                       UNITED STATES, Appellee

                                    v.

                  Javier CENDEJAS, Staff Sergeant
                     U.S. Air Force, Appellant

                              No. 04-0428

                         Crim. App. No. 34864

       United States Court of Appeals for the Armed Forces

                       Argued October 20, 2005

                       Decided February 8, 2006

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

                                 Counsel

For Appellant: Major Karen L. Hecker (argued); Colonel Beverly
B. Knott, Colonel Carlos L. McDade, Major Antony B. Kolenc,
Major Terry L. McElyea, Major James M. Winner, and Major Sandra
K. Whittington (on brief).

For Appellee: Major Matthew S. Ward (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer,
Major Steven R. Kaufman, and Major Michelle M. McCluer (on
brief); Colonel LeEllen Coacher.

Military Judge:   Gregory E. Pavlik


       This opinion is subject to revision before final publication.
United States v. Cendejas, No. 04-0428/AF


     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Javier Cendejas pled guilty and was

convicted of violating a lawful general order concerning the use

of government computers in violation of Article 92, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 892 (2000).   Cendejas

pled not guilty but was convicted of possessing child

pornography in violation of the Child Pornography Prevention Act

of 1996 (CPPA), 18 U.S.C. § 2252A(a)(5)(B) (2000), communicating

indecent language to a child under sixteen and attempted

communication of indecent language to a child under sixteen in

violation of Articles 80 and 134, UCMJ, 10 U.S.C. §§ 880, 934

(2000).    Cendejas, who was tried by a military judge alone, was

sentenced to a dishonorable discharge, fifty-four months of

confinement, forfeiture of all pay and allowances and a

reduction in grade to E-1.   The convening authority approved the

sentence and the United States Air Force Court of Criminal

Appeals affirmed the findings and sentence in an unpublished

opinion.   United States v. Cendejas, No. ACM 34864, 2004 CCA

LEXIS 50, 2004 WL 388960 (A.F. Ct. Crim. App. Feb. 10, 2004).

     After the Supreme Court’s decision in Ashcroft v. Free

Speech Coalition, 535 U.S. 234 (2002), the Government must prove

that an image depicts an actual child in order to sustain a

conviction under the CPPA.   United States v. O’Connor, 58 M.J.

450, 453 (2003).   The military judge did not make any finding of


                                  2
United States v. Cendejas, No. 04-0428/AF

fact that actual children were used to create the visual

depictions possessed by Cendejas.     The Air Force court affirmed

Cendejas’ conviction because Cendejas did not assert that the

images were “virtual” and the court concluded, based upon its

own examination, that the images were undoubtedly pictures of

actual children.    We granted review to determine whether the Air

Force court properly affirmed Cendejas’ conviction.1


1
    We granted review of the following five issues:

       WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
       BY FAILING TO SET ASIDE APPELLANT’S CONVICTION FOR
       POSSESSION OF CHILD PORNOGRAPHY DESPITE THE COURT’S
       CONCLUSION THAT THE CONVICTION WAS BASED ON
       CONSTITUTIONAL ERROR.

       AS APPELLANT’S RECORD OF TRIAL DOES NOT CONTAIN EXPERT
       TESTIMONY ON THE ACTUAL OR VIRTUAL NATURE OF THE
       SUBJECTS OF PHOTOGRAPHIC OR ELECTRONIC IMAGES, DOES
       THE FACT-FINDING AUTHORITY OF THE AIR FORCE COURT OF
       CRIMINAL APPEALS PERMIT THAT COURT TO DETERMINE, IN
       LIGHT OF ALL OTHER EVIDENCE, WHETHER THE IMAGES
       THEMSELVES DEPICT “ACTUAL” CHILDREN, SUFFICIENT TO
       SUPPORT APPELLANT’S CONVICTION BASED ON TITLE 18
       U.S.C. § 2252A.

       WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS CAN
       REVIEW THE IMAGES OF ALLEGED CHILD PORNOGRAPHY AND
       AFFIRM THE FINDINGS OF GUILTY OF SPECIFICATION 1 OF
       CHARGE II (POSSESSION OF CHILD PORNOGRAPHY IN
       VIOLATION OF 18 U.S.C. § 2252A(a)(5)(B)) WHERE THE
       MILITARY JUDGE AS TRIER OF FACT APPLIED A DEFINITION
       OF CHILD PORNOGRAPHY THAT WAS, IN PART,
       UNCONSTITUTIONAL AND THE GENERAL FINDING OF GUILT DOES
       NOT INFORM THE REVIEWING COURT WHICH, IF ANY, OF THE
       IMAGES THE FINDER OF FACT FOUND TO BE “VIRTUAL” VERSUS
       “ACTUAL” CHILDREN.

       WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
       WHEN IT REVIEWED CERTAIN IMAGES OF ALLEGED CHILD
       PORNOGRAPHY AND AFFIRMED APPELLANT’S CONVICTION FOR
       POSSESSING CHILD PORNOGRAPHY UPON ITS OWN CONCLUSION

                                  3
United States v. Cendejas, No. 04-0428/AF

                            BACKGROUND

     Cendejas, a twenty-eight-year-old Staff Sergeant, met two

Canadian female teenagers through an online Internet chat room.

A week later, he and a friend traveled to Canada to meet the

young girls in person.   After their face-to-face meeting,

Cendejas continued to chat online with one of the girls, who was

thirteen years old.   When the girl’s parents discovered what was

happening, they contacted the Winnipeg Police Department which

contacted the Air Force Office of Special Investigations

(AFOSI).

     While AFOSI was investigating the allegations against

Cendejas, his name was flagged during a routine Security Forces

review of the government computer server logs for the base.

Security Forces determined that Cendejas had accessed a

prohibited site on a government computer and provided AFOSI with



     THAT THE IMAGES WERE OF “REAL” CHILDREN WHERE
     APPELLANT DID NOT HAVE THE OPPORTUNITY TO PRESENT A
     DEFENSE AGAINST THE LIMITED CONSTITUTIONAL DEFINITION
     OF CHILD PORNOGRAPHY.

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     WHEN IT REVIEWED CERTAIN IMAGES OF ALLEGED CHILD
     PORNOGRAPHY AND AFFIRMED APPELLANT’S CONVICTION FOR
     POSSESSING CHILD PORNOGRAPHY UPON ITS OWN CONCLUSION
     THAT THE IMAGES WERE OF “REAL” CHILDREN, THEREBY
     REMOVING THE GOVERNMENT’S BURDEN OF PROVING THAT THE
     IMAGES WERE OF ACTUAL AND NOT VIRTUAL CHILDREN BEYOND
     A REASONABLE DOUBT IN A TRIAL FORUM WHERE THE
     GOVERNMENT’S EVIDENCE WOULD BE SUBJECT TO
     CONFRONTATION AND CROSS-EXAMINATION.




                                 4
United States v. Cendejas, No. 04-0428/AF

three nude pictures that Cendejas had accessed.      Believing that

one of the photographs depicted a girl under the age of

eighteen, AFOSI began working with the local police department

to obtain a search warrant for Cendejas’ off-base home.

     At the same time, AFOSI monitored Cendejas’ communications

with the thirteen-year-old girl.       He was arrested when he

arranged another meeting with her.      After he was taken into

custody, AFOSI and the local police searched his home and seized

his personal computer.   Analysis of the computer uncovered

twenty images of naked females of varying ages and varying

degrees of sexual maturity.   Based on the discovery of these

images, Cendejas was charged with possession of child

pornography.

     During the pretrial phase, the possibility that some of the

images may have been virtual was raised by the defense.

Cendejas filed a motion to dismiss the CPPA-based charge,

arguing that the CPPA was unconstitutionally vague and

overbroad, relying on the Ninth Circuit’s holding in Free Speech

Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999).       Defense

counsel argued that the definition of “child pornography” in §

2256(8)(B)2 was broad enough to include two different categories

of images that were produced without using any children.


2
  The definition of the term “child pornography” as used in 18
U.S.C. § 2252A(a)(5)(B) is found in 18 U.S.C. § 2256(8)(B).


                                   5
United States v. Cendejas, No. 04-0428/AF

Defense counsel pointed out that the “appears to be” language of

§ 2256(8)(B) could include (1) pictures of adults “made up to be

16 or 17,” and (2) computer-generated images that were made    “to

look like . . . real child[ren].”    Defense counsel argued that

the government’s compelling interest in the protection of

children did not justify the criminalization of these two types

of pictures because there are no children used in the production

of such images.

     In response to this line of argument, the military judge

asked whether the defense was contending that any of the

specific images found on Cendejas’ computer were created without

using actual children.   Defense counsel responded that some of

the images appeared to be “digitally altered” but that it was

difficult to tell.   The military judge denied Cendejas’ motion

to dismiss finding that under United States v. James, 55 M.J.

297 (C.A.A.F. 2001), the CPPA definitions were constitutional

and “[i]t [would] not [be] appropriate . . . to abandon that

language.”3

     At trial the parties discussed whether the models used to

create the images in question were under eighteen, but the issue

of whether some of the images may have been computer-generated


3
  The military judge correctly endorsed the § 2256(8) definitions
in reliance on James because at the time of his ruling the
Supreme Court had not yet granted certiorari in Free Speech
Coalition, in which the Supreme Court would later rule that
portions of § 2256(8) were unconstitutional. 535 U.S. at 257.

                                 6
United States v. Cendejas, No. 04-0428/AF

was not raised again.     The military judge ultimately convicted

Cendejas of one specification of possession of child pornography

in violation of the CPPA.

     While Cendejas’ appeal to the Air Force court was pending,

the Supreme Court granted certiorari and issued its decision in

Free Speech Coalition.4    In its decision, the Supreme Court

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).”

O’Connor, 58 M.J. at 452 (citing Free Speech Coalition, 535 U.S.

at 256, 258).   Before the Air Force court, Cendejas argued that

because the military judge utilized the unconstitutional

definition, his conviction should be set aside.

     The Air Force court initially presumed that the military

judge considered all of the definition contained in 18 U.S.C. §

2256(8) and found that it would be:

     [C]onstitutional error to consider within the
     definition of child pornography an image or picture
     that “appears to be” of a minor engaging in sexually
     explicit conduct (18 U.S.C. § 2256(8)(B)) or one that
     is “advertised, promoted, presented, described or
     distributed in such a manner that conveys the
     impression” that it contains a minor engaging in
     sexually explicit conduct.




4
  The Supreme Court issued its decision in Free Speech Coalition
in 2002. This court issued its decision in O’Connor in 2003.
The Air Force Court of Criminal Appeals issued its decision on
February 10, 2005.

                                   7
United States v. Cendejas, No. 04-0428/AF

 2004 CCA LEXIS 50, at *7-*8, 2004 WL 388960, at *3.      The Air

Force court went on to find, however, that the military judge

did not rely on the unconstitutional portions of the definition

and that the error was therefore harmless.

                              DISCUSSION

I.     Standard of Review

       The Court of Criminal Appeals properly identified the

applicable legal standard.    After finding that the military

judge erroneously relied on an unconstitutional definition of

child pornography, the court subjected that error to a “harmless

beyond a reasonable doubt” review under Chapman v. California,

386 U.S. 18, 24 (1967).     See e.g., United States v. Simmons, 59

M.J. 485, 489 (C.A.A.F. 2004).    The Government bears the burden

of establishing that any constitutional error is harmless beyond

a reasonable doubt.   Id.    (citing United States v. Hall, 58 M.J.

90, 94 (C.A.A.F. 2003)).    Whether the error is harmless beyond a

reasonable doubt is a question of law that we review de novo.

Id.

II.    Virtual Images and Expert Testimony

       This court has held that after Free Speech Coalition, “[i]t

is no longer enough . . . to knowingly possess, receive or

distribute visual depictions that ‘appear to be’ of a minor

engaging in sexually explicit conduct.”      O’Connor, 58 M.J. at

453.   Instead, proof that an actual child under the age of



                                   8
United States v. Cendejas, No. 04-0428/AF

eighteen was used in the production of the images is a required

element of a charge under the CPPA.   Id.

     Since the issue of “actual” versus “virtual” was not

litigated at the trial level, the Government offered no evidence

that the images were produced using actual children.   While the

images themselves constitute some evidence on this issue, they

were not introduced for that purpose based on the statements the

military judge made in denying Cendejas’ motion to dismiss.

Cendejas argues that there was insufficient evidence presented

at his trial to establish the use of actual child models in the

production of the photographs he possessed.   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.5

     In the wake of the Supreme Court’s decision in Free Speech

Coalition, every federal circuit court to have considered the

question has held that the factfinder can make a determination

that an actual child was used to produce the images in question

5
  The issue of whether the Government must introduce expert
testimony is based on the actual/virtual distinction applicable
to prosecutions under clause 3 of Article 134 as a result of the
Supreme Court’s decision in Free Speech Coalition. Under the
precedents of this court, however, a servicemember can be
prosecuted under clauses 1 and 2 of Article 134 for offenses
involving virtual child pornography even though such conduct is
constitutionally protected in civilian society. Accordingly, in
cases prosecuted under clauses 1 and 2, the Government bears no
burden of demonstrating that the images depict actual children –
- with or without expert testimony.


                                9
United States v. Cendejas, No. 04-0428/AF

based upon a review of the images alone.    See United States v.

Farrelly, 389 F.3d 649, 655 (6th Cir. 2004); United States v.

Slanina, 359 F.3d 356, 357 (5th Cir.), cert. denied, 125 S. Ct.

288 (2004); United States v. Kimler, 335 F.3d 1132, 1142 (10th

Cir. 2003); United States v. Deaton, 328 F.3d 454, 455 (8th Cir.

2003); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.

2002).6   We come to the same conclusion and find that a

factfinder can make a determination as to whether actual

children were used to produce the images based upon a review of

the images alone.   In the military justice system this includes

the military judge and, under appropriate circumstances, a Court

of Criminal Appeals.   We note that this ruling does not prevent

a defendant from having the opportunity to challenge the images

on the basis that they do not depict an actual child.

III.   Factual Basis For Guilt and the Court of Criminal Appeals’

Article 66(c) Power

       This ruling also does not end our inquiry in this case.   In

reaching its decision, the Air Force court noted that “[t]he

issue of ‘real’ versus ‘virtual’ children was not raised at


6
  The one court that reached an opposite conclusion withdrew its
opinion and vacated its judgment. See United States v. Hilton,
363 F.3d 58 (1st Cir. 2004), withdrawn and vacated by United
States v. Hilton, No. 03-1741, 2004 U.S. App. LEXIS 19528 (1st
Cir. Sept. 20, 2004) (order granting rehearing). On rehearing
the Hilton court issued an opinion that does not address this
question. See United States v. Hilton, 386 F.3d 13 (1st Cir.
2004).


                                 10
United States v. Cendejas, No. 04-0428/AF

trial” but when the lower court performed its own review of the

images it concluded that “the children depicted in those

photographs were real, not virtual.”   2004 CCA LEXIS 50, at *12-

*13, 2004 WL 388960, at *4.   While we have found that a

factfinder has the ability to make such a determination based on

the images alone, we must consider whether, in this case, this

determination was a proper exercise of the unique factfinding

power of the Court of Criminal Appeals under Article 66(c),

UCMJ, 10 U.S.C. § 866(c) (2000).

     The military judge found that eight of the twenty images

met the definition of “child pornography”, under 18 U.S.C. §

2256(8)(B).   When the military judge denied Cendejas’ motion to

dismiss and found the definition of “child pornography” to be

constitutional under James, we, like the Court of Criminal

Appeals, must assume that he applied the full scope of the 18

U.S.C. § 2256(8) definition to his finding of guilt.   The

military judge did not state or suggest that he would disregard

those portions of the definition that were later found

unconstitutional by the Supreme Court.

     Noting that the military judge selected only a portion of

the images submitted, and based on its own review, the Court of

Criminal Appeals concluded that the military judge “avoided any

implication that the definition in 18 U.S.C. § 2256(8)(B) may

have been relied upon to support his findings.”   2004 CCA LEXIS



                                11
United States v. Cendejas, No. 04-0428/AF

50, at *12, 2004 WL 388960, at *4.   We disagree.   Rather than

avoiding those parts of the definition of child pornography

embracing constitutionally protected material, the military

judge selected eight images which met the existing definition of

child pornography, a definition which embraced both the

constitutional and unconstitutional portions of § 2256(8)(B).

In other words, he found guilt because the eight images were

either virtual or actual beyond a reasonable doubt.    After Free

Speech Coalition, this general finding cannot be upheld.

     The Supreme Court has long held that if a factfinder is

presented with alternative theories of guilt and one or more of

those theories is later found to be unconstitutional, any

resulting conviction must be set aside when it is unclear which

theory the factfinder relied on in reaching a decision.    See

Stromberg v. California, 283 U.S. 359, 368 (1931); see also

Williams v. North Carolina, 317 U.S. 287, 292 (1942) (“To say

that a general verdict of guilty should be upheld though we

cannot know that it did not rest on the invalid constitutional

ground on which the case was submitted to the jury, would be to

countenance a procedure which would cause a serious impairment

of constitutional rights.”).

     From the record in this case, neither this court nor the

Court of Criminal Appeals can determine that the military judge

relied only on those portions of the definition later found to



                               12
United States v. Cendejas, No. 04-0428/AF

be constitutional by the Supreme Court.   Accordingly the Court

of Criminal Appeals could not engage in factfinding to affirm

this conviction.   The Court of Criminal Appeals should have set

aside Cendejas’ conviction rather than attempting to resolve the

uncertain factual basis for the finding of guilt.7

IV.   The Burden of Proof and Cenjedas’ Opportunity to Present a

Defense

      The Court of Criminal Appeals’ independent review of the

images and its reliance on the record of trial to conclude that

Cendejas was properly convicted also raises due process

concerns.    An element of an 18 U.S.C § 2252A offense that the

Government must prove is that actual children were used to

create the images.   O’Connor, 58 M.J. at 453; id. at 456

(Crawford, C.J., dissenting).   The Government argues that

Cendejas was required to establish that the images were

“virtual.”   This court has repeatedly held that the Government

bears the burden of proving each and every element of a crime

beyond a reasonable doubt.   See, e.g., United States v. Mason,

7
  This ruling is consistent with United States v. Carlson, 59
M.J. 475, 476 (2004), a guilty plea case where this court held:

      [T]he Court of Criminal Appeals erred in “finding” that any
      of the images at issue were visual depictions of a “real
      minor” for purposes of 18 U.S.C. § 2256(8)(A). The scope
      of the lower court’s factfinding authority under Article
      66(c), UCMJ, 10 U.S.C. § 866(c), does not extend to making
      a “finding of fact” of that nature in the context of a
      guilty plea, where no aspect of either the plea colloquy or



                                 13
United States v. Cendejas, No. 04-0428/AF

59 M.J. 416, 424 (C.A.A.F. 2004).    We agree with the First

Circuit, which recently noted, “[i]t bears repeating that the

Government is not released from its burden of proof by a

defendant’s failure to argue, or by an absence of evidence

otherwise suggesting, the artificiality of the children

portrayed.”   United States v. Hilton, 386 F.3d 13, 18 (1st Cir.

2004).

     We have concluded in this opinion that the Government may

use the images themselves to make this showing in appropriate

situations.   A defendant is then entitled to confront the

Government’s evidence and present his own evidence that the

images are not “actual.”   See United States v. Browning, 54 M.J.

1, 9 (C.A.A.F. 2000) (“An accused has a constitutional right to

present relevant evidence to defend against the charges.”);

United States v. Woolheater, 40 M.J. 170, 173 (C.M.A. 1994)

(recognizing that “the Constitutional right to present defense

evidence is a ‘fundamental’ right”) (citing Chambers v.

Mississippi, 410 U.S. 284, 295 (1973)).

     The military judge’s ruling upholding the definition of

child pornography in 18 U.S.C. §2256(8)(B) relieved the

Government of its obligation to prove that the images were of

“actual” children beyond a reasonable doubt in an evidentiary

proceeding.   That ruling, in turn, removed any opportunity for


     the stipulation of fact is directed toward the character of


                                14
United States v. Cendejas, No. 04-0428/AF

Cendejas to present a defense based on the “virtual”

constitutionally protected nature of the images.   In determining

that it could make its own factual review of the images, the

Court of Criminal Appeals failed to recognize that since the

issue of “virtual” versus “actual” was not litigated at the

trial level, its action resulted in Cendejas’ conviction being

upheld on a theory that Cendejas did not have the opportunity to

defend against.

     The Court of Criminal Appeals’ action deprived Cendejas of

the opportunity to confront the Government’s evidence on the

issue of whether the images were of “actual” or “virtual”

children and to present evidence on his behalf that the images

were “virtual.”    Accordingly, Cendejas’ due process rights were

violated.   See United States v. Brewer, 61 M.J. 425, 429-30

(C.A.A.F. 2005).   This error is not harmless beyond a reasonable

doubt.   With the proper opportunity to present evidence in his

defense, Cendejas might have raised a question in the military

judge’s mind about the origin of the images.

V.   Possibility of a Lesser Included Offense

     While the Court of Criminal Appeals’ errors require us to

set aside Cendejas’ conviction of 18 U.S.C. 2252A under clause 3

of Article 134, we have held that in some circumstances a

conviction to a lesser included offense under clauses 1 or 2 of



     the images as depicting “real” or “virtual” minors.

                                 15
United States v. Cendejas, No. 04-0428/AF

Article 134 (1) or (2) is appropriate.   See United States v.

Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000) (“[C]onduct which violates

no specific statute may still be an offense [under Article 134]

if it is found to be prejudicial to good order and discipline or

if it is of a nature to bring discredit upon the armed

forces.”).

     Because the question of whether the images Cendejas

possessed were created using actual live child models was not

fully and fairly litigated, we will assume without deciding that

the images were virtual for purposes of the lesser included

offense analysis.   Thus, the question is whether there was

sufficient evidence introduced at trial to establish that

Cendejas’ conduct in possessing virtual child pornography was

either prejudicial to good order and discipline or service-

discrediting.   United States v. Mason, 60 M.J. 15, 20 (C.A.A.F.

2004).   Conduct prejudicial to good order and discipline is

conduct that causes a reasonably direct and palpable injury to

good order and discipline.   United States v. Erickson, 61 M.J.

230, 232 (C.A.A.F. 2005); see also Manual for Courts Martial,

United States pt. IV, para. 60.c.(2)(a) (2005 ed.).   Service-

discrediting conduct is conduct which tends to harm the

reputation of the service or lower it in public esteem.    United

States v. Vaughan, 58 M.J. 29, 36 (C.A.A.F. 2003).




                                16
United States v. Cendejas, No. 04-0428/AF

     In a case with constitutional implications such as this

one, “the record must conspicuously reflect that the accused

‘clearly understood the nature of the prohibited conduct.’”

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

(quoting Mason, 60 M.J. at 19).    There was no such evidence

introduced at Cendejas’ trial nor, since this was a contested

charge, was there any discussion by the military judge as to

what constitutes conduct that is prejudicial to good order and

discipline or what constitutes service-discrediting conduct.

There is therefore no basis in the record that would support a

conviction of a lesser included offense under clauses 1 or 2 of

Article 134.

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Specification 1 of Charge II

and as to sentence, but is affirmed in all other respects.      The

record of trial is returned to the Judge Advocate General of the

Air Force for remand to the Court of Criminal Appeals.   That

court may either dismiss Specification 1 of Charge II and

reassess the sentence, or it may order a rehearing.




                                  17
United States v. Cendejas, No. 04-0428/AF


     CRAWFORD, Judge (dissenting):

     I respectfully dissent because the majority:    (1)

perpetuates this Court’s rejection of federal practice in

applying Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002);

(2) without articulation of any military necessity or

distinction, suggests that servicemembers accused of child

pornography offenses have First Amendment and trial rights

paramount to those extended by the federal circuits to similarly

situated civilian defendants under the same statute; and (3)

conducts no balancing or other analysis before issuing an

opinion that implicitly promotes artificially elevated rights

for servicemembers accused of federal child pornography offenses

over those of the military community as a whole.

     The effects of the majority’s opinion go beyond this single

case and will have a very broad impact on a multitude of

military prosecutions under the Child Pornography Prevention Act

of 1996, 18 U.S.C. § 2225A (2000), as well as on the military

communities of all the services.

                            BACKGROUND

     At a general court-martial Appellant was tried by a

military judge sitting alone, and pled guilty to violating a

lawful general order by using a government computer to search

for minor females in several states and countries, but not

guilty to all other charges and specifications.    Following mixed
United States v. Cendejas, No. 04-0428/AF


pleas, the military judge convicted Appellant of one

specification of possession of child pornography, two

specifications of communicating indecent language to a child,

two specifications of attempting to communicate indecent

language to a child, and one specification of violating a lawful

general order by using a government computer for nonofficial

purposes, in violation of Articles 134, 80, and 92, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 934, 880, and 892

(2000).   The military judge acquitted Appellant of one

specification of attempted carnal knowledge, three

specifications of communicating indecent language to a child,

and one specification of communicating indecent material to a

child.    The convening authority approved the sentence of a

dishonorable discharge, fifty-four months of confinement,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.    United

States v. Cendejas, No. ACM 34864, 2004 CCA LEXIS 50, 2004 WL

388960 (A.F. Ct. Crim. App. Feb. 10, 2004).

     This Court granted review of the following issue, with
briefs, on November 26, 2004:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     BY FAILING TO SET ASIDE APPELLANT’S CONVICTION FOR
     POSSESSION OF CHILD PORNOGRAPHY DESPITE THE COURT’S
     CONCLUSION THAT THE CONVICTION WAS BASED ON
     CONSTITUTIONAL ERROR.



                                  2
United States v. Cendejas, No. 04-0428/AF


     Thus, the issue centers on one charge and specification:
possession of “child pornography” in violation of 18 U.S.C.

§ 2252A(a)(5)(B).

                              FACTS

     This case differs from any of our previous applications of

Free Speech Coalition in which this Court has reversed a

conviction.   See, e.g., United States v. O’Connor, 58 M.J. 450

(C.A.A.F. 2003).    But see United States v. Thompson, 57 M.J.

319, 319 (C.A.A.F. 2002)(“[T]he testimony and the evidence

establish that the exhibits are pictures of actual children.”)

(Crawford, C.J., dissenting).   More particularly, this case

involves a military judge who denied Appellant’s constitutional

challenge to 18 U.S.C. § 2252A.   After this motion to dismiss

was denied, Appellant pled not guilty to the possession of child

pornography offense.   The Government called two witnesses to

prove the offense.   First, an investigator testified that

Prosecution Exhibit 6 contained twenty pictures of naked females

found on Appellant’s home computer.    After the foundation was

laid for that exhibit, the Government offered it into evidence.

The defense counsel objected to photographs 7, 9, 17, and 19

because no genitalia was exposed.     The military judge sustained

the objection only as to photograph 9.    The second witness was a

board certified pediatrician who testified that the physical

characteristics of the females in the photographs were such that


                                  3
United States v. Cendejas, No. 04-0428/AF


these were photographs of children.   The military judge

indicated that he would “look at the pictures and . . . make a

determination” about whether it was child pornography.     The

military judge stated:   “Now I recognize . . . that part of [the

child pornography] calculus, if you will, is me saying I look at

the pictures and I make a determination.    I am not persuaded in

that his witness, terms of telling me a number of ages, is

helpful to me.”   The military judge indicated that he could

“sort it out” and did not need expert testimony.   In its case on

the merits, the defense called a witness who testified that two

of the websites from which Appellant had downloaded the pictures

in Prosecution Exhibit 6 had legal disclaimers on them that

claimed the models depicted were at least eighteen years of age.

In rebuttal the Government called a witness who indicated that a

computer user would have been able to access the pictures on one

of the websites without having to view the disclaimer and that

Appellant did not have other websites listed in his computer

cache.   After the testimony, the military judge found Appellant

guilty of the wrongful possession of child pornography.

     After hearing evidence and applying pre-Free Speech

Coalition law, the military judge convicted Appellant under that

statute.   The special findings of the military judge and the

factfinding of the court below make very clear that the




                                 4
United States v. Cendejas, No. 04-0428/AF


photographs forming the basis for Appellant’s conviction were

solely of actual minors.

       In this case, the overly broad definitions in 18 U.S.C. §

2256(8) had no factual or legal effect on the findings.    After

the Government introduced evidence of Appellant’s computer

searches for “preteen lolita [sic],” “kiddie,” and “little

tits,” an expert was asked to examine a series of photographs

seized from Appellant’s computer.     This expert explained in

great detail how the physical characteristics of the subject(s)

in each photograph could be analyzed to determine each subject’s

age.   The expert was not cross-examined by the defense.   The

military judge made “special findings” and determined that eight

of the twenty images introduced by the prosecution constituted

child pornography.   Neither the expert’s testimony nor the

argument of either counsel suggested in any way that an “appears

to be” standard was ever in issue.    The key issues in the

litigation of this specification were:    (1) whether the females

depicted were, in fact, under eighteen years of age and (2)

whether the depictions themselves were sufficiently lewd to

constitute pornography.    See generally New York v. Ferber, 458

U.S. 747 (1982).   The Court of Criminal Appeals presumed the

military judge adequately considered the law as it existed prior

to Free Speech Coalition.    Cendejas, 2004 CCA LEXIS 50, at *7,

2004 WL 388960, at *3.    But even after finding constitutional


                                  5
United States v. Cendejas, No. 04-0428/AF


error -- that there was an impermissible consideration of the

“appears to be” or “conveys the impression” definitions -- the

court concluded that any error was harmless beyond a reasonable

doubt.   2004 CCA LEXIS 50, at *7-*10, 2004 WL 388960, at *3.

Unlike most intermediate appellate courts and this Court, the

Court of Criminal Appeals has factfinding powers.   Article

66(c), UCMJ, 10 U.S.C. § 866(c) (2000).    It exercised its

factfinding powers in this case and held that “A review of all

the pictures evaluated in this case by the military judge

indicates that the judge resolved even remotely questionable

depictions in favor of the accused and found child pornography

in only those pictures that contained obvious minors.”   2004 CCA

LEXIS 50, at *12, 2004 WL 388960, at *4.    The Court of Criminal

Appeals continued, “regardless of the possibility of

superimposed head, [the pictures] contain bodies that clearly

belong to actual children.   As long as real children’s bodies

are used in the depiction, this form of photo manipulation does

not render an image ‘virtual’ instead of ‘real.’”   2004 CCA

LEXIS 50, at *10 n.2, 2004 WL 388960, at *3 n.2.    The court then

made its own findings:   “Having reviewed the images, we conclude

beyond any reasonable doubt that the children depicted in those

photographs are real, not virtual.”   2004 CCA LEXIS 50, at *13,

2004 WL 388960, at *4.




                                 6
United States v. Cendejas, No. 04-0428/AF


                           DISCUSSION

A.   Burden of Going Forward, Burden of Persuasion, and

Reasonable Inferences

     The initial burden of persuasion and the burden of proof in

this case rest with the Government.   Once the Government

introduced Prosecution Exhibit 6, with or without the expert

testimony, the military judge could draw reasonable inferences

that those photographs involved child pornography without the

introduction of any further proof in this case.   And we, like

the military judge and the court below, can draw our own

conclusions based on the evidence.

     The majority would place the burden on the Government in

the first instance to prove actual children.   That is correct.

But, once the photographs are introduced, the burden of going

forward, if there is a reasonable inference they are actual

children, shifts to the defense, without ever removing the

Government’s burden of proof of guilt beyond a reasonable doubt.

Thus, there is a constant changing of the burden of going

forward but the ultimate burden will always be on the Government

to prove guilt beyond a reasonable doubt.

B.   Application of Free Speech Coalition in the Federal Courts

     The findings by the military judge and the judges on the

Court of Criminal Appeals are consistent with the approach

employed by most of the federal courts that have considered the


                                7
United States v. Cendejas, No. 04-0428/AF


issue.1   These appellate courts have looked to the entire record

to determine the legal impact of constitutionally impermissible

instructions or explanations.        What I said in my dissent in

Martinelli, 62 M.J. at 84-87, is equally applicable here:

      [The federal] courts have found sufficient evidence
      that images depicted actual children in cases where a
      pediatric expert testified as to the age of the child
      depicted and “the photographs appeared to portray real
      children.”

1
      Padgett v. United States, 302 F. Supp. 2d 593, 598-600 (D.S.C.
      2004) (finding that language of providence inquiry established
      actual nature of children and that, by appellate court’s own
      review, photos were of actual children); United States v.
      Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (stating that the
      “Government was not required to present any additional evidence
      or expert testimony . . . to show that the images downloaded
      . . . depicted real children, and not virtual children”); United
      States v. Farrelly, 389 F.3d 649, 655 (6th Cir. 2004) (affirming
      conviction where the Government presented “sufficient evidence of
      actual children” and the trier of fact ‘was capable of reviewing
      the evidence to determine whether the Government met its burden
      to show that the images depicted real children’”) (quoting
      Slanina, 359 F.3d at 357); United States v. Kelly, 314 F.3d 908,
      912 (7th Cir. 2003) (upholding a guilty plea “because regulation
      of real child pornography remains constitutional . . . and Mr.
      Kelly possessed real child pornography”); United States v.
      Rearden, 349 F.3d 608, 612-14 (9th Cir. 2003) (evidence at trial
      sufficient to prove real children); United States v. Kimler, 335
      F.3d 1132, 1142 (10th Cir. 2003) (stating that factfinders are
      “still capable of distinguishing between real and virtual
      images”); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.
      2002) (affirming a Free Speech Coalition conviction because “no
      reasonable jury could have found that the images were virtual
      children”). But see United States v. Hilton, 386 F.3d 13, 18-19
      (1st Cir. 2004) (because the jury was not required to find that
      the images were of actual children, even if a commonsense
      determination would compel such a finding, the conviction could
      not stand).

United States v. Martinelli, 62 M.J. 52, 84-85 (C.A.A.F. 2005)(Crawford, J.,
dissenting). See also United States v. Destio, No. 04-3110, 2005 U.S. App.
LEXIS 24488 (3d Cir. November 14, 2005) (noting that pictures by themselves,
observed by the factfinder, are sufficient to find that actual children were
involved); Porath v. State, 148 S.W.3d 402, 416 (Tex. App. 2004) (when an
appellant is charged with a felony possession of child pornography, it is
sufficient for the Government to make a presentation of the pictures alone to
establish proof beyond a reasonable doubt.).



                                      8
United States v. Cendejas, No. 04-0428/AF



     Other federal courts addressing this issue have upheld
     convictions where the factfinder concluded that the
     images depicted actual children or where the appellate
     court deemed that it must have been so . . . . Thus,
     it is clear that the great weight of federal authority
     supports the analysis and conclusions of the Army
     Court of Criminal Appeals.

     . . . .

     This case revisits a familiar question: how is this
     Court to ensure compliance with Free Speech Coalition
     when, during the course of court-martial proceedings,
     the military judge employed the statutory language
     found by Free Speech Coalition to be overbroad --
     language that could ostensibly permit conviction based
     on visual depictions of virtual children? In this
     case, that question is narrowed to the context of a
     Care inquiry.

     The answer, of course, begins with our duty to follow
     the decisions of our superior court. But when we
     impose upon the Government a greater burden than the
     Supreme Court requires, we must first articulate a
     balance between the First Amendment and trial rights
     of a military accused, on the one hand, and the
     military community’s interest in good order and
     discipline on the other. Both the servicemember and
     the military community share an interest in a lawful,
     rational application of the CPPA. Unfortunately,
     while maintaining a position that affords military
     child pornographers a level of sanctuary unrecognized
     by other jurisdictions, the majority provides no
     balancing and serves only one interest.

     As noted above, a growing majority of federal courts
     have declined an overly restrictive application of
     Free Speech Coalition, in favor of a measured
     approach, e.g., consideration of waiver, United States
     v. Hay, 231 F.3d 630, 639 (9th Cir. 2000), plain
     error, Hall, 312 F.3d at 1259, and other legal
     theories, in conjunction with an examination of the
     facts of each case, including the nature and
     characteristics of the prohibited images themselves.
     Richardson, 304 F.3d at 1064.



                                9
United States v. Cendejas, No. 04-0428/AF



     . . . .

     C. Balancing -- Now and in Future Cases

     The approach this Court should take in Appellant’s
     case need not be inconsistent with the Court’s holding
     in O’Connor:

          . . . .

          We have long recognized that the First Amendment
          rights of civilians and members of the armed
          forces are not necessarily coextensive. At the
          same time, however, we must ensure that the
          connection between any conduct protected by the
          First Amendment and its effect on the military
          environment be closely examined.

     This Court’s disposition of Appellant’s case should,
     at a minimum, treat those very same considerations
     addressed by O’Connor: evaluating any “discussion or
     focus in the record before us regarding the ‘actual’
     character of the images,” and ensuring “that the
     connection between any conduct protected by the First
     Amendment and its effect in the military environment
     [is] closely examined.” Id. Instead, without
     explanation or elaboration, the majority purports to
     rely on O’Connor, while conducting no balancing and
     implicitly declining to adopt the reasoning of the
     clear majority of Article III courts.

     As a matter of general practice, when we choose to
     depart from Supreme Court precedent, or from the
     reasoning of the majority of the federal circuit
     courts that have followed Supreme Court precedent in
     construing and applying a constitutional or statutory
     provision, and when that departure is not required by
     legislative or executive mandate, this Court should
     articulate the military necessity or distinction that
     compels our reasoning.

     “This Court has long recognized that the military is,
     by necessity, a specialized society. We have also
     recognized that the military has, again by necessity,
     developed laws and traditions of its own during its
     long history.” Parker v. Levy, 417 U.S. 733, 743.


                               10
United States v. Cendejas, No. 04-0428/AF


     Balancing this recognition of the military’s
     specialized need for enhanced discipline and
     regulation, our Court has long maintained vigilance in
     preserving the rights of servicemembers in the court-
     martial process. See generally United States v.
     Jacoby, 11 C.M.A. 428, 29 C.M.R. 244 (1960). When we
     perform this balancing, however, we must not fail to
     consider the fabric of the “specialized society” in
     which servicemembers and their families exist. The
     Department of Defense and the military departments
     have emphasized that this “specialized society”
     consists not only of servicemembers, but of their
     families as well.

     . . . .

     When this Court applies a U.S. Code provision and our
     superior court’s interpretation thereof in a manner
     inconsistent with the bulk of Article III courts --
     presumably for the purpose of providing an elevated
     level of protection for the trial rights of a military
     accused -- we must weigh the reasons for our divergent
     application of that statute against the concomitant
     reduction in the level of protection that statute
     would otherwise provide to the “specialized society”
     we also serve. As noted, that society is populated
     not only by the uniformed men and women who bravely
     serve our Nation, but by their spouses and children,
     all of whom have every right to expect a measured and
     rational application of law by trial and appellate
     courts. More particularly, in light of this Court’s
     historical balance between individual First Amendment
     rights and the needs of the “specialized society,” the
     members of that society could hardly anticipate that
     this Court would, despite the weight of federal
     decisions to the contrary, construe a Supreme Court
     decision so as to elevate the right of an individual
     servicemember to traffic in child pornography above
     the need of that “specialized society” for good order
     and discipline.

     How then, without being compelled to do so by our
     superior court, by Congress, or by the President, does
     this Court elevate the First Amendment and fair trial
     rights of servicemembers over the military’s need for
     good order and discipline? Are good order and
     discipline, as well as the safety and security of the


                               11
United States v. Cendejas, No. 04-0428/AF


      community not threatened by the creation and
      proliferation of child pornography within that
      community? This Court’s application of Free Speech
      Coalition not only places us in the minority of
      federal fora, but, for reasons that remain a mystery,
      confers on servicemembers accused of owning,
      distributing, and trafficking in child pornography a
      status that exalts their constitutional rights above
      those of civilians accused of identical crimes, while
      unnecessarily and unintentionally denigrating the
      legitimate interests of the thousands of other
      servicemembers and their families who comprise the
      “specialized society” recognized by the Supreme Court
      for over thirty years.

Citations and footnotes omitted.

      This case amply demonstrates the impact of different levels

of protection against trafficking in child pornography for

civilian and military communities.         Appellant was tried at Grand

Forks Air Force Base which is located within the geographic

boundaries of the United States Court of Appeals for the Eighth

Circuit.   If the legal precedent of the Eighth Circuit, which is

representative of other circuits that have considered this

issue, were applied to the granted issue in this case,

Appellant’s conviction would very likely be affirmed.2            The

precedent of this Court, however, not only is out of step with

2
      United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003)
      (reaffirming the reasonableness of a “jury’s conclusion that real
      children were depicted, even where the images themselves were the
      only evidence the government presented on the subject”); United
      States v. Vig, 167 F.3d 443, 449 (8th Cir. 1999) (holding that
      the “images were viewed by the jury which was in a position to
      draw its own independent conclusion as to whether real children
      were depicted”); . . .

Martinelli, 62 M.J. at 84-85 (Crawford, J., dissenting).



                                     12
United States v. Cendejas, No. 04-0428/AF


the vast majority of federal courts that have considered the

issue, but also provides a lesser level of protection to the

military community at Grand Forks Air Force Base, as well as all

other military installations.

     Because the disposition in this case is yet another step by

this Court away from the mainstream of federal practice and from

our historical practice of balancing competing rights and

interests, I respectfully dissent.




                                13
