                         UNITED STATES, Appellee

                                         v.

                       Jacob D. MOON, Specialist
                          U.S. Army, Appellant

                                  No. 13-0536
                         Crim. App. No. 20120112

       United States Court of Appeals for the Armed Forces

                          Argued April 28, 2014

                               August 11, 2014

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

                                     Counsel


For Appellant: Captain Brian J. Sullivan (argued); Colonel
Kevin M. Boyle, Lieutenant Colonel Peter Kageleiry Jr., and
Major Vincent T. Shuler (on brief); Lieutenant Colonel Imogene
M. Jamison and Captain John L. Schriver.

For Appellee: Captain Timothy C. Erickson (argued); Colonel
John P. Carrell, Captain Steven T. Nam, and Major Robert A.
Rodrigues (on brief).


Military Judge:    James L. Varley




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moon, No. 13-0536/AR


     Judge STUCKY delivered the opinion of the Court.

     Appellant was convicted, inter alia, of possessing images

of “nude minors and persons appearing to be nude minors,” in

violation of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2012).   The case was submitted to this

Court on its merits, and we specified two issues for review to

determine (1) whether Appellant had fair notice that the charged

conduct was prohibited and subject to criminal sanction, and (2)

whether his plea was provident.   United States v. Moon, 72 M.J.

441 (C.A.A.F. 2013) (order granting review).    Assuming, without

deciding, that Appellant had notice of the criminality of his

conduct, we hold that there is a substantial basis in law and

fact to question Appellant’s guilty plea.

                     I.   Posture of the Case

     A military judge sitting as a general court-martial

convicted Appellant, pursuant to his pleas, of two

specifications of possession of child pornography as defined by

18 U.S.C. § 2256(8) (2006) (the Specification of the Charge and

Specification 1 of the Additional Charge), and one specification

of possession of images of “nude minors and persons appearing to

be nude minors” (Specification 2 of the Additional Charge), all

in violation of Article 134, UCMJ.    The military judge made

special findings as to which of the charged images formed the

basis of each specification.   Appellant was sentenced to a bad-

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United States v. Moon, No. 13-0536/AR


conduct discharge, six months of confinement, forfeiture of all

pay and allowances, and reduction to the lowest enlisted grade.

The convening authority approved the adjudged sentence.    The

United States Army Court of Criminal Appeals found that eleven

of the forty-six images the military judge found to be child

pornography with respect to the Specification of the Charge were

not child pornography, but affirmed the findings and sentence.

United States v. Moon, No. ARMY 20120112, 2013 CCA LEXIS 294, at

*1–*2, 2013 WL 1457932, at *1 (A. Ct. Crim. App. Mar. 29, 2013)

(per curiam).

                         II.   Background

     Appellant was charged with and pled guilty to two

specifications of possessing child pornography, as defined by 18

U.S.C. 2256(8), and one specification of “knowingly possess[ing]

multiple images of nude minors and persons appearing to be nude

minors, which possession was to the prejudice of good order and

discipline in the armed forces and was of a nature likely to

bring discredit upon the armed forces.”     During the plea inquiry

into the child pornography specification, the military judge

provided the federal definitions for child pornography, and

discussed with trial counsel and defense counsel that none of

the images depicted sexual intercourse, bestiality,

masturbation, or sadistic or masochistic abuse, but rather that

the images qualified as child pornography based only on

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United States v. Moon, No. 13-0536/AR


lascivious exhibition of the genitals.       See 18 U.S.C. 2256(2)

(defining “sexually explicit conduct”).       The military judge

explained to Appellant that not every exposure of the genitals

constitutes a lascivious exhibition, and defined lascivious

using the factors identified in United States v. Dost, 636 F.

Supp. 828, 832 (S.D. Cal. 1986).       Appellant admitted that the

focal point of the child pornography images was the genitals,

that a few depicted masturbation, and that some depicted

unnatural, sexually coy poses.

     With respect to the nude minors specification, the military

judge began by stating his concerns:

     Now as I have expressed earlier I was a little
     concerned when I saw this specification because it’s
     not alleging possession of child pornography. Rather
     what it’s alleging is the possession of multiple
     images of nude minors and persons appearing to be nude
     minors. And then it alleges this that [sic]
     possession was to the prejudice of good order and
     discipline in the armed forces, and was of a nature to
     bring discredit upon the armed forces. Now,
     ordinarily the possession of images of nude minors or
     persons appearing to be nude minors is not
     criminalized under the federal code nor is it
     criminalized under the Uniform Code of Military
     Justice in either a[n] [e]numerated offense or an
     explicit Article 134 offense. However, I’m not saying
     that it can’t be criminalized, it’s just not
     ordinarily criminalized, and my concern here is there
     are circumstances where having nude images of children
     or what appears to be children could not be a crime.
     In fact, most cases, overwhelming number of cases it’s
     not criminal.

The military judge then asked trial counsel for her theory of

criminality in this case.   Trial counsel responded:

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United States v. Moon, No. 13-0536/AR


    Your honor, that those pictures, while not meeting the
    statutory definition of child pornography, the focal
    point of those was on the children, was on nude
    children, or persons who appeared to be nude children,
    nude minors, that there was no artistic depiction, or
    artistic value to those photographs and they were used
    for sexual gratification purposes.

Emphasis added.   Defense counsel agreed that that was his

understanding of the Government’s theory.    The military judge

then asked Appellant to describe why possession of images of

nude minors was a crime under Article 134, and Appellant

responded, “I would have to say because it’s in the same essence

and nature of the first specification, sir.”

     The military judge sought a definition of “nude” from the

parties, and after a brief recess, trial counsel explained that

“the definition would include any minor and not wearing clothes

between his shoulders and knees.”    Defense counsel agreed.   The

military judge again expressed concern about the images that

fall into “this catchall provision.”    He explained that, “[t]he

dominant theme appears to be what the accused described as a

naturalist type setting, basically, a nudist colony.    [This]

isn’t the kind of graphic, hard-core child pornography I have

seen in some other cases.”

     The military judge then engaged in a colloquy with

Appellant, repeating that the nude images are “a little bit

outside the definitions of child pornography,” and “must not be

a lascivious display of their pubic area or something along

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United States v. Moon, No. 13-0536/AR


those lines,” or else they would be considered child

pornography.   He reiterated his concerns that “there are

legitimate reasons a person might possess a picture of a nude

minor or there might be artistic depictions of nude minors.”

     At this point, the colloquy begins to rely on leading

questions that oscillated between definitions applied to the

child pornography specification and the nude minors

specification, resulting in ambiguous answers.   The following

exchange occurred:

     MJ: Were the children in the images performing sexual
     acts or posed in a sexual or promiscuous manner?

     ACC:   Yes, sir.

     MJ: And not all of the images but in many of them,
     correct?

     ACC:   Yes, sir.

     MJ: So you know what I’m talking about with regard to
     promiscuous or kind of coy or sexually inviting pose,
     would you agree with that?

     ACC:   Yes, sir.

     MJ: One of the things I discussed with you when I
     defined the term lascivious in making a determination
     as to whether something is lascivious is, whether the
     setting is sexually suggestive, whether the child is
     depicted in an unnatural pose or inappropriate attire
     considering the child’s age, and whether the child is
     partially clothed or nude, whether the depiction
     suggests sexual coyness or a willingness to engage in
     sexual activity and whether the depiction is intended
     or designed to elicit a sexual response in the viewer.
     Those are elements that you can consider that I am
     going to consider in determining whether this was an
     offense. Do you understand that?

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United States v. Moon, No. 13-0536/AR


     ACC:    Yes, sir.

     MJ: Were many of these children posed in those kinds
     of poses?

     ACC:    Yes, sir.

     MJ: And that’s not just these images, though, it also
     covers those that we talked about earlier that did
     qualify as child pornography, correct?

     ACC:    Yes, sir.

The military judge then confirmed with Appellant that, for

example, an image of a child “leaning back on a bed with her

legs spread could easily be concluded to be designed to be

appealing to somebody’s sexual desires,” and that sort of image

“might fall more into the child pornography category.”

Appellant agreed, and also responded affirmatively when asked if

these images excited sexual desires or lust in him.

     Turning to the terminal elements, the following exchange

occurred:

     MJ: Why do you believe that given that it is not
     child pornography, why do you think it might cause
     problems in good order and discipline in the armed
     forces just to possess pictures of nude children?

     ACC:    Because it would still be along those lines,
     sir.

     MJ:    Still kind of creepy, right?

     ACC:    Yes, sir.

     MJ:    For the average soldier?

     ACC:    Yes, sir.


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United States v. Moon, No. 13-0536/AR


     MJ: And if they knew you possessed it what would the
     natural tendency of these people be toward you?

     ACC: Definitely look down on me; avoid me, possibly
     things of that nature, sir.

     MJ: Perhaps be a little frightened of you with regard
     to their children and family?

     ACC:    Yes.

     MJ: And do you believe your conduct in possessing
     these images was of a nature to bring discredit upon
     the armed forces?

     ACC:    Yes, sir.

     MJ:    Why do you believe that?

     ACC:    It’s just not something that is Army standards.

     MJ: Okay. Even though it’s not child pornography do
     you think a person in the general public knowing you
     possessed images of nude children or nude minors or
     persons appearing to be nude minors, do you think that
     might lower their esteem for the armed force?

     ACC:    Yes.

     MJ:    Why is that?

     ACC: They would hold the Army to a higher standard;
     above that even still, sir.

     MJ: And generally in society do you think there is a
     stigma attached to people who have naked pictures of
     children?

     ACC:    Yes, sir.

Both sides agreed that no further inquiry was required for the

nude minors specification.

     After an overnight recess during which the military judge

reviewed the charged images, the military judge made special

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United States v. Moon, No. 13-0536/AR


findings as to which images constituted child pornography and

which were images of nude minors.    The military judge made these

findings to “aid the Army Court of Criminal Appeals in its

responsibility to conduct its Article 66 review,” but did not

review them with Appellant.   The military judge then indicated

that he wanted to go over the elements of the nude minors

specification again, because he had previously added a

wrongfulness element within the specification, when in fact the

Government had not charged wrongfulness.    The military judge

explained that the possession needed only to be “knowing.”    The

military judge then asked Appellant, “even though they didn’t

charge wrongful, you believe it was wrongful for you to possess

these images?”   Appellant responded affirmatively, explaining

that it was wrongful because “I was held to a higher standard in

the Army. . . . I was raised better.”

     The military judge asked again why Appellant possessed the

images of nude minors, and he responded, “Sexual gratification,

sir.”   The military judge then engaged in a colloquy regarding

the constitutional aspects of the charge:

     MJ: Okay. The concern I have here of course,
     [Appellant], is like I talked about yesterday there
     might be good reason why you’d have images of nude
     minors. I mean there are works of art hanging up in
     national galleries that portray children nude, but the
     point there is an artistic expression and not for
     sexual gratification or [prurient] interest. You
     would agree that these weren’t artistic models,
     correct?

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United States v. Moon, No. 13-0536/AR


     ACC:    Yes, sir.

     MJ: And it wasn’t for a medical purpose that you had
     these images, is that right?

     ACC:    Yes, sir.

     MJ: And you possessed them for your sexual
     gratification is what you told me, correct?

     ACC:    Yes, sir.

     MJ: And do you think that that’s part of why
     possession of these images isn’t protected under the
     First Amendment of the United States Constitution as a
     free expression and so forth, that this was actually a
     crime?

     ACC:    Yes, sir.

The military judge found Appellant’s pleas to all charges to be

provident.

                          III.   Discussion

     We assume, without deciding, that Appellant had notice of

the criminality of his conduct, and decide this case solely on

the providence issue. 1   This Court reviews a military judge’s



1
  Although we do not decide the notice issue in this case, we
wholly reject the dissent’s “common sense” test. The Supreme
Court in Parker v. Levy ruled that Article 134 was not facially
void for vagueness because this Court, along with the Manual for
Courts-Martial and other military regulations, has “narrowed the
very broad reach of the literal language of the articles, and at
the same time has supplied considerable specificity by way of
examples of the conduct which they cover.” 417 U.S. 733, 754
(1974). The dissent would do away with this Court’s well-
established sources of notice with respect to Article 134’s
reach, see United States v. Warner, 73 M.J. 1, 3 (C.A.A.F.
2013), and replace them with a nebulous “common sense” test.
Such a test would reopen Article 134 to the overbreadth concerns
                                  10
United States v. Moon, No. 13-0536/AR


acceptance of a guilty plea for an abuse of discretion.      United

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).      The

test for an abuse of discretion in accepting a guilty plea is

whether the record shows a substantial basis in law or fact for

questioning the plea.   United States v. Passut, 73 M.J. 27, 29

(C.A.A.F. 2014).   “If an accused sets up matter inconsistent

with the plea at any time during the proceeding, the military

judge must either resolve the apparent inconsistency or reject

the plea.”   United States v. Hines, 73 M.J. 119, 124 (C.A.A.F.

2014) (quoting United States v. Goodman, 70 M.J. 396, 399

(C.A.A.F. 2011) (internal quotation marks omitted).    “This court

must find a substantial conflict between the plea and the

accused’s statements or other evidence in order to set aside a

guilty plea.    The mere possibility of a conflict is not

sufficient.”    Id. (quoting United States v. Watson, 71 M.J. 54,

58 (C.A.A.F. 2012) (internal quotation marks omitted).      “The

providence of a plea is based not only on the accused’s

understanding and recitation of the factual history of the

crime, but also on an understanding of how the law relates to

those facts.”   United States v. Medina, 66 M.J. 21, 26 (C.A.A.F.

2008) (citing United States v. Care, 18 C.M.A. 535, 538–39, 40




identified in Parker v. Levy and is unworkable in practice:        one
person’s common sense is another person’s nonsense.
                                 11
United States v. Moon, No. 13-0536/AR


C.M.R. 247, 250–51 (1969)).    We find two substantial bases upon

which to question Appellant’s guilty plea in this case.

     First, the plea contains unresolved inconsistencies.

Specifically, the military judge oscillated in his explanations

of what conduct constituted the nude minors offense.

Preliminarily, he stated that the images in the nude minors

specification must be “outside the definitions of child

pornography” and “must not be a lascivious display of their

pubic area or something along those lines” or else he would

consider them under the child pornography specification.

However, he then went on to state that he would in fact consider

whether the images were lascivious in determining whether they

met the definition of nude minors.    But, a few lines later, he

again stated that lascivious images would “fall more into the

child pornography category.”   Shortly after these contradictory

statements, the military judge exacerbated the confusion as to

which charge he was attempting to explain, by stating generally

“I’m sorry, I mentioned child pornography a minute ago, of

course I meant nude children or minors.”   Appellant

contradictorily affirmed (1) that the nude minors images fell

outside the definition of child pornography, (2) that the nude

minors images involved lascivious poses, and (3) that lascivious

images would fall into the child pornography category.

Additionally, Appellant responded affirmatively when asked

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United States v. Moon, No. 13-0536/AR


whether the images of nude minors depicted children “performing

sex acts or posed in a sexual or promiscuous manner,” despite

the military judge’s statement that images of nude minors must

not meet the definition of child pornography, and despite the

fact that the vast majority of the photos associated with the

nude minors specification depicted neither. 2   Because the

military judge did not go through his special findings with

Appellant, it is not at all clear from the record that Appellant

understood which images constituted images of nude minors as

opposed to child pornography.     It is apparent from the record

that the military judge provided inconsistent and conflicting

explanations of the conduct that he believed constituted the

offense of possessing images of nude minors.     Appellant affirmed

contradictory descriptions of the images at issue, and the

confusion was never resolved. 3


2
  With very few exceptions, the images considered under
Specification 2 of the Additional Charge depict minors who
appear to be in some sort of nudist colony or camp. They are
playing sports, playing on a beach, taking photos with each
other, and doing other innocuous and nonsexual activities.
3
  The confusion in the distinction between the images considered
under the Charge and Specification 1 of the Additional Charge as
being child pornography as defined by 18 U.S.C. 2256(8) and the
images considered under Specification 2 of the Additional Charge
is illustrated by the Government’s inconsistent position on this
issue. At trial, the Government argued that the images
associated with Specification 2 of the Additional Charge did not
meet the federal definition of child pornography. The military
judge tried the case on that basis. However, on appeal to this
Court, the Government argues that the images associated with
Specification 2 of the Additional Charge did meet the federal
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United States v. Moon, No. 13-0536/AR


     Second, there is a substantial basis upon which to question

whether either the military judge or Appellant understood how

the law related to the facts of his case.   See Medina, 66 M.J.

at 26.   “When a charge against a servicemember may implicate

both criminal and constitutionally protected conduct, the

distinction between what is permitted and what is prohibited

constitutes a matter of ‘critical significance.’”   United States

v. Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011) (quoting United

States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)).    “[T]he

colloquy between the military judge and an accused must contain

an appropriate discussion and acknowledgment on the part of the

accused of the critical distinction between permissible and

prohibited behavior.”   Id.   Unlike child pornography and

obscenity, the conduct at issue in this case -- possessing

images of nude minors that fall into neither of those categories

-- implicates the protections of the First Amendment.    United

States v. Barberi, 71 M.J. 127, 130–31 (C.A.A.F. 2012) (noting

that speech outside the categories of “‘defamation, incitement,

obscenity, and pornography produced with real children’” retains

First Amendment protection (quoting Ashcroft v. Free Speech

definition of child pornography. It matters not whether, as the
Government now argues and the dissent would find, some of the
photos in the nude minors category could have qualified as child
pornography under some other definition that was not provided to
Appellant during the plea inquiry: no one treated them as such
at trial, and thus the plea inquiry cannot be saved as provident
to a different offense on appeal.
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United States v. Moon, No. 13-0536/AR


Coalition, 535 U.S. 234, 245–46 (2002))); New York v. Ferber, 458

U.S. 747, 764–65 n.18 (1982) (holding that child pornography is

not protected by the First Amendment, but stating that “nudity,

without more is protected expression”); Miller v. California,

413 U.S. 15, 23 (1973) (holding that obscenity is not protected

by the First Amendment); see also Osborne v. Ohio, 495 U.S. 103,

114 (1990) (upholding version of state statute that, as

construed by the Ohio Supreme Court, “avoided penalizing persons

for viewing or possessing innocuous photographs of naked

children”); Ashcroft, 535 U.S. at 256 (holding that law

prohibiting virtual child pornography unconstitutionally

abridged protected speech). 4



4
  Although the dissent would create and define a middle ground of
“common sense” child pornography, the Supreme Court in Ferber
explained that, in order to be unprotected by the First
Amendment, “the conduct to be prohibited must be adequately
defined” by the applicable law, and include a “suitably limited
and described” definition of “sexual conduct.” 458 U.S. at 764.
The state statute approved by the Supreme Court in that case
limited “sexual conduct” to “actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the
genitals.” Id. at 751. This sanctioned definition may not
encompass the universe of legally sound statements of what child
pornography is, but it is far narrower than the dissent’s
preferred definition, which exists in no applicable law, and
which provides no suitable limiting principles of when a
depiction of some unclothed body part would be considered lewd.
Regardless, whether any of the images in this case would meet
some judicially created “common sense” definition of child
pornography is inapposite: the issue sub judice is the
providence of a plea in which confusing and contradictory
definitions were provided by the military judge, Appellant
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United States v. Moon, No. 13-0536/AR


     It is settled that “under appropriate circumstances conduct

that is constitutionally protected in civilian society could

still be viewed as prejudicial to good order and discipline or

likely to bring discredit upon the armed forces.”    Barberi, 71

M.J. at 131 (citing Parker, 417 U.S. at 759; United States v.

Forney, 67 M.J. 271, 275 (C.A.A.F. 2009); United States v.

Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006); United States v.

Mason, 60 M.J. 15, 19 (C.A.A.F. 2004)). 5   However, where an

Article 134 charge implicates constitutionally protected

conduct, the heightened plea inquiry requirements of Hartman

apply:   the colloquy “must contain an appropriate discussion and

acknowledgment on the part of the accused of the critical

distinction between permissible and prohibited behavior.”

Hartman, 69 M.J. at 468.




affirmed contradictory descriptions of the images he possessed,
and the confusion was never resolved.
5
  This Court has also noted the possibility of charging images
that do not meet the federal definition of child pornography,
but meet some other definition of child pornography. Barberi,
71 M.J. at 131. Assuming such a charge satisfied notice
requirements, see generally Warner, 73 M.J. 1, no such charge
was presented in this case. Despite the dissent’s view and the
Government’s appellate arguments to the contrary, the military
judge variously stated that the nude minors specification did
not allege child pornography, that the images of nude minors
fall outside the definition of child pornography and must not
include a lascivious display, and that the images are not child
pornography. Simply put, the nude minors specification was not
aimed at child pornography, under the federal definition or
otherwise.
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United States v. Moon, No. 13-0536/AR


     Here, the military judge failed adequately to elicit from

Appellant that he clearly understood the critical distinction

between criminal and constitutionally protected conduct.    The

military judge commendably expressed reservations about the nude

minors specification.   Before his colloquy with Appellant, he

stated to trial counsel that he “was a little concerned when I

saw this specification because it’s not alleging possession of

child pornography,” but was instead alleging possession of

images that in the “overwhelming number of cases” was not

criminal.    The military judge did ask for trial counsel’s theory

of the case, but, as we explained in Hartman, a discussion

between trial counsel and the military judge “provides no

substitute for the requisite interchange between the military

judge and the accused.”    69 M.J. at 469.   Accordingly, trial

counsel’s understanding of her own case theory does not render

the plea provident. 6

     The military judge also discussed his concerns with

Appellant.    Following an overnight recess during which the

military judge reviewed the charged images, the military judge

and Appellant engaged in the following colloquy:


6
  In any event, as we explain below, trial counsel’s case theory
-- that possession of images of nude minors is criminal where
the focal point is nude children, with no artistic value, and
where the images are used for sexual gratification -- does not
provide an adequate explanation of the critical distinction
between criminal and constitutionally protected conduct.
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United States v. Moon, No. 13-0536/AR


     MJ: Okay. The concern I have here of course,
     Specialist Moon, is like I talked about yesterday
     there might be good reason why you’d have images of
     nude minors. I mean there are works of art hanging up
     in national galleries that portray children nude, but
     the point there is an artistic expression and not for
     sexual gratification or [prurient] interest. You
     would agree that these weren’t artistic models,
     correct?

     ACC:   Yes, sir.

     MJ: And it wasn’t for a medical purpose that you had
     these images, is that right?

     ACC:   Yes, sir.

     MJ: And you possessed them for your sexual
     gratification is what you told me, correct?

     ACC:   Yes, sir.

     MJ: And do you think that that’s part of why
     possession of these images isn’t protected under the
     First Amendment of the United States Constitution as a
     free expression and so forth, that this was actually a
     crime?

     ACC:   Yes, sir.

This colloquy is fatally insufficient because it is an incorrect

statement of the law:   possession of images for one’s sexual

gratification does not itself remove such images from First

Amendment protection.   If it did, “a sexual deviant’s quirks

could turn a Sears catalog into pornography.”   United States v.

Amirault, 173 F.3d 28, 34 (1st Cir. 1999).   If an accused’s

subjective reaction to otherwise constitutionally protected

images places the images in Article 134’s crosshairs, the danger




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United States v. Moon, No. 13-0536/AR


of sweeping and improper applications of the general article

would be wholly unacceptable.

     In this case, rather than attempting to remove the images

of nude minors that were neither child pornography nor obscene

from the protection of the First Amendment, the colloquy should

have established why the otherwise protected material could

still be, and was, prejudicial to good order and discipline or

service discrediting in the military context.     Without a proper

explanation and understanding of the constitutional implications

of the charge, Appellant’s admissions in his stipulation and

during the colloquy regarding why he personally believed his

conduct was service discrediting and prejudicial to good order

and discipline do not satisfy Hartman.

                          IV.   Decision

     There are substantial bases in law and fact to question

Appellant’s guilty plea to Specification 2 of the Additional

Charge, and therefore we hold that the military judge abused his

discretion in accepting the plea.    The judgment of the United

States Army Court of Criminal Appeals is reversed as to

Specification 2 of the Additional Charge and the sentence.     The

finding of guilty to Specification 2 of the Additional Charge is

set aside and the specification is dismissed.     The judgment as

to the remaining findings is affirmed.     The record of trial is

returned to the Judge Advocate General of the Army for remand to

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United States v. Moon, No. 13-0536/AR


the United States Army Court of Criminal Appeals to reassess the

sentence.




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United States v. Moon, No. 13-0536/AR


     OHLSON, Judge, with whom BAKER, Chief Judge, joins

(dissenting):

     This case presents two questions.   The first is whether

Appellant had fair notice that his possession of the images

charged under Specification 2 of the Additional Charge was

subject to sanction under Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2012), because it was

prejudicial to good order and discipline and of a nature to

bring discredit upon the armed forces.   The second question is

whether the images charged under Specification 2 of the

Additional Charge are constitutionally protected because they do

not meet the statutory definition of child pornography provided

by the Child Pornography Prevention Act of 1996 (CPPA), 18

U.S.C. §§ 2252A–2260 (2012).   If so, during the providence

inquiry in the instant case the military judge was obligated to

comply with the enhanced requirements of United States v.

Hartman, 69 M.J. 467, 469 (C.A.A.F. 2011).

     For the reasons detailed below, I find that Appellant did

have fair notice.   I further find that the enhanced requirements

of Hartman were not triggered because many of the images in the

instant case meet a definition of prohibited child pornography

that, although broader than the definition used in the CPPA, is

still constitutionally permissible.   Therefore, I respectfully

dissent.
United States v. Moon, No. 13-0536/AR


                             DISCUSSION

I.    The Images

      Specification 2 of the Additional Charge charged Appellant

with possession of images of “nude minors and those appearing to

be nude minors.”    The images depict young prepubescent and

pubescent girls in a variety of poses and locations who are

either completely naked or wearing only hats or jewelry.    In

several images the young girls are lying on beds or couches, and

in some of the images the heads of the girls are cropped so that

the emphasis is on their genitals and breasts.    In one image a

fully nude girl is posed lying on her side on a bed with her top

leg splayed wide to display her genitals.    One of her hands is

placed on her hip with her elbow thrust upward.    She is resting

her body on her other elbow, and she has the tip of her finger

dangling from her mouth as she looks directly at the viewer in a

coy and sexual manner.

II.   Fair Notice

      In its opinion, the majority states:   “We assume, without

deciding, that Appellant had notice of the criminality of his

conduct.”   Despite the posture of this issue in the majority

opinion, I deem it appropriate to briefly address the issue of

fair notice at the outset of this dissent both because it is a

foundational question and because it is one of the two specified

issues for review.

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United States v. Moon, No. 13-0536/AR


     All of the charges brought against Appellant arose under

Article 134, UCMJ.   Clauses 1 and 2 of Article 134, UCMJ,

specifically authorize the armed forces to prosecute conduct

that is not prohibited in other sections of the UCMJ if such

conduct is “to the prejudice of good order and discipline in the

armed forces” or “of a nature to bring discredit upon the armed

forces.”

     The prosecution of Article 134, UCMJ, offenses is a deeply

rooted practice in the military justice system, and the

propriety and constitutionality of such prosecutions has been

ratified by the United States Supreme Court.   In Parker v. Levy,

the Court explained that “Congress is permitted to legislate

both with greater breadth and with greater flexibility when

prescribing the rules” for “military society.”   417 U.S. 733,

756 (1974).   The Court also held, however, that due process

requires that a defendant charged under Article 134, UCMJ, must

have “fair notice” of the criminality of his or her conduct.

Id. at 755-56; see also United States v. Vaughan, 58 M.J. 29, 31

(C.A.A.F. 2003) (citing United States v. Bivins, 49 M.J. 328,

330 (C.A.A.F. 1998)).

     In determining what constitutes “fair notice,” this Court

has held that this due process requirement has been met if “any

reasonable” member of the military would know that his or her

conduct was prohibited.   United States v. Sullivan, 42 M.J. 360,

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United States v. Moon, No. 13-0536/AR


366 (C.A.A.F. 1995).   In turn, the determination of whether a

reasonable member would know that his or her conduct fell within

the reach of Article 134, UCMJ, can be made by the application

of common sense.   United States v. Ashby, 68 M.J. 108, 119

(C.A.A.F. 2009).

     In light of these principles, in my view it is clear that

Appellant had fair notice that his conduct fell within the ambit

of Article 134, UCMJ, and thus was prohibited.       Although the

images knowingly possessed by Appellant may not meet the

definition of child pornography under the provisions of the

CPPA, many of these images certainly meet a common sense

definition of child pornography.       Therefore, consistent with

Chief Judge Baker’s dissent in United States v. Warner, I

conclude that “[a]ny reasonable member of the armed forces (in

fact any member of the armed forces) of any grade or service

would know that these pictures were service discrediting [and

prejudicial to good order and discipline] based on the elements

of Article 134, UCMJ, and common sense.”       73 M.J. 1, 4–5

(C.A.A.F. 2013) (Baker, C.J., dissenting).

III. Child Pornography and the Constitution

     The majority holds that there is a substantial basis in law

and fact to question Appellant’s guilty plea because the images

at issue in the instant case implicated constitutionally

protected conduct.   The majority further holds that the

                                   4
United States v. Moon, No. 13-0536/AR


constitutional dimensions of this issue triggered the heightened

plea inquiry requirements of Hartman and because the military

judge did not comply with these requirements, Appellant’s guilty

plea was not provident.

     I do not agree with the majority that these images of nude

pubescent and prepubescent girls in sexualized poses had any

constitutional protection.   I would therefore find that the

Hartman providence inquiry requirements did not apply, and I

would further find that the military judge did not abuse his

discretion when he accepted Appellant’s guilty plea.

     Although the First Amendment protects Americans’ right to

free speech, there are limits on the scope of its protection,

particularly with regard to child pornography.   The Supreme

Court has held that child pornography can be criminalized by

statute -- even if it is not obscene -- because of the harm that

is done to the children who are used in the creation of the

images.   New York v. Ferber, 458 U.S. 747, 761 (1982); see also

Paroline v. United States, 134 S. Ct. 1710, 1716–17 (2014) (“The

harms caused by child pornography . . . are still more extensive

because child pornography is a ‘permanent record’ of the

depicted child’s abuse and ‘the harm to the child is exacerbated

by [its] circulation.’” (alteration in original) (citation

omitted)).   The Supreme Court has provided additional guidance

by stating that the possession of child pornography may be

                                 5
United States v. Moon, No. 13-0536/AR


criminalized where the images depict a “lewd exhibition of

nudity.”   Osborne v. Ohio, 495 U.S. 103, 113-15 (1990). 1

     Pursuant to the provisions of the CPPA, Congress has

criminalized the creation, possession, and distribution of

images that depict minors engaged in “sexually explicit

conduct,” which is defined as including any “lascivious

exhibition of the genitals.”     18 U.S.C. § 2256(2)(v).   However,

a plain reading of the Supreme Court’s decision in Osborne

demonstrates that there are constitutionally acceptable

definitions of child pornography that are broader than the

definition used in the CPPA. 2   While the CPPA requires “the


1
  The terms “lewd” and “lascivious” are equivalent. United
States v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (“The Courts
of Appeals have uniformly treated the terms ‘lewd’ and
‘lascivious’ as materially equivalent.”).
2
  Indeed, many states have enacted such definitions. See, e.g.,
Alaska Stat. Ann. §§ 11.61.123, 11.61.127 (West 2014) (noting
that a person commits the crime of indecent viewing if he views
a picture of the private exposure of the genitals, anus, or
female breast of another person without consent); Ark. Code Ann.
§§ 5-27-302, 5-27-304 (West 2014) (defining “[s]exually explicit
conduct” as including the lewd exhibition of the genitals or
pubic area of any person or the breast of a female); 750 Ill.
Comp. Stat. Ann 5/11-20.1(1)(vii) (West 2014) (defining “child
pornography” to include possession of depictions of minors
“portrayed in any pose, posture or setting involving a lewd
exhibition of the unclothed or transparently clothed genitals,
pubic area, buttocks, or, if such person is female, a fully or
partially developed breast”); Kan. Stat. Ann. § 21-5510(d)(1)
(West 2014) (defining “sexually explicit conduct” to include
“lewd exhibition of the genitals, female breasts, or pubic area
of any person”); Ky. Rev. Stat. Ann. § 531.300(4)(d) (West 2014)
(defining “[s]exual conduct by a minor” to include the
“exposure, in an obscene manner, of the unclothed or apparently
unclothed human male or female genitals, pubic area or buttocks,
                                   6
United States v. Moon, No. 13-0536/AR


genitals or pubic area” to be on display, a “lewd exhibition of

nudity” could involve other parts of the body and still pass

constitutional muster.    As the Supreme Court noted in Osborne,

“We do not agree that [the] distinction between body areas and

specific body parts is constitutionally significant:   The

crucial question is whether the depiction is lewd, not whether

the depiction happens to focus on the genitals or the buttocks.”

495 U.S. at 114 n.11. 3



or the female breast”); Mass. Gen. Laws Ann. ch. 272 § 29C(vii)
(West 2014) (defining depictions of child sexual conduct to
include the lewd exhibition of breasts); Mont. Code Ann. § 45-5-
625(b) (2014) (including lewd depictions of female breasts and
depictions of a nude child or partially nude children with the
purpose to arouse or gratify sexual desires in the definition of
sexual conduct); N.J. Stat. Ann. § 2C:24-4 (West 2014) (defining
“[p]rohibited sexual act” to include nudity if depicted for the
purpose of sexual stimulation or gratification); Okla. Stat.
Ann. tit. 21 § 1024.1.A (West 2014) (including lewd depictions
of female breasts in the definition of “child pornography”); Or.
Rev. Stat. Ann. § 163.665 (West 2014) (defining “[s]exually
explicit conduct” to include lewd exhibitions of sexual or other
intimate parts); Tenn. Code. Ann. § 39-17-1002.[8](G) (West
2014) (including lascivious exhibition of the female breast or
genitals in the definition of “[s]exual activity”); Tex. Penal
Code Ann. § 43.25(a)(2) (West 2014) (including the lewd
exhibition of any portion of the female breast below the top of
the areola in the definition of “[s]exual conduct”).
3
  I agree with Chief Judge Baker’s suggestion in United States v.
Barberi, that “we should look to Roderick to establish a clear
definition of what constitutes child pornography for the
purposes of clauses (1) and (2) of Article 134, UCMJ.” 71 M.J.
127, 135 (C.A.A.F. 2012) (Baker, C.J., dissenting) (citing
United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006)). Using
the Roderick analysis, the determination of whether an image of
a nude minor constitutes “lewd nudity” can be made “by combining
a review of the Dost factors with an overall consideration of
the totality of the circumstances.” 62 M.J. at 430. In this
case, the military judge specifically addressed the Dost factors
                                  7
United States v. Moon, No. 13-0536/AR


     As can be seen then, the Supreme Court has not stated that

the CPPA or the CPPA’s statutory definitions cover the entire

field of images that may be criminalized as “child pornography.”

Nevertheless, the majority opinion presents us with a binary

choice:    either a given image depicts a “lascivious exhibition

of the genitals or pubic area” and is therefore child

pornography, or that image is constitutionally protected under

the First Amendment.    As Chief Judge Baker stated in his dissent

in Barberi, by so doing the Court has eliminated the “middle

ground.”    71 M.J. at 135 (Baker, C.J., dissenting).   And yet, it

is precisely that constitutional middle ground that I seek to

defend.

     Stated simply, I would hold in the instant case that

although the images referred to in Specification 2 of the

Additional Charge may not have met the statutory definition of


in the context of the facts of this case in determining whether
Appellant’s guilty plea to Specification 2 of the Additional
Charge was provident. The military judge also took into account
Appellant’s admissions that he searched for images of naked
children, he knew the images were child pornography when he
downloaded them, he had dozens of similar images, the images
excited his sexual desires, and he used them for his sexual
gratification. This approach does not constitute a “common
sense test.” Rather, the Roderick analytical framework can be
used to demonstrate that, using common sense, any reasonable
member of the armed forces would know that possession of a
picture of a nude child meeting many or all of the Dost factors,
which was possessed for the purpose of sexual gratification, is
service discrediting. Moreover, as noted infra, I conclude that
there simply is no constitutional right to the possession of
such pictures for the purpose of sexual gratification.

                                  8
United States v. Moon, No. 13-0536/AR


child pornography contained within the provisions of the CPPA,

that does not mean that Appellant had a constitutional right to

possess those nude images of young girls in sexualized poses for

his own sexual gratification.   Thus, rather than apply the

stricter Hartman analysis, I would look only at whether the

military judge complied with the providence inquiry requirements

spelled out in United States v. Care, 18 C.M.A. 535, 541, 40

C.M.R. 247, 253 (1969), and I would conclude that he did.     The

record reflects that the military judge grasped the underlying

issues, made good points about the limits of the CPPA and about

the reach of the First Amendment, and sought to approach the

issue in an informed and thoughtful manner.   Further, the

military judge questioned the accused about “what he did or did

not do” such that the military judge was satisfied that there

was a factual basis for Appellant’s plea.   See Care, 18 C.M.A.

at 541, 40 C.M.R. at 253.   Thus, although I concede that the

providence inquiry was not always a model of clarity, it

sufficed in the instant context.

      Moreover, I note that a military judge’s determination that

an appellant’s plea was provident is reviewed for abuse of

discretion.   United States v. Inabinette, 66 M.J. 320, 322

(C.A.A.F. 2008).   We “afford significant deference” in this area

because the “facts are by definition undeveloped in such cases.”

Id.   Here, the military judge reviewed each image that was found

                                   9
United States v. Moon, No. 13-0536/AR


in Appellant’s possession.   He placed in one category the images

that met the CPPA definition of sexually explicit conduct.    He

then separated out any images that did not meet the broader

definition of lewd or lascivious nudity.    That process then left

behind a collection of images that supported Specification 2 of

the Additional Charge.   Because I would find that the military

judge did not use the incorrect legal standard, I find no reason

to disturb his analysis of the images or his factual

determination that the images depicted lewd exhibitions of nude

minors sufficient to provide an adequate factual basis for

Appellant’s plea.   Therefore, I believe the appropriate

disposition of the instant case would be to affirm the decision

below.

     Accordingly, I respectfully dissent.




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