                UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                                 UNITED STATES

                                                             v.

                              Airman First Class SEBASTIAN P. LABELLA
                                        United States Air Force

                                                  ACM 37679 (rem)

                                                      02 July 2014

               Sentence adjudged 9 April 2010 by GCM convened at Keesler Air Force
               Base, Mississippi. Military Judge: W. Thomas Cumbie.

               Approved Sentence: Bad-conduct discharge, confinement for 6 months,
               forfeiture of $477.00 pay per month for 3 months, and reduction to E-1.

               Appellate Counsel for the Appellant:         Colonel Eric N. Eklund;
               Lieutenant Colonel Gail E. Crawford; Major Michael S. Kerr; Major Zaven
               T. Saroyan; Major Daniel E. Schoeni; and Major Ja Rai A. Williams.

               Appellate Counsel for the United States: Colonel Don M. Christensen;
               Lieutenant Colonel Linell A. Letendre; Major Joseph J. Kubler;
               Major Naomi N. Porterfield; Major Charles G. Warren; Captain Matthew J.
               Neil; and Gerald R. Bruce, Esquire.

                                                          Before

                                      ROAN, HARNEY, and MITCHELL1
                                         Appellate Military Judges

                                                  UPON REMAND

                            This opinion is subject to editorial correction before final release.



MITCHELL, Judge:

      Contrary to the appellant’s pleas, a panel of officers sitting as a general
court-martial convicted him of one specification of wrongful and knowing possession of

1
    Judge Roan and Judge Harney participated in this opinion prior to their retirements on 30 June 2014.
visual depictions of minors engaging in sexually explicit conduct and one specification of
wrongful and knowing possession of depictions of “what appear to be” minors engaging
in sexually explicit conduct, in violation of Clause 1 or 2 of Article 134, UCMJ,
10 U.S.C. § 934. The members sentenced the appellant to a dishonorable discharge,
confinement for 6 months, forfeiture of $447.00 pay per month for 3 months, and
reduction to E-1. The convening authority approved a bad-conduct discharge and the
remainder of the sentence as adjudged.

       We previously affirmed the findings and sentence. United States v. Labella,
ACM 37679 (A.F. Ct. Crim. App. 15 February 2013) (unpub. op.). On 21 August 2013,
our superior court granted the appellant’s petition for review, set aside our decision, and
remanded the case for consideration of the following issues: (1) whether the appellant’s
conviction for Specification 1 of the Charge must be set aside because the verdict of guilt
rested in part on conduct that was constitutionally protected2; and (2) whether the
military judge erred in instructing the members that “a minor” was defined as someone
under 18 years of age when the UCMJ only contained references in other provisions to a
child as someone under 16 years of age.3

                                                    Background

        The appellant lived in a dormitory on Keesler Air Force Base, Mississippi. On
11 January 2009, Airman First Class (A1C) NS borrowed the appellant’s external
computer hard drive and came across files in a folder marked “pron,” which contained
“suggestive images” of small/young children. A1C NS returned the external hard drive
to the appellant. He then sought guidance from his parents, a chaplain, and his acting
first sergeant on what to do about the photographs.

       At trial, A1C NS described the images he saw on the appellant’s hard drive. He
saw images of girls who ranged from 8–12 years old, some of whom were clothed, while
others were wearing bathing suits. He described the girls in the photographs as posing in
ways that were suggestive and seductive. One girl in a mesh bathing suit was between
10–12 years old and was pulling her suit to expose her genitalia and breasts.

       On 14 January 2009, A1C NS informed the Air Force Office of Special
Investigations (AFOSI) about the photographs on the appellant’s hard drive. AFOSI
special agents interrogated the appellant the same day, at which time he consented to


2
  Our superior court orders us to consider this issue in light of their decision in United States v. Barberi, 71 M.J. 127
(C.A.A.F. 2012).
3
  The appellant sought to raise an additional issue after the remand. However, we can only take action that conforms
to the limitations and conditions prescribed by the remand from our superior court. United States v. Riley,
55 M.J. 185, 188 (C.A.A.F. 2001).



                                                           2                                         ACM 37679 (rem)
have the agents search and seize his computer and external hard drive. AFOSI found
numerous photographs and videos of child pornography on the external hard drive.

        Special Agent (SA) JS interviewed the appellant and later testified at trial. He
testified the appellant was read his rights under Article 31, UCMJ, 10 U.S.C. § 831, and
was informed he was suspected of possessing child pornography. The appellant
subsequently admitted that on his computer he had some “questionable” images, which
he described as “underage girls wearing see-through clothing.” Later in the interview,
the appellant explained that the images on his computer were of children between the
ages of 3 and 14 years old who were nude or semi-nude, and about 100 photos on his
computer were of underage girls who were naked or in see-through or skimpy clothing
such as thongs and G-strings. In some of the photos, the girls were bending over to
expose their posteriors to the camera. He stated that shortly after he downloaded some of
the pictures of young girls in mesh or see-through bathing suits, the pictures were
removed from that website. He also admitted he had a pornographic video of a girl under
18 years of age. The appellant organized his pornography collection in 10 to 15 folders
located underneath another folder labeled “pron.”

      After seizing the appellant’s computer equipment and external hard drive, SA JS
reviewed some of the images in the pron folder with the appellant. In that folder, SA JS
found images of underage girls in suggestive poses, some wearing see-through clothing
and some exposing their genitalia. One of the images was of a girl about 4 years old who
was wearing white and pink underwear and pulling them up so that the sides of her labia
were exposed. This image was admitted as Prosecution Exhibit 1.

      The appellant wrote a sworn statement after his rights advisement, explaining that
he downloaded the images from the “web” and liked to look at images where the subject
had small breasts and no pubic hair. He continued:

      I understand that I should look at girls my own age and that it is wrong to
      look at these pictures. But sometimes you make Bad decisions and I admit
      to this one and that I would never touch a child . . . this experience has
      detured [sic] me from looking at Child Pornography ever again its [sic] sick
      demented and nasty when I would download these Photos I didn’t care how
      old they are Just what their Bodies looked like . . . when I viewed them I
      got sexually aroused and masterbaited [sic] then I would feel sick after
      doing it cause I knew it is wrong to view them.

       Prior to trial, the Government submitted a Bill of Particulars stating how it
intended to use the evidence at trial. The Bill of Particulars stated that several still
photographs and seven of the videos would be offered to prove Specification 1, which
alleged wrongful possession of visual depictions of minors, and 18 images would be



                                            3                             ACM 37679 (rem)
offered to prove Specification 2, which alleged wrongful possession of depictions of what
appear to be minors.

       The appellant filed a motion at trial to exclude one video and several photographs
on the grounds they failed to meet the definition of “sexually explicit conduct” as charged
in Specification 1. The appellant also filed a motion to dismiss Specification 2 on the
grounds it violated his First4 and Fifth5 Amendment rights and failed to state an offense.
The military judge denied both motions. In denying the first motion, the military judge
relied on the factors found in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal.
1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and
determined the material depicted sexually explicit conduct. In denying the second
motion, the military judge relied on 18 U.S.C. § 1466A(b)(2)(A)-(B) to find that the
virtual depictions of what appeared to be minors lacked “serious literary, artistic,
political, or scientific value.” During findings, and over defense objection, the military
judge admitted the still photographs, the videos, and the virtual images.

                                 General Verdict of Guilt

       The appellant contends that at least six of the images offered by the Government
to prove Specification 1 of the Charge are constitutionally protected, and that, in
accordance with United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012), his conviction
must be set aside. We must first determine if any of the images offered to support the
appellant’s conviction of Specification 1 of the Charge fail to meet the requirements that
they depict minors engaging in “sexually explicit conduct,” and are, therefore,
constitutionally protected. To make this determination, we conduct a review of the legal
and factual sufficiency of the evidence.

       Article 66(c), UCMJ, 10 U.S.C. § 866(c), requires that we approve only those
findings of guilty we determine to be correct in both law and fact. We review issues of
legal and factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002).

       The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Moreover, “[i]n resolving legal-sufficiency questions, [we are] bound to draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991). See also United States v.
Young, 64 M.J. 404, 407 (C.A.A.F. 2007). The test for factual sufficiency is “whether,
4
    U.S. CONST. amend. I.
5
    U.S. CONST. amend. V.



                                             4                              ACM 37679 (rem)
after weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are convinced of the accused’s guilt beyond a
reasonable doubt.” Turner, 25 M.J. at 325. Review of the evidence is limited to the
record, which includes only the evidence admitted at trial and exposed to the crucible of
cross-examination. Article 66(c), UCMJ; United States v. Bethea, 46 C.M.R. 223,
224-25 (C.M.A. 1973).

        The Government introduced 32 images/videos in their case-in-chief as
Prosecution Exhibits 1, 3–23, 25–27, and 28. We have reviewed these images/videos to
determine whether any of them are entitled to constitutional protection. Even if the
images are of a minor, the images are not prohibited unless they depict “sexually explicit
conduct.”      Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C.
§§ 2252A-2260. This includes actual or simulated sexual intercourse, masturbation,
sadistic or masochistic abuse, or a “lascivious exhibition of the genitals or pubic area.”
18 U.S.C. § 2256(2). For most of the images, the review turns on this last factor. “If the
images do not depict the genital or pubic area, we stop our analysis.” United States v.
Piolunek, 72 M.J. 830, 836 (A.F. Ct. Crim. App. 2013), review granted, __ M.J. ___
No. 14-0283/AF (Daily Journal 1 April 2014). To determine whether the charged images
and videos in this case contained a lascivious exhibition of the genitals or pubic area, we
employ the test set forth in Dost. This Court adopted the widely-accepted Dost factors in
United States v. Pullen, 41 M.J. 886 (A.F. Ct. Crim. App. 1995). See also United States
v. Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006) (wherein our superior court applied the
Dost factors to the military justice arena).

       We find 27 of the 32 images/videos constitute visual depictions of minors
engaging in sexually explicit conduct. These 27 images/videos depict young girls
lasciviously displaying their genitals or pubic area or engaging in sexual acts that meet
the definition of “sexually explicit conduct.” Upon review of the record of trial, and
considering the evidence in the light most favorable to the Government, we find that a
reasonable factfinder would have found the appellant guilty beyond a reasonable doubt.

       Of the images/videos submitted by the Government to support their case, we find
five images do not meet the legal definition of sexually explicit conduct. These images
are Prosecution Exhibits 4, 6, 9, 10, and 13. The images do not depict children who are
engaged in sexual acts nor involve the lascivious display of their genitals or pubic area.
In Prosecution Exhibits 4, 6, 9, and 10, the genitals or pubic area of the children are not
displayed in the photographs. Congress chose not to prohibit the images which show
children in sexually suggestive poses when their posterior is viewable but not the “pubic
area or genitals,” and we are not at liberty to create new definitions of criminal liability to
address these repugnant images. United States v. Warner, 73 M.J. 1, 4 (C.A.A.F. 2013)
(“[N]o prohibition against possession of images of minors that are sexually suggestive
but do not depict nudity or otherwise reach the federal definition of child pornography



                                              5                                ACM 37679 (rem)
exists . . . .”). In Prosecution Exhibit 13, although the image depicts the child’s pubic
area, the display is not lascivious. Although the focal point of the image is on the child’s
pubic area, the setting of the photograph is not sexually suggestive; the child’s pose, one
of a child at play on a hammock, is not unnatural; the child is wearing age-appropriate
swimwear; and there is no perceived sexual coyness. A reasonable factfinder, looking
solely at this image, would have concluded that this photograph lacks the intent of
eliciting a sexual response in the viewer. See Roderick, 62 M.J. at 429 (citing Dost,
636 F.Supp. at 832). Thus, only the first Dost factor is met for Prosecution Exhibit 13.
Having reviewed the overall content of this image, we find it to be constitutionally
protected.

        Of the 32 images/videos that served as the basis for the appellant’s conviction, we
have found 5 are constitutionally protected. Accordingly, we must now determine
whether our superior court’s holding in Barberi requires us to set aside the appellant’s
conviction for Specification 1 of the Charge. In Barberi, our superior court held that “[i]f
a factfinder is presented with alternative theories of guilt and one or more of those
theories is later found to be unconstitutional, any resulting conviction must be set aside
when it is unclear which theory the factfinder relied on in reaching a decision.” Barberi,
71 M.J. at 131 (citations and internal quotation marks omitted). The Court further noted
that “[t]he theory enunciated by the Supreme Court in Stromberg [v. California, 283 U.S.
359 (1931)], ‘encompasses a situation in which the general verdict on a single-count
indictment or information rested on both a constitutional and an unconstitutional
ground.’” Barberi, 71 M.J. at 131 (quoting Zant v. Stephens, 462 U.S. 862 (1983))
(emphasis in original). The Court therefore set aside the conviction despite the fact that
“two of the [six] images submitted by the prosecution in support of [the charge] were
legally and factually sufficient to support a finding of guilty.” Barberi, 71 M.J. at 131.

       We previously addressed this issue in Piolunek and recognized that the holding in
Barberi does not require us to set aside the general verdict of every case involving
constitutionally protected images. Therefore, if we find the error in admitting the images
to be harmless beyond a reasonable doubt, we need not set aside the verdict.
See Chapman v. California, 386 U.S. 18, 21-24 (1967); Barberi, 71 M.J. at 132.

       In Piolunek, relying on Chapman, we identified three factors to determine
“whether there is a reasonable possibility that the evidence complained of might have
contributed to the conviction.” 72 M.J. at 837 (citations and internal quotation marks
omitted). These three factors are: “(1) The quantitative strength of the evidence; (2) The
qualitative nature of the evidence; and (3) The circumstances surrounding the offense as
they relate to the elements of the offense charged.” Id. at 838. After examining these
factors, we conclude beyond a reasonable doubt that the five constitutionally protected
images were unimportant in relation to everything else the members considered, and thus




                                             6                               ACM 37679 (rem)
the error of relying on these images as proof of the charged offenses was harmless
beyond a reasonable doubt.

       In considering the quantitative strength of the evidence, we conclude that the
27 images/video introduced at trial that do not warrant constitutional protection, versus
the 5 images that do, strongly supports a finding of harmlessness under Chapman. In
Barberi, 4 out of 6, or 67 percent, of the images to support the charge, were
constitutionally protected. In this case, only 5 of 32, or 16 percent, of the images warrant
constitutional protection and should have been excluded from the members’
consideration.6 As we stated in Piolunek, we do not believe our superior court, in their
holding in Barberi, intended to create a rule mandating a conviction be set aside in every
case involving images of minors engaging in sexually explicit conduct where even one
image is later determined to be constitutionally protected. Such a reading would result in
a vacated conviction for possession of 10,000 images of minors engaging in sexually
explicit conduct when only one image did not meet this definition.

        Next, looking at the qualitative nature of the evidence, we find the
27 images/videos that were not entitled to constitutional protection provide strong
evidence that the admission of the protected images was harmless beyond a reasonable
doubt. The 27 images/videos all show minors lasciviously displaying their genitals or
pubic area. In many images, the setting seems to be a makeshift photo studio. The
children are depicted in unnatural poses, and, in many, wearing lingerie, high heels, and
other age-inappropriate attire. The 27 images/videos include children that are partially
clothed, taking their clothing off, and (in the videos) completely nude. The children in
the images are posed in a manner that suggests a sexual coyness, and the videos include
footage of minor girls masturbating. Finally, the 27 images/videos are clearly intended to
elicit a sexual response in the viewer. See Roderick, 62 M.J. at 429 (citing Dost, 636 F.
Supp. at 832); United States v. Blouin, ___ M.J. ___, Army 20121135 (Army Ct. Crim.
App. 28 May 2014).

      Even disregarding the five images we find to be constitutionally protected, the
evidence of the appellant’s guilt is overwhelming. The appellant loaned his hard drive to
another Airman who found images of minors displaying their genitalia in a sexually
suggestive manner. A1C NS’s testimony would have been sufficient direct evidence to
support a finding of guilty.




6
  We note the five constitutionally protected images may have been admissible under Mil. R. Evid. 404(b) as
evidence regarding the age and identity of a minor in an image that was not constitutionally protected. For example,
Prosecution Exhibit 5 pictured the same child as in Prosecution Exhibit 4. Prosecution Exhibits 9 and 10 pictured
the same child as in Prosecution Exhibits 7, 8, 11, and 12.




                                                         7                                       ACM 37679 (rem)
       During an interview with AFOSI, the appellant admitted he had “questionable”
images on his computer, which he explained were images of underage girls in
see-through clothing and that these images were saved on his computer under a folder
named “pron.” The appellant also told AFOSI that the age of the girls in these images
was between 3 and 14 years old. Finally, the appellant admitted in his interview that he
would use the photos as a form of arousal and would masturbate while looking at them.

       Mil. R. Evid. 304(g) provides that an admission by the appellant may only be
considered as evidence against him if independent evidence has been introduced that
corroborates the essential facts. The standard for corroboration is “very low,”
United States v. Seay, 60 M.J. 73, 80 (C.A.A.F. 2004), and the quantum of corroborating
evidence may be “very slight.” United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).
This very slight “corroborating evidence need not confirm each element of an offense,
but rather must ‘corroborate the essential facts admitted to justify sufficiently an
inference of their truth.’” United States v. Arnold, 61 M.J. 254, 257 (C.A.A.F. 2005)
(quoting Mil. R. Evid. 304(g)) (omission in original) (brackets omitted). Each of the
27 images/videos that are of minors engaged in sexually explicit conduct is independent
evidence to corroborate the appellant’s confession that he possessed child pornography.
The appellant’s properly corroborated confession adequately established the essential
elements of the offense that he possessed images of minors engaged in sexually explicit
conduct. We do not read Barberi as establishing a per se rule that a case where the
appellant confessed to possessing images of minors engaged in sexually explicit conduct,
where a witness saw these images, and where 27 images were properly admitted, must
always be reversed if a few images that were constitutionally protected were admitted
into evidence.

       Because the appellant’s confession to the possession of child pornography was
properly admitted, another Airman saw the images, and 27 of the images/videos were
clearly depictions of minors engaging in sexually explicit conduct, based on the record as
a whole, we find beyond a reasonable doubt that the 5 images that warrant constitutional
protection are unimportant in relation to everything else the members considered on the
question of guilt.

       The quantitative strength, qualitative nature, and surrounding circumstances of the
images all support a finding that the error in admitting the five protected images was
harmless beyond a reasonable doubt. The five images in question did not materially
contribute to the finding of guilt because of the appellant’s confession and all the other
evidence. We are convinced “ʻbeyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.’” United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). The error in
submitting these five constitutionally protected images was harmless beyond a reasonable
doubt.



                                            8                              ACM 37679 (rem)
                                Military Judge’s Instructions

       The appellant also argues the military judge erred when he instructed the members
that in order to find the appellant guilty of possession of visual depictions of minors
engaged in sexually explicit conduct in violation of Clause 1 and 2 of Article 134, UCMJ,
the images must be of a person under the age of 18 years old. We disagree.

         At trial, counsel are entitled to request specific instructions, but substantial
discretionary power is given to a military judge to decide what instructions the members
ultimately receive. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993)
(citing United States v. Smith, 34 M.J. 200 (C.M.A. 1992); Rule for Courts-Martial
920(c), Discussion). We review the denial of a requested instruction for an abuse of
discretion. Id. at 478; United States v. Rasnick, 58 M.J. 9, 10 (C.A.A.F. 2003). To
determine if error exists, we apply a three-pronged test: whether “(1) the [requested
instruction] is correct; (2) ‘it is not substantially covered in the main [instruction]’; and
(3) ‘it is on such a vital point in the case that the failure to give it deprived [the appellant]
of a defense or seriously impaired its effective presentation.’” Damatta-Olivera, 37 M.J.
at 478 (quoting United States v. Winborn, 34 C.M.R. 57, 62 (C.M.A. 1963));
United States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003).

        Before the members began deliberations, the military judge instructed them, “The
word ‘minor[]’ means any person under the age of 18 years.” The appellant objected at
trial, as he does now, arguing that because the appellant was charged under Article 134,
UCMJ, the definition of “child” used in other sections of the UCMJ should have been the
definition provided to the members at trial, instead of the definition of “minor” found in
the CPPA. The appellant cites other articles in the UCMJ, as well as other sections of
Article 134, UCMJ, that define “child” as a person under the age of 16 years.

      Our superior court has required notice to an accused of what conduct is punishable
under Article 134, UCMJ, most recently discussed in United States v. Warner:

       The first and second clauses of Article 134, UCMJ, permit the
       criminalization of certain conduct not otherwise prohibited that is either
       prejudicial to good order and discipline or service discrediting. Article 134,
       UCMJ. It is settled that a servicemember may be prosecuted for
       service-discrediting conduct even if the conduct is not specifically listed in
       the Manual for Courts–Martial. United States v. Saunders, 59 M.J. 1, 6
       (C.A.A.F. 2003) (citing United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F.



                                               9                                 ACM 37679 (rem)
       2003)). However, due process requires that a servicemember “have ‘fair
       notice’ that his conduct [is] punishable before he can be charged under
       Article 134 with a service discrediting offense.” Vaughan, 58 M.J. at 31
       (quoting United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)
       (brackets in original), and citing Parker v. Levy, 417 U.S. 733, 756 (1974)).
       Potential sources of fair notice may include federal law, state law, military
       case law, military custom and usage, and military regulations. Vaughan,
       58 M.J. at 31.

73 M.J. 1, 3 (C.A.A.F. 2013) (alterations in the original).

       In the Child Protection Act of 1984, Congress expanded the age of children
protected from 16 to 18 years of age. The House Report explained:

       This will improve the coverage of the act, and facilitate prosecution and
       conviction in cases in which the age of the child depicted cannot be proven
       by positive identification of the child. Usually the child who is depicted in
       child pornography cannot be located. Proof of the child’s age has therefore
       been by circumstantial evidence. This meant that unless the child appeared
       to have not yet attained puberty (and therefore was definitely under age 16),
       an offense could not be proven. By raising the age to 18, if the child
       depicted does not look like an adult, a conviction can be obtained.

H.R. REP. NO. 98-536, at 8-9 (1984) (all caps typeset lowercased). Since 1984, the
knowing possession of images of individuals under 18 years of age who are engaged in
sexually explicit conduct has been prohibited by federal law. This provides fair notice to
the appellant that the age of a “minor” is one who is under 18 years of age as defined by
18 U.S.C. § 2256.

        We also find fair notice by looking at our superior court’s holding in United States
v. Nerad, 69 M.J. 138 (C.A.A.F. 2010). In Nerad, the appellant was charged under
Article 134, UCMJ, Clause 1 and 2, with possession of child pornography. The age of
the depicted minor was not an issue in that case; it was undisputed that the minor was
17 years old, an age that falls within the CPPA definition of “minor” but outside the
definition of a “child” in other, unrelated provisions of the UCMJ. We set aside Nerad’s
conviction, finding that his “possession of what was technically child pornography was
merely incidental to [his] adulterous relationship” with a 17-year-old minor, who was
legally competent to consent to sexual intercourse. United States v. Nerad, 67 M.J. 748,
752-53 (A.F. Ct. Crim. App. 2009), rev’d, 69 M.J. 138 (C.A.A.F. 2010). Our superior
court set aside our decision, reasoning that it would have been an abuse of discretion if
we “refus[ed] to affirm a finding because [we] thought it ‘unreasonable’ to criminalize
such conduct ‘under the circumstances,’ even though the circumstances fell squarely



                                             10                              ACM 37679 (rem)
within the definition of child pornography crafted by Congress.” Nerad, 69 M.J. at 140
(emphasis added). It is clear from the holding in Nerad that it is proper to use the
definitions crafted by Congress to define child pornography, even in a case where the
appellant is charged under Clause 1 and 2 of Article 134, UCMJ. Our superior court’s
published decisions provided fair notice through military case law that the possession of
sexually explicit images of a 17-year-old individual is criminally punishable. Warner, 73
M.J. at 3.

       “[A]ny facts that increase the prescribed range of penalties to which a criminal
defendant is exposed are elements of the crime.” Alleyne v. United States, ___ U.S. ___,
133 S.Ct 2151, 2160 (2013) (citation and internal quotations omitted). The specification
specifically included the word “minor” vice the word “child.” In the area of child
pornography, Congress has defined a minor as “any person under the age of eighteen
years.” 18 U.S.C. § 2256(1). Military case law clearly establishes that specifications that
are essentially the same as federal law may be charged under Clause 1 or 2 of
Article 134, UCMJ.7 This specification was essentially the same and the military judge
did not err by using the definitions from the federal criminal law to ensure that it
remained essentially the same. See United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014).
The appellant was on notice through both federal criminal law and military case law that
the term “minor,” when referenced in terms of child pornography, is defined as someone
under 18 years of age.

      We find the appellant failed to meet the first prong of the Damatta-Olivera test.
Therefore, we hold that it was proper for the military judge to use the definition of a
minor used in the CPPA to instruct the members.

                                                   Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




7
  Our superior court has previously examined the issue of child pornography offenses which are charged as
violations of Clause 1 and 2 of Article 134, UCMJ, 10 U.S.C. § 934. A specification under Article 134, UCMJ, is
“essentially the same” as the federal statute if it sets forth the criminal conduct and mens rea as well as describing
the gravamen of the federal offenses. United States v. Leonard, 64 M.J. 381, 384 (C.A.A.F. 2007). The court later
determined a specification that included the language “what appears to be” a minor engaged in sexually explicit
activity was not “essentially the same” as the federal statute and therefore such a specification only described a
general disorder. United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011).




                                                         11                                        ACM 37679 (rem)
Accordingly, the findings and the sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           12     ACM 37679 (rem)
