UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                     Before
                     CAMPANELLA, SALUSSOLIA, and FLEMING
                            Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
            Staff Sergeant FREDYSHERNAN CONTRERAS-RAMOS
                         United States Army, Appellant

                                  ARMY 20160182

                            Headquarters, Fort Carson
                        Lanny Acosta Jr., Military Judge
                  Colonel Gregg A. Engler, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Katherine L.
DePaul, JA; Captain Matthew D. Bernstein, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith,
JA; Captain Natanyah Ganz, JA (on brief).


                                  30 January 2018

                             ----------------------------------
                              OPINION OF THE COURT
                             ----------------------------------

SALUSOLLIA, Judge:

       In this case, we decide two important issues. First, we decide that “morphed”
images constitute child pornography. Second, we determine the government was
barred from charging appellant with creating visual depictions of his minor
daughters engaging in indecent conduct because such conduct is covered by a listed
child pornography offense. Manual for Courts-Martial, United States (2012 ed.)
[MCM], part IV, ¶ 60.c.(6)(c); United States v. Guardado, 77 M.J. _, 2017 CAAF
LEXIS 1142 (C.A.A.F. 12 Dec. 2017). 1



1
  This court notes ¶ 60.c.(6)(c) has been removed from the 2016 MCM. Because this
case is decided under the 2012 MCM, we need not address the significance, if any, of
this change.
CONTRERAS-RAMOS—ARMY 20160182

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave (AWOL), one
specification of possession of child pornography, and one specification of
wrongfully creating visual depictions of his minor daughters, thereby engaging in
indecent conduct, in violation of Articles 86 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 886, 934 (2012) [UCMJ]. The convening authority approved
the adjudged sentence of a bad-conduct discharge, confinement for four years, and
reduction to the grade of E-1.

       We review this case under Article 66, UCMJ. Appellant raises three
assignments of error pertaining to Specification 2 of Charge II. Because we hold the
government was barred from charging this novel offense, we dismiss the
specification and need not reach the assigned errors.

                                 BACKGROUND

       Appellant downloaded and possessed multiple images of child pornography.
Using preexisting photos, he also created about one hundred images depicting his
daughters, ages eight and thirteen, engaging in various types of sexually explicit
conduct. The created images form the basis of Specification 2 Charge II, which
reads:

             In that Staff Sergeant Fredyshernan Contreras-Ramos,
             U.S. Army, did, at an unknown location, between on or
             about 2 July 2012 and on or about 10 June 2014,
             knowingly and wrongfully create visual depictions of his
             minor daughters, A.C. and M.C., and other children
             engaging in indecent conduct, such conduct being of a
             nature to bring discredit upon the armed forces.

      Appellant filed a motion to dismiss for failure to state an offense. During a
lengthy hearing, where the government admitted that it believed some of the images
amounted to child pornography even before appellant manipulated them, the military
judge denied defense counsel’s motion and entered his findings of fact and
conclusions of law on the record. In his findings, the military judge found the
morphed images contained in Specification 2 depict minors engaging in what
appears to be sexually explicit conduct. He also ruled that the created images
“contain indecent conduct and obscenity and meet the definitions of child
pornography as defined by Article 134 and 18 U.S.C. 2256.”

      Appellant entered into a stipulation of fact with the government in which he
agreed all the facts therein “may be considered by the military judge and any
appellate authority in determining the providence of the Accused’s pleas of guilty
and may then be considered by the sentencing authority in determining an



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CONTRERAS-RAMOS—ARMY 20160182

appropriate sentence, even if the evidence of such facts is deemed otherwise
inadmissible.” The parties agreed “for the purposes of this or any subsequent
appeal, re-hearing, or re-trial, that the following facts [in the stipulation] are true,
susceptible to proof, and admissible in evidence.” The stipulation of fact and its
enclosures outline appellant’s multiple acts of viewing, possessing, and creating
images constituting child pornography.

      Prior to sentencing, the parties discussed the maximum possible punishment.
The government argued this specification should be treated the same as the child
pornography images that form the basis of Specification 1 of Charge II. Appellant
argued that if the government thought it amounted to child pornography, it should
have charged it as such. Again, the military judge denied appellant’s objection.

                                LAW AND ANALYSIS

      While the military judge did not err in concluding that most of the morphed
images created child pornography as defined by Article 134, UCMJ, we hold that the
government may not charge this as a general disorder offense as it is otherwise listed
as an Article 134, UCMJ, offense. 2

                                   Standard of Review

       Our superior court has held “the government may not charge a general
disorder offense if the offense is otherwise listed as an Article 134, UCMJ, offense.”
United States v. Guardado, 77 M.J. _, 2017 CAAF LEXIS 1142 (C.A.A.F. 12 Dec.
2017). Whether this is the case is a question of law that we review de novo. United
States v. Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2005) (citing United States v. Falk, 50
M.J. 385, 390 (C.A.A.F. 1999)).

                           “Morphing” is Child Pornography

     Appellant’s creation of visual depictions raises the issue whether these
“morphed” images constitute child pornography. The difference between morphed




2
  After a close review, we find the vast majority of images encompassing
Specification 2 constitute child pornography. We also find the handful of images
that do not constitute child pornography also do not depict indecent conduct
involving children and thus do not form a basis for affirming the specification.




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CONTRERAS-RAMOS—ARMY 20160182

images and organic images is that morphed images are a result of manipulating a
photo to make it appear that someone else is a subject of the image. 3

       In the instant case, appellant admitted he created about one hundred images
that make up Specification 2 of Charge II. He stated he used software to manipulate
the photos. Appellant admitted he took existing pictures of his daughters, ages eight
and thirteen, and made them appear sexual. For example, in some images, he
described adding cleavage or exposed breasts. He also admitted to manipulating the
images so that he posed his daughters in sexual positions. Moreover, appellant


3
 When it comes to determining whether a morphed image constitutes child
pornography, 18 U.S.C. § 2256 is instructive because Article 134, UCMJ is
“generally based on 18 U.S.C. § 2252A.” MCM, Appendix 23, ¶ 68b. 18 U.S.C. §
2256 defines:

      (8) “child pornography” means 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 a digital image, computer image, or
      computer-generated image that is, or is indistinguishable from, that 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.

      (9) “identifiable minor”—
             (A) means a person—
                    (i)
                           (I) who was a minor at the time the visual depiction
                    was created, adapted, or modified; or
                           (II) whose image as a minor was used in creating,
                    adapting, or modifying the visual depiction; and
                    (ii) who is recognizable as an actual person by the
             person’s face, likeness, or other distinguishing characteristic,
             such as a unique birthmark or other recognizable feature; and
             (B) shall not be construed to require proof of the actual identity
      of the identifiable minor.




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CONTRERAS-RAMOS—ARMY 20160182

admitted to cropping his daughter’s faces and placing them into other images that
were already sexual in nature.

       Appellant manipulated many images to include his own naked body and
exposed genitalia. In those images, appellant made it appear he was engaging in
sexually explicit conduct with his minor daughters. He explained that in those
images he made it appear he was engaging in vaginal and oral sex with his
daughters. In short, some of the organic images began with sexually explicit
conduct, while others became a display of sexually explicit conduct because of how
appellant manipulated them. As appellant morphed his own children, it is axiomatic
that they are identifiable minors.

       Within federal jurisprudence, morphed images and organic images of child
pornography are overwhelmingly treated the same and do not implicate First
Amendment concerns. For example, the U.S. Court of Appeals for the Eighth
Circuit, in United States v. Bach, 400 F.3d 622 (8th Cir. 2005), held that morphed
images using bodies and faces of actual minors are not protected speech. 4 There,
Bach took a picture of a naked male, sitting in a tree with his erect penis
lasciviously exposed and morphed the image of a sixteen-year-old known boy. The
Bach court distinguished this morphed image from the type of virtual images
addressed in Ashcroft v. Free Speech Coal., 535 U.S. 234, 249 (2002), on the basis
that this morphed image created a “lasting record” of the known boy “seemingly
engaged in sexually explicit activity.” 5 Bach, 400 F.3d at 632. The court went on to
find that this morphed image created an “identifiable child victim of sexual

4
  In United States v. Anderson, 759 F.3d 891 (8th Cir. 2014), the Eighth Circuit also
held that the child pornography statute satisfied strict scrutiny under the First
Amendment where the violation of the statute consisted of a minor’s face morphed
on an image of an adult. While distinguishing this case factually from Bach, the
court upheld Anderson’s conviction reasoning that the government has a compelling
interest in protecting minors from the significant harms associated with morphed
images.
5
  In Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), the United States Supreme
Court held that the federal prohibition against “virtual child pornography”—images
that depict minors but were created entirely digitally without the use of real
children—was unconstitutionally overbroad. However, the Supreme Court left open
the question of whether morphed images can constitute child pornography. Id. at
242. Additionally, our superior court held that virtual child pornography can be
prejudicial to good order and discipline and service discrediting. See United States
v. Mason, 60 M.J. 15, 16 (C.A.A.F. 2004); United States v. Brisbane, 63 M.J. 106,
116-17 (C.A.A.F. 2008).




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CONTRERAS-RAMOS—ARMY 20160182

exploitation” who may be victimized every time that image is viewed, whereas a
wholly virtual image does not produce the same harm.

       Similarly, the U.S. Court of Appeals for the Second Circuit, in United States
v. Hotaling, 634 F.3d 725 (2d Cir. 2011), rejected appellant’s claim that his
conviction for a violation of 18 U.S.C. §§ 2252(a)(5)(B) and 2256(8)(c) was
unconstitutional because putting faces of actual minors on the bodies of adult
females was protected speech under the First Amendment. Rather, the court held
that in cases such as this, “the interests of actual minors are implicated when their
faces are used in creating morphed images that make it appear that they are
performing sexually explicit acts.” Id. at 729-30. See also Shoemaker v. Taylor,
730 F.3d 778, 786 (9th Cir. 2013) (recognizing that morphed images, falsely
portraying child victims as engaging in sexual activity, are records of harmful sexual
exploitation of children).

       While only persuasive authority, we note one of our sister courts has also
faced a similar issue and treated morphed images the same as organic images of
child pornography, though this was not a case charged under the current listed
Article 134, UCMJ, offense. See United States v. Bell, NMCCA 201200517, 2014
CCA LEXIS 117 (N.M. Ct. Crim. App. 2014) (finding that appellant’s possession of
a morphed image “was but one of many other images of child pornography
knowingly possessed by the appellant”).

      In short, the pernicious harm to the child victims featured in child
pornography, organic or morphed, has the same potential to be everlasting. Thus we
see no difference between morphed images and organic images and find that
possessing, producing, or distributing either constitutes the offense of child
pornography under Article 134, child pornography. We now address the
implications of our finding on the charged offense.

                             Failure to State an Offense

       Despite the applicability of the President’s listed Article 134 offense, child
pornography, the government elected not to charge appellant’s conduct as such;
instead it chose to charge him with a novel offense under clause 2 of Article 134,
UCMJ. The novel offense appears to be a hybrid of child pornography and indecent
conduct, using a service discrediting approach. 6

6
   Even though the military judge ruled the novel charge in Specification 2 of Charge
II stated an offense, the military judge appeared to conflate the listed Article 134
offense, child pornography, with the novel charge by using the definitions of
“obscene” and “sexually explicit” to explain the term “indecent conduct” during the

                                                                      (continued . . .)


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CONTRERAS-RAMOS—ARMY 20160182

       As our superior court recently held, the President has limited the ways in
which the government can charge offenses under Article 134, UCMJ. Guardado, 77
M.J. at _, 2017 CAAF LEXIS 1142, at *13. Namely, when an offense is specifically
listed as an Article 134, UCMJ, offense the government cannot charge the conduct in
a manner that reduces the governmnet’s burden of proof by charging it as “a ‘novel’
general disorder offense.” Id. (citing United States v. Reese, 76 M.J. 297, 302
(C.A.A.F. 2017)). See also MCM, pt. IV, ¶ 60.c.(6)(c).

       Article 134, UCMJ, defines “child pornography” as “material that contains
either an obscene visual depiction of a minor engaging in sexually explicit conduct
or a visual depiction of an actual minor engaging in sexually explicit conduct.”
MCM, pt. IV, ¶ 68.c.(1). In the charge, the government alleged that the images were
“indecent.” This had the effect of lessening the government’s burden of having to
prove that the images were also “sexually explicit.” Having reviewed the images
created by appellant which form Specification 2 of Charge II, we agree with the
military judge that almost all of the images charged in Specification 2 “meet the
definitions of child pornography as defined by Article 134.” All but a handful of the
morphed images to which appellant pleaded guilty are visual depictions of minors
engaging in sexual explicit conduct and are child pornography as defined by Article
134, UCMJ, United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub
nom., United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and United States v.
Roderick, 62 M.J. 425 (C.A.A.F. 2006). 7

        We therefore conclude the government was barred from charging this novel
offense under clause 2 of Article 134, UCMJ, and thus Specification 2 of Charge II
fails to state an offense under the UCMJ. Guardado, 77 M.J. at __, 2017 CAAF
LEXIS 1142, at *16. See also Reese, 76 M.J. at 302-04. We also cannot affirm
Specification 2 as a novel indecent conduct specification under Article 134, UCMJ,

(. . . continued)
providence inquiry. Notwithstanding the military judge’s use of these definitions in
defining the elements of the novel offense, the record clearly reflects that appellant
did not believe or agree he was pleading guilty to producing child pornography.
Further, during a discussion of the maximum punishment, appellant’s counsel
affirmed appellant was not pleading to child pornography with respect to
Specification 2 of Charge II. Consequently, we also find there was not a knowing
and voluntary plea to child pornography.
7
 To the extent that appellant’s guilty plea waived whether the specification alleged
an offense, we choose to exercise our Article 66(c) authority to notice the issue. See
generally, Rule for Courts-Martial 907(b)(2)(E)(2016 MCM waivable grounds to
dismiss).




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CONTRERAS-RAMOS—ARMY 20160182

because the other handful of images did not constitute indecent conduct involving
children.

                                Sentence Reassessment

       We are able to reassess the sentence in this case, and do so after a thorough
analysis and in accordance with the principles articulated by our superior court in
United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), and United States
v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). A court of criminal appeals must
“assure that the sentence is appropriate in relation to the affirmed findings of guilty,
[and] that the sentence is no greater than that which would have been imposed if the
prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United
States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). “If the court can determine to its
satisfaction that, absent any error, the sentence adjudged would have been of at least
a certain severity, then a sentence of that severity or less will be free of the
prejudicial effects of error. . . .” Sales, 22 M.J. at 308.

       Weighing in favor of reassessment is the fact that appellant chose to be
sentenced by a military judge. The dismissal of Specification 2 of Charge II reduces
appellant’s exposure from forty-one years and six months to eleven years and six
months. The gravamen of the criminal conduct remains substantially the same, and
the stipulated fact that appellant used images of his own daughters to make these
obscene morphed images is clearly aggravating. 8

       Appellant remains convicted of possessing child pornography, as well as
AWOL. These remaining offenses are of the type with which this court has
experience and familiarity, and can reliably determine what sentence would have
been imposed at trial. We are confident that based on the entire record and
appellant’s conduct, the military judge sitting alone as a general court-martial,
would have imposed a sentence of at least a bad-conduct discharge, confinement for
forty-two months, and a reduction to the grade of E-1.




8
  The parties agreed in the stipulation of fact that the images encompassing
Specification 2 were admissible. Further, these images were attached as enclosures
to the stipulation of fact. While these images no longer constitute evidence
supporting a finding of guilty to Specification 2, the vast majority of these images
are child pornography. The military judge and this court can consider these child
pornography images on sentencing because of the parties’ contractual agreement in
the stipulation of fact.




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CONTRERAS-RAMOS—ARMY 20160182

                                    CONCLUSION

       The finding of guilty of Specification 2 of Charge II is set aside and that
specification is DISMISSED. The remaining findings of guilty are AFFIRMED.
Reassessing the sentence based on the noted error and the entire record, we AFFIRM
only so much of the approved sentence as provides for a bad-conduct discharge,
confinement for forty-two months, and reduction to the grade of E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings and sentence set aside by this decision are ordered restored.
See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge CAMPANELLA concurs.

FLEMING, Judge, concurring in part and dissenting in part:

       While I concur with my esteemed colleagues’ decision to dismiss
Specification 2 of Charge II, I would affirm the approved sentence. After a review
of the entire record, to include the evidence in the stipulation of fact, and appellant’s
conduct, I find a military judge, sitting alone as a general-court martial, would have
imposed a sentence of at least that which was approved, and accordingly I would
affirm the approved sentence.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES, JR.
                                                       SQUIRES JR.
                                        Clerk of Court
                                        Clerk of Court




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