                       UNITED STATES, Appellee

                                    v.

              Timothy L. MERRITT Sr., Master Sergeant
                     U.S. Air Force, Appellant

                              No. 13-0283

                         Crim. App. No. 37608

       United States Court of Appeals for the Armed Forces

                      Argued September 17, 2013

                       Decided December 5, 2013

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., and EFFRON, S.J., joined. BAKER, C.J., filed a
separate concurring opinion.

                                 Counsel


For Appellant: William E. Cassara, Esq. (argued); Captain
Christopher D. James (on brief).

For Appellee: Colonel Don M. Christensen (argued); Major Joseph
Kubler and Gerald R. Bruce, Esq. (on brief).

Military Judge:   Jennifer L. Cline


       This opinion is subject to revision before final publication.
United States v. Merritt, No. 13-0283/AF


     Judge ERDMANN delivered the opinion of the court.

     A military judge sitting as a general court-martial

convicted Master Sergeant Timothy L. Merritt, contrary to his

pleas, of one specification of wrongfully and knowingly

receiving one or more visual depictions of minors engaging in

sexually explicit conduct and one specification of wrongfully

and knowingly viewing one or more visual depictions of minors

engaging in sexually explicit conduct, in violation of Article

134, UCMJ, 10 U.S.C. § 934 (2006).   The military judge merged

the two specifications for sentencing purposes and sentenced

Merritt to twenty-four months of confinement, reduction to E-2,

and a bad-conduct discharge.   The convening authority approved

the adjudged sentence.   The United States Air Force Court of

Criminal Appeals affirmed the findings and sentence.   United

States v. Merritt, 71 M.J. 699, 708 (A.F. Ct. Crim. App. 2012).

     “[A] servicemember must have fair notice that his conduct

is punishable before he can be charged under Article 134 with a

service discrediting offense.”   United States v. Vaughan, 58

M.J. 29, 31 (C.A.A.F. 2003) (quotation marks and brackets

omitted).   In addition, “[d]ue process entitles convicted

servicemembers to a timely review and appeal of court-martial

convictions.”   United States v. Moreno, 63 M.J. 129, 132

(C.A.A.F. 2006).   We granted review of this case to determine:

(1) whether Merritt had notice that the act of viewing child

                                 2
United States v. Merritt, No. 13-0283/AF


pornography was conduct that could be prosecuted subject to

criminal sanction; and (2) whether a delay of 1,024 days between

the docketing of Merritt’s appeal at the United States Air Force

Court of Criminal Appeals (CCA) and the CCA’s decision

constituted a denial of his due process right to a speedy post-

trial review.1    We hold that Merritt was not on notice that the

act of viewing child pornography could be prosecuted and that

Specification is set aside.    While the delay in processing

Merritt’s appeal was excessive, Merritt was not legally

prejudiced by the delay and consequently he is not entitled to

relief for appellate delay.

                                Notice

Background

       In 2007, an investigation initiated by German authorities

led the Air Force Office of Special Investigations (OSI),


1
    We granted review of the following issues:

       I.    Whether Appellant’s constitutional right to fair
             notice that an act is criminal was violated in
             Specification 2 of the Charge, where the alleged
             offense occurred in May 2006 but Congress did not
             criminalize the intentional viewing of child
             pornography until October 2008.

       II.   Whether Appellant’s due process right to timely
             appellate review was violated where the Air Force
             Court decided Appellant’s case one thousand and
             twenty-four days after it was docketed.

United States v. Merritt, 72 M.J. 264 (C.A.A.F. 2013) (order
granting review).
                                   3
United States v. Merritt, No. 13-0283/AF


located at Spangdahlem Air Base, to question Merritt as to

whether he had accessed child pornography on the Internet.

Following a rights advisement, Merritt waived his rights and

told agents that he had clicked on Internet ads for child

pornography and viewed images of minors engaging in sexual

activity.   In a statement written for investigators, Merritt

wrote, “I am deeply [a]shamed for having even looked at such

images even out of curiosity.   It is to great horror that have

[sic] to recall these images that I tried so hard to forget

seeing . . . .”   Merritt’s computer equipment was seized and a

forensic examiner reviewed the data contained on Merritt’s

laptop and hard drives prior to the court-martial.

     Merritt was charged with two specifications alleging

violations of Article 134, UCMJ.       The first Specification, which

alleged that Merritt wrongfully and knowingly received child

pornography, is not at issue in this appeal.      The second

Specification alleged that Merritt:

     [D]id, at or near Spangdahlem Air Base, Germany, on
     divers occasions between, on or about 6 May 2006, and
     on or about 13 May 2006, wrongfully and knowingly view
     one or more visual depictions of minors engaging in
     sexually explicit conduct, which conduct was
     prejudicial to good order and discipline in the armed
     forces or was of a nature to bring discredit upon the
     armed forces.

At Merritt’s court-martial the defense filed a Motion to Dismiss

Specification 2 of the Charge arguing that “[n]o offense of


                                   4
United States v. Merritt, No. 13-0283/AF


‘wrongful and knowing viewing’ of such depictions is listed in

the UCMJ, 10 USC §§ 877-934, (Punitive Articles), nor is such an

offense enumerated under Article 134.”   The defense argued that

there was no federal law, military case law, custom or usage

which prohibited the mere viewing of child pornography in 2006.

     In response to the motion, the government argued that it

was well settled that conduct which is not criminal in a

civilian setting could be criminalized in the military.    The

government cited this court’s decision in United States v.

Medina, 66 M.J. 21, 27 (C.A.A.F. 2008), in which we stated that

“[i]t is intuitive that the viewing of child pornography

discredits those who do it, as well as the institutions with

which those persons are identified.”   Finally, the government

cited Merritt’s statement to OSI in which he wrote that he was

ashamed of his conduct, as evidence that he undoubtedly knew

that viewing child pornography was prohibited.

     The military judge denied Merritt’s motion to dismiss.      The

military judge ruled:

     [W]hen looking at the combination of and interplay
     between federal law, military law and custom, and
     state law, it is clear that the Accused had fair
     notice that the wrongful and knowing viewing of visual
     depictions of minors engaging in sexually explicit
     conduct, if shown to be prejudicial to good order and
     discipline and/or service discrediting, is criminal.




                                5
United States v. Merritt, No. 13-0283/AF


Consistent with the government’s argument, the military judge

relied on Medina and noted also that “viewing of these types of

images has been subjected to criminal sanction in some states

. . . and the Supreme Court has stated that states are

authorized to criminalize the viewing of these types of images.”

The military judge found that a servicemember “would be on fair

notice that knowing and intentional involvement with child

pornography is a crime.”

        The military judge ultimately found Merritt guilty of

viewing child pornography by exceptions to the service

discrediting conduct.    During sentencing, the government

suggested that the maximum confinement for the charge was thirty

years, based on twenty years of confinement for the receipt

specification and ten years for the viewing specification.

However, the military judge merged the two specifications for

sentencing and applied a maximum sentence of twenty years, which

was the maximum punishment for receipt of child pornography

under the federal statute.    Merritt was sentenced to twenty-four

months of confinement, reduction to E-2, and a bad-conduct

discharge.

        On appeal to the CCA, Merritt argued that he was not on

notice that viewing child pornography was criminalized by the

UCMJ.    Merritt, 71 M.J. at 704.   The CCA found that Merritt

“knew, or should have known” that his conduct was service

                                    6
United States v. Merritt, No. 13-0283/AF


discrediting based on his statement that he was “deeply a shamed

[sic] for having even looked at such images,” and “[i]t is to

great horror that [I] have to recall these images.”   Id. (first

and third set of brackets in original).    The CCA also found that

military case law on possession of child pornography provided

support for the conviction, reasoning “[w]e can find no logical

distinction between the knowing possession and the viewing of

such images with regard to the service discrediting nature of

the act.”    Id. at 705.

Discussion

     Before this court Merritt renews his argument that none of

the sources identified by our decision in Vaughan, 58 M.J. at

31, provided him with notice that viewing child pornography was

criminal in 2006.   Specifically, he notes that the federal Child

Pornography Prevention Act (CPPA), Pub. L. No. 104-208, 110

Stat. 3009, 3009-26 to 3009-31 (1996) (codified as amended at 18

U.S.C. §§ 2251-2260A (2006)), did not include the viewing of

child pornography as a punishable offense in 2006.    Merritt also

asserts that the overwhelming majority of states have not

criminalized the viewing of child pornography.   In addition, he

argues that military case law has not recognized the mere

viewing of child pornography as a crime and, while military law

has long recognized that possession of child pornography is

criminal, there is no definable custom or usage regarding the

                                 7
United States v. Merritt, No. 13-0283/AF


viewing of child pornography that would provide notice that it

was a criminal offense.

     In response, the government argues that state laws provided

notice to Merritt, despite his duty station in Germany, that

child pornography was widely criminalized long before 2006.      The

government cites a number of state statutes which make “every

conceivable route [Merritt] could take in order to intentionally

view child pornography illegal by making actions like control,

use, access, enter and receive subject to criminal sanction.”

The government reasons that it is impossible to wrongfully view

child pornography without committing one or several of the other

criminal acts along the way, therefore Merritt surely had notice

that viewing child pornography could subject him to criminal

sanction.

     Whether the military judge correctly understood and applied

the proper legal principle in denying the motion to dismiss is a

question we review de novo.   United States v. Saunders, 59 M.J.

1, 6 (C.A.A.F. 2003) (citing United States v. Hughes, 48 M.J.

214, 216 (C.A.A.F. 1998)).    “Article 134, UCMJ, the ‘General

Article,’ criminalizes service-discrediting conduct by military

service members.”   Saunders, 59 M.J. at 6 (citing Manual for

Courts-Martial, United States (2002 ed.) (MCM)).    Although

“[c]ertain specified offenses are included under this Article,”

conduct that isn’t listed in the MCM may nonetheless constitute

                                  8
United States v. Merritt, No. 13-0283/AF


service discrediting conduct and “may be used to allege the

offense.”   Id. (quotation marks omitted).

     “[A]s a matter of due process, a service member must have

fair notice that his conduct [is] punishable before he can be

charged under Article 134 with a service discrediting offense.

This Court has found such notice in the MCM, federal law, state

law, military case law, military custom and usage, and military

regulations.”   Vaughan, 58 M.J. at 31 (brackets in original)

(citations and quotation marks omitted).

     The UCMJ did not criminalize the viewing of child

pornography at the time of the charged conduct in May of 2006.2

Nor did the federal CPPA which criminalized the knowing

transport, receipt, distribution, production, sale, or

possession of child pornography.       See 18 U.S.C. § 2252 (2006).3

“Viewing” child pornography was not included in this long list

of punishable offenses related to child pornography.

     In affirming Merritt’s conviction, the CCA relied, in part,

on decisions from the federal courts of appeals, writing,

“various federal circuits have held that the act of viewing

child pornography violated the [CPPA], even though viewing was

not specifically listed in the statute until 2008.”       Merritt, 71

2
  The MCM’s current language criminalizes the viewing of child
pornography. MCM, pt. IV, para. 68b.b.(1) (2012 ed.).
3
  The 2008 amendment to 18 U.S.C. § 2252(a)(4)(B) did not
criminalize “viewing” but rather criminalized “knowingly
access[ing] with intent to view” child pornography.
                                   9
United States v. Merritt, No. 13-0283/AF


M.J. at 705 (citing United States v. Pruitt, 638 F.3d 763, 766-

67 (11th Cir. 2011); United States v. Bass, 411 F.3d 1198, 1201-

02 (10th Cir. 2005)).   However, neither Pruitt nor Bass support

the CCA’s holding.4   In fact, we have found no federal court

decision which interpreted the CPPA to criminalize the viewing

of child pornography in 2006.

     The CCA also relied on Merritt’s statement that he was

ashamed of looking at the images as “powerful evidence that

[Merritt] was fully aware that viewing child pornography could

call the Air Force into disrepute and thereby violate the UCMJ.”

Merritt, 71 M.J. at 704.   However, the fact that a servicemember

may be ashamed of certain conduct is not sufficient by itself to

equate to due process notice that the conduct was subject to

criminal sanction.

     The government argues that a number of state statutes which

criminalized the “viewing” of child pornography adequately

provided Merritt with notice.   The government urges the court to

find that, taken together, the various state statutes put

Merritt on notice of the “general criminality” of child

4
  Pruitt and Bass did not involve convictions for “viewing” child
pornography. While Pruitt referenced the “intentional viewer of
child[]pornography,” the case turned on the definition of
“receipt,” pursuant to the charged conduct. Pruitt, 638 F.3d at
766-67. In Bass the court relied on the Oxford English
Dictionary’s definition of “possession” to decide whether Bass
had possession of child pornography despite the fact that there
was no evidence that he actually viewed child pornography.
Bass, 411 F.3d at 1201-02.
                                10
United States v. Merritt, No. 13-0283/AF


pornography.    However, as the government’s own research

indicates, only a handful of states explicitly criminalized

viewing child pornography in 2006.5

     We previously concluded that, under appropriate

circumstances, state statutes may provide fair notice of a

possible Article 134 prosecution even when the servicemember is

stationed outside the United States.   See Vaughan, 58 M.J. at 32

(“The locus of the charged conduct does not change the measure

of notice.”).   However, under the circumstances of this case,

where the “viewing” of child pornography was not criminalized

under the UCMJ, the MCM, military custom or usage, the

comprehensive federal statutes, or the majority of state

statutes, the fact that three states criminalized the conduct

does not satisfy the constitutional requirement of fair notice.6

     The government also argues a “general criminality” theory

with respect to the treatment of child pornography in the

military.7   Underlying this argument is the government’s theory


5
  Our review of the state statutes cited by the Government
indicates that three states -- Arkansas, New Jersey, and Ohio --
explicitly criminalized “viewing” child pornography in 2006.
Ark. Code Ann. § 5-27-304 (1991), N.J. Stat. Ann. § 2C:24-4
(West 2001), Ohio Rev. Code Ann. § 2907.323 (LexisNexis 1995).
6
  The number of states that may have criminalized certain conduct
is not, by itself, determinative as to whether there is
sufficient notice that the conduct is subject to criminal
sanction. That determination is dependent on the facts of the
particular case.
7
  Both the CCA and the government rely on the comment in Medina
that “‘[i]t is intuitive that the viewing of child pornography
                                 11
United States v. Merritt, No. 13-0283/AF


that there is an aura of criminality surrounding child

pornography which placed servicemembers on notice that any

conduct involving child pornography constitutes criminal conduct

even though that conduct was not criminalized by almost all

traditional sources of due process notice.8   While actions

related to viewing child pornography may well subject a

servicemember to prosecution for violation of other criminal

offenses involving child pornography (such as possession or

transmission), it does not follow that conduct not otherwise

prohibited becomes criminalized solely due to its proximity to

the prohibited conduct.   In this case, the government’s argument

suggests that Merritt was on notice that there was an additional

criminal act that occurred when he viewed the very same pictures

that he was charged with possessing.

     We decline to adopt such an amorphous standard and adhere

to the traditional sources of notice set forth in Vaughan.

Given that none of the Vaughan sources provided Merritt with

notice in this case, we hold that he did not have sufficient


discredits those who do it, as well as the institutions with
which the persons are identified.’” Merritt, 71 M.J. at 705
(quoting Medina, 66 M.J. at 27). Not only was Medina decided
two years after the conduct at issue in this case, “intuition”
is not a listed source of due process notice in Vaughan.
8
  “Since there was no way to wrongfully view without committing
one or several of the other criminal acts along the way,
Appellant had fair notice that viewing child pornography could
subject him to criminal sanction by virtue of the predicate
criminal acts.” Brief of Appellee at 7, United States v.
Merritt, No. 13-0283 (C.A.A.F. July 1, 2013).
                                12
United States v. Merritt, No. 13-0283/AF


notice that the viewing of child pornography was subject to

criminal sanction in 2006.    At that time, there was no federal

statute or federal judicial decision interpreting federal law

which prohibited the viewing of child pornography and only a few

states even mentioned viewing in their respective child

pornography statutes.    In addition, neither the MCM nor military

courts interpreting its provisions gave notice that the act of

viewing child pornography without more was prohibited in 2006

and the government has not established that such a prohibition

was a custom or usage of the service.    The finding as to

Specification 2 of the charge is set aside.

                         Appellate Due Process

Background

        Merritt was sentenced on September 2, 2009 and the

convening authority took action 139 days later on January 19,

2010.    The case was docketed at the CCA thirty-one days later on

February 24, 2010.    Merritt’s counsel was granted six

enlargements of time in which to file his initial brief, which

was ultimately filed on February 16, 2011, almost one year after

docketing.    The government was granted four enlargements of time

and filed its answer brief on August 11, 2011, nearly six months

after the defense brief was filed.     Merritt was granted one

enlargement of time for his reply brief, which was filed on

August 25, 2011.

                                  13
United States v. Merritt, No. 13-0283/AF


     On August 10, 2012, while his appeal was pending before the

CCA, Merritt filed a Motion for Leave to File Supplemental

Assignment of Error and a Motion for Expedited Review.   Merritt

argued that expedited review was necessary because the case

“languished for 29 months, 11 months past the [18-month] time

limit set in Moreno.”   See Moreno, 63 M.J. at 142.   The motion

was filed over two years after the case was docketed at the CCA

on February 24, 2010.   The CCA summarily denied the Motion for

Expedited Review on August 17, 2012.9   On September 5, 2012,

Merritt filed a Petition for Extraordinary Relief in the Nature

of a Writ of Mandamus seeking similar relief from this court,

which was denied on October 11, 2012.   United States v. Merritt,

71 M.J. 440 (C.A.A.F. 2012) (summary disposition).

     The CCA issued its decision in Merritt’s case on December

14, 2012, 1,024 days after docketing.   In disposing of Merritt’s

appellate delay claim, the CCA assumed error but summarily

concluded that it was harmless beyond a reasonable doubt.

Citing United States v. Allison, 63 M.J. 365, 370 (C.A.A.F.

2006), the CCA held it was unnecessary to engage in an analysis

of the Moreno factors for the adjudication of post-trial

appellate delay.   Merritt, 71 M.J. at 708.



9
  The CCA granted Merritt’s Motion for Leave to File Supplemental
Assignment of Error on August 29, 2012, and addressed the
appellate delay issue in its opinion. Merritt, 71 M.J. at 708.
                                14
United States v. Merritt, No. 13-0283/AF


Discussion

     “This court has recognized that convicted servicemembers

have a due process right to timely review and appeal of courts-

martial convictions.”    Moreno, 63 M.J. at 135.     We employ a

four-factor test to review claims of unreasonable post-trial

delay, evaluating (1) the length of the delay; (2) the reasons

for the delay; (3) the appellant’s assertion of the right to

timely review and appeal; and (4) prejudice.       Id.   “Once this

due process analysis is triggered by a facially unreasonable

delay, the four factors are balanced, with no single factor

being required to find that post-trial delay constitutes a due

process violation.”    Id. at 136.

     (1)     Length of the Delay

      “[U]nless the delay is facially unreasonable, the full due

process analysis will not be triggered.”     Id.    The CCA found the

delay facially unreasonable and the government concedes in its

brief that the delay in Merritt’s case triggers the full four-

part analysis.    Merritt, 71 M.J. at 708.   “[I]f the

constitutional inquiry has been triggered, the length of delay

is itself balanced with the other factors and may, in extreme

circumstances, give rise to a strong presumption of evidentiary

prejudice affecting the fourth Barker [v. Wingo, 467 U.S. 514

(1972)] factor.”    United States v. Toohey, 60 M.J. 100, 102

(C.A.A.F. 2004) (quotation marks omitted).    The length of delay

                                   15
United States v. Merritt, No. 13-0283/AF


calculation “includes time caused by failures of appointed

counsel and delays by the court itself.”    Id. (brackets and

quotation marks omitted).    The delay in Merritt’s case is

facially unreasonable and we proceed to the analysis of the

remaining three factors.

     (2)   Reasons for the Delay

     “Under this factor we look at the Government’s

responsibility for the delay, as well as any legitimate reasons

for the delay, including those attributable to an appellant.”

Moreno, 63 M.J. at 136.     The court will “examine each stage of

the post-trial period because the reasons for the delay may be

different at each stage and different parties are responsible

for the timely completion of each segment.”    Id.

     In considering this factor, we have declined to attribute

to individual appellants the periods of appellate delay

resulting from military appellate defense counsels’ requests for

enlargements of time where the basis for the request is

excessive workload.   Diaz v. Judge Advocate General of the Navy,

59 M.J. 34, 38 (C.A.A.F. 2003) (“Appellate counsel caseloads are

a result of management and administrative priorities and as such

are subject to the administrative control of the Government.    To

allow caseloads to become a factor in determining whether

appellate delay is excessive would allow administrative factors

to trump the Article 66 and due process rights of appellants.”);

                                   16
United States v. Merritt, No. 13-0283/AF


see also Moreno, 63 M.J. at 137.      In this case, however, Merritt

was represented by civilian counsel and the government opposed

his requests for enlargement.   As a result, the appellate filing

delays requested by appellate defense counsel are attributable

to Merritt.10

     The six enlargements of time granted to Merritt’s counsel

amounted to 357 days between the docketing of his case and the

filing of his initial brief.    Following the filing of that

brief, the government appellate division sought five

enlargements of time to file the answer brief and one

enlargement to file an answer to the supplemental issue.     The

government concedes that it is responsible for the 228-day delay

encompassed by the six enlargements of time.

     Before this court, Merritt focuses on the 351-day delay

between the submission of his reply brief and the filing of his

Motion for Expedited Review.    He argues that this period is

nearly twice the “allowance” this court established in Moreno

and the CCA provided no reason for its delay.     Although “[w]e

[ . . . ] apply a more flexible review of this period,

recognizing that it involves the exercise of the Court of

Criminal Appeals[’] judicial decision-making authority,” Moreno,

63 M.J. at 137, lengthy delays at the CCA are particularly


10
  The requests for enlargement of time indicated that Merritt
agreed with the requests.
                                 17
United States v. Merritt, No. 13-0283/AF


problematic given that the CCA is “directly responsible for

exercising institutional vigilance over [all] cases pending

Article 66 review.”    Diaz, 59 M.J. at 40 (quotation marks

omitted).

     Merritt misreads Moreno when he argues that case

established a six-month standard in which the CCA should decide

a case after the briefing is complete.   In Moreno we considered

the circumstances of that case and stated that “a period of

slightly over six months is not an unreasonable time for review

by the Court of Criminal Appeals.”    63 M.J. at 137-38.   While we

did not establish a firm standard, we noted earlier in Moreno

that “[u]ltimately the timely management and disposition of

cases docketed at the Court of Criminal Appeals is a

responsibility of the Courts of Criminal Appeals.”   Id. at 137.

     The lengthy briefing period of over a year and a half, as

well as the time taken by the CCA to decide this case, are

troubling.   As we stated in Diaz, this is partially because:

     Unlike the civilian criminal justice system, the
     Courts of Criminal Appeals have unique fact finding
     authority, and that aspect of a servicemember’s case
     is not concluded until that review is completed. The
     nature of this review calls for, if anything, even
     greater diligence and timeliness than is found in the
     civilian system.

Diaz, 59 M.J. at 38.    Given the delays in this case, and the

lack of institutional vigilance by the Air Force CCA, this

factor weighs in Merritt’s favor.

                                 18
United States v. Merritt, No. 13-0283/AF


     (3)   Assertion of Right to Timely Review

     “This factor calls upon [the court] to examine an aspect of

[Appellant’s] role in this delay.”     Moreno, 63 M.J. at 138.

Merritt argues that he not only filed a supplemental issue

relating to post-trial delay but also filed a writ of mandamus

seeking relief from this court.    As we have noted, Merritt filed

the motion after his counsel requested six enlargements of time

and after the case languished at the CCA for over two years.

Thus, Merritt’s assertion of this right was not timely and this

factor weighs slightly against him.    See United States v.

Othuru, 65 M.J. 375, 380 (C.A.A.F. 2007).

     (4)   Prejudice

     Prejudice should be assessed in light of the interests
     of those convicted of crimes to an appeal of their
     convictions unencumbered by excessive delay. [There
     are] three similar interests for prompt appeals: (1)
     prevention of oppressive incarceration pending appeal;
     (2) minimization of anxiety and concern of those
     convicted awaiting the outcome of their appeals; and
     (3) limitation of the possibility that a convicted
     person’s grounds for appeal, and his or her defenses
     in case of reversal and retrial, might be impaired.

Moreno, 63 M.J. at 138-39 (quoting Rheuark v. Shaw, 628 F.2d

297, 203 n.9 (5th Cir. 1980)).    We review each of the three

prejudice subfactors in turn.

     a. Prevention of Oppressive Incarceration

     Merritt was incarcerated on September 3, 2009, and his

appeal was docketed with the CCA on February 24, 2010.


                                  19
United States v. Merritt, No. 13-0283/AF


According to Merritt’s Motion for Expedited Review, he was

released from confinement on appellate leave in April 2011, four

months before his counsel filed his reply brief.

     As we explained in Moreno:

     [The oppressive incarceration pending appeal] sub-
     factor is directly related to the success or failure
     of an appellant’s substantive appeal. If the
     substantive grounds for the appeal are not
     meritorious, an appellant is in no worse position due
     to the delay, even though it may have been excessive.
     . . . . However, if an appellant’s substantive appeal
     is meritorious and the appellant has been incarcerated
     during the appeal period, the incarceration may have
     been oppressive.

Id. at 139 (citations omitted).

     Because Merritt has prevailed on his substantive appellate

issue, we must determine whether his incarceration was

oppressive.   While we have set aside the “viewing” of child

pornography specification, Merritt remains convicted of

“receiving” child pornography.    During his sentencing, Merritt’s

counsel argued that the two specifications should be considered

multiplicious for sentencing purposes.   The military judge

agreed, stating:

     Based on the facts in this case I am going to combine
     the two charges for sentencing. The maximum
     punishment is 20 years, which comes from the maximum
     punishment for receipt from the Federal law, in
     addition to the dishonorable discharge, reduction in
     rank to E-1, and total forfeiture of all pay and
     allowances.




                                  20
United States v. Merritt, No. 13-0283/AF


Since the military judge merged the two charges for sentencing

purposes, we are satisfied that Merritt’s sentence would have

been the same had he only been charged with “receiving” child

pornography and therefore he is in “no worse position due to the

delay even though it may have been excessive.”   Id.

     Merritt also argues that he was prejudiced under this

subfactor because he lost retirement income while his case was

being reviewed by the CCA.   Lost pay, though surely a concern

for any servicemember on appeal, does not bear on the

consideration of whether Merritt suffered from oppressive

incarceration.   Therefore, even though his substantive appeal

was successful, Merritt suffered no prejudice as a result of

oppressive incarceration.

     b. Minimization of Anxiety and Concern

     As to this subfactor, we require:

     an appellant to show particularized anxiety or concern
     that is distinguishable from the normal anxiety
     experienced by prisoners awaiting an appellate
     decision. This particularized anxiety or concern is
     thus related to the timeliness of the appeal, requires
     an appellant to demonstrate a nexus to the processing
     of his appellate review, and ultimately assists this
     court to “fashion relief in such a way as to
     compensate [an appellant] for the particular harm.”

Id. at 140 (brackets in original).

     Merritt argues that he suffered anxiety after registering

as a sex offender following his release from confinement and

also due to lost retirement income.   Merritt claims these

                                21
United States v. Merritt, No. 13-0283/AF


concerns raised his anxiety above the normal anxiety experienced

by defendants awaiting the outcome of an appeal.

     While Merritt’s anxiety over sex offender registration is

understandable, he has not made a strong case that he

experienced the “particularized anxiety” that is

“distinguishable from normal anxiety experienced by prisoners

awaiting an appellate decision.”      See Moreno, 63 M.J. at 139-40.

Because Merritt remains convicted of receiving child

pornography, he would be required to register as a sex offender

upon release from confinement regardless of any delay.     See

United States v. Arriaga, 70 M.J. 51, 58 (C.A.A.F. 2011).

Therefore, Merritt cannot rely on the sex offender registration

as cause for anxiety and concern related to the delay.     Finally,

similar to our discussion under the “oppressive incarceration”

subfactor, loss of retirement income, while a concern for any

servicemember on appeal, does not constitute “particularized

anxiety” under this subfactor.

     c. Impairment of Ability to Present a Defense at a
        Rehearing

     Merritt argues that if he is successful on his substantive

issue, the delay at the CCA could have a negative impact on his

ability to prepare for a rehearing given the passage of time and

availability of witnesses.   As we have set aside the finding on

the “viewing” charge for lack of due process notice, there can


                                 22
United States v. Merritt, No. 13-0283/AF


be no rehearing on that charge.    Thus, Merritt cannot

demonstrate prejudice by arguing an inability to prepare for

retrial.

     (5)     Summary -- Appellate Delay

     While we find the length of appellate delay was clearly

unreasonable and the trend of delay at the Air Force CCA is

troublesome, in this case Merritt has not shown that he was

prejudiced by the appellate delay and consequently he is not

entitled to relief on this issue.      See Othuru, 65 M.J. at 380

(finding “no good cause” for lengthy appellate delay, but

holding that there was no basis for a finding of prejudice).

                               DECISION

     The finding as to Specification 2 of the Charge (viewing

child pornography) is set aside and that Specification is

dismissed.    Because the military judge merged Specifications 1

and 2 for sentencing and relied on the maximum punishment for a

finding of guilty to Specification 1 (receipt of child

pornography), we are confident that Merritt would not have

received a lesser sentence if the military judge had dismissed

Specification 2.    See United States v. Custis, 65 M.J. 366, 372

(C.A.A.F. 2007).    The decision of the United States Air Force

Court of Criminal Appeals with respect to Specification 1 of the

Charge (receipt of child pornography) and the sentence are

affirmed.

                                  23
United States v. Merritt, No. 13-0283/AF


     BAKER, Chief Judge (concurring):

     On Issue I, I would reach the same result, but on narrower

grounds, addressed to the specific circumstances of this case.

When charged in tandem with a possession count for the exact

same child pornography, I would agree that Appellant was not on

fair notice that he may have committed an additional crime by

viewing the very same pictures he was charged with possessing.

     I also agree that those factors specifically delineated in

United States v. Vaughan –- the Manual for Courts-Martial,

United States, case law, federal or state law, and military

regulations -- do not give notice that viewing child pornography

could be charged as a separate crime.   United States v. Vaughan,

58 M.J. 29, 31 (C.A.A.F. 2003).   However, the Vaughan factors do

not provide an exhaustive list and meeting those factors is not

the only avenue through which a party could receive fair notice

as to the criminality of an offense under Article 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012).   I

would not rule out the possibility that, under certain

circumstances, other factors including the elements, custom and

common sense could have put a reasonable servicemember on notice

that viewing child pornography was of a nature to be service

discrediting, especially where viewing involved actions akin to

the possession of child pornography.    The notice problem in this

case is that Appellant was charged with possessing and viewing
United States v. Merritt, No. 13-0283/AF
 

the same child pornography, and in that context, he was not on

notice as to what distinct criminal conduct was included within

the viewing specification that was not subsumed within or

implied by the possession specification. 




                                2 
 
