                         UNITED STATES, Appellee

                                         v.

           Brendan C. FORNEY, Lieutenant Junior Grade
                      U.S. Navy, Appellant

                                  No. 05-0647
                        Crim. App. No. 200200462

       United States Court of Appeals for the Armed Forces

                         Argued October 16, 2008

                          Decided March 26, 2009

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

                                     Counsel

For Appellant: Eugene R. Fidell, Esq. (argued); Lieutenant
Kathleen L. Kadlec, JAGC, USN, Lieutenant Stephen C. Reyes,
JAGC, USNR, Matthew S. Freedus, Esq., and Brent C. Harvey, Esq.
(on brief); Captain James D. Valentine, USMC.

For Appellee: Lieutenant Elliot W. Oxman, JAGC, USN (argued);
Colonel Ralph F. Miller, USMC, Commander Paul C. LeBlanc, JAGC,
USN, Captain Geoffrey S. Shows, USMC, and Lieutenant Mark H.
Herrington, JAGC, USN (on brief); Commander Charles N. Purnell,
JAGC, USN, Lieutenant Justin E. Dunlap, JAGC, USN, Lieutenant
Jessica M. Hudson, JAGC, USNR, and Lieutenant Lars C. Johnson,
JAGC, USNR.

Military Judge:    David M. White




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Forney, No. 05-0647/NA


     Judge STUCKY delivered the judgment of the Court.

     Appellant was convicted of conduct unbecoming an officer

and a gentleman by possessing child pornography.    Article 133,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933 (2000).

We granted review to determine whether the military judge erred

by using a federal statute that the Supreme Court subsequently

held to be unconstitutional to define “child pornography.”    The

military judge did not err in using the statute to define child

pornography under these circumstances and the possession of

images of virtual children engaged in sexually explicit conduct

may give rise to a conviction for conduct unbecoming an officer

and a gentleman.   Therefore, we affirm.

                          I.   Background

     Appellant, an active-duty Navy officer, served on the USS

DAVID R. RAY (DD 971).   During routine computer-system

maintenance while the ship was underway, the computer

administrator, a noncommissioned officer, discovered that

Appellant was using government computers to download and view

child pornography.   Appellant later admitted to Naval Criminal

Investigative Service (NCIS) agents that, although he primarily

downloaded and viewed such images in his stateroom, he also

sometimes used the engineering log room computer.   From November

1999 to March 2000, Appellant downloaded approximately 1,700 to

1,800 images of naked, adolescent girls between the ages of ten


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United States v. Forney, No. 05-0647/NA


and fifteen years old.   As time went on, the images became

increasingly graphic, depicting exposed genitalia or sexual acts

with adults.

     In March 2001, a general court-martial with members

convicted Appellant, contrary to his pleas, of engaging in

conduct unbecoming an officer and a gentleman by receiving and

possessing child pornography, and two specifications of

committing a crime or offense not capital, viz., possessing

child pornography in violation of the Child Pornography

Prevention Act of 1996 (CPPA), 18 U.S.C. § 2252A (2000).

Articles 133 and 134, UCMJ, 10 U.S.C. §§ 933, 934 (2000).

Before sentencing, the military judge merged the Article 134

offenses with the Article 133 offense for sentencing purposes.

The members sentenced Appellant to a dismissal and confinement

for twelve months.   The convening authority approved the

sentence.   On appeal, the United States Navy-Marine Corps Court

of Criminal Appeals (CCA) set aside the Article 134 charge

because the definition of child pornography used in the military

judge’s instruction had subsequently been held unconstitutional

by the Supreme Court in Ashcroft v. Free Speech Coalition, 535

U.S. 234, 240, 256, 258 (2002).   United States v. Forney, No.

200200462, 2005 CCA LEXIS 235, at *11, 2005 WL 1800117, at *3

(N-M. Ct. Crim. App. July 19, 2005).   The CCA affirmed the




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United States v. Forney, No. 05-0647/NA


findings as to the Article 133 offense and affirmed the

sentence.   Id. at *23, 2005 WL 180017, at *8.

     We remanded the case to the CCA to reconsider its decision

in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006)

(concerning review of unjust post-trial delay claims), and

United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006) (holding

conviction for possession of child pornography under clause 3 of

Article 134, UCMJ, had to be set aside because the trial court

failed to fully and fairly litigate whether the images depicted

actual or virtual children).   United States v. Forney, 64 M.J.

177 (C.A.A.F. 2006) (summary disposition).   On remand, the CCA

affirmed the findings of guilty to a violation of Article 133,

but granted relief for post-trial delay by affirming only so

much of the sentence as provided for a dismissal.   United States

v. Forney, No. 200200462, 2007 CCA LEXIS 349, at *14, *25, 2007

WL 2579429, at *4, *8 (N-M. Ct. Crim. App. Aug. 30, 2007).

              II.   The Specification and Instructions

     The sole specification upon which Appellant now stands

convicted alleged that he did “wrongfully receive and possess

child pornography, as defined in 18 U.S.C. § 2256, which acts or

conduct constituted conduct unbecoming an officer.”      Article

133, UCMJ, provides as follows:   “Any commissioned officer,

cadet, or midshipman who is convicted of conduct unbecoming an

officer and a gentleman shall be punished as a court-martial may


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United States v. Forney, No. 05-0647/NA


direct.”   The military judge instructed the court members that

in order to convict Appellant of the offense alleged, they had

to be convinced beyond a reasonable doubt that:

     (1)   Appellant received and possessed child pornography;

     (2) Appellant knew he received and possessed child
pornography;

     (3) Appellant knew what he received and possessed was
child pornography;

     (4) Appellant’s receipt and possession of the child
pornography was wrongful; and,

     (5) Under all the circumstances, Appellant’s conduct was
unbecoming an officer and a gentleman.

     The military judge defined conduct unbecoming an officer

and a gentleman as

     behavior in an official capacity which, in dishonoring
     or disgracing the individual as a commissioned
     officer, seriously detracts from his character as a
     gentleman, or behavior in an unofficial or private
     capacity which, in dishonoring or disgracing the
     individual personally, seriously detracts from his
     standing as a commissioned officer.

          “Unbecoming conduct” means misbehavior more
     serious than slight and of a material and pronounced
     character. It means conduct morally unfitting and
     unworthy, rather than merely inappropriate or
     unsuitable misbehavior which is more than opposed to
     good taste or propriety.

The military judge defined child pornography to the court

members based on the then-current language of 18 U.S.C. §




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United States v. Forney, No. 05-0647/NA


2256(8),1 as follows:

          “Child pornography” means any visual depiction,
     including any photograph, film, video, picture, or
     computer image or computer generated image or picture,
     whether made or produced by electronic, mechanical, or
     other means of sexually explicit conduct where:

               [(A)] The production of such visual
     depiction involves the use of a minor engaging in
     sexually explicit conduct; or

               [(B)] Such visual depiction is or appears to
     be of a minor engaging in sexually explicit conduct;
     or

               [(C)] Such visual depiction has been
     created, adapted or modified to appear that an
     identifiable minor is engaging in sexually explicit
     conduct; or

               [(D)] That such visual depiction is
     advertised, promoted, presented, described or
     distributed in such a manner that conveys the
     impression that the material is or contains a visual
     depiction of a minor engaging in sexually explicit
     conduct.

The military judge further instructed that “[r]eceipt and

possession of child pornography may be inferred to be wrongful

in the absence of evidence to the contrary; however, the drawing

of this inference is not required.”




1
  Congress amended this definition in the wake of Free Speech
Coalition, but the amendments are not relevant in this context.
Pub. L. No. 108-21, § 502, 117 Stat. 650, 678 (2003).

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United States v. Forney, No. 05-0647/NA


                           III.   Analysis

     In his instructions to the court members, the military

judge employed the definition of child pornography then found in

18 U.S.C. § 2256(8), part of the CPPA.       More than a year after

Appellant was sentenced, the Supreme Court held that 18 U.S.C. §

2256(8) violated the First Amendment to the extent that it

criminalized the possession and distribution of certain

“virtual” images -- images that were neither obscene nor

produced by the exploitation of actual children.      Free Speech

Coalition, 535 U.S. at 240, 256, 258.

     Relying on Free Speech Coalition, this Court has set aside

convictions for violations of the CPPA, as crimes or offenses

not capital under clause 3 of Article 134, UCMJ, in which the

court had defined child pornography as including images of

virtual children.   See United States v. Mason, 60 M.J. 15, 18

(C.A.A.F. 2004); United States v. O’Connor, 58 M.J. 450, 454

(C.A.A.F. 2003).    On the other hand, we have affirmed

convictions for the possession of child pornography charged as

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

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

the armed forces” under clauses 1 or 2 of Article 134, UCMJ,

without requiring the prosecution to establish that the images

were of actual children.   See United States v. Brisbane, 63 M.J.

106, 116-17 (C.A.A.F. 2006); Mason, 60 M.J. at 20 (stating that


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United States v. Forney, No. 05-0647/NA


“[t]he receipt or possession of ‘virtual’ child pornography can,

like ‘actual’ child pornography, be service-discrediting or

prejudicial to good order and discipline”).    We now hold that

the receipt and possession of virtual child pornography may also

constitute conduct unbecoming an officer.

                  A.   Conduct Unbecoming an Officer

       The Supreme Court “has long recognized that the military

is, by necessity, a specialized society separate from civilian

society.”   Parker v. Levy, 417 U.S. 733, 743 (1974); Orloff v.

Willoughby, 345 U.S. 83, 94 (1953).    That is because the primary

business of the military is to fight and be ready to fight the

nation’s wars.   Levy, 417 U.S. at 743 (citing United States ex

rel. Toth v. Quarles, 350 U.S. 11, 17 (1955)).     “‘No question

can be left open as to the right to command in the officer . .

..’”   Id. at 744 (quoting In re Grimley, 137 U.S. 147, 153

(1890)).    An officer’s conduct that disgraces him personally or

brings dishonor to the military profession affects his fitness

to command the obedience of his subordinates so as to

successfully complete the military mission.    That is the

gravamen of the offense Congress proscribed in Article 133.

       Further, we have held on numerous occasions that conduct

need not be a violation of any other punitive article of the

Code, or indeed a criminal offense at all, to constitute conduct

unbecoming an officer.    E.g., United States v. Norvell, 26 M.J.


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United States v. Forney, No. 05-0647/NA


477, 481 (C.M.A. 1988); United States v. Taylor, 23 M.J. 314,

318 (C.M.A. 1987).   As we stated more than forty years ago:

     [I]t is evident that the essence of an Article 133 offense
     is not whether an accused officer’s conduct otherwise
     amounts to an offense -- although, of course, it may -- but
     simply whether the acts meet the standard of conduct
     unbecoming an officer . . . .

          Clearly, then, the appropriate standard for assessing
     criminality under Article 133 is whether the conduct or act
     charged is dishonorable and compromising as hereinbefore
     spelled out -- this notwithstanding whether or not the act
     otherwise amounts to a crime.

United States v. Giordano, 15 C.M.A. 163, 168, 35 C.M.R. 135,

140 (1964).

     That the possession of virtual child pornography may be

constitutionally protected speech in civilian society does not

mean it is protected under military law.   “While the members of

the military are not excluded from the protection granted by the

First Amendment, the different character of the military

community and of the military mission requires a different

application of those protections.”   Levy, 417 U.S. at 758.

“Speech that is protected in the civil population may

nonetheless undermine the effectiveness of response to command.

If it does, it is constitutionally unprotected.”   Id. at 759

(citing United States v. Gray, 20 C.M.A. 63, 42 C.M.R. 255

(1970)).   Appellant’s conduct disgraced him personally and

compromised his fitness to command the obedience of his

subordinates.


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United States v. Forney, No. 05-0647/NA

              B.   The Military Judge’s Instruction

     Appellant argues that the military judge erred by

instructing the members using the definition of child

pornography found in 18 U.S.C. § 2256(8) that the Supreme Court

held violated the First Amendment’s free speech provision.

Quoting Cendejas, 62 M.J. at 339-40, Appellant asserts that this

definition “‘relieved the Government of its obligation to prove

that the images were of “actual” children beyond a reasonable

doubt in an evidentiary proceeding,’” and “‘removed any

opportunity for [LTJG Forney] to present a defense based on the

“virtual” constitutionally protected nature of the images.’”

“At the very least,” he argues, “the members must be instructed

that the speech (e.g., possession of images of virtual child

pornography) is constitutionally protected but that it could,

nonetheless, constitute conduct unbecoming an officer.”

     Appellant’s arguments are based on Cendejas.     In that case,

however, the Government charged the accused with violating the

CPPA under clause 3 of Article 134, UCMJ.   Id. at 335.   When an

accused is charged with violating a civilian statute under the

rubric of clause 3, we must apply the Supreme Court’s

interpretation of that civilian statute.    Where the offense does

not allege that the conduct violated a civilian statute, but

instead alleges the conduct itself is unbecoming an officer and

a gentleman or prejudicial to good order and discipline or of a


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United States v. Forney, No. 05-0647/NA

nature to bring discredit upon the armed forces, we apply

Supreme Court precedent in the military context.

     Neither the UCMJ nor the Manual for Courts-Martial contains

a definition of child pornography, and this Court has not been

called upon to define the term.    The Government could have

avoided this issue by alleging Appellant possessed “images of

children engaged in sexually explicit conduct” rather than

alleging he possessed “child pornography, as defined in 18

U.S.C. § 2256.”   Nevertheless, it is clear from the

specification as alleged that the Government was not charging

Appellant with a violation of Title 18, but was merely adopting

the definition in 18 U.S.C. § 2256 to explain the term “child

pornography” in the context of a conduct unbecoming an officer

and a gentleman charge under 10 U.S.C. § 933.

     As noted earlier, “[s]peech that is protected in the civil

population may nonetheless undermine the effectiveness of

response to command.   If it does, it is constitutionally

unprotected.”   Levy, 417 U.S. at 759 (citing Gray, 20 C.M.A. 63,

42 C.M.R. 255).   The First Amendment no more protects a military

officer from prosecution under Article 133 for wrongfully

possessing virtual child pornography on government computers on

a Navy warship underway than it protected Captain Levy from

prosecution for making statements to enlisted personnel that he

would not go to Vietnam if ordered to do so.    See Levy, 417 U.S.


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United States v. Forney, No. 05-0647/NA

at 739 n.6.   The military judge did not err by using 18 U.S.C. §

2256 to define child pornography.2

     Appellant also argues that the military judge should have

instructed the members that the possession of virtual child

pornography was constitutionally protected, although it could

constitute conduct unbecoming an officer, and that failure to so

instruct prevented him from presenting a defense.   Neither the

Supreme Court nor this Court has imposed a general requirement

to instruct on the state of the law in civilian society, even in

cases raising explicit First Amendment issues.   See Levy, 417

U.S. 733; United States v. Howe, 17 C.M.A. 165, 37 C.M.R. 429

(1967) (using contemptuous language toward the President and

conduct unbecoming an officer by participating in a public


2
  Even if it were error for the military judge to reference the
federal statute in the instruction -- arguably suggesting that
the possession of virtual child pornography was illegal in
civilian society –- we are confident such error was harmless
beyond a reasonable doubt. See Chapman v. California, 386 U.S.
18, 24 (1967). There is no reasonable possibility that any such
error might have contributed to Appellant’s conviction. Id. In
light of the totality of the circumstances -- his receiving and
possessing such images on government computers on a Navy ship
underway, the discovery of the misconduct by an enlisted person
in the performance of his duties, and the focus of the offense
and the military judge’s instructions on the military nature of
the offense -- any such error would have been unimportant in
relation to everything else the jury considered on the issue in
question. Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled
on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4
(1991). A rational court-martial would have found Appellant
guilty absent the alleged error. United States v. McDonald, 57
M.J. 18, 20 (C.A.A.F. 2002) (citing Neder v. United States, 527
U.S. 1, 18 (1999)).

                                12
United States v. Forney, No. 05-0647/NA

demonstration contemptuous of the President).   That a civilian

may not be subject to criminal liability under Title 18 for the

same conduct that resulted in Appellant’s conviction under

Article 133 is not determinative of whether his conduct was

unbecoming an officer and a gentleman.    Appellant would not have

been entitled to present evidence that possession of virtual

child pornography was not an offense in the civilian community

or to have the military judge so instruct, even if he had

requested the instruction, which he did not.    It follows that

the military judge did not err by failing to give such an

instruction.3




3
  Appellant’s argument that he should have been able to raise
this issue to the members suggests he believes it is a quasi-
affirmative defense to an Article 133 charge -- the members
could, but would not be required to, acquit if they found the
images were of virtual children. However, before a military
judge is required to give an affirmative defense instruction,
there must be some evidence in the record to which the members
might attach credit. See United States v. Van Syoc, 36 M.J. 461,
464 (C.M.A. 1993); accord United States v. Hibbard, 58 M.J. 71,
72 (C.A.A.F. 2003). In this case, there is absolutely no
evidence that the images were or might have been virtual. Thus,
even if Appellant’s quasi-defense were recognized in military
law, and it is not, the military judge would not have been
required to instruct on it.

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United States v. Forney, No. 05-0647/NA

                          IV.   Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.4




4
  We do not agree that the CCA improperly affirmed on a theory
not presented to the members, viz., that the images were
virtual. The CCA, having found error, was required to assess
prejudice. It did so by considering the case in the light most
favorable to the defense. Forney, 2007 CCA LEXIS 349, at *13,
2007 WL 2579429, at *4. That is not an alternative theory of
the case.

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United States v. Forney, No. 05-0647/NA


     EFFRON, Chief Judge (concurring in the result):

     I agree with the plurality opinion that receipt and

possession of virtual child pornography may be charged as

conduct unbecoming an officer and a gentleman in violation of

Article 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 933 (2000), even though such conduct is not subject to

prosecution in civilian society.    United States v. Forney, __

M.J. __ (8-9) (C.A.A.F. 2009).    I respectfully disagree,

however, with the plurality opinion’s approval of the military

judge’s instructions, which cited and relied upon a provision of

the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. §

2252A (2000), that was later held to be unconstitutional in

pertinent part by the Supreme Court in Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 256, 258 (2002).     Forney, __ M.J. at __

(10-13).   For the reasons set forth below, I would find

instructional error, but hold that any error was harmless beyond

a reasonable doubt under the circumstances of this case.


            I.   BACKGROUND:   CHILD PORNOGRAPHY OFFENSES

     A.    THE RELATIONSHIP BETWEEN CIVIL CRIMES AND MILITARY
           OFFENSES UNDER ARTICLES 133 AND 134

     Article 134, UCMJ, has served as the primary vehicle for

prosecuting child pornography offenses under the Uniform Code of

Military Justice.   10 U.S.C. § 134 (2000).   Under clause 3 of

Article 134 (“crimes and offenses not capital”), members of the
United States v. Forney, No. 06-0647/NA


armed forces may be charged with violating generally applicable

federal criminal statutes, such as the CPPA.   See, e.g., United

States v. Wolford, 62 M.J. 418, 423 (C.A.A.F. 2006).

     Child pornography offenses also may be prosecuted under

clause 1 of Article 134 (“all disorders and neglects to the

prejudice of good order and discipline”) or clause 2 of Article

134 (“all conduct of a nature to bring discredit upon the armed

forces”).    See, e.g., United States v. Irvin, 60 M.J. 23

(C.A.A.F. 2004).    Offenses under clauses 1 and 2 may consist of

violations of military-specific norms as well as violations of

civil law.   See Manual for Courts-Martial, United States pt. IV,

paras. 60.c(2)(a), 60.c(3) (2008 ed.) (MCM).

     As noted in the plurality opinion, child pornography

offenses involving an officer also may be charged under Article

133, UCMJ, 10 U.S.C. § 933 (“conduct unbecoming an officer and a

gentleman”).   See Forney, __ M.J. at __ (8-9).   As with offenses

under Article 134, offenses under Article 133 may consist of

violations of military-specific norms, as well as violation of

generally applicable criminal laws.   See MCM pt. IV, paras.

59.c(2), 59.c(3).

     As a matter of proof, the nature of the standard -- whether

the act or omission violated a military-specific norm or a

generally applicable civilian law -- is important.   In a

contested case, the court-martial panel must determine whether


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United States v. Forney, No. 06-0647/NA


the act or omission occurred, and whether it constituted a

violation of incorporated federal law under Article 134(3), or

whether it was prejudicial to good order and discipline under

Article 134(1), service discrediting under Article 134(2), or

conduct unbecoming an officer and a gentleman under Article 133.

See, e.g., United States v. Cendejas, 62 M.J. 334, 338-40

(C.A.A.F. 2006).   In a guilty plea case, the military judge must

ensure that the accused understands and explains why his or her

conduct violated the applicable element.   See, e.g., United

States v. Reeves, 62 M.J. 88, 95-96 (C.A.A.F. 2005); United

States v. Martinelli, 62 M.J. 52, 64-67 (C.A.A.F. 2005).

      B.   PROSECUTION OF CHILD PORNOGRAPHY CASES UNDER THE UCMJ
           IN THE AFTERMATH OF ASHCROFT V. FREE SPEECH COALITION

1.   The distinction between images of actual children and images
     of virtual children

      In the CPPA, Congress sought to permit prosecutions

involving pornographic images of real children, as well as

images created without the use of real children -- that is,

“virtual” child pornography.   In United States v. James, 55 M.J.

297 (C.A.A.F. 2001), we considered a constitutional challenge to

a child pornography conviction under the CPPA as incorporated in

clause 3 of Article 134, UCMJ.   We concluded that such a

prosecution under the CPPA did not violate the First Amendment’s

free speech protections, noting that our decision was consistent

with the views of the majority of the other federal courts of


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United States v. Forney, No. 06-0647/NA


appeals that had considered the same issue.   Id. at 299-300.

The Supreme Court subsequently reached a different conclusion,

holding that the CPPA was unconstitutionally overbroad under the

First Amendment to the extent that the statute attempted to

reach virtual images.   Free Speech Coalition, 535 U.S. at 244-

56.   In the aftermath of the Supreme Court’s decision, we

reversed convictions under clause 3 of Article 134 that relied

on incorporation of the unconstitutional provisions of the CPPA.

See, e.g., Cendejas, 62 M.J. at 339-40.

2.    Circumstances under which virtual images of child
      pornography may constitute a unique military offense

       In a separate set of cases, we considered whether members

of the armed forces could be prosecuted under provisions of

military law that did not rely on incorporation of federal

criminal law, such as clauses 1 and 2 of Article 134.   We

concluded that offenses involving virtual child pornography

could be charged as conduct prejudicial to good order and

discipline or as service discrediting conduct under clauses 1

and 2 of Article 134 without violating the constitutional rights

of military personnel, relying on the differing constitutional

standards applicable to unique military offenses.   See, e.g.,

United States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004) (citing

Parker v. Levy, 417 U.S. 733, 758 (1974)).




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United States v. Forney, No. 06-0647/NA


     Because charges under clauses 1 and 2 require a case-

specific determination by the factfinder as to whether the

conduct was prejudicial or service discrediting, we have

emphasized that the determination as to whether virtual child

pornography was, in fact, a violation of clauses 1 or 2 must be

made by the factfinder on a case-by-case basis.   See id. at 19;

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

Likewise, we have held that in guilty plea cases, the military

judge must ascertain whether the accused can explain during the

plea colloquy why his or her conduct was prejudicial or service

discrediting.   See, e.g., Martinelli, 62 M.J. at 64-67; United

States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003).


      II.   INCORPORATION OF GENERALLY APPLICABLE CRIMINAL LAW
            BY THE MILITARY JUDGE IN THE INSTRUCTIONS PROVIDED
            IN APPELLANT’S CASE

     The offense of conduct unbecoming an officer and a

gentleman under Article 133 consists of two elements:

     (1) That the accused did or omitted to do
     certain acts; and

     (2) That, under the circumstances, these acts or
     omissions constituted conduct unbecoming an
     officer and gentleman.

MCM pt. IV, para. 59.b.

     In his instructions to the panel on the Article 133 charge,

the military judge relied substantially on the text of the CPPA,

a generally applicable criminal statute.   With respect to the


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United States v. Forney, No. 06-0647/NA


first element under Article 133, the military judge instructed

the members that to convict Appellant, they must find that “the

accused received and possessed child pornography, as defined in

18 U.S. Code Section 2256.”       The military judge then inserted a

series of elements concerning knowing receipt and possession of

child pornography, followed by the element of unbecoming

conduct.   In the course of explaining the element of knowledge,

the military judge underscored the relationship between Article

133 and the CPPA by noting that “it is not required that the

accused knew of the criminal statute involved.”      The military

judge then returned to the definition of child pornography,

advising the members that they must use the definition in “18

U.S. Code, Section 2256.”    He set forth the CPPA definition in

detail, including the portions subsequently found to be

unconstitutional in Free Speech Coalition, 535 U.S. at 256, 258.

Subsequently, the military judge used a similar definition in

the course of instructing the members with respect to separate

charges alleging violation of the CPPA as incorporated through

clause 3 of Article 134.


                           III.    DISCUSSION

                      A.    INSTRUCTIONAL ERROR

     The plurality opinion’s conclusion that virtual child

pornography offenses may be charged under both Article 133 and



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Article 134, UCMJ, answers the question of whether Appellant

could be convicted under the charge, but does not answer the

question of whether the military judge properly instructed the

panel.   See Forney, __ M.J. at __ (7-10).   Likewise, the

plurality opinion’s conclusion that the military judge was not

required on his own motion to instruct the panel as to the

constitutionality of the CPPA does not establish the propriety

of the instructions that were given by the military judge.    See

id. at __ (11-13).

     In addressing the instructional issue, the plurality

opinion states that “Appellant would not have been entitled to

present evidence that possession of virtual child pornography

was not an offense in the civilian community or to have the

military judge so instruct, even if he had requested the

instruction.”   Id. at __ (13).   The suggestion that a military

accused cannot introduce such evidence is inconsistent with the

scope of proof permitted under Articles 133 and 134.   When a

member of the armed forces is charged with a violation of

Article 133 or 134, the court-martial panel may convict the

member on the ground that the conduct at issue violated the

norms of civilian society set forth in a generally applicable

criminal statute, irrespective of any military-specific norm.

See supra Part I.A.   Because the panel may convict a member on

the basis that the conduct violates civil law, the accused is


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United States v. Forney, No. 06-0647/NA


entitled to present evidence that the conduct does not amount to

an offense in civilian society.   Cf. Cendejas, 62 M.J. at 339-40

(discussing the right to defend on the theory of civil legality

in the context of an Article 134, clause 3, case).   The problem

with the military judge’s instructions in the present case is

not that he permitted the charge to go to the members or that he

omitted any particular instruction.   The problem in this case

arises from the inclusion in the instruction of a generally

applicable federal criminal statute that proved to be invalid in

pertinent part.

     In cases arising under Articles 133 and 134, UCMJ, a

military judge may appropriately craft an instruction that

refers to and incorporates a generally applicable civil statute.

In some cases, it may be necessary to do so where the proof of

the Article 133 or 134 violation turns on whether the

unbecoming, prejudicial, or service discrediting conduct

violates a civil law.   If, however, the statute is invalid in

whole or in part, reference to the statute becomes problematic.

In such a case, the instruction could leave the members with the

view that the charged conduct would violate a valid civil law,

creating the possibility that the members could convict the

accused on the basis of an incorrect understanding of the law.

     The present case raises that concern.   The repeated

references to the CPPA and statutory criminal conduct could have


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United States v. Forney, No. 06-0647/NA


left the members with the view that the conduct at issue

violated a valid generally applicable statute, thereby creating

the potential for convicting on grounds that were undermined by

the Supreme Court’s decision in Free Speech Coalition.     As noted

in Part I, the decision in Free Speech Coalition does not

preclude a conviction under Articles 133 or 134 for violation of

a military-specific norm, but it does preclude a court-martial

from relying on the existence of a civil norm as the basis for

such a conviction.   See Mason, 60 M.J. at 18-20.   Accordingly,

reference to the statutory provisions constituted instructional

error in the present case.1

                           B.   PREJUDICE

     Although the instruction was incorrect, the conviction may

be affirmed under the particular circumstances of this case

because the instructional error was harmless beyond a reasonable

doubt.   When a military judge’s instruction incorrectly

describes elements of an offense, we analyze that error for

prejudice under a standard of harmlessness beyond a reasonable

doubt.   United States v. Upham, 66 M.J. 83, 86 (C.A.A.F. 2008)


1
  Judge Erdmann, joined by Judge Ryan, makes a similar point,
noting that the record in this case does not establish that the
members gave fair consideration to the nature of the charged
conduct separate from the nature of the offense as a civilian
crime. See Forney, __ M.J. at __ (3-4) (Erdmann, J., with whom
Ryan, J., joins, dissenting). I agree. The end result is that
three judges, a majority of this Court, agree on the nature of
the instructional error in this case. See id. at 4 n.1.

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United States v. Forney, No. 06-0647/NA

(citing Neder v. United States, 527 U.S. 1, 17 (1999)).     Error

is harmless beyond a reasonable doubt when there is no

“reasonable possibility that the evidence [or error] complained

of might have contributed to the conviction.”   United States v.

Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967) (brackets in original)).     We

consider two factors in analyzing the harmlessness of an

instructional error:   “whether the matter was contested, and

whether the element at issue was established by overwhelming

evidence.”   Upham, 66 M.J. at 87.

     In this case, the question of whether Appellant’s conduct

was unbecoming was not placed at issue during trial.   At trial,

the defense focused its argument on factual matters, attacking

the reliability of Appellant’s confessions and suggesting that

others may have performed the downloading.   The defense did not

argue that if Appellant had committed the charged acts, the acts

would not have amounted to conduct unbecoming an officer and a

gentleman.

     The element of unbecoming conduct was established by

overwhelming evidence.   The Government introduced two separate

confessions in which Appellant admitted to Naval Criminal

Investigative Service agents that he received and possessed

child pornography on government computers on his ship.    The

Government also introduced testimony regarding how pornographic


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United States v. Forney, No. 06-0647/NA

images of children were discovered in Appellant’s storage drive,

forensic analysis of the image files, and copies of the image

files themselves.   In this case, even if the instruction led the

members to believe that Appellant’s conduct violated a civil

law, there is no reasonable possibility, in the context of all

other evidence presented, that such a belief contributed to

Appellant’s conviction.   Given the significant evidence that

Appellant viewed child pornography on government computers on

board a Navy ship underway, in the context of the issues raised

by the defense at trial, we can be confident that the

instructional error was harmless beyond a reasonable doubt with

respect to the panel’s determination that the charged acts

constituted conduct unbecoming an officer and a gentleman.    See

Forney, __ M.J. at __ (12 n.2); Moran, 65 M.J. at 187.

Accordingly, I agree with the plurality opinion that the

findings and sentence may be affirmed.




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United States v. Forney, No. 05-0647/NA


     ERDMANN, Judge, with whom RYAN, Judge, joins (dissenting):

     I agree with Judge Stucky that the possession of

pornographic images of virtual children may give rise to a

conviction under Article 133, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 933 (2000), for conduct unbecoming an

officer and a gentleman, even though the First Amendment

protects civilians from criminal prosecution for engaging in

such conduct.   United States v. Forney, ___ M.J. ___ (2)

(C.A.A.F. 2008); see United States v. Mason, 60 M.J. 15, 19

(C.A.A.F. 2004).   However, using broad strokes, his opinion

essentially concludes that there are no First Amendment concerns

in the context of an Article 133, UCMJ, offense based on

possession of virtual pornographic images and denies any error

in this case.   See Forney, ___ M.J. at ___ (10, 12).    I cannot

join in those broad conclusions.

     While we “have long recognized that the First Amendment

rights of civilians and members of the armed forces are not

necessarily coextensive[,] . . . we must ensure that the

connection between any conduct protected by the First Amendment

and its effect in the military environment be closely examined.”

United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003).

When confronted with these circumstances our precedents require

a careful examination of the First Amendment concerns.    See

generally United States v. Wilcox, 66 M.J. 442, 451 (C.A.A.F.
United States v. Forney, No. 05-0647/NA


2008) (concluding that where the record establishes no direct

and palpable connection between the otherwise protected speech

and the military mission or military environment, there can be

no conviction under Article 134, UCMJ, clause 1 or 2).

        In this case, the members convicted Forney under Article

134, UCMJ, § 934 (2000), clause 3, of two specifications of

violating 18 U.S.C. § 2252A (2000), due to possession of “images

of child pornography, as defined by 18 U.S.C. 2256.”    The

members also convicted Forney of conduct unbecoming an officer

and a gentleman under Article 133, UCMJ, due to possession of

“child pornography, as defined in 18 U.S.C. § 2256.”    After

Forney’s trial and while the case was on direct review, the

Supreme Court struck down portions of the definitions in 18

U.S.C. § 2256 (2000), as unconstitutional; as a result,

civilians could not be prosecuted for possession of virtual

images of child pornography.    Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002).

        In light of Free Speech Coalition and our precedents

applying that decision in the Article 134, UCMJ, clause 3

context, the United States Navy-Marine Corps Court of Criminal

Appeals dismissed the Article 134, UCMJ, specifications in this

case.    United States v. Forney, No. NMCCA 200200462, 2005 CCA

LEXIS 235, at *10-*11, *23, 2005 WL 1800117, at *3, *8 (N-M. Ct.

Crim. App. July 19, 2005) (unpublished).    But the lower court


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United States v. Forney, No. 05-0647/NA


ultimately affirmed the conviction under Article 133, UCMJ,

reasoning in part that “[b]ecause the Government did not have an

obligation to establish that any image was of an actual child,

it is not of constitutional significance whether the appellant

had the opportunity to challenge the nature of the images as

virtual.”   United States v. Forney, No. NMCCA 200200462, 2007

CCA LEXIS 349, at *13, 2007 WL 2579429, at *4 (N-M. Ct. Crim.

App. Aug. 30, 2007) (unpublished).

     On appeal to this court Forney contends, among other

things, that he was denied the right to argue to the members

that the virtual images were constitutionally protected in the

civilian community and that reasonable doubt therefore exists as

to whether possession of constitutionally protected virtual

images would constitute conduct unbecoming an officer and a

gentleman under Article 133, UCMJ, in the military community.

In light of the unique procedural context of this case, I find

this argument to have merit.

     After the Supreme Court decided Free Speech Coalition, this

court recognized that the virtual or actual status of child

pornography images has constitutional significance that may bear

on the service discrediting nature of possessing such images.

O’Connor, 58 M.J. at 454-55.   Addressing the issue in the

context of plea inquiries where an Article 134, UCMJ, clause 1

or 2 offense relied on the unconstitutional definitions of 18


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United States v. Forney, No. 05-0647/NA


U.S.C. § 2256, we would not affirm the conviction unless the

record showed a discussion between the military judge and the

accused conspicuously reflecting that the accused understood the

nature of the prohibited conduct separate and apart from its

standing as a civilian offense.    Id. at 455; see also United

States v. Martinelli, 62 M.J. 52, 67 (C.A.A.F. 2005).

        A comparable analysis seems warranted in the context of

this contested case charging an Article 133, UCMJ, offense and

relying on the unconstitutional definitions of 18 U.S.C. § 2256.

Here too the constitutional significance of the status of

virtual or actual images may, or may not, bear on whether

Forney’s possession of the images warrants criminal penalties as

conduct unbecoming an officer and a gentleman under Article 133,

UCMJ.    In both the charges and the member instructions, the

Article 134, UCMJ, clause 3 specifications were intertwined with

the conduct unbecoming specification by means of their mutual

reliance on the unconstitutional definitions under 18 U.S.C. §

2256.1    Therefore, the record does not establish that the members




1
  I agree with Part III.A of Chief Judge Effron’s separate
opinion, which concludes that an accused is entitled to present
evidence to show that the conduct in question does not amount to
an offense in civilian society, that reliance on an invalid
federal criminal statute in member instructions constitutes
error, and that the instructions given by the military judge in
the present case were deficient in that regard. See Forney, ___
M.J. at ___ (7-9) (Effron, C.J., concurring in the result).

                                   4
United States v. Forney, No. 05-0647/NA


gave fair consideration to the nature of the prohibited conduct

separate and apart from its standing as a civilian offense.

       Under the unique facts of this case and in light of the

narrow issue before us,2 I would find that Forney was deprived of

the chance to argue to the members that his possession of images

of child pornography was constitutionally protected.   Because

Forney did not have the opportunity to develop this First

Amendment-based defense on the record before the members,3 I do

not think this court is in a position to evaluate the merits of

such a defense on appeal in an effort to determine whether the

error was harmless beyond a reasonable doubt.4   Accordingly, even


2
    We granted review on the following issue:

       WHETHER APPELLANT’S ARTICLE 133 CONVICTION CAN BE
       SUSTAINED EVEN THOUGH HE PLEADED NOT GUILTY AND THE
       SPECIFICATION ON WHICH HE WAS TRIED EXPRESSLY RESTED
       ON A STATUTE THAT THE SUPREME COURT HAS FOUND
       UNCONSTITUTIONAL.

66 M.J. 466 (C.A.A.F. 2008).
3
  Although not necessary in support of my view of this case, I
would note that a similar argument could have been made on
sentencing in an effort to mitigate the gravity of the offense.
4
  Judge Stucky asserts that there is no possibility of such a
defense in this case because there is no evidence in the record
that the images were or could have been virtual. Forney, ___
M.J. at ___ (13) n.3. This assertion, however, conflicts with
United States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006)
(finding in a case tried as an Article 134, UCMJ, clause 3
offense that the appellant was improperly denied the
“opportunity . . . to present a defense based on the ‘virtual’
constitutionally protected nature of the images” because the
question of whether the images were virtual or actual was not
litigated at the court-martial).



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United States v. Forney, No. 05-0647/NA


though I agree that possession of virtual images can constitute

the offense of conduct unbecoming an officer and a gentleman if

the Government proves the unbecoming nature of the possession

under the circumstances, I do not believe the record in this

case justifies affirming the conviction on those grounds.   As

such, I would reverse the Court of Criminal Appeals, set aside

the findings of guilty and authorize a rehearing.




                                6
