offense.
R.C.M. 1003(c), promulgated by the President, provides the
relevant guidance on those limits. Where an offense is
listed in the MCM, Part IV, the maximum punishment is set
forth therein and sets the maximum limits for authorized
punishment. R.C.M. 1003(c)(1)(A)(i). The parties agree
that possession of either child pornography or what appears
to be child pornography is not a listed offense.6
6
The Department of Defense has proposed an amendment to the
MCM that would make child pornography -- including
possessing, receiving, or viewing a visual depiction of “a
minor, or what appears to be a minor” engaging in sexually
explicit conduct -- a listed offense under Article 134,
UCMJ, but the President has not yet promulgated this
proposed change. Manual for Courts-Martial, Proposed
Amendments, 74 Fed. Reg. 47785, 47786 (proposed Sept. 17,
2009).
7
United States v. Beaty, No. 10-0494/AF
For offenses not listed in Part IV, the maximum
punishment depends on whether or not the offense is
included in or closely related to a listed offense.7 R.C.M.
1003(c)(1)(B). We already determined in Leonard that
possession of child pornography is not included in, or
closely related to, a listed offense. 64 M.J. at 383.
Similarly, neither is possession of what appears to be
child pornography. Therefore, R.C.M. 1003(c)(1)(B)(ii)
governs the maximum punishment in this case, and provides:
7
The Government’s argument that it is entitled to the
maximum punishment for a violation of the CPPA because the
offense charged here is “closely related” to that offense
in the United States Code is misplaced. As in Leonard,
“[w]e observe that the ‘closely related’ language [in
R.C.M. 1003(c)(1)(B)(i)] . . . refers to offenses that are
closely related to offenses listed in the MCM,” 64 M.J. at
383 -- not offenses in the United States Code, such as 18
U.S.C. § 2252A. R.C.M. 1003(c)(1)(B)(ii) permits
punishment for an offense “as authorized by the United
States Code.” But cf. United States v. Blevens, 18 C.M.R.
104, 116 (C.M.A. 1955) (upholding the legality of an
Article 134, UCMJ, sentence imposed with reference to the
federal Smith Act, 18 U.S.C. § 2385, which the Court held
provided “an appropriate frame of reference for judging the
seriousness of the offense charged, and for measuring the
punishment,” because the “evil against which the Smith Act
protects is essentially the same as the evil inherent in
the accused’s conduct” without accounting for the different
mens rea between the offense charged and the mens rea
required by the Smith Act). Insofar as Blevens can be read
to import the concept of “closely related” listed offenses
under subparagraph (i) into the different standard chosen
by the President in subparagraph (ii) with respect to
federal offenses, it is at odds with both the text of
R.C.M. 1003(c)(1)(B) and Leonard.
8
United States v. Beaty, No. 10-0494/AF
Not included or related offenses. An
offense not listed in Part IV and not included in
or closely related to any offense listed therein
is punishable as authorized by the United States
Code, or as authorized by the custom of the
service.
First, we disagree that Leonard resolves the maximum
sentence in this case. In Leonard, the specification
alleged every element of the act prohibited by the United
States Code, 18 U.S.C. § 2252(a)(2). Leonard, 64 M.J. at
383 (recognizing that a question exists under R.C.M.
1003(c)(1)(B)(ii) whether possession of child pornography
without an interstate nexus as charged under Article 134,
UCMJ, is punishable under 18 U.S.C. § 2252(a)(2)). We
therefore determined that there was no abuse of discretion
in setting the maximum punishment for a specification and
charge of possession of visual depictions of minors
engaging in sexually explicit activity by reference to the
maximum punishment authorized by 18 U.S.C. § 2252(a)(2),
(b)(1):
We have looked before at the maximum sentence for
offenses charged under clauses 1 or 2 of Article
134, UCMJ, that include the conduct and mens rea
proscribed by directly analogous federal criminal
statutes. In doing so, we focused on whether the
offense as charged is “essentially the same,” as
that proscribed by the federal statute. United
States v. Jackson, 17 C.M.A. 580, 583, 38 C.M.R.
378, 381 (1968); see also United States v.
Williams, 17 M.J. 207, 216-17 (C.M.A. 1984)
(upholding sentence for kidnapping under clauses 1
or 2 by referencing the maximum sentence for a
9
United States v. Beaty, No. 10-0494/AF
violation of the federal kidnapping statute). The
military judge did not err by referencing a
directly analogous federal statute to identify the
maximum punishment in this case, when every
element of the federal crime, except the
jurisdictional element, was included in the
specification.
Id. at 384 (emphases added).
In this case, Appellant was charged with, pleaded
guilty to, and was found guilty of possessing “one or more
visual depictions of what appears to be a minor engaging in
sexually explicit activity.” (Emphasis added.) This is
not the conduct proscribed by the federal statute
referenced by trial counsel and the military judge. The
United States Code does not criminalize possession of “what
appears to be” child pornography. In fact, while such
possession was criminal under a prior version of 18 U.S.C.
§ 2252A, that statute was amended to remove reference to
such conduct. PROTECT Act, Pub. L. No. 108-21, §
502(a)(1), 117 Stat. 650 (replacing the CPPA’s broad
proscription of any image that “appears to be” of a minor
engaging in sexually explicit conduct with the narrower
prohibition of any image that is “indistinguishable from” a
minor, and further defining “indistinguishable” by
specifying that an ordinary person would conclude that the
depiction is of an actual minor and excluding depictions
that are drawings, cartoons, sculptures, or paintings).
10
United States v. Beaty, No. 10-0494/AF
The Government nonetheless argues that possession of
“what appears to be” child pornography is the “same
criminal conduct” as that proscribed in the CPPA. We
disagree, as this argument ignores three salient points.
First, in arriving at the maximum authorized sentence,
the military judge relied upon 18 U.S.C. § 2252(a)(4)(B),
which criminalizes possession of a “visual depiction” if
“(i) the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct.” Such
depictions must involve actual minors. See 18 U.S.C. §
2256(1) (defining “minor” as “any person under the age of
eighteen years”). Unlike § 2252A, § 2252(a)(4)(B) does not
authorize punishment for possession of images that are
“indistinguishable” from images of minors engaging in
sexually explicit conduct. Accordingly, our holding that
the maximum sentence for possession of “what appears to be”
child pornography cannot be determined with reference to §
2252A applies a fortiori to § 2252(a)(4)(B), which
references neither “appears to be” nor “indistinguishable,”
but requires “a minor.”
Second, the prior version of § 2252A proscribed
possession of any depiction that “is, or appears to be, of
a minor engaging in sexually explicit conduct.” 18 U.S.C.
11
United States v. Beaty, No. 10-0494/AF
§ 2256(8)(B) (2000), amended by PROTECT Act, Pub. L. No.
108-21, § 502(a)(1), 117 Stat. 650. This disjunctive
construct illustrates that actual and apparent child
pornography were never considered to be the same by
Congress. CPPA, Pub. L. No. 104-208, § 121(1), 1996
U.S.C.C.A.N. (110 Stat.) 3009-26, 3009-27 (distinguishing
in the congressional findings between the various
rationales for prohibiting sexually explicit images of
“actual children” and those visual depictions that merely
“appear to be children”); see also Reiter v. Sonotone
Corp., 442 U.S. 330, 339 (1979) (“Canons of construction
ordinarily suggest that terms connected by a disjunctive be
given separate meanings, unless the context dictates
otherwise; here it does not.”); Flora v. United States, 362
U.S. 145, 149 (1960) (holding that the word “or” suggests a
disjunctive, rather than a conjunctive, reading).
Finally, the Supreme Court in Ashcroft specifically
held that § 2252A was unconstitutionally overbroad to the
extent it prohibited the possession of what “appears to
be,” rather than actual, child pornography. 535 U.S. at
256; see also United States v. O’Connor, 58 M.J. 450(C.A.A.F. 2003). In response, Congress passed the PROTECT
Act, which, inter alia, removed the “appears to be”
language from the statute. H.R. Rep. No. 108-66, at 60-61
12
United States v. Beaty, No. 10-0494/AF
(2003) (Conf. Rep.), reprinted in 2003 U.S.C.C.A.N. 683,
695-96.
To reiterate, we do not hold that Ashcroft renders
Appellant’s specification unconstitutional. Rather, we
hold that it was error for the military judge to reference
the punishment for 18 U.S.C. § 2252 and error for the CCA
to reference the punishment for the amended 18 U.S.C. §
2252A to determine the maximum punishment in this case,
because under neither statute is the offense with which
Appellant was charged punishable at all. An offense
comprised of acts that cannot be criminally charged under
the United States Code at all is neither “directly
analogous” nor “essentially the same” as one that can be.
In sum, while the Government can charge an offense of
possession of what appears to be child pornography under
Article 134, UCMJ, the maximum punishment under the United
States Code for possession of what “appears to be” child
pornography is, in fact, no punishment at all. It was
error as a matter of law to utilize the punishment
authorized for a violation of the CPPA when setting the
maximum punishment in this case.8
8
The CCA nonetheless affirmed on the basis that the
language in the specification provided fair notice to
Appellant that he was charged with possessing actual child
pornography. Beaty, 2010 CCA LEXIS 123, at *5-*7, 2010 WL
13United States v. Beaty, No. 10-0494/AF
III.
The Government posits that even if it was error to
arrive at the maximum punishment by reference to the CPPA,
it did not prejudice the substantial rights of the accused
because, in the absence of a presidential limitation on the
punishment for the offense, the military judge was free to
award any and all punishment up to the jurisdictional
limits of a noncapital general court-martial -- namely,
life without parole. See Article 18, UCMJ, 10 U.S.C. § 818(2006). We disagree that there is no limitation upon the
maximum punishment for the offense of possessing “what
appears to be” child pornography.
Because Appellant’s offense is (1) not listed in the
MCM, (2) not included in or closely related to any other
4025786, at *2-*3. Accordingly, it concluded that the
gravamen of the charged offense in this case, as in
Leonard, was the same as that proscribed in 18 U.S.C. §
2252A. Id. In our view that conclusion is unwarranted in
light of Congress’s different treatment of “is” and
“appears to be” and the Supreme Court’s decision in
Ashcroft. It is well settled that it is the language of
the specification that governs the maximum punishment, and
that an accused can neither be convicted of nor punished
for an offense with which he is not charged. See generally
U.S. Const. amend. V; Hemingway, 36 M.J. at 352 (holding
that the language of the specification controls the
determination of maximum punishment); cf. also R.C.M.
918(a)(1) (providing that “[e]xceptions and substitutions
[to a specification] may not be used to . . . increase the
seriousness of the offense or the maximum punishment for
it”); supra note 3 (citing Morton, 69 M.J. at 16).
14
United States v. Beaty, No. 10-0494/AF
offense listed in Part IV of the MCM, and (3) not provided
for in the United States Code, the maximum punishment is
that “authorized by the custom of the service.” See R.C.M.
1003(c)(1)(B)(ii). As in Leonard, we are unaware of any
“custom of the service” specific to Appellant’s offense,
see 64 M.J. at 383. In our view this cannot mean that
Article 134, UCMJ, can be read to mean that the maximum
sentence is the jurisdictional maximum of a general court-
martial -- life without parole. See Article 18, UCMJ.
Permitting “discretion of that court” to include a maximum
punishment of life without parole under these circumstances
would violate the rule of lenity by permitting the
imposition of greater punishment for the possession of what
“appears to be” child pornography, an action which Congress
now deems, in accord with Supreme Court precedent, not
criminal, than Congress saw fit to impose for the
possession of actual child pornography. See United States
v. Thomas, 65 M.J. 132, 135 (C.A.A.F. 2007) (noting that
this Court has “long adhered to the principle that criminal
statutes are to be strictly construed, and any ambiguity
resolved in favor of the accused . . . [when] the
legislative intent is ambiguous, we resolve the ambiguity
in favor of the accused.”) (citation omitted).
15
United States v. Beaty, No. 10-0494/AF
Rather, when confronted with Article 134, UCMJ,
offenses not specifically listed, that are not closely
related to or included in a listed offense, that do not
describe acts that are criminal under the United States
Code, and where there is no maximum punishment “authorized
by the custom of the service,” they are punishable as
“general” or “simple” disorders, with a maximum sentence of
four months of confinement and forfeiture of two-thirds pay
per month for four months. See, e.g., United States v.
Melville, 8 C.M.A. 597, 600-02, 25 C.M.R. 101, 104-06
(1958) (holding that the then-unlisted offense of wrongful
cohabitation was a general disorder not “closely related”
to the offense of adultery, and that therefore the maximum
legal sentence was the four months’ confinement authorized
for general disorders instead of the one-year penalty
imposed for adultery); United States v. Oakley, 7 C.M.A.
733, 736, 23 C.M.R. 197, 200 (1957) (holding that the
unlisted offense of solicitation of another to administer
poison is a separate substantive offense under Article 134,
UCMJ, not closely related to the listed offenses of
solicitation to desert or to commit mutiny, and is thus
punishable only as a simple disorder with a maximum
punishment of four months’ confinement and forfeiture of
two-thirds pay for a like period); United States v. Blue, 3
16
United States v. Beaty, No. 10-0494/AF
C.M.A. 550, 552, 556, 13 C.M.R. 106, 108, 112 (1953)
(holding that although the MCM sets out a maximum
punishment of three years of confinement for the listed
Article 134, UCMJ, offense of making, selling, or
possessing official documents with intent to defraud, the
mere wrongful possession of a false pass is a simple
military disorder under Article 134, UCMJ, which carries a
maximum sentence of four months); see also United States v.
Sutter, 3 C.M.R. 809, 813 (A.F.B.R. 1952) (“The maximum
punishment for the disorder . . . not being listed in the
Table of Maximum Punishments or included within an offense
listed or closely related thereto, and not being otherwise
fixed, may not exceed confinement at hard labor for four
months and forfeitures of two-thirds pay per month for four
months.”).
In line with this precedent, the maximum sentence for
Appellant’s offense as charged is four months of
confinement and forfeiture of two-thirds pay per month for
four months -- yet Appellant’s approved sentence included
ten months confinement and a bad-conduct discharge.
Because the imposed sentence exceeded the maximum lawful
sentence, it materially prejudiced Appellant’s substantial
rights. See United States v. Sanders, 67 M.J. 344, 345-46
17
United States v. Beaty, No. 10-0494/AF
(C.A.A.F. 2009); Article 59(a), UCMJ, 10 U.S.C. § 859(a)
(2006).
IV.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed as to the findings, but is
reversed as to the sentence. The sentence is set aside.
The record of trial is returned to the Judge Advocate
General of the Air Force. A rehearing on the sentence may
be ordered.
18
United States v. Beaty, No. 10-0494/AF
BAKER, Judge (dissenting):
Introduction
There are three issues in this case. First, is the
military offense of “possession of visual depictions of what
appears to be a minor engaging in sexually explicit conduct”
charged under Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2006), directly analogous to either 18
U.S.C. § 2252(4) or 18 U.S.C. § 2252A(a)(5)?1 Second, does the
fact that this question arises in the context of a guilty plea
affect the analysis and outcome? Finally, if not, is there an
applicable “punish[ment] . . . authorized by the custom of the
service”? Rule for Courts-Martial (R.C.M.) 1003(c)(1)(B)(ii).
Certainly with respect to § 2252A, the first question is
definitively resolved by the amendments to the Child Pornography
Prevention Act of 1996 (CPPA)2 in the wake of Ashcroft v. Free
Speech Coalition.3 Those amendments changed the definition of
child pornography contained in 18 U.S.C. § 2256(8)(B). At the
1
As the majority has indicated, it is unclear why the lower
court analyzed the issue based on § 2252A when the record
indicates that the trial participants appeared to be referencing
§ 2252. However, regardless of which statutory provision was
relied upon, my position regarding the majority’s analysis is
the same.
2
PROTECT Act of 2003, Pub. L. No. 108-21, § 502(a)(1), 117 Stat.
650 (2003).
3
535 U.S. § 234 (2002).
United States v. Beaty, No. 10-0494/AF
time of Appellant’s court-martial these amendments to the CPPA
criminalized the possession of any visual depiction “that is, or
is indistinguishable from, that of a minor engaging in sexually
explicit conduct . . . such that an ordinary person viewing the
depiction would conclude that the depiction is of an actual
minor engaged in sexually explicit conduct.”4 In this case,
Appellant pleaded guilty to possessing images that “appeared to
be” indistinguishable from minors engaged in sexually explicit
conduct; Appellant also stipulated to possessing pictures and
video of known child pornography victims including a series
involving vaginal, oral, and anal abuse. The stipulated conduct
factually describes the elements of 18 U.S.C. § 2252A(a)(5).
When charging under clauses (1) or (2) of Article 134, UCMJ,
there is no requirement that the specification allege the
elements of an offense using the verbatim language of a federal
statute.
Further, the analysis regarding the import of Ashcroft in
the context of this case is more nuanced than the majority
presents, whether referencing either § 2252 or § 2252A. The
Supreme Court did not hold that the words “appears to be” were
unconstitutional. It held that in the context of the CPPA as
written at that time, these words reached too far in light of
the Court’s prior case law involving pornography and the First
4
18 U.S.C. § 2256(8)(B), (11).
2
United States v. Beaty, No. 10-0494/AF
Amendment as well as the risk that these words might also reach
legitimate expressions in fine art and literature. What
“appears to be” means in Appellant’s specification is a question
of plain English. It should be assessed in the context of Title
18 of the United States Code, as written at the time of
Appellant’s court-martial in 2009, with the benefit and
knowledge of Ashcroft’s constitutional limitations.
In this context, the CPPA is directly analogous to the
offense with which Appellant was charged and to which he
providently pleaded guilty to committing. Therefore, it served
as lawful reference for determining the maximum period of
confinement for Appellant’s offense. As a result, I
respectfully dissent.
Discussion
The essence of the majority’s position is that Ashcroft
“specifically held that § 2252A was unconstitutionally overbroad
to the extent it prohibited the possession of what ‘appears to
be,’ rather than actual, child pornography.” United States v.
Beaty, __ M.J. __ (12). Further, Congress amended the statute
and removed this language. Id. at __ (12). Therefore,
according to the majority, use of these words in a military
criminal allegation charged under clauses 1 and 2 of Article
134, UCMJ, precludes reliance on § 2252A in determining the
maximum period of confinement for this offense: because it is
3
United States v. Beaty, No. 10-0494/AF
not an offense in civilian context it cannot be analogous to any
offense in the military.
I disagree for each of the distinct reasons below. In my
view, the Supreme Court’s concern in Ashcroft was not the mere
words, “appears to be.” Rather, the Court was concerned with
the fact that these words, in the context of the statute as
written at the time, permitted the statute to be read and
applied in too broad a manner -- potentially extending the reach
to images that had been determined to be protected speech under
previous case law. Ashcroft, 535 U.S. at 246.
This is evident in the Court’s analysis of § 2256(8)(B),
where the offending phrase appeared. The Court looked to Miller
v. California, 413 U.S. 15 (1973), and New York v. Ferber, 458
U.S. 747 (1982), to observe with respect to obscenity:
[U]nder [Miller], the Government must prove that the work,
taken as a whole, appeals to the prurient interest, is
patently offensive in light of community standards, and
lacks serious literary, artistic, political, or scientific
value. The CPPA, however, extends to images that appear to
depict a minor engaging in sexually explicit activity
without regard to the Miller requirements.
Ashcroft, 535 U.S. at 246 (citations omitted). Regarding
Ferber, the Court noted that Ferber upheld a prohibition on the
distribution and sale of child pornography, as well as its
production, because these acts were “‘intrinsically related’ to
the sexual abuse of children.” Id. at 249. It concluded that
Ferber “reaffirmed that where the speech is neither obscene nor
4
United States v. Beaty, No. 10-0494/AF
the product of sexual abuse, it does not fall outside the
protection of the First Amendment.” Id. at 251. Thus, although
the Court struck down this provision of the CPPA, it was not the
literal phrase “appears to be,” read in a vacuum, that posed the
problem.
Further, it was on First Amendment grounds that the Court
struck the provision containing the offending phrase. But long
ago the Supreme Court recognized the distinction between the
First Amendment protections of military members as compared with
members of civilian society. In United States v. Forney, the
majority opinion explicitly noted this in the child pornography
context: “That the possession of virtual child pornography may
be constitutionally protected speech in civilian society does
not mean it is protected under military law.” 67 M.J. 271, 275
(C.A.A.F. 2009) (opinion announcing the judgment of the Court).
This means that the scope of punishable child pornography is
broader than that punishable under the CPPA. Thus, the relevant
question is not whether the CPPA punishes images that appear to
be child pornography, but whether it punishes the possession of
child pornography, period. While in civilian law, the
accommodation of First Amendment concerns may require
distinctions between actual and virtual child pornography to
avoid overbreadth, Ashcroft, 535 U.S. at 251, in the military
the First Amendment context is different and the prohibition on
5
United States v. Beaty, No. 10-0494/AF
possessing images depicting child pornography does not
necessarily result in comparable concerns of overbreadth. This
is consistent with the Supreme Court’s assertions that
invalidation due to overbreadth should be used sparingly. See
e.g. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
The fact that the military may define child pornography
more expansively in the context of military life than the CPPA
may do in the context of civilian society, does not mean the
offenses are not analogous for the purpose of determining the
maximum authorized confinement for the offense. Analogous does
not mean “the exact same.” In United States v. Blevens, for
example, this Court held that a statute was sufficiently
analogous as to be “an appropriate frame of reference for
judging the seriousness of the offense charged, and for
measuring the punishment” based on the fact that “[t]he evil
against which the [statute] protects is essentially the same as
the evil inherent in the accused’s conduct.” 5 C.M.A. 480, 492,
18 C.M.R. 104, 116 (1955).5
Blevens is squarely on point: as in the present case, the
offense was not an enumerated offense, was neither included in
5
Blevens was charged under Article 134, UCMJ, with wrongfully,
unlawfully, and knowingly affiliating himself with a group
advocating the violent overthrow of the United States
government. In such a case, like the current Manual for Courts-
Martial (MCM) provision, the 1951 MCM provided that such an
offense may be punished as authorized by the United States Code.
MCM para. 127.c. (1951 ed.).
6
United States v. Beaty, No. 10-0494/AF
nor closely related to such an offense and was not otherwise
listed in the MCM at the time. This Court upheld the use of an
analogous statute at sentencing based on the “evil” the statute
was to address. Blevens remains valid precedent and the
majority’s reason for discarding it is unpersuasive. The
Blevens Court explicitly stated that the concept of a closely
related listed offense was not the basis for its ultimate
holding that “reference to the Smith Act for the purpose of
assessing punishment is entirely proper.” Id.The phrase “appears to be,” outside of the context of §
2256 of the CPPA as written at the time of Ashcroft, has no
significance beyond its ordinary meaning. Consequently, as a
matter of logic with respect to the offense at issue in this
case, such images appear to be what they depict. They continue
to “appear to be” child pornography unless or until the
Government proves them to meet the legal definition (or fails to
do so), or the accused admits that they are what they depict.
Congress’s amendment of § 2256 in the wake of Ashcroft
further supports the point. Indeed, it definitively resolves
the issue as to what is analogous. At the time of Appellant’s
court-martial, the definition of child pornography contained in
§ 2256(8)(B) stated:
(8) “child pornography” means any visual depiction,
including any photograph, film, video, picture, or computer
or computer-generated image or picture, whether made or
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United States v. Beaty, No. 10-0494/AF
produced by electronic, mechanical, or other means, of
sexually explicit conduct, where --
. . . .
(B) such visual depiction is a digital image, computer
image, or computer-generated image that is, or is
indistinguishable from, that of a minor engaging in
sexually explicit conduct[.]
18 U.S.C. § 2256(8)(B) (emphasis added). Later in subsection
(11), the statute defines indistinguishable as follows:
the term “indistinguishable” used with respect to a
depiction, means virtually indistinguishable, in that the
depiction is such that an ordinary person viewing the
depiction would conclude that the depiction is of an actual
minor engaged in sexually explicit conduct. This
definition does not apply to depictions that are drawings,
cartoons, sculptures, or paintings depicting minors or
adults.
18 U.S.C. § 2256(11) (emphasis added). These statutory
definitions clearly envision coverage of images that are
depictions of minors engaged in sexually explicit conduct, and
also depictions that appear to an ordinary person to be so. It
is clear too that both so-called “virtual” images and “real”
images are considered to be child pornography for the purpose of
military prosecutions under Article 134, UCMJ. See United
States v. Brisbane 63 M.J. 106, 116-17 (C.A.A.F. 2006); United
States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004); Forney, 67 M.J.
at 274-75. It follows then, that the phrase “appears to be”
could denote child pornography with known child victims, as well
as depictions that an ordinary person would conclude are of a
8
United States v. Beaty, No. 10-0494/AF
minor engaged in sexually explicit conduct.6 The majority,
however, assumes that use of the phrase “appears to be”
necessarily refers back to the version of the CPPA in effect at
the time Ashcroft was decided, rather than to the version of the
statute in effect at the time the offense in this case was
charged. As a result, the majority’s position assumes that the
charge was drafted with reference to the specific statutory
language that was found unconstitutional in Ashcroft as opposed
to having been drafted in a descriptive manner. Such a
presumption might be well founded if there was a requirement to
incorporate statutory language verbatim into the charging
document; but there is no such requirement. “A specification is
sufficient if it alleges every element of the charged offense
expressly or by necessary implication.” R.C.M. 307(c)(3).
All of this notwithstanding, in the guilty plea context,
reliance on exactly what the accused admits during the plea
inquiry removes any issue or doubt and determines the maximum
authorized punishment. This is, or was, settled law in this
Court. In United States v. James, 55 M.J. 297 (C.A.A.F. 2001),
6
Justice O’Connor, in her concurring and dissenting opinion in
Ashcroft, acknowledged this plain reading explicitly: “The
‘appears to be . . . of a minor’ language in § 2256(8)(B) covers
two categories of speech: pornographic images of adults that
look like children (‘youthful-adult pornography’) and
pornographic images of children created wholly on a computer,
without using any actual children (‘virtual-child
pornography’).” Ashcroft, 435 U.S. at 261 (O’Connor, J.,
concurring and dissenting).
9
United States v. Beaty, No. 10-0494/AF
decided before Ashcroft, the accused pled guilty to possession
of child pornography under 18 U.S.C. § 2252A. The issue was
whether or not the definition of child pornography contained in
that version of the CPPA was constitutional. Following the U.S.
Court of Appeals for the First Circuit and other circuits, we
determined that the definition was constitutional. Ashcroft
overruled this aspect of James. In James, however, we further
held that, “even if the First Circuit’s approach to 18 U.S.C. §
2252A is not followed” the conviction would be valid based on
the fact that “Appellant’s admissions ‘objectively support’ his
pleas of guilty to violations of the more narrowly construed
statute directed at sexual pictures of actual minors.” James,
55 M.J. at 300. We included a citation to United States v.
Shearer, 44 M.J. 330 (C.A.A.F. 1996), for the proposition that
“[a]n inquiry into the providence of a guilty plea must
establish the factual circumstances admitted by the accused
which ‘objectively’ support his plea.” James, 55 M.J. at 300
(quoting Shearer, 44 M.J. at 334).
In the present case, as the majority notes, Appellant’s
plea inquiry revealed that he admitted that the images he
possessed were of real children; in fact, Appellant stipulated
that “[t]he National Center for Missing and Exploited Children
(NCMEC) reviewed the files and identified 14 unique images and
nine unique videos on the Accused’s computer that contained
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United States v. Beaty, No. 10-0494/AF
known child pornography victims.” He further stipulated that
“[f]ive of the NCMEC-identified images and five videos on the
Accused’s computer were from the ‘Vicky Series’ and showed the
sexual abuse of a child victim named [KF] by the victim’s
father, who sexually abused the victim orally, vaginally and
anally when she was between 10 and 11 years of age.” A
statement from KF was attached to the stipulation.
In sum, Appellant was charged with possessing images that
were indistinguishable from and thus appeared to be child
pornography; there was good reason for this, because Appellant
stipulated that the images he possessed consisted of actual
children in sexual acts with adult males. As a result, it is my
view that the offense alleged in this case is more than just
analogous to the offenses set forth in 18 U.S.C. §§ 2252 and
2252A -- it is the same offense.
I would decide this case on this basis. However, the
majority not only maintains that the charge was not analogous to
the amended CPPA, it has also determined that there was no
punishment for this offense authorized by military custom. I
take issue with this assertion as well. In my view, there is a
need to investigate military practice in this area before
concluding there is no service custom. The majority has not
done so.
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United States v. Beaty, No. 10-0494/AF
Custom arises from “long established practices which by
common usage have attained the force of law in the military or
other community affected by them.” MCM pt. IV, para. 60.c.
(2)(b) (2008 ed.).7 In United States v. Leonard, 64 M.J. 381,
383 (C.A.A.F. 2007), we said that it was “at best an open
question” whether there was a service custom regarding
punishment for receiving child pornography under Article 134(1)
or (2) because the proliferation of child pornography via new
media technology was “a relatively recent development.” The
technology that child pornography consumers are using may be
new, but the underlying issue -- “prevention of sexual
exploitation and abuse of children,” Ferber, 458 U.S. at 757 --
is not. The Supreme Court has explicitly recognized child
pornography’s harms for decades, including harm to child victims
as well as a larger societal harm.8 In military law the
maintenance of good order and discipline is an additional
foundational impetus for prosecuting child pornography, and this
interest does not depend on the identification of a known child
victim.
7
With the exception of the substitution of “usage” for “consent”
the definition of custom has remained unchanged since 1951. See
MCM para. 213.b. (1951 ed.).
8
“[The] use of children as . . . subjects of pornographic
materials is very harmful to both the children and the society
as a whole.” S. Rep. No. 95-438, at 5 (1977), reprinted in 1978
U.S.C.C.A.N. 40, 43, quoted in Ferber, 458 U.S. at 758 n.9.
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Given the large number of cases involving child pornography
in the military, particularly since the Internet age, I do not
see how the majority can conclude that there is no custom in
this area without detailed case law analysis -- such a judgment
would seem at least to require analysis of what the service has
done in the past with similar cases. Moreover, the military
has, as a matter of long-standing custom that predates the
enactment of the UCMJ, punished lewd conduct involving children
with a maximum punishment of seven years and a dishonorable
discharge. See MCM, U.S. Army para. 117.c. (1949 ed.) (Table of
Maximum Punishments, § A).
Thus, as Chief Judge Quinn wrote in characterizing the
offense at issue in Blevens, “[i]t shocks reason and conscience
to imply that such conduct is punishable only as a simple
disorder.” 5 C.M.A. at 492, 18 C.M.R. at 116. All the more so
since the offense has not heretofore been punished in that
manner.
13