                         UNITED STATES, Appellee

                                         v.

                      David J. PHILLIPS, Corporal
                     U.S. Marine Corps, Appellant

                                  No. 11-0148
                        Crim. App. No. 200900568

       United States Court of Appeals for the Armed Forces

                           Argued April 6, 2011

                          Decided June 28, 2011

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, J., joined. RYAN, J., filed a dissenting
opinion, in which ERDMANN, J., joined.

                                     Counsel

For Appellant:    Lieutenant Michael R. Torrisi, JAGC, USN
(argued).

For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on
brief).

Amicus Curiae (for neither party): Clayton S. McCarl III (law
student) (argued); Jennifer A. Gibson, Esq. (supervising
attorney), and Lindsay I. McCarl (law student) (on brief) -- for
the University of the Pacific, McGeorge School of Law Appellate
Advocacy Clinic.

Military Judge:    David S. Oliver

            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Phillips, No. 11-0148/MC


     Judge STUCKY delivered the opinion of the Court.

     To establish a violation of clause 2 of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006),

the government must prove beyond a reasonable doubt that (1) the

accused engaged in certain conduct; and (2) that the conduct was

of a nature to bring discredit upon the armed forces.   We

granted review to consider the necessary quantum of proof to

establish the second element.   We hold that evidence that the

public was actually aware of the conduct is not necessarily

required.   Furthermore, proof of the conduct itself may be

sufficient for a rational trier of fact to conclude beyond a

reasonable doubt that, under all the circumstances, it was of a

nature to bring discredit upon the armed forces.   The evidence

was legally sufficient in this case.1

                                I.

     Consistent with his plea, Appellant was convicted by a

military judge sitting as a general court-martial of larceny in

violation of Article 121, UCMJ, 10 U.S.C. § 921 (2006).

Contrary to his plea, Appellant was convicted of wrongfully

possessing child pornography as conduct prejudicial to good

order and discipline (clause 1) and conduct of a nature to bring

1
  We heard oral argument in this case at the University of the
Pacific, McGeorge School of Law, Sacramento, California, as part
of the Court’s “Project Outreach.” This practice was developed



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United States v. Phillips, No. 11-0148/MC


discredit upon the armed forces (clause 2) in violation of

Article 134.

     The convening authority approved the adjudged sentence of a

dishonorable discharge, confinement for fifteen months,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.    The United States Navy-Marine Corps

Court of Criminal Appeals (CCA) set aside the military judge’s

findings as to clause 1 of the Article 134 charge, affirmed

Appellant’s conviction under clause 2, and affirmed the larceny

conviction as well as the sentence.    United States v. Phillips,

69 M.J. 642, 646-47 (N-M. Ct. Crim. App. 2010).    It is the

conviction under clause 2 that is at issue here.

                                 II.

     While Appellant was assigned to Combat Logistics Regiment

37, 3d Marine Logistics Group, Okinawa, Japan, he became the

subject of a Naval Criminal Investigative Service (NCIS)

investigation in relation to conduct resulting in Appellant’s

conviction for larceny.   During the course of that

investigation, Appellant consented to a search of his barracks

room, including his personal computer.   After the consent form

was completed, Appellant apparently asked one of the

investigators, Special Agent (SA) Michael A. Bonilla, whether it



as a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

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United States v. Phillips, No. 11-0148/MC


would be a problem if the investigators found pornography on his

computer.   SA Bonilla responded that “we don’t look into [that]

unless, of course, we’re talking about child pornography.”   SA

Bonilla testified that Appellant then acknowledged that “he had

either previously or recently downloaded or accidentally

downloaded a few images which might be child pornography.”   SA

Bonilla obtained Appellant’s consent to expand the scope of the

consent search to include evidence of possession of child

pornography.

     Upon arrival at Appellant’s barracks, SA Bonilla observed

that Appellant’s laptop was in the process of downloading

“numerous files” using LimeWire file sharing software, with “at

least 30 or 40” file names visible at the time, some of which

were “consistent with child pornography.”   David E. Lutzow, a

contract worker at the United States Department of Defense

Computer Forensics Laboratory, testified that the LimeWire

software on Appellant’s computer had been used to search other

computers connected to the Internet using peer-to-peer

technology for files with filenames including the words

“underage” and “pedo.”   Mr. Lutzow also testified that, of the

files examined in detail, five images and two movies matched

files in the National Center for Missing and Exploited Children

database, connecting files in Appellant’s possession to known

child victims and demonstrating possession of actual child


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United States v. Phillips, No. 11-0148/MC


pornography.   No witnesses testified that they found Appellant’s

conduct to be service discrediting.   No witnesses testified that

they had become aware or would have become aware of Appellant’s

conduct, absent Appellant’s admission to SA Bonilla.

                               III.

     Appellant’s possession of actual child pornography resulted

in his conviction for wrongful possession of child pornography

in violation of clause 2 of Article 134.    In reviewing his

conviction, the CCA issued an opinion that is subject to

multiple interpretations.

     While the CCA recognized that service discrediting conduct

was an element of a clause 2 offense under Article 134, it then

observed that:

     There has been no bright-line rule . . . as to what
     evidence is required to prove the second element of
     clause 2 offenses. . . . The initial question not
     previously addressed by this court is whether the
     public has to be aware of the appellant’s misconduct
     and his military status in order to find him guilty of
     the terminal element of a clause 2 offense. We answer
     that question in the negative. The more substantive
     question is whether the possession of child
     pornography by a uniformed member of the Armed Forces
     is per se service discrediting. We find that it is,
     especially under the facts and circumstances of this
     case.

69 M.J. at 645 (emphasis added) (citations omitted).

     We have previously considered the question of what need be

proven to establish guilt under clause 1 or 2 of Article 134.    A

general article, in language not dissimilar to Article 134, has


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United States v. Phillips, No. 11-0148/MC


been part of American military law since 1775.   William

Winthrop, Military Law and Precedents 720 (2d ed. 1920 reprint).

Under well-established case law, the terminal element is an

“essential element of the offense” as to which members must be

instructed.   See United States v. Williams, 8 C.M.A. 325, 327,

24 C.M.R. 135, 137 (1957).

     Whether the CCA erred depends on what the CCA intended by

its statement that the conduct was “per se service

discrediting . . . especially under the facts and circumstances

of this case.”   69 M.J. at 645.   We are confronted with three

options in reviewing the CCA’s opinion:   (1) interpret the

opinion to mean that the CCA impermissibly applied a conclusive

presumption, as Appellant argues; (2) read the opinion to merely

state that no additional evidence need be presented, as the

Government contends; or (3) determine that the opinion is

sufficiently ambiguous that we cannot accept either party’s

suggested interpretation.

     If, as the defense contends, the CCA used the phrase “per

se” to mean “[a]s a matter of law,” Black’s Law Dictionary 1257

(9th ed. 2009), and therefore that the service discrediting

nature of the conduct could be conclusively presumed from the

fact that it involved possession of child pornography, then it

erred.   It is established that conviction of a criminal offense

under the Constitution requires proof of every element of the


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United States v. Phillips, No. 11-0148/MC


offense beyond a reasonable doubt.   Sullivan v. Louisiana, 508

U.S. 275, 278 (1993); In re Winship, 397 U.S. 358, 361-64

(1970); United States v. Neal, 68 M.J. 289, 298 (C.A.A.F. 2010).

The use of conclusive presumptions to establish the elements of

an offense is unconstitutional because such presumptions

conflict with the presumption of innocence and invade the

province of the trier of fact.   Sandstrom v. Montana, 442 U.S.

510, 523 (1979); see County Court of Ulster County v. Allen, 442

U.S. 140, 156-60 (1979); see also Williams, 8 C.M.A. at 327, 24

C.M.R. at 137 (rejecting the government’s contention that

instructions to the members on the terminal element were not

necessary because the charged conduct constituted proof of the

terminal element “as a matter of law”).

     The Government argued that the CCA was not stating a

conclusive presumption, but rather used “per se” in the sense of

“standing alone, without reference to additional facts,” Black’s

Law Dictionary, supra at 1257, and simply held that no evidence

of a direct injury or actual harm to the reputation of the

service need be introduced.   The problem with this argument is

that the CCA explicitly treated the questions of whether actual

damage to the reputation of the service, and actual public

knowledge of Appellant’s actions and military status, needed to

be shown, as separate issues from whether the conduct was per se

service discrediting.   69 M.J. at 645.


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United States v. Phillips, No. 11-0148/MC


      Based on the wording of the CCA’s opinion, we are unable to

adopt either party’s interpretation.   With two conflicting

definitions of “per se,” it is unclear whether the CCA held that

possession of such material is conclusively service

discrediting.   As noted above, such a presumption is

constitutionally impermissible under In re Winship and

Sandstrom.

      The terminal element in a clause 1 or 2 Article 134 case is

an element of the offense like any other.   Conduct need not be

violative of any other criminal statute to violate clause 1 or

2.   United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988).      The

terminal element must be proved beyond a reasonable doubt like

any other element.   Whether any given conduct violates clause 1

or 2 is a question for the trier of fact to determine, based

upon all the facts and circumstances; it cannot be conclusively

presumed from any particular course of action.

                                IV.

      There remains to be addressed the legal sufficiency of

Appellant’s conviction under clause 2 of Article 134.    Before

doing so, we will briefly consider Appellant’s arguments that

clause 2 (1) “was never intended to criminalize the misconduct

of active duty servicemembers”; and (2) does not criminalize

conduct which is private, unknown to the public, and only became

known due to the investigation and prosecution of the case.


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United States v. Phillips, No. 11-0148/MC


                                A.

     Appellant asserts that the language now found in clause 2

first entered military law for a single purpose:   to subject

noncommissioned officers on the retired list to criminal

sanctions.   Since its enactment in 1916, as a clause of Article

of War 96,2 it is clear that the provision has never been so

restricted by its text or in practice.   It has been applied to

active-duty personnel from very early times.   See C.M. 139139

(1920) (soldier deserting and abandoning wife without cause or

excuse), cited in Digest of Opinions of the Judge Advocate

General of the Army, 1912–1940 348 (1942); see also United

States v. Parkman, 4 C.M.R. (A.F.) 270, 278, 281 (A.F.J.C.

1951); United States v. McDonald, 10 B.R. 61, 63 (A.B.R. 1939);

United States v. Klima, 4 B.R. 45, 46 (A.B.R. 1932).   With no

statutory text to the contrary, we decline to overrule almost a

century of precedent.

                                B.

     We also reject Appellant’s argument that for an accused to

be convicted of a clause 2 offense, military law requires that

the public know of the accused’s conduct.   In deciphering the

meaning of a statute, we normally apply the common and ordinary




2
  Act of Aug. 29, 1916, ch. 418, Pub. L. No. 64-242, 39 Stat.
619, 666.

                                 9
United States v. Phillips, No. 11-0148/MC

understanding of the words in the statute.   See United States v.

Alston, 69 M.J. 214, 216 (C.A.A.F. 2010).

     The focus of clause 2 is on the “nature” of the conduct,

whether the accused’s conduct would tend to bring discredit on

the armed forces if known by the public, not whether it was in

fact so known.   The statute, which requires proof of the

“nature” of the conduct, does not require the government to

introduce testimony regarding views of “the public” or any

segment thereof.    The responsibility for evaluation of the

nature of the conduct rests with the trier of fact.   As

discussed below, the degree to which others became aware of the

accused’s conduct may bear upon whether the conduct is service

discrediting, but the statute does not establish a requirement

that the accused’s conduct must in every case be in some respect

public knowledge.

                                 C.

     In determining legal sufficiency, we apply the well-known

standard set out in Jackson v. Virginia, 443 U.S. 307, 319

(1979), viz., whether, viewed in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

United States v. Lofton, 69 M.J. 386, 388 (C.A.A.F. 2011).     The

trier of fact must determine beyond a reasonable doubt that the

conduct alleged actually occurred and must also evaluate the


                                 10
United States v. Phillips, No. 11-0148/MC

nature of the conduct and determine beyond a reasonable doubt

that Appellant’s conduct would tend to bring the service into

disrepute if it were known.   See United States v. Saunders,

59 M.J. 1, 11 (C.A.A.F. 2003).

     In general, the government is not required to present

evidence that anyone witnessed or became aware of the conduct.

Nor is the government required to specifically articulate how

the conduct is service discrediting.   Rather, the government’s

obligation is to introduce sufficient evidence of the accused’s

allegedly service discrediting conduct to support a conviction.

In a panel case, the military judge must instruct the members

how to evaluate that evidence.   See Article 51(c), UCMJ, 10

U.S.C. § 851(c) (2006); Neder v. United States, 527 U.S. 1, 9

(1999).   When the military judge sits as the trier of fact, we

presume that the military judge knows the law and applies it

correctly.   United States v. Robbins, 52 M.J. 455, 457

(C.A.A.F. 2000).

     Whether conduct is of a “nature” to bring discredit upon

the armed forces is a question that depends on the facts and

circumstances of the conduct, which includes facts regarding the

setting as well as the extent to which Appellant’s conduct is

known to others.   The trier of fact must consider all the

circumstances, but such facts -- including the fact that the

conduct may have been wholly private -- do not mandate a


                                 11
United States v. Phillips, No. 11-0148/MC

particular result unless no rational trier of fact could

conclude that the conduct was of a “nature” to bring discredit

upon the armed forces.   For example, the extent to which conduct

is constitutionally protected may impact whether the facts of

record are sufficient to support a conviction.

     In this case, forensic analysis of Appellant’s computer

showed that searches had been performed seeking filenames

associated with child pornography.   Of the images the computer

retrieved using LimeWire that were examined in detail by the

forensic examiner, five images and two movies matched known

child victims engaged in sexually explicit conduct.   Appellant

admitted downloading pornography that included child pornography

and viewing the images on several occasions.

     The Government did not introduce any direct evidence that

the public was or would have become aware of Appellant’s

conduct, or that anyone at all was aware of it before Appellant

mentioned it to SA Bonilla.   Nor was the Government required to

do so in this case.   Regardless of public knowledge, the

evidence was sufficient for a rational trier of fact to find

beyond a reasonable doubt that Appellant’s activity would have

tended to bring discredit upon the service had the public known

of it.   See United States v. Harper, 22 M.J. 157, 161 (C.A.A.F.

1979) (stating that “sufficient evidence generally means some

legal and competent evidence from which a court-martial may find


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United States v. Phillips, No. 11-0148/MC

or infer beyond a reasonable doubt those facts required by law

for conviction”) (citation omitted).      The evidence is legally

sufficient to sustain Appellant’s conviction for possession of

child pornography under clause 2 of Article 134.

                                     V.

     Although we hold the evidence is legally sufficient to

support his conviction for possession of child pornography, we

are concerned, as noted above, that the CCA may have

conclusively presumed that Appellant’s conduct was of a nature

to bring discredit upon the armed forces because Appellant

possessed child pornography.    In light of our holding that the

elements of an offense cannot be established by a conclusive

presumption, and because this Court does not review for factual

sufficiency, we must remand for the CCA to perform a factual

sufficiency review under the correct standard.     See Article

66(c), UCMJ, 10 U.S.C. § 866(c) (2006).

                               VI.

     The judgment of the United States Navy-Marine Corps

Court of Criminal Appeals is set aside, and the record is

returned to the Judge Advocate General of the Navy for

remand to the Court of Criminal Appeals for a full review

consistent with this opinion.    Article 66(c), UCMJ, 10

U.S.C. § 866(c) (2006).




                                     13
United States v. Phillips, No. 11-0148/MC


     RYAN, Judge, with whom ERDMANN, Judge, joins

(dissenting):

     I agree with the majority that the test for whether

evidence is legally sufficient to sustain a conviction is

whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original); United States v. Phillips, __ M.J. __, __ (10)

(C.A.A.F. 2011).    I also agree that a conclusive

presumption that the element of service discredit is met by

the possession of child pornography itself would violate

the Constitution.   See Sandstrom v. Montana, 442 U.S. 510,

523 (1979); Phillips, __ M.J. at __ (7).    I nonetheless

write separately for two reasons.

     First, it is entirely unclear to me what the actual

distinction is between holding that the offense here cannot

be per se or conclusively service discrediting and holding,

at the same time, that “the evidence was sufficient for a

rational trier of fact to find beyond a reasonable doubt

that Appellant’s activity would have tended to bring

discredit to the service had the public known of it.”

Phillips, __ M.J. at __, __ (8, 12).    There is nothing in

the record -- other than the fact of the activity itself --
United States v. Phillips, No. 11-0148/MC


upon which the military judge could have based this

finding.

     Appellant was convicted under clause 2 of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934

(2006), which criminalizes “all conduct of a nature to

bring discredit upon the armed forces.”   The Due Process

Clause requires that the terminal elements of Article 134,

UCMJ, be independently proven beyond a reasonable doubt.

United States v. Miller, 67 M.J. 385, 389 (C.A.A.F. 2009).

Relatedly, “an appellate court may not affirm on a theory

not presented to the trier of fact and adjudicated beyond a

reasonable doubt.”   United States v. Medina, 66 M.J. 21, 27

(C.A.A.F. 2008).   Therefore, to affirm Appellant’s

conviction under this Court’s precedents, one would expect

the record to establish that the Government presented a

theory at trial explaining why Appellant’s conduct was

service discrediting.   But the Government presented no such

theory, either through evidence or through argument.   In

fact, the record of trial contains no discussion whatsoever

of whether and how Appellant’s conduct was service

discrediting.1


1
  While not dispositive, it is instructive that had
Appellant pled guilty, this Court would find the plea
improvident due to the complete absence of any discussion
of the service-discrediting element on the record. See

                              2
United States v. Phillips, No. 11-0148/MC


     Second, and relatedly, there is thus no reason to

assume that the military judge independently determined

that the service-discrediting element was proven beyond a

reasonable doubt.   Moreover, while not acknowledged by the

majority, our case law on whether and how to deal with

pleading and proof of the terminal element of an Article

134, UCMJ, offense has been, until recently, far from

clear.   Compare United States v. Fuller, 54 M.J. 107, 112

(C.A.A.F. 2000) (“[E]very enumerated offense under the UCMJ

is per se prejudicial to good order and discipline or

service discrediting.”), and United States v. Foster, 40

M.J. 140, 143 (C.M.A. 1994) (“The enumerated articles are

rooted in the principle that such conduct per se is either

prejudicial to good order and discipline or brings

discredit to the armed forces; these elements are implicit

in the enumerated articles.”), with Miller, 67 M.J. at 389

(overruling Foster and its progeny “[t]o the extent those

cases support the proposition that clauses 1 and 2 of

Article 134, UCMJ, are per se included in every enumerated

offense”), and Medina, 66 M.J. at 26 (holding that the

terminal elements under clauses 1 and 2 are not implied



United States v. Jordan, 57 M.J. 236, 237-39 (C.A.A.F.
2002) (finding the appellant’s guilty plea to an Article
134, UCMJ, offense improvident when there was no factual
basis for the terminal elements developed on the record).

                              3
United States v. Phillips, No. 11-0148/MC


elements of a prosecution under clause 3).    This record

provides no basis upon which to conclude that the military

judge did anything other than assume that the conduct was

per se or conclusively service discrediting based on the

law at the time of trial.    Appellant’s court-martial

predated our decision in Miller.2    We presume the military

judge followed the law at the time of the court-martial.

See United States v. Raya, 45 M.J. 251, 253 (C.A.A.F.

1996).   Under some of this law at the time, the conduct

might be viewed as per se service discrediting.     See, e.g.,

Foster, 40 M.J. at 143.     There is simply no way to know

that the military judge knew he must make, let alone made,

an independent factual determination on the element of

service discredit in this case, an issue compounded by the

complete dearth of reference to the element in the record

of trial.

     Because the Government failed to present either

evidence or argument on the element of service discredit

and the military judge may have applied pre-Miller law that


2
  Miller was decided on June 10, 2009, and Appellant’s
court-martial concluded four months earlier, on February 5,
2009. Therefore, the military judge presumably applied the
pre-Miller law in effect at Appellant’s court-martial,
whereas Miller governs this case on appeal. See United
States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010) (“[O]n
direct review, we apply the clear law at the time of
appeal, not the time of trial.”).

                                4
United States v. Phillips, No. 11-0148/MC


some conduct is per se service discrediting, I would set

aside the sentence and the finding of guilty on the child

pornography charge and authorize a rehearing.




                             5
