                       UNITED STATES, Appellee

                                    v.

                    Charles J. WOLFORD, Sergeant
                        U.S. Army, Appellant

                              No. 04-0578

                       Crim. App. No. 20001042

       United States Court of Appeals for the Armed Forces

                       Argued November 1, 2005

                        Decided March 8, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD and EFFRON, JJ., joined. BAKER, J.,
filed a separate opinion concurring in the result.

                                 Counsel

For Appellant: Captain Todd N. George (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, Major Sean S. Park
and Captain Michael L. Kanabrocki (on brief); Colonel John T.
Phelps II.

For Appellee: Captain Edward E. Wiggers (argued); Major William
J. Nelson (on brief); Colonel Steven T. Salata; Lieutenant
Colonel Theresa Gallagher; Captain Mark J. Hamel.

Military Judge:   Robert L. Swann


       This opinion is subject to revision before final publication.
United States v. Wolford, No. 04-0578/AR

     Judge ERDMANN delivered the opinion of the court.

     Sergeant Charles J. Wolford entered a plea of not guilty to

sending, receiving, reproducing and possessing child pornography

in violation of the Child Pornography Prevention Act of 1996

(CPPA), 18 U.S.C. § 2252A (2000), charged under clause 3 of

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 934 (2000).    Wolford was convicted by a special court-martial

comprised of members and was sentenced to be discharged from the

Army with a bad-conduct discharge.    The convening authority

approved the sentence and the findings and sentence were

affirmed by the United States Army Court of Criminal Appeals in

an unpublished opinion.   United States v. Wolford, No. ARMY

20001042 (A. Ct. Crim. App. Apr. 27, 2004).

     A military judge is obligated to “assure that the accused

receives a fair trial.”   United States v. Graves, 1 M.J. 50, 53

(C.M.A. 1975).   This obligation includes the duty to “provide

appropriate legal guidelines to assist the jury in its

deliberations. . . .”   United States v. McGee, 1 M.J. 193, 195

(C.M.A. 1975) (citation omitted).     Failure to provide correct

and complete instructions to the panel before deliberations

begin may amount to a denial of due process.    United States v.

Jackson, 6 M.J. 116, 117 (C.M.A. 1979).

     We granted review in this case to determine whether the

panel was provided with appropriate and constitutionally correct



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United States v. Wolford, No. 04-0578/AR

instructions concerning the definition of the term “child

pornography.”    We also considered whether the evidence was

legally sufficient to support Wolford’s conviction on child

pornography charges.1    We find that the military judge’s

instructions did not deprive Wolford of due process and a fair

trial.    We also find that images alone can constitute legally

sufficient evidence as to whether an actual child was used to

produce child pornography.

                             BACKGROUND

       From August 1999 to May 2000, Wolford used a Microsoft

Hotmail account to exchange child pornography with individuals

he met through the Internet.    One of his emails was discovered

by a woman who contacted the Harris County Sheriff’s Office.

The police, believing that there might be a federal offense

involved, then contacted the U.S. Customs Service, which shares

jurisdiction over CPPA investigations with the Federal Bureau of


1
    We granted review of the following issues:
       WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
       SUMMARILY AFFIRMING APPELLANT’S CONVICTION UNDER THE CHILD
       PORNOGRAPHY [PREVENTION] ACT (CPPA) 18 U.S.C. § 2251 et
       seq. (2000) DESPITE THE PRESENTATION OF UNCONSTITUTIONALLY
       OVERBROAD INSTRUCTIONS TO THE PANEL THAT, WHEN COUPLED WITH
       THE EVIDENCE IN THE RECORD, PERMITTED THE PANEL TO CONVICT
       APPELLANT ON BOTH A CONSTITUTIONAL AND UNCONSTITUTIONAL
       BASIS.

       WHETHER APPELLANT’S CONVICTION UNDER THE CPPA IS NOT
       SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE WHERE NO EVIDENCE
       WAS INTRODUCED AT TRIAL THAT THE DEPICTIONS WERE, IN FACT,
       PRODUCED BY USING REAL CHILDREN AS REQUIRED BY UNITED
       STATES v. O’CONNOR, 58 M.J. 450 (C.A.A.F. 2003).

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United States v. Wolford, No. 04-0578/AR

Investigation and the U.S. Postal Service.    The Customs Service

identified Wolford with the help of Microsoft and Wolford’s

Internet service provider.   Customs then turned the case over to

the Army’s Criminal Investigation Division (CID).

     CID interviewed Wolford, and he admitted to receiving,

viewing, sending and saving approximately 100 images of child

pornography.   Wolford later argued that his confession was

coerced and his case went to trial on his plea of not guilty.

At trial, various witnesses testified about how Wolford was

identified, where the images were found on his computer and how

old the girls in the pictures appeared to be based on their

sexual maturity.

                             DISCUSSION

I.   Standard of Review

     Defense counsel did not object to the military judge’s

instructions at the time of trial.   Even so, “[t]his [c]ourt has

determined that waiver must be established by ‘affirmative

action of the accused’s counsel,’ and not by ‘a mere failure to

object to erroneous instructions . . . .’”    United States v.

Smith, 50 M.J. 451, 455-56 (C.A.A.F. 1999) (quoting United

States v. Mundy, 2 C.M.A. 500, 502, 9 C.M.R. 130, 132 (1953))

(emphasis in original).   Accordingly, we review Wolford’s

instructional claims de novo.   Id. at 455.   If instructional

error is found, because there are constitutional dimensions at



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United States v. Wolford, No. 04-0578/AR

play, Wolford’s claims “must be tested for prejudice under the

standard of harmless beyond a reasonable doubt.”    United States

v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005).     “The inquiry for

determining whether constitutional error is harmless beyond a

reasonable doubt is ‘whether, beyond a reasonable doubt, the

error did not contribute to the defendant’s conviction or

sentence.’”   Id. (quoting United States v. Kaiser, 58 M.J. 146,

149 (C.A.A.F. 2003)).

      With respect to Wolford’s legal sufficiency claim, our test

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, 324 (C.M.A. 1987) (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

II.   Military Judge’s Instructions

      Article 51(c), UCMJ, 10 U.S.C. § 851(c) (2000), and Rule

for Courts-Martial (R.C.M.) 920 require the military judge to

instruct the members of the court prior to any deliberations on

findings.   The military judge’s instructions are considered a

“vital stage” of any court-martial.   United States v. Groce, 3

M.J. 369, 370 (C.M.A. 1977).   As we stated above, “[t]he trial

judge’s obligation to provide appropriate legal guidelines to

assist the jury in its deliberations [is] an essential

ingredient of a fair trial.”   McGee, 1 M.J. at 195; Graves, 1



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United States v. Wolford, No. 04-0578/AR

M.J. at 53.   The military judge’s instructions are intended to

aid the members in the understanding of terms of art, to

instruct the members on the elements of each offense and to

explain any available defenses.   Graves, 1 M.J. at 53; see also

Groce, 3 M.J. at 370-71.

     Wolford has made three arguments concerning the military

judge’s instructions.   He argued in his brief that the military

judge erred by:   (1) using the following introductory language

of 18 U.S.C. § 2256(8) in the instructions -- “any visual

depiction, including . . . [a] computer generated image”; and

(2) using the “conveys the impression” language of § 2256(8)(D)

in the affirmative defense instruction.    At oral argument,

Wolford made no reference to the introductory language argument

and conceded that the affirmative defense instruction was not

problematic in the defense’s eyes.    He focused instead on the

new argument that even though the military judge omitted the

“conveys the impression” phase from the § 2256(8)(D) definition,

the remaining language in the subsection is unconstitutional.

     The military judge gave the following instruction defining

“child pornography”:

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




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United States v. Wolford, No. 04-0578/AR

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

      [(B)] such visual depiction is 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)] such visual depiction is advertised, promoted,
      presented, described, or distributed in such a manner
      that the material is or contains a visual depiction of
      a minor engaging in sexually explicit conduct. The
      words child or minor mean any person under the age of
      18 years.

      At the time of this trial in 2000, the term “child

pornography” was defined in 18 U.S.C. § 2256(8) (amended 2003)

as:

      any visual depiction, including any photograph, film,
      video, picture, or computer 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;

      (B) such visual depiction is, or appears to be, of a
      minor engaging in sexually explicit conduct;

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

      (D) 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.




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United States v. Wolford, No. 04-0578/AR

     In United States v. O’Connor, we noted that the Supreme

Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256,

258 (2002), “determined that certain portions of the § 2256(8)

definition are unconstitutional, specifically the ‘or appears to

be’ language of § 2256(8)(B), and the entirety of § 2256(8)(D).”

58 M.J. 450, 452 (C.A.A.F. 2003).    We will address each of

Wolford’s arguments in turn.

     A.   Introductory Language of 18 U.S.C. § 2256(8)

     Wolford’s first argument is that the military judge’s use

of the introductory language “any visual depiction, including

. . . [a] computer generated image,” from § 2256(8) was

unconstitutional.   The Supreme Court did not address this

introductory language in Free Speech Coalition and instead

focused on the language in 18 U.S.C. § 2256(8)(B) and (D).     535

U.S. at 241-42.

     In O’Connor, we noted that the language from § 2256(8) that

was not considered by the Supreme Court “remains subject to

criminal sanction.”   58 M.J. at 452 n.2.   Wolford complains that

the reference to “computer generated image” is unconstitutional

based on the Supreme Court’s treatment of § 2256(8)(B) and (D).

However the Supreme Court left intact § 2256(8)(C) which

prohibits computer morphing and therefore some types of

“computer generated images” are not constitutionally protected.




                                 8
United States v. Wolford, No. 04-0578/AR

Thus, it was not error for the military judge to use the

introductory language of § 2256(8) in his instructions.

     B.   Affirmative Defense Instruction

     Wolford next argues that the military judge erred by using

unconstitutional language in his affirmative defense

instructions.   During a session pursuant to Article 39(a), UCMJ,

10 U.S.C. § 839(a) (2000), the military judge consulted with

defense counsel before instructing the members and specifically

asked about the need for affirmative defense instructions.

Defense counsel told the military judge that the defense did not

see the need for any affirmative defense instructions.    Despite

this response from defense counsel, the military judge included

an affirmative defense instruction based on 18 U.S.C. § 2252A(c)2

for the sending, receiving and reproducing specifications:

     You are advised that the evidence has raised the issue
     of a defense in relation to this offense. One of the
     elements to this offense is that the accused’s act was
     wrongful, meaning without legal justification or
     excuse. The accused’s act is not wrongful, and the
     accused cannot be found guilty of this offense if the
     alleged child pornography was produced using an actual
     person or persons engaging in sexually explicit
     conduct; that each such person was an adult at the
     time that the material was produced; and that the
     accused did not advertise, promote, present, describe
     or distribute the material in such a manner as to

2
  Section 2252A(c) was amended in 2003. The statute still
provides an affirmative defense if only actual adults were used
in the production of the images, § 2252A(c)(i)(A)(B) and §
2252A(C)(2), but all reference to the manner in which the images
were advertised, described, presented, promoted or distributed
has been removed from the statute.


                                 9
United States v. Wolford, No. 04-0578/AR

     convey the impression it was, or contained, a visual
     depiction of a minor engaging in sexually explicit
     conduct.

          The prosecution’s burden of proof to establish
     the guilt of the accused not only applies to the
     elements of the offense, but also to the issue of the
     defense; therefore, in order to find the accused
     guilty, you must be convinced beyond a reasonable
     doubt that the defense does not exist.3

Emphasis added.

     This affirmative defense instruction contains the language

found in § 2256(8)(D) including the phrase “conveys the

impression” which was found to be unconstitutional.    In light of

the Supreme Court’s ruling in Free Speech Coalition, this

language is erroneous.   We must decide, however, whether the

error caused material prejudice to any of Wolford’s substantial

rights or whether it was harmless beyond a reasonable doubt.

Kreutzer, 61 M.J. at 298.

     We have held that a military judge is “more than a mere

referee.”   Graves, 1 M.J. at 53.    He is charged with deciding

whether any defense is reasonably raised by the evidence.

United States v. Barnes, 39 M.J. 230, 232-33 (C.M.A. 1994).        If

there is “some evidence” of a possible defense –- it does not

have to be compelling or convincing beyond a reasonable doubt –-

the military judge is duty bound to give an instruction even if



3
  The military judge used this language in regard to the sending
and receiving specification and referenced it in regard to the
reproducing specification.


                                10
United States v. Wolford, No. 04-0578/AR

the instruction was not requested by the parties.   United States

v. Jackson, 12 M.J. 163, 166-67 (C.M.A. 1981) (citations

omitted).   “This [c]ourt reviews a military judge’s decision to

give an instruction . . . de novo.”    Smith, 50 M.J. at 455

(citing United States v. Maxwell, 45 M.J. 406, 424-25 (C.A.A.F.

1996)).

     The instruction in question provided a defense to Wolford

only if the images in question were created using adult models

who were made to look like children.   At trial, a pediatrician,

Lieutenant Colonel Reginald Moore, M.D., testified for the

prosecution.   Dr. Moore testified that fifty-five of the eighty-

six images found on Wolford’s computer were of children under

the age of eighteen.   Defense counsel’s cross-examination of Dr.

Moore was focused entirely on whether Dr. Moore had seen any of

the pictures he reviewed in Wolford’s case in any previous case.

Defense counsel did not ask any questions that raised the

possibility that any of the images relied upon by the Government

depicted an adult rather than a child.   No such evidence or

argument was introduced at any other time.   Thus, there was no

evidence in the record of a possible affirmative defense, and

there is simply no danger that the members might have used this

unnecessary, but erroneous, instruction.

     The lack of any evidentiary basis combined with defense

counsel’s assurance that no instruction was needed renders the



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United States v. Wolford, No. 04-0578/AR

military judge’s error harmless beyond a reasonable doubt.     Cf.

United States v. Sikorski, 21 C.M.A. 345, 351, 45 C.M.R. 119,

125 (1972) (effect of erroneous instruction need not be

considered where instruction challenged by accused was

specifically requested by him at trial).

     C.      Constitutionality of 18 U.S.C. § 2256(8)(D) Language

     Wolford’s third argument is that the military judge’s use

of the language of § 2256(8)(D) in the instructions is

unconstitutional even though he deleted the “conveys the

impression” phrase.    As noted earlier in this opinion, in

O’Connor we stated that the Supreme Court in Free Speech

Coalition had found “the ‘or appears to be’ language of §

2256(8)(B), and the entirety of § 2256(8)(D)” to be

unconstitutional.    58 M.J. at 452.    Based upon that language,

Wolford argues that the mere deletion of the phrase “conveys the

impression” from § 2256(8)(D) does not remedy the constitutional

infirmity.    However, upon a close reading of Free Speech

Coalition, it is clear that the Supreme Court’s concern with §

2256(8)(D) centered on the “conveys the impression” language.

Their discussion focused on the impact of this language and how

it addressed how speech was presented, not on what was actually

depicted.    535 U.S. at 257-59.

     Since the issuance of O’Connor, we have adopted this

narrower interpretation of the Supreme Court’s treatment of §



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United States v. Wolford, No. 04-0578/AR

2256(8)(D).   In both United States v. Cook, 60 M.J. 130

(C.A.A.F. 2004) (summary disposition) and United States v.

Lowrance, 60 M.J. 129 (C.A.A.F. 2004) (summary disposition),

this court affirmed guilty plea convictions under the CPPA where

the military judge omitted the phrase “conveys the impression”

from the language of § 2256(8)(D), but used the remaining

language from the definition.   Here the military judge’s

instruction did not use “conveys the impression” language that

was the focus of the Supreme Court’s finding of

unconstitutionality.   Accordingly, the military judge’s

instruction on the definition of “child pornography” was not

erroneous.

III.   Legal Sufficiency

       Wolford argues the evidence that the images were created

using actual children was not legally sufficient.    The

Government takes the position that a factfinder has the

prerogative to decide without expert testimony whether images of

child pornography are actual or virtual.

       We recently addressed this issue in United States v.

Cendejas, 62 M.J. 334 (C.A.A.F. 2006).     In Cendejas, we held

that the finder of fact can make a determination that an actual

child was used to produce the images in question based upon a

review of the images alone.   Id. at 338.    The images introduced

by the prosecution in Wolford’s case were sufficient to enable a



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United States v. Wolford, No. 04-0578/AR

reasonable factfinder to find guilt beyond a reasonable doubt.

Turner, 25 M.J. at 324.   Accordingly, the evidence was legally

sufficient to support the members’ verdict that Wolford was

guilty of sending, receiving, reproducing and possessing child

pornography.

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Wolford, No. 04-0578/AR


     BAKER, Judge (concurring in result):

     Having previously concluded that the Supreme Court found

“the ‘or appears to be’ language of § 2256(8)(B), and the

entirety of § 2256(8)(D)” to be unconstitutional, United States

v. O'Connor, 58 M.J. 450, 452 (C.A.A.F. 2003), this Court now

takes the view that “the Supreme Court’s concern with §

2256(8)(D) centered on the ‘conveys the impression’ language.”

United States v. Wolford, 62 M.J. __ (12)(C.A.A.F. 2006).   As a

result, this Court concludes that the military judge’s

instruction using the other elements of § 2256(8)(D) “was not

erroneous.”   Id. at __ (13).

     According to the Supreme Court in Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 258 (2002):

     Section 2256(8)(D), however, prohibits a substantial amount
     of speech that falls outside Ginzburg’s rational.
     Materials falling within the proscription are tainted and
     unlawful in the hands of all who receive it, though they
     bear no responsibility for how it was marketed, sold, or
     described. The statute, furthermore, does not require that
     the context be part of an effort at “commercial
     exploitation.” Ibid. As a consequence, the CPPA does more
     than prohibit pandering. It prohibits possession of
     material described, or pandered, as child pornography by
     someone earlier in the distribution chain. The provision
     prohibits a sexually explicit film containing no youthful
     actors, just because it is placed in a box suggesting a
     prohibited movie. Possession is a crime even when the
     possessor knows the movie was mislabeled. The First
     Amendment requires a more precise restriction. For this
     reason, § 2256(8)(D) is substantially overbroad and in
     violation of the First Amendment.
United States v. Wolford, No. 04-0578/AR


Although the Supreme Court’s focus in Free Speech Coalition was

indeed on the “conveys the impression” language, the Court’s

constitutional concern extended beyond this language.

Otherwise, the Court would not have held the entirety of §

2256(8)(D) “substantially overbroad and in violation of the

First Amendment,” nor expressed concern with the section’s

language on pandering.   Whatever this Court’s prior views as

expressed in United States v. James, 55 M.J. 297 (C.A.A.F.

2001), as a subordinate court we do not have the luxury of

choosing or delimiting the Supreme Court’s constitutional

conclusion that § 2256(8)(D), as a whole, is overbroad and

unconstitutional.   United States v. Irving, 432 F.3d 401, 411

(2d Cir. 2005) (assuming both sections found unconstitutional);

United States v. Bach, 400 F.3d 622, 630 (8th Cir. 2005)

(commenting that Supreme Court held both sections in their

entirety unconstitutional); United States v. Wyatt, 64 F. App’x

350, 351 (4th Cir. 2003) (commenting that Supreme Court

invalidated both sections); United States v. Kelly, 314 F.3d

908, 910 (7th Cir. 2003) (commenting that Supreme Court struck

down “the provisions of the CPPA that expanded the definition of

child pornography to include virtual images”); United States v.

Hall, 312 F.3d 1250, 1259 (11th Cir. 2002) (commenting that

Supreme Court “struck down as unconstitutional the words ‘or

appears to be’ from the definition of child pornography


                                 2
United States v. Wolford, No. 04-0578/AR


contained in § 2256(8)(B) and the entire definition of child

pornography in § 2256(8)(D)”).

     Nonetheless, I would affirm Appellant’s conviction on the

ground that any instructional error on the potential defense was

harmless beyond a reasonable doubt.   In United States v.

Martinelli, 62 M.J. 52 (C.A.A.F. 2005), albeit in the context of

a guilty plea, we expressly left open the possibility of such a

situation.   In upholding Martinelli’s plea we noted “the absence

of any focus on the ‘actual’ versus ‘virtual’ nature of the

images, the use of the unconstitutional definition of ‘child

pornography,’ and the absence of anything in the record that

would demonstrate that Martinelli pled guilty to a

constitutionally defined violation of federal law.    Id. at 65.

     Applying this same reasoning to this contested case, I am

confident that the use of the erroneous instruction on the

potential defense incorporating some but not all of the language

in § 2256(8)(D) was harmless beyond a reasonable doubt.     The

Government did not argue that Appellant had advertised,

promoted, presented, described, or distributed the pictures in

question “in such a manner that the material is or contains a

visual depiction of a minor engaging in sexually explicit

conduct.”    18 U.S.C. § 2256(8)(D) (amended 2003).   There was no

evidence presented that Appellant was being charged for

possessing material based on the manner in which someone earlier


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United States v. Wolford, No. 04-0578/AR


in the pornography food chain described it.   Finally, Appellant

did not defend on either basis.   Apparently the defense theory

was that the images were of actual children and the defense

focused on challenging Appellant’s knowledge that he possessed

the images.   Thus, the record is clear that Appellant was

charged, and convicted, for possessing pictures of actual minors

engaged in sexually explicit conduct.




                                  4
