UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            SIMS, COOK, and GALLAGHER
                               Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                        Specialist RYAN A. BOWERSOX
                         United States Army, Appellant

                                   ARMY 20100580

                Headquarters, XVIII Airborne Corps and Fort Bragg
                      Gary J. Brockington, Military Judge
                  Colonel Stephen J. Berg, Staff Judge Advocate


For Appellant: Captain Matthew T. Grady, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura R. Kesler, JA; Captain
Matthew T. Grady, JA (on brief); Major Richard E. Gorini.
For Appellee: Captain Bradley M. Endicott, JA (argued); Major Amber J. Williams,
JA; Major Ellen S. Jennings, JA; Captain Stephen E. Latino, JA; Captain
Christopher L. Simons, JA; Captain Bradley M. Endicott, JA (on brief).

                                   24 February 2012
                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------


COOK, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of two specifications of possessing obscene visual depictions
of a minor engaging in sexually explicit conduct in violation of 18 U.S.C.
§ 1466A(b)(1) (2006) and which conduct was of a nature to bring discredit upon the
armed forces, made punishable by Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2006) [hereinafter UCMJ]. Appellant was acquitted of an additional
specification of wrongfully and knowingly possessing and viewing child
pornography. The convening authority approved the adjudged sentence of a bad-
conduct discharge, confinement for four months, forfeiture of all pay and
allowances, and reduction to the grade of E-1. Appellant’s case is now before this
court for review under Article 66, UCMJ.
BOWERSOX—ARMY 20100580

                                                                  BACKGROUND

       At the time of his offenses, appellant resided in a shared military barracks
room on Fort Bragg, North Carolina. After an odd exchange in their room, during
which appellant allegedly displayed child pornography on his computer screen,
appellant’s roommate alerted the authorities. Subsequently, appellant’s desktop and
laptop computers were lawfully searched and each was found to contain obscene
cartoons or drawings of a minor engaging in sexually explicit conduct. None of the
depictions discovered on appellant’s computers were of real children.

       Appellant was charged with two specifications of violating Clauses 2 and 3 of
Article 134, UCMJ. 1 The first specification alleged that he possessed “five files and
about three hundred thirty-six obscene visual depictions of a minor engaging in
sexually explicit conduct” on his desktop computer, and the second alleged that he
possessed “one file and twenty-two” such depictions on his laptop computer. At
appellant’s court-martial, the military judge found appellant guilty, by exceptions
and substitutions, of possessing 216 depictions under the former specification, and 8
depictions under the latter. Additionally, the military judge made special findings
listing each of the 224 depictions he found to be an obscene visual depiction of a
minor engaging in sexually explicit conduct.

                                                               LAW AND DISCUSSION

       Appellant raises three assignments of error, only one of which merits
discussion. In this assignment of error, appellant advances several arguments as to
the infirmity of his convictions; we will address three of those reasons in turn. First,
appellant claims that many of the obscene depictions supporting his convictions are
factually insufficient because they do not depict a minor engaging in sexually
explicit conduct. Second, appellant avers that 18 U.S.C. § 1466A (2006) is
unconstitutional as applied to the facts of his case because Stanley v. Georgia,
394 U.S. 557 (1969), created a constitutional right to possess obscene visual
depictions applicable in these circumstances. Finally, appellant argues, in general,
the evidence is legally insufficient as to the service-discrediting nature of his
conduct and specifically avers insufficiency because there is no evidence the public
was aware that he possessed numerous obscene depictions of a minor engaging in
sexually explicit conduct.

       We agree with appellant that some depictions underlying his convictions are
factually insufficient and will take action in our decretal paragraphs. However, we
                                                            
1
 Appellant was also charged with a third specification for possessing and viewing
child pornography, ostensibly based on his roommate’s testimony regarding the odd
exchange in their barracks room; however, appellant was acquitted of this charged
specification.




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BOWERSOX—ARMY 20100580

disagree with appellant as to the merit of his remaining claims. The limited
protections afforded in Stanley do not extend to a case such as this. Furthermore,
there is no legal requirement that the public actually be aware of appellant’s conduct
for it to be punishable as service-discrediting.

                                  Legal and Factual Sufficiency of the Visual Depictions
                                           Supporting Appellant’s Convictions

       Article 66, UCMJ, provides that a Court of Criminal Appeals “may affirm
only such findings of guilty . . . as it finds correct in law and fact.” In performing
our duty, we must conduct a de novo review of both the legal and factual sufficiency
of appellant’s convictions. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F.
2011). The test for factual sufficiency, on the other hand, “involves a fresh,
impartial look at the evidence, giving no deference to the decision of the trial court
on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into
account the fact that the trial court saw and heard the witnesses.” Washington, 57
M.J. at 399.

       In this case, to violate 18 U.S.C. § 1466A(b)(1), appellant must be proved to
have, inter alia, possessed obscene visual depictions which show a minor engaging
in sexually explicit conduct. 2 A minor is “any person under the age of eighteen

                                                            
2
    18 U.S.C. § 1466A (2006) reads, in relevant part:
              (b) A DDITIONAL OFFENSES .—Any person who, in a circumstance
              described in subsection (d), knowingly possesses a visual depiction of
              any kind, including a drawing, cartoon, sculpture, or painting, that—
                             (1)(A) depicts a minor engaging in sexually explicit conduct; and
                             (B) is obscene;
                             ....
              or attempts or conspires to do so, shall be subject to the penalties
              provided in section 2252A(b)(2) . . . .
              (c) N ONREQUIRED ELEMENT OF OFFENSE .—It is not a required element of
              any offense under this section that the minor depicted actually exist.
              (d) C IRCUMSTANCES .—The circumstance referred to in subsections (a)
              and (b) is that—
                      ....

                                                                                       (continued . . .)

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BOWERSOX—ARMY 20100580

years,” 18 U.S.C. § 2256(1) (2006), and “‘sexually explicit conduct’ has the
meaning given the term in [18 U.S.C. §] 2256(2)(A) or 2256(2)(B),” § 1466A(f)(2).
Further, to conclude that a work is obscene, the fact finder must determine “(a)
whether the average person, applying contemporary community standards would find
that the work, taken as a whole, appeals to the prurient interest, (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value.” Miller v. California,
413 U.S. 15, 24 (1973) (internal quotation marks and citations omitted).

       After reviewing the entire record, we are not convinced beyond a reasonable
doubt that all of the depictions underlying appellant’s convictions, as indicated by
the military judge in his special findings, are factually sufficient. Specifically, we
find 30 of the 216 depictions underlying Specification 2 of The Charge, 3 and 1 of the
8 depictions underlying Specification 3 of The Charge, 4 are not obscene and/or do
not show a minor engaging in sexually explicit conduct in violation of
§ 1466A(b)(1). However, we find that the remaining depictions identified in the
military judge’s special findings, which form the basis of appellant’s convictions,
are both legally and factually sufficient.

                                                            
(. . . continued)
               (5) the offense is committed in the special maritime and
               territorial jurisdiction of the United States . . . .
               ....
              (f) D EFINITIONS .—For purposes of this section—
                             (1) the term “visual depiction” includes undeveloped film and
                             videotape, and data stored on a computer disk or by electronic
                             means which is capable of conversion into a visual image, and
                             also includes any photograph, film, video, picture, digital image
                             or picture, computer image or picture, or computer generated
                             image or picture, whether made or produced by electronic,
                             mechanical, or other means. . . .
3
 Contrary to the military judge’s special findings of Specification 2 of The Charge,
we are not convinced beyond a reasonable doubt that possession of the following
depictions violates § 1466A(b)(1): Prosecution Exhibits 26, 27, 28, 30, 34, 40, 54,
55, 77, 90, 106, 120, 121, 122, 123, 132, 143, 149, 154, 156, 157, 183, 184, 206,
277, 285, 316, 319, 326, and 335.
4
 Contrary to the military judge’s special findings of Specification 3 of The Charge,
we are not convinced beyond a reasonable doubt that possession of the depiction in
Prosecution Exhibit 13 violates § 1466A(b)(1).




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BOWERSOX—ARMY 20100580

                             Constitutionality of Appellant’s § 1466A(b)(1) Convictions

       Having found the evidence legally and factually sufficient to support
appellant’s convictions for possession of 193 total depictions in violation of
§ 1466A(b)(1), we must next decide whether these convictions violate constitutional
safeguards in light of the facts and circumstances of appellant’s case. 5 Citing
Stanley v. Georgia, 394 U.S. 557 (1969), appellant argues his convictions must be
set aside because, “[s]imilar to the defendant in Stanley, appellant was convicted
even though he merely possessed obscene material in the privacy of his own home.”
We disagree with appellant that the limited protections afforded in Stanley reach a
case such as this.

       The First Amendment to the United States Constitution commands that
“Congress shall make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. However, “obscene material is unprotected by the First Amendment.”
Miller, 413 U.S. at 23 (internal citations omitted). In a category distinct from
obscenity, child pornography is also outside the protection of the First Amendment.
New York v. Ferber, 458 U.S. 747 (1982). The rationales expounded in Ferber for
denying constitutional protection to child pornography do not apply where the child
pornography does not depict an actual child. Ashcroft v. Free Speech Coalition, 535
U.S. 234, 249–56 (2002).

       Here, appellant was prosecuted for violating § 1466A, a post-Ashcroft
obscenity statute which criminalizes possession of an obscene visual depiction of a
minor engaging in sexually explicit conduct, regardless of whether the depiction is
of an actual minor. At the time of the charged offenses, appellant was residing in a
military barracks room which was located in the special maritime and territorial
jurisdiction of the United States. 18 U.S.C. § 7 (2006). Furthermore, appellant
shared his barracks room with another soldier, a soldier who eventually alerted the
authorities about disturbing images on appellant’s computer. These are the
circumstances to which appellant seeks application of Stanley.

       Appellant’s argument “overlooks the explicitly narrow and precisely
delineated privacy right on which Stanley rests.” United States v. Twelve 200-ft.
Reels of Super 8mm. Film, 413 U.S. 123, 127 (1973). In fact, Stanley’s reach is very
limited. Osborne v. Ohio, 495 U.S. 103, 108 (1990) (“Stanley should not be read too
broadly.”); Twelve 200-ft. Reels of Super 8mm. Film, 413 U.S. at 128 (“We are not
                                                            
5
  Appellant does not contend that § 1466A(b)(1) is facially unconstitutional. This
subsection is neither vague nor overbroad because it explicitly requires the
offending material meet the Miller definition of constitutionally unprotected
obscenity. See United States v. Williams, 553 U.S. 285, 293, 297 (2008) (holding
that a statute whose definitions “precisely track[] the material held constitutionally
proscribable in Ferber and Miller” was not facially unconstitutional).




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BOWERSOX—ARMY 20100580

disposed to extend the precise, carefully limited holding of Stanley to permit
importation of admittedly obscene materials simply because it is imported for
private use only.”); United States v. Orito, 413 U.S. 139, 143 (1973) (The Court
rejected the application of Stanley and stated, “That the transporter has an abstract
proprietary power to shield the obscene material from all others and to guard the
material with the same privacy as in the home is not controlling.”); United States v.
Handley, 564 F. Supp. 2d 996 (S.D. Iowa 2008) (rejecting the application of Stanley
to the transportation of obscene material in interstate commerce in violation of
18 U.S.C. § 1466A).

       In this case, the government charged and proved appellant’s possession of
obscene visual depictions of a minor engaging in sexually explicit conduct occurred
in a shared barracks room in the special maritime and territorial jurisdiction of the
United States. There is no constitutionally recognized right to possess such
material, under these circumstances, on property within the special maritime and
territorial jurisdiction of the United States and no authority to extend Stanley into
this province. “[T]he threshold of a barracks/dormitory room does not provide the
same sanctuary as the threshold of a private home.” United States v. Conklin, 63
M.J. 333, 337 (C.A.A.F. 2006) (quoting United States v. McCarthy, 38 M.J. 398, 403
(C.M.A. 1993)). As such, the circumstances of appellant’s case remove it from the
circumscribed protections afforded in Stanley. Accordingly, we hold that 18 U.S.C.
§ 1466A(b)(1) is not unconstitutional as applied to appellant.

                   Sufficiency of the Alternative Theories of Guilt,
                    Violations of Clause 2 of Article 134, UCMJ

       Finally, we conclude that the evidence is legally and factually sufficient to
support the alternative theory alleged in both specifications that appellant’s conduct
was of a nature to bring discredit upon the armed forces. UCMJ art. 134, clause 2.
We are not persuaded by appellant’s argument that there must be some evidence a
member of the public was actually aware of his actions. “The focus of clause 2 is on
the ‘nature’ of the conduct, whether the accused’s conduct would tend to bring
discredit on the armed forces if known by the public, not whether it was in fact so
known.” Phillips, 70 M.J. at 165–166. Therefore, the analysis ultimately “depends
on the facts and circumstances of the conduct.” Id. at 166.

       Considering appellant’s conduct in the aggregate, it is clear he possessed 193
obscene depictions which show a minor engaging in sexually explicit conduct. He
repeatedly searched for, downloaded and viewed these obscene depictions.
Furthermore, he possessed each of these obscene depictions in a military barracks
room that he shared with another soldier. Viewed in the light most favorable to the
prosecution, any rational trier of fact could determine beyond a reasonable doubt
that the conduct alleged actually occurred and could also determine beyond a
reasonable doubt that appellant’s conduct would tend to bring the service into
disrepute if it were known. See Jackson, 443 U.S. at 318–19; Phillips, 70 M.J. at


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BOWERSOX—ARMY 20100580

166. Furthermore, in conducting our own review, we are in fact convinced beyond a
reasonable doubt that appellant’s conduct was of a nature to bring discredit upon the
armed forces. Accordingly, we conclude the alternative theories of committing
service-discrediting conduct, expressly alleged in both specifications, are legally and
factually sufficient.

                                   CONCLUSION

       On consideration of the entire record, the court affirms only so much of the
finding of guilty of Specification 2 of The Charge as finds that appellant “did, at
Fort Bragg, North Carolina, land owned by the United States Government, between
on or about 1 February 2009 and on or about 27 February 2009, knowingly possess a
desktop computer hard drive, serial number CNH7340GRF, containing 186 obscene
visual depictions of a minor engaging in sexually explicit conduct in violation of 18
U.S.C. § 1466A(b)(1), which conduct was of a nature to bring discredit upon the
armed forces.”

       As to Specification 3 of The Charge, on consideration of the entire record, the
court affirms only so much of the finding of guilty as finds that appellant “did, at
Fort Bragg, North Carolina, land owned by the United States Government, between
on or about 1 February 2009 and on or about 27 February 2009, knowingly possess a
laptop computer hard drive, serial number 2CE62803CN, containing seven obscene
visual depictions of a minor engaging in sexually explicit conduct in violation of 18
U.S.C. § 1466A(b)(1), which conduct was of a nature to bring discredit upon the
armed forces.”

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A.
1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the
factors identified by Judge Baker in his concurring opinion in Moffeit, the court
affirms the sentence as approved by the convening authority.

      Senior Judge SIMS and Judge GALLAGHER concur.

                                        FOR THE COURT: 
                                        FOR THE COURT:



                                        MALCOLM H. SQUIRES, JR.                        
                                        MALCOLM
                                        Clerk of Court  H. SQUIRES JR.
                                        Clerk of Court




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