United States v. Cendejas , 62 M.J. 334 ( 2006 )

UNITED STATES, Appellee
v.
Javier CENDEJAS, Staff Sergeant
U.S. Air Force, Appellant
No. 04-0428
Crim. App. No. 34864
United States Court of Appeals for the Armed Forces
Argued October 20, 2005
Decided February 8, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a dissenting opinion.
Counsel
For Appellant: Major Karen L. Hecker (argued); Colonel Beverly
B. Knott, Colonel Carlos L. McDade, Major Antony B. Kolenc,
Major Terry L. McElyea, Major James M. Winner, and Major Sandra
K. Whittington (on brief).
For Appellee: Major Matthew S. Ward (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer,
Major Steven R. Kaufman, and Major Michelle M. McCluer (on
brief); Colonel LeEllen Coacher.
Military Judge: Gregory E. Pavlik
This opinion is subject to revision before final publication.
United States v. Cendejas, No. 04-0428/AF
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Javier Cendejas pled guilty and was
convicted of violating a lawful general order concerning the use
of government computers in violation of Article 92, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 892 (2000). Cendejas
pled not guilty but was convicted of possessing child
pornography in violation of the Child Pornography Prevention Act
of 1996 (CPPA), 18 U.S.C. § 2252A(a)(5)(B) (2000), communicating
indecent language to a child under sixteen and attempted
communication of indecent language to a child under sixteen in
violation of Articles 80 and 134, UCMJ, 10 U.S.C. §§ 880, 934
(2000). Cendejas, who was tried by a military judge alone, was
sentenced to a dishonorable discharge, fifty-four months of
confinement, forfeiture of all pay and allowances and a
reduction in grade to E-1. The convening authority approved the
sentence and the United States Air Force Court of Criminal
Appeals affirmed the findings and sentence in an unpublished
opinion. United States v. Cendejas, No. ACM 34864, 2004 CCA
LEXIS 50, 2004 WL 388960 (A.F. Ct. Crim. App. Feb. 10, 2004).
After the Supreme Court’s decision in Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002), the Government must prove
that an image depicts an actual child in order to sustain a
conviction under the CPPA. United States v. O’Connor, 58 M.J.
450, 453 (2003). The military judge did not make any finding of
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United States v. Cendejas, No. 04-0428/AF
fact that actual children were used to create the visual
depictions possessed by Cendejas. The Air Force court affirmed
Cendejas’ conviction because Cendejas did not assert that the
images were “virtual” and the court concluded, based upon its
own examination, that the images were undoubtedly pictures of
actual children. We granted review to determine whether the Air
Force court properly affirmed Cendejas’ conviction.1
1
We granted review of the following five issues:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
BY FAILING TO SET ASIDE APPELLANT’S CONVICTION FOR
POSSESSION OF CHILD PORNOGRAPHY DESPITE THE COURT’S
CONCLUSION THAT THE CONVICTION WAS BASED ON
CONSTITUTIONAL ERROR.
AS APPELLANT’S RECORD OF TRIAL DOES NOT CONTAIN EXPERT
TESTIMONY ON THE ACTUAL OR VIRTUAL NATURE OF THE
SUBJECTS OF PHOTOGRAPHIC OR ELECTRONIC IMAGES, DOES
THE FACT-FINDING AUTHORITY OF THE AIR FORCE COURT OF
CRIMINAL APPEALS PERMIT THAT COURT TO DETERMINE, IN
LIGHT OF ALL OTHER EVIDENCE, WHETHER THE IMAGES
THEMSELVES DEPICT “ACTUAL” CHILDREN, SUFFICIENT TO
SUPPORT APPELLANT’S CONVICTION BASED ON TITLE 18
U.S.C. § 2252A.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS CAN
REVIEW THE IMAGES OF ALLEGED CHILD PORNOGRAPHY AND
AFFIRM THE FINDINGS OF GUILTY OF SPECIFICATION 1 OF
CHARGE II (POSSESSION OF CHILD PORNOGRAPHY IN
VIOLATION OF 18 U.S.C. § 2252A(a)(5)(B)) WHERE THE
MILITARY JUDGE AS TRIER OF FACT APPLIED A DEFINITION
OF CHILD PORNOGRAPHY THAT WAS, IN PART,
UNCONSTITUTIONAL AND THE GENERAL FINDING OF GUILT DOES
NOT INFORM THE REVIEWING COURT WHICH, IF ANY, OF THE
IMAGES THE FINDER OF FACT FOUND TO BE “VIRTUAL” VERSUS
“ACTUAL” CHILDREN.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
WHEN IT REVIEWED CERTAIN IMAGES OF ALLEGED CHILD
PORNOGRAPHY AND AFFIRMED APPELLANT’S CONVICTION FOR
POSSESSING CHILD PORNOGRAPHY UPON ITS OWN CONCLUSION
3
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BACKGROUND
Cendejas, a twenty-eight-year-old Staff Sergeant, met two
Canadian female teenagers through an online Internet chat room.
A week later, he and a friend traveled to Canada to meet the
young girls in person. After their face-to-face meeting,
Cendejas continued to chat online with one of the girls, who was
thirteen years old. When the girl’s parents discovered what was
happening, they contacted the Winnipeg Police Department which
contacted the Air Force Office of Special Investigations
(AFOSI).
While AFOSI was investigating the allegations against
Cendejas, his name was flagged during a routine Security Forces
review of the government computer server logs for the base.
Security Forces determined that Cendejas had accessed a
prohibited site on a government computer and provided AFOSI with
THAT THE IMAGES WERE OF “REAL” CHILDREN WHERE
APPELLANT DID NOT HAVE THE OPPORTUNITY TO PRESENT A
DEFENSE AGAINST THE LIMITED CONSTITUTIONAL DEFINITION
OF CHILD PORNOGRAPHY.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
WHEN IT REVIEWED CERTAIN IMAGES OF ALLEGED CHILD
PORNOGRAPHY AND AFFIRMED APPELLANT’S CONVICTION FOR
POSSESSING CHILD PORNOGRAPHY UPON ITS OWN CONCLUSION
THAT THE IMAGES WERE OF “REAL” CHILDREN, THEREBY
REMOVING THE GOVERNMENT’S BURDEN OF PROVING THAT THE
IMAGES WERE OF ACTUAL AND NOT VIRTUAL CHILDREN BEYOND
A REASONABLE DOUBT IN A TRIAL FORUM WHERE THE
GOVERNMENT’S EVIDENCE WOULD BE SUBJECT TO
CONFRONTATION AND CROSS-EXAMINATION.
4
United States v. Cendejas, No. 04-0428/AF
three nude pictures that Cendejas had accessed. Believing that
one of the photographs depicted a girl under the age of
eighteen, AFOSI began working with the local police department
to obtain a search warrant for Cendejas’ off-base home.
At the same time, AFOSI monitored Cendejas’ communications
with the thirteen-year-old girl. He was arrested when he
arranged another meeting with her. After he was taken into
custody, AFOSI and the local police searched his home and seized
his personal computer. Analysis of the computer uncovered
twenty images of naked females of varying ages and varying
degrees of sexual maturity. Based on the discovery of these
images, Cendejas was charged with possession of child
pornography.
During the pretrial phase, the possibility that some of the
images may have been virtual was raised by the defense.
Cendejas filed a motion to dismiss the CPPA-based charge,
arguing that the CPPA was unconstitutionally vague and
overbroad, relying on the Ninth Circuit’s holding in Free Speech
Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). Defense
counsel argued that the definition of “child pornography” in §
2256(8)(B)2 was broad enough to include two different categories
of images that were produced without using any children.
2
The definition of the term “child pornography” as used in 18
U.S.C. § 2252A(a)(5)(B) is found in 18 U.S.C. § 2256(8)(B).
5
United States v. Cendejas, No. 04-0428/AF
Defense counsel pointed out that the “appears to be” language of
§ 2256(8)(B) could include (1) pictures of adults “made up to be
16 or 17,” and (2) computer-generated images that were made “to
look like . . . real child[ren].” Defense counsel argued that
the government’s compelling interest in the protection of
children did not justify the criminalization of these two types
of pictures because there are no children used in the production
of such images.
In response to this line of argument, the military judge
asked whether the defense was contending that any of the
specific images found on Cendejas’ computer were created without
using actual children. Defense counsel responded that some of
the images appeared to be “digitally altered” but that it was
difficult to tell. The military judge denied Cendejas’ motion
to dismiss finding that under United States v. James, 55 M.J.
297 (C.A.A.F. 2001), the CPPA definitions were constitutional
and “[i]t [would] not [be] appropriate . . . to abandon that
language.”3
At trial the parties discussed whether the models used to
create the images in question were under eighteen, but the issue
of whether some of the images may have been computer-generated
3
The military judge correctly endorsed the § 2256(8) definitions
in reliance on James because at the time of his ruling the
Supreme Court had not yet granted certiorari in Free Speech
Coalition, in which the Supreme Court would later rule that
portions of § 2256(8) were unconstitutional. 535 U.S. at 257.
6
United States v. Cendejas, No. 04-0428/AF
was not raised again. The military judge ultimately convicted
Cendejas of one specification of possession of child pornography
in violation of the CPPA.
While Cendejas’ appeal to the Air Force court was pending,
the Supreme Court granted certiorari and issued its decision in
Free Speech Coalition.4 In its decision, the Supreme Court
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).”
O’Connor, 58 M.J. at 452 (citing Free Speech Coalition, 535 U.S.
at 256, 258). Before the Air Force court, Cendejas argued that
because the military judge utilized the unconstitutional
definition, his conviction should be set aside.
The Air Force court initially presumed that the military
judge considered all of the definition contained in 18 U.S.C. §
2256(8) and found that it would be:
[C]onstitutional error to consider within the
definition of child pornography an image or picture
that “appears to be” of a minor engaging in sexually
explicit conduct (18 U.S.C. § 2256(8)(B)) or one that
is “advertised, promoted, presented, described or
distributed in such a manner that conveys the
impression” that it contains a minor engaging in
sexually explicit conduct.
4
The Supreme Court issued its decision in Free Speech Coalition
in 2002. This court issued its decision in O’Connor in 2003.
The Air Force Court of Criminal Appeals issued its decision on
February 10, 2005.
7
United States v. Cendejas, No. 04-0428/AF
2004 CCA LEXIS 50, at *7-*8, 2004 WL 388960, at *3. The Air
Force court went on to find, however, that the military judge
did not rely on the unconstitutional portions of the definition
and that the error was therefore harmless.
DISCUSSION
I. Standard of Review
The Court of Criminal Appeals properly identified the
applicable legal standard. After finding that the military
judge erroneously relied on an unconstitutional definition of
child pornography, the court subjected that error to a “harmless
beyond a reasonable doubt” review under Chapman v. California,
386 U.S. 18, 24 (1967). See e.g., United States v. Simmons, 59
M.J. 485, 489 (C.A.A.F. 2004). The Government bears the burden
of establishing that any constitutional error is harmless beyond
a reasonable doubt. Id. (citing United States v. Hall, 58 M.J.
90, 94 (C.A.A.F. 2003)). Whether the error is harmless beyond a
reasonable doubt is a question of law that we review de novo.
Id.II. Virtual Images and Expert Testimony
This court has held that after Free Speech Coalition, “[i]t
is no longer enough . . . to knowingly possess, receive or
distribute visual depictions that ‘appear to be’ of a minor
engaging in sexually explicit conduct.” O’Connor, 58 M.J. at
453. Instead, proof that an actual child under the age of
8
United States v. Cendejas, No. 04-0428/AF
eighteen was used in the production of the images is a required
element of a charge under the CPPA. Id.
Since the issue of “actual” versus “virtual” was not
litigated at the trial level, the Government offered no evidence
that the images were produced using actual children. While the
images themselves constitute some evidence on this issue, they
were not introduced for that purpose based on the statements the
military judge made in denying Cendejas’ motion to dismiss.
Cendejas argues that there was insufficient evidence presented
at his trial to establish the use of actual child models in the
production of the photographs he possessed. 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.5
In the wake of the Supreme Court’s decision in Free Speech
Coalition, every federal circuit court to have considered the
question has held that the factfinder can make a determination
that an actual child was used to produce the images in question
5
The issue of whether the Government must introduce expert
testimony is based on the actual/virtual distinction applicable
to prosecutions under clause 3 of Article 134 as a result of the
Supreme Court’s decision in Free Speech Coalition. Under the
precedents of this court, however, a servicemember can be
prosecuted under clauses 1 and 2 of Article 134 for offenses
involving virtual child pornography even though such conduct is
constitutionally protected in civilian society. Accordingly, in
cases prosecuted under clauses 1 and 2, the Government bears no
burden of demonstrating that the images depict actual children –
- with or without expert testimony.
9
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based upon a review of the images alone. See United States v.
Farrelly, 389 F.3d 649, 655 (6th Cir. 2004); United States v.
Slanina, 359 F.3d 356, 357 (5th Cir.), cert. denied, 125 S. Ct.
288 (2004); United States v. Kimler, 335 F.3d 1132, 1142 (10th
Cir. 2003); United States v. Deaton, 328 F.3d 454, 455 (8th Cir.
2003); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.
2002).6 We come to the same conclusion and find that a
factfinder can make a determination as to whether actual
children were used to produce the images based upon a review of
the images alone. In the military justice system this includes
the military judge and, under appropriate circumstances, a Court
of Criminal Appeals. We note that this ruling does not prevent
a defendant from having the opportunity to challenge the images
on the basis that they do not depict an actual child.
III. Factual Basis For Guilt and the Court of Criminal Appeals’
Article 66(c) Power
This ruling also does not end our inquiry in this case. In
reaching its decision, the Air Force court noted that “[t]he
issue of ‘real’ versus ‘virtual’ children was not raised at
6
The one court that reached an opposite conclusion withdrew its
opinion and vacated its judgment. See United States v. Hilton,
363 F.3d 58 (1st Cir. 2004), withdrawn and vacated by United
States v. Hilton, No. 03-1741, 2004 U.S. App. LEXIS 19528 (1st
Cir. Sept. 20, 2004) (order granting rehearing). On rehearing
the Hilton court issued an opinion that does not address this
question. See United States v. Hilton, 386 F.3d 13 (1st Cir.
2004).
10
United States v. Cendejas, No. 04-0428/AF
trial” but when the lower court performed its own review of the
images it concluded that “the children depicted in those
photographs were real, not virtual.” 2004 CCA LEXIS 50, at *12-
*13, 2004 WL 388960, at *4. While we have found that a
factfinder has the ability to make such a determination based on
the images alone, we must consider whether, in this case, this
determination was a proper exercise of the unique factfinding
power of the Court of Criminal Appeals under Article 66(c),
UCMJ, 10 U.S.C. § 866(c) (2000).
The military judge found that eight of the twenty images
met the definition of “child pornography”, under 18 U.S.C. §
2256(8)(B). When the military judge denied Cendejas’ motion to
dismiss and found the definition of “child pornography” to be
constitutional under James, we, like the Court of Criminal
Appeals, must assume that he applied the full scope of the 18
U.S.C. § 2256(8) definition to his finding of guilt. The
military judge did not state or suggest that he would disregard
those portions of the definition that were later found
unconstitutional by the Supreme Court.
Noting that the military judge selected only a portion of
the images submitted, and based on its own review, the Court of
Criminal Appeals concluded that the military judge “avoided any
implication that the definition in 18 U.S.C. § 2256(8)(B) may
have been relied upon to support his findings.” 2004 CCA LEXIS
11United States v. Cendejas, No. 04-0428/AF
50, at *12, 2004 WL 388960, at *4. We disagree. Rather than
avoiding those parts of the definition of child pornography
embracing constitutionally protected material, the military
judge selected eight images which met the existing definition of
child pornography, a definition which embraced both the
constitutional and unconstitutional portions of § 2256(8)(B).
In other words, he found guilt because the eight images were
either virtual or actual beyond a reasonable doubt. After Free
Speech Coalition, this general finding cannot be upheld.
The Supreme Court has long held that if a factfinder is
presented with alternative theories of guilt and one or more of
those theories is later found to be unconstitutional, any
resulting conviction must be set aside when it is unclear which
theory the factfinder relied on in reaching a decision. See
Stromberg v. California, 283 U.S. 359, 368 (1931); see also
Williams v. North Carolina, 317 U.S. 287, 292 (1942) (“To say
that a general verdict of guilty should be upheld though we
cannot know that it did not rest on the invalid constitutional
ground on which the case was submitted to the jury, would be to
countenance a procedure which would cause a serious impairment
of constitutional rights.”).
From the record in this case, neither this court nor the
Court of Criminal Appeals can determine that the military judge
relied only on those portions of the definition later found to
12
United States v. Cendejas, No. 04-0428/AF
be constitutional by the Supreme Court. Accordingly the Court
of Criminal Appeals could not engage in factfinding to affirm
this conviction. The Court of Criminal Appeals should have set
aside Cendejas’ conviction rather than attempting to resolve the
uncertain factual basis for the finding of guilt.7
IV. The Burden of Proof and Cenjedas’ Opportunity to Present a
Defense
The Court of Criminal Appeals’ independent review of the
images and its reliance on the record of trial to conclude that
Cendejas was properly convicted also raises due process
concerns. An element of an 18 U.S.C § 2252A offense that the
Government must prove is that actual children were used to
create the images. O’Connor, 58 M.J. at 453; id. at 456
(Crawford, C.J., dissenting). The Government argues that
Cendejas was required to establish that the images were
“virtual.” This court has repeatedly held that the Government
bears the burden of proving each and every element of a crime
beyond a reasonable doubt. See, e.g., United States v. Mason,
7
This ruling is consistent with United States v. Carlson, 59
M.J. 475, 476 (2004), a guilty plea case where this court held:
[T]he Court of Criminal Appeals erred in “finding” that any
of the images at issue were visual depictions of a “real
minor” for purposes of 18 U.S.C. § 2256(8)(A). The scope
of the lower court’s factfinding authority under Article
66(c), UCMJ, 10 U.S.C. § 866(c), does not extend to making
a “finding of fact” of that nature in the context of a
guilty plea, where no aspect of either the plea colloquy or
13
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59 M.J. 416, 424 (C.A.A.F. 2004). We agree with the First
Circuit, which recently noted, “[i]t bears repeating that the
Government is not released from its burden of proof by a
defendant’s failure to argue, or by an absence of evidence
otherwise suggesting, the artificiality of the children
portrayed.” United States v. Hilton, 386 F.3d 13, 18 (1st Cir.
2004).
We have concluded in this opinion that the Government may
use the images themselves to make this showing in appropriate
situations. A defendant is then entitled to confront the
Government’s evidence and present his own evidence that the
images are not “actual.” See United States v. Browning, 54 M.J.
1, 9 (C.A.A.F. 2000) (“An accused has a constitutional right to
present relevant evidence to defend against the charges.”);
United States v. Woolheater, 40 M.J. 170, 173 (C.M.A. 1994)
(recognizing that “the Constitutional right to present defense
evidence is a ‘fundamental’ right”) (citing Chambers v.
Mississippi, 410 U.S. 284, 295 (1973)).
The military judge’s ruling upholding the definition of
child pornography in 18 U.S.C. §2256(8)(B) relieved the
Government of its obligation to prove that the images were of
“actual” children beyond a reasonable doubt in an evidentiary
proceeding. That ruling, in turn, removed any opportunity for
the stipulation of fact is directed toward the character of
14
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Cendejas to present a defense based on the “virtual”
constitutionally protected nature of the images. In determining
that it could make its own factual review of the images, the
Court of Criminal Appeals failed to recognize that since the
issue of “virtual” versus “actual” was not litigated at the
trial level, its action resulted in Cendejas’ conviction being
upheld on a theory that Cendejas did not have the opportunity to
defend against.
The Court of Criminal Appeals’ action deprived Cendejas of
the opportunity to confront the Government’s evidence on the
issue of whether the images were of “actual” or “virtual”
children and to present evidence on his behalf that the images
were “virtual.” Accordingly, Cendejas’ due process rights were
violated. See United States v. Brewer, 61 M.J. 425, 429-30
(C.A.A.F. 2005). This error is not harmless beyond a reasonable
doubt. With the proper opportunity to present evidence in his
defense, Cendejas might have raised a question in the military
judge’s mind about the origin of the images.
V. Possibility of a Lesser Included Offense
While the Court of Criminal Appeals’ errors require us to
set aside Cendejas’ conviction of 18 U.S.C. 2252A under clause 3
of Article 134, we have held that in some circumstances a
conviction to a lesser included offense under clauses 1 or 2 of
the images as depicting “real” or “virtual” minors.
15
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Article 134 (1) or (2) is appropriate. See United States v.
Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000) (“[C]onduct which violates
no specific statute may still be an offense [under Article 134]
if it is found to be prejudicial to good order and discipline or
if it is of a nature to bring discredit upon the armed
forces.”).
Because the question of whether the images Cendejas
possessed were created using actual live child models was not
fully and fairly litigated, we will assume without deciding that
the images were virtual for purposes of the lesser included
offense analysis. Thus, the question is whether there was
sufficient evidence introduced at trial to establish that
Cendejas’ conduct in possessing virtual child pornography was
either prejudicial to good order and discipline or service-
discrediting. United States v. Mason, 60 M.J. 15, 20 (C.A.A.F.
2004). Conduct prejudicial to good order and discipline is
conduct that causes a reasonably direct and palpable injury to
good order and discipline. United States v. Erickson, 61 M.J.
230, 232 (C.A.A.F. 2005); see also Manual for Courts Martial,
United States pt. IV, para. 60.c.(2)(a) (2005 ed.). Service-
discrediting conduct is conduct which tends to harm the
reputation of the service or lower it in public esteem. United
States v. Vaughan, 58 M.J. 29, 36 (C.A.A.F. 2003).
16
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In a case with constitutional implications such as this
one, “the record must conspicuously reflect that the accused
‘clearly understood the nature of the prohibited conduct.’”
United States v. Martinelli, 62 M.J. 52, 67 (C.A.A.F. 2005)
(quoting Mason, 60 M.J. at 19). There was no such evidence
introduced at Cendejas’ trial nor, since this was a contested
charge, was there any discussion by the military judge as to
what constitutes conduct that is prejudicial to good order and
discipline or what constitutes service-discrediting conduct.
There is therefore no basis in the record that would support a
conviction of a lesser included offense under clauses 1 or 2 of
Article 134.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Specification 1 of Charge II
and as to sentence, but is affirmed in all other respects. The
record of trial is returned to the Judge Advocate General of the
Air Force for remand to the Court of Criminal Appeals. That
court may either dismiss Specification 1 of Charge II and
reassess the sentence, or it may order a rehearing.
17
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CRAWFORD, Judge (dissenting):
I respectfully dissent because the majority: (1)
perpetuates this Court’s rejection of federal practice in
applying Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002);
(2) without articulation of any military necessity or
distinction, suggests that servicemembers accused of child
pornography offenses have First Amendment and trial rights
paramount to those extended by the federal circuits to similarly
situated civilian defendants under the same statute; and (3)
conducts no balancing or other analysis before issuing an
opinion that implicitly promotes artificially elevated rights
for servicemembers accused of federal child pornography offenses
over those of the military community as a whole.
The effects of the majority’s opinion go beyond this single
case and will have a very broad impact on a multitude of
military prosecutions under the Child Pornography Prevention Act
of 1996, 18 U.S.C. § 2225A (2000), as well as on the military
communities of all the services.
BACKGROUND
At a general court-martial Appellant was tried by a
military judge sitting alone, and pled guilty to violating a
lawful general order by using a government computer to search
for minor females in several states and countries, but not
guilty to all other charges and specifications. Following mixed
United States v. Cendejas, No. 04-0428/AF
pleas, the military judge convicted Appellant of one
specification of possession of child pornography, two
specifications of communicating indecent language to a child,
two specifications of attempting to communicate indecent
language to a child, and one specification of violating a lawful
general order by using a government computer for nonofficial
purposes, in violation of Articles 134, 80, and 92, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 934, 880, and 892
(2000). The military judge acquitted Appellant of one
specification of attempted carnal knowledge, three
specifications of communicating indecent language to a child,
and one specification of communicating indecent material to a
child. The convening authority approved the sentence of a
dishonorable discharge, fifty-four months of confinement,
forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion. United
States v. Cendejas, No. ACM 34864, 2004 CCA LEXIS 50, 2004 WL
388960 (A.F. Ct. Crim. App. Feb. 10, 2004).
This Court granted review of the following issue, with
briefs, on November 26, 2004:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
BY FAILING TO SET ASIDE APPELLANT’S CONVICTION FOR
POSSESSION OF CHILD PORNOGRAPHY DESPITE THE COURT’S
CONCLUSION THAT THE CONVICTION WAS BASED ON
CONSTITUTIONAL ERROR.
2
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Thus, the issue centers on one charge and specification:
possession of “child pornography” in violation of 18 U.S.C.
§ 2252A(a)(5)(B).
FACTS
This case differs from any of our previous applications of
Free Speech Coalition in which this Court has reversed a
conviction. See, e.g., United States v. O’Connor, 58 M.J. 450(C.A.A.F. 2003). But see United States v. Thompson, 57 M.J.
319, 319 (C.A.A.F. 2002)(“[T]he testimony and the evidence
establish that the exhibits are pictures of actual children.”)
(Crawford, C.J., dissenting). More particularly, this case
involves a military judge who denied Appellant’s constitutional
challenge to 18 U.S.C. § 2252A. After this motion to dismiss
was denied, Appellant pled not guilty to the possession of child
pornography offense. The Government called two witnesses to
prove the offense. First, an investigator testified that
Prosecution Exhibit 6 contained twenty pictures of naked females
found on Appellant’s home computer. After the foundation was
laid for that exhibit, the Government offered it into evidence.
The defense counsel objected to photographs 7, 9, 17, and 19
because no genitalia was exposed. The military judge sustained
the objection only as to photograph 9. The second witness was a
board certified pediatrician who testified that the physical
characteristics of the females in the photographs were such that
3
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these were photographs of children. The military judge
indicated that he would “look at the pictures and . . . make a
determination” about whether it was child pornography. The
military judge stated: “Now I recognize . . . that part of [the
child pornography] calculus, if you will, is me saying I look at
the pictures and I make a determination. I am not persuaded in
that his witness, terms of telling me a number of ages, is
helpful to me.” The military judge indicated that he could
“sort it out” and did not need expert testimony. In its case on
the merits, the defense called a witness who testified that two
of the websites from which Appellant had downloaded the pictures
in Prosecution Exhibit 6 had legal disclaimers on them that
claimed the models depicted were at least eighteen years of age.
In rebuttal the Government called a witness who indicated that a
computer user would have been able to access the pictures on one
of the websites without having to view the disclaimer and that
Appellant did not have other websites listed in his computer
cache. After the testimony, the military judge found Appellant
guilty of the wrongful possession of child pornography.
After hearing evidence and applying pre-Free Speech
Coalition law, the military judge convicted Appellant under that
statute. The special findings of the military judge and the
factfinding of the court below make very clear that the
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photographs forming the basis for Appellant’s conviction were
solely of actual minors.
In this case, the overly broad definitions in 18 U.S.C. §
2256(8) had no factual or legal effect on the findings. After
the Government introduced evidence of Appellant’s computer
searches for “preteen lolita [sic],” “kiddie,” and “little
tits,” an expert was asked to examine a series of photographs
seized from Appellant’s computer. This expert explained in
great detail how the physical characteristics of the subject(s)
in each photograph could be analyzed to determine each subject’s
age. The expert was not cross-examined by the defense. The
military judge made “special findings” and determined that eight
of the twenty images introduced by the prosecution constituted
child pornography. Neither the expert’s testimony nor the
argument of either counsel suggested in any way that an “appears
to be” standard was ever in issue. The key issues in the
litigation of this specification were: (1) whether the females
depicted were, in fact, under eighteen years of age and (2)
whether the depictions themselves were sufficiently lewd to
constitute pornography. See generally New York v. Ferber, 458
U.S. 747 (1982). The Court of Criminal Appeals presumed the
military judge adequately considered the law as it existed prior
to Free Speech Coalition. Cendejas, 2004 CCA LEXIS 50, at *7,
2004 WL 388960, at *3. But even after finding constitutional
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United States v. Cendejas, No. 04-0428/AF
error -- that there was an impermissible consideration of the
“appears to be” or “conveys the impression” definitions -- the
court concluded that any error was harmless beyond a reasonable
doubt. 2004 CCA LEXIS 50, at *7-*10, 2004 WL 388960, at *3.
Unlike most intermediate appellate courts and this Court, the
Court of Criminal Appeals has factfinding powers. Article
66(c), UCMJ, 10 U.S.C. § 866(c) (2000). It exercised its
factfinding powers in this case and held that “A review of all
the pictures evaluated in this case by the military judge
indicates that the judge resolved even remotely questionable
depictions in favor of the accused and found child pornography
in only those pictures that contained obvious minors.” 2004 CCA
LEXIS 50, at *12, 2004 WL 388960, at *4. The Court of Criminal
Appeals continued, “regardless of the possibility of
superimposed head, [the pictures] contain bodies that clearly
belong to actual children. As long as real children’s bodies
are used in the depiction, this form of photo manipulation does
not render an image ‘virtual’ instead of ‘real.’” 2004 CCA
LEXIS 50, at *10 n.2, 2004 WL 388960, at *3 n.2. The court then
made its own findings: “Having reviewed the images, we conclude
beyond any reasonable doubt that the children depicted in those
photographs are real, not virtual.” 2004 CCA LEXIS 50, at *13,
2004 WL 388960, at *4.
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DISCUSSION
A. Burden of Going Forward, Burden of Persuasion, and
Reasonable Inferences
The initial burden of persuasion and the burden of proof in
this case rest with the Government. Once the Government
introduced Prosecution Exhibit 6, with or without the expert
testimony, the military judge could draw reasonable inferences
that those photographs involved child pornography without the
introduction of any further proof in this case. And we, like
the military judge and the court below, can draw our own
conclusions based on the evidence.
The majority would place the burden on the Government in
the first instance to prove actual children. That is correct.
But, once the photographs are introduced, the burden of going
forward, if there is a reasonable inference they are actual
children, shifts to the defense, without ever removing the
Government’s burden of proof of guilt beyond a reasonable doubt.
Thus, there is a constant changing of the burden of going
forward but the ultimate burden will always be on the Government
to prove guilt beyond a reasonable doubt.
B. Application of Free Speech Coalition in the Federal Courts
The findings by the military judge and the judges on the
Court of Criminal Appeals are consistent with the approach
employed by most of the federal courts that have considered the
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United States v. Cendejas, No. 04-0428/AF
issue.1 These appellate courts have looked to the entire record
to determine the legal impact of constitutionally impermissible
instructions or explanations. What I said in my dissent in
Martinelli, 62 M.J. at 84-87, is equally applicable here:
[The federal] courts have found sufficient evidence
that images depicted actual children in cases where a
pediatric expert testified as to the age of the child
depicted and “the photographs appeared to portray real
children.”
1
Padgett v. United States, 302 F. Supp. 2d 593, 598-600 (D.S.C.
2004) (finding that language of providence inquiry established
actual nature of children and that, by appellate court’s own
review, photos were of actual children); United States v.
Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (stating that the
“Government was not required to present any additional evidence
or expert testimony . . . to show that the images downloaded
. . . depicted real children, and not virtual children”); United
States v. Farrelly, 389 F.3d 649, 655 (6th Cir. 2004) (affirming
conviction where the Government presented “sufficient evidence of
actual children” and the trier of fact ‘was capable of reviewing
the evidence to determine whether the Government met its burden
to show that the images depicted real children’”) (quoting
Slanina, 359 F.3d at 357); United States v. Kelly, 314 F.3d 908,
912 (7th Cir. 2003) (upholding a guilty plea “because regulation
of real child pornography remains constitutional . . . and Mr.
Kelly possessed real child pornography”); United States v.
Rearden, 349 F.3d 608, 612-14 (9th Cir. 2003) (evidence at trial
sufficient to prove real children); United States v. Kimler, 335
F.3d 1132, 1142 (10th Cir. 2003) (stating that factfinders are
“still capable of distinguishing between real and virtual
images”); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.
2002) (affirming a Free Speech Coalition conviction because “no
reasonable jury could have found that the images were virtual
children”). But see United States v. Hilton, 386 F.3d 13, 18-19
(1st Cir. 2004) (because the jury was not required to find that
the images were of actual children, even if a commonsense
determination would compel such a finding, the conviction could
not stand).
United States v. Martinelli, 62 M.J. 52, 84-85 (C.A.A.F. 2005)(Crawford, J.,
dissenting). See also United States v. Destio, No. 04-3110, 2005 U.S. App.
LEXIS 24488 (3d Cir. November 14, 2005) (noting that pictures by themselves,
observed by the factfinder, are sufficient to find that actual children were
involved); Porath v. State, 148 S.W.3d 402, 416 (Tex. App. 2004) (when an
appellant is charged with a felony possession of child pornography, it is
sufficient for the Government to make a presentation of the pictures alone to
establish proof beyond a reasonable doubt.).
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United States v. Cendejas, No. 04-0428/AF
Other federal courts addressing this issue have upheld
convictions where the factfinder concluded that the
images depicted actual children or where the appellate
court deemed that it must have been so . . . . Thus,
it is clear that the great weight of federal authority
supports the analysis and conclusions of the Army
Court of Criminal Appeals.
. . . .
This case revisits a familiar question: how is this
Court to ensure compliance with Free Speech Coalition
when, during the course of court-martial proceedings,
the military judge employed the statutory language
found by Free Speech Coalition to be overbroad --
language that could ostensibly permit conviction based
on visual depictions of virtual children? In this
case, that question is narrowed to the context of a
Care inquiry.
The answer, of course, begins with our duty to follow
the decisions of our superior court. But when we
impose upon the Government a greater burden than the
Supreme Court requires, we must first articulate a
balance between the First Amendment and trial rights
of a military accused, on the one hand, and the
military community’s interest in good order and
discipline on the other. Both the servicemember and
the military community share an interest in a lawful,
rational application of the CPPA. Unfortunately,
while maintaining a position that affords military
child pornographers a level of sanctuary unrecognized
by other jurisdictions, the majority provides no
balancing and serves only one interest.
As noted above, a growing majority of federal courts
have declined an overly restrictive application of
Free Speech Coalition, in favor of a measured
approach, e.g., consideration of waiver, United States
v. Hay, 231 F.3d 630, 639 (9th Cir. 2000), plain
error, Hall, 312 F.3d at 1259, and other legal
theories, in conjunction with an examination of the
facts of each case, including the nature and
characteristics of the prohibited images themselves.
Richardson, 304 F.3d at 1064.
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. . . .
C. Balancing -- Now and in Future Cases
The approach this Court should take in Appellant’s
case need not be inconsistent with the Court’s holding
in O’Connor:
. . . .
We have long recognized that the First Amendment
rights of civilians and members of the armed
forces are not necessarily coextensive. At the
same time, however, we must ensure that the
connection between any conduct protected by the
First Amendment and its effect on the military
environment be closely examined.
This Court’s disposition of Appellant’s case should,
at a minimum, treat those very same considerations
addressed by O’Connor: evaluating any “discussion or
focus in the record before us regarding the ‘actual’
character of the images,” and ensuring “that the
connection between any conduct protected by the First
Amendment and its effect in the military environment
[is] closely examined.” Id. Instead, without
explanation or elaboration, the majority purports to
rely on O’Connor, while conducting no balancing and
implicitly declining to adopt the reasoning of the
clear majority of Article III courts.
As a matter of general practice, when we choose to
depart from Supreme Court precedent, or from the
reasoning of the majority of the federal circuit
courts that have followed Supreme Court precedent in
construing and applying a constitutional or statutory
provision, and when that departure is not required by
legislative or executive mandate, this Court should
articulate the military necessity or distinction that
compels our reasoning.
“This Court has long recognized that the military is,
by necessity, a specialized society. We have also
recognized that the military has, again by necessity,
developed laws and traditions of its own during its
long history.” Parker v. Levy, 417 U.S. 733, 743.
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United States v. Cendejas, No. 04-0428/AF
Balancing this recognition of the military’s
specialized need for enhanced discipline and
regulation, our Court has long maintained vigilance in
preserving the rights of servicemembers in the court-
martial process. See generally United States v.
Jacoby, 11 C.M.A. 428, 29 C.M.R. 244 (1960). When we
perform this balancing, however, we must not fail to
consider the fabric of the “specialized society” in
which servicemembers and their families exist. The
Department of Defense and the military departments
have emphasized that this “specialized society”
consists not only of servicemembers, but of their
families as well.
. . . .
When this Court applies a U.S. Code provision and our
superior court’s interpretation thereof in a manner
inconsistent with the bulk of Article III courts --
presumably for the purpose of providing an elevated
level of protection for the trial rights of a military
accused -- we must weigh the reasons for our divergent
application of that statute against the concomitant
reduction in the level of protection that statute
would otherwise provide to the “specialized society”
we also serve. As noted, that society is populated
not only by the uniformed men and women who bravely
serve our Nation, but by their spouses and children,
all of whom have every right to expect a measured and
rational application of law by trial and appellate
courts. More particularly, in light of this Court’s
historical balance between individual First Amendment
rights and the needs of the “specialized society,” the
members of that society could hardly anticipate that
this Court would, despite the weight of federal
decisions to the contrary, construe a Supreme Court
decision so as to elevate the right of an individual
servicemember to traffic in child pornography above
the need of that “specialized society” for good order
and discipline.
How then, without being compelled to do so by our
superior court, by Congress, or by the President, does
this Court elevate the First Amendment and fair trial
rights of servicemembers over the military’s need for
good order and discipline? Are good order and
discipline, as well as the safety and security of the
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United States v. Cendejas, No. 04-0428/AF
community not threatened by the creation and
proliferation of child pornography within that
community? This Court’s application of Free Speech
Coalition not only places us in the minority of
federal fora, but, for reasons that remain a mystery,
confers on servicemembers accused of owning,
distributing, and trafficking in child pornography a
status that exalts their constitutional rights above
those of civilians accused of identical crimes, while
unnecessarily and unintentionally denigrating the
legitimate interests of the thousands of other
servicemembers and their families who comprise the
“specialized society” recognized by the Supreme Court
for over thirty years.
Citations and footnotes omitted.
This case amply demonstrates the impact of different levels
of protection against trafficking in child pornography for
civilian and military communities. Appellant was tried at Grand
Forks Air Force Base which is located within the geographic
boundaries of the United States Court of Appeals for the Eighth
Circuit. If the legal precedent of the Eighth Circuit, which is
representative of other circuits that have considered this
issue, were applied to the granted issue in this case,
Appellant’s conviction would very likely be affirmed.2 The
precedent of this Court, however, not only is out of step with
2
United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003)
(reaffirming the reasonableness of a “jury’s conclusion that real
children were depicted, even where the images themselves were the
only evidence the government presented on the subject”); United
States v. Vig, 167 F.3d 443, 449 (8th Cir. 1999) (holding that
the “images were viewed by the jury which was in a position to
draw its own independent conclusion as to whether real children
were depicted”); . . .
Martinelli, 62 M.J. at 84-85 (Crawford, J., dissenting).
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the vast majority of federal courts that have considered the
issue, but also provides a lesser level of protection to the
military community at Grand Forks Air Force Base, as well as all
other military installations.
Because the disposition in this case is yet another step by
this Court away from the mainstream of federal practice and from
our historical practice of balancing competing rights and
interests, I respectfully dissent.
13