                     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. § 2252

for 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

                             13
United 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


                                 7
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


                                  10
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.




                               11
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.

                                12
United States v. Beaty, No. 10-0494/AF

     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
