               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          MICHAEL N. BELL
                 BUILDER FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201200517
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 23 August 2012.
Military Judge: CAPT Kevin O'Neil, JAGC, USN.
Convening Authority: Commander, Navy Region Southwest, San
Diego, CA.
Staff Judge Advocate's Recommendation: LCDR J.L. Markley,
JAGC, USN.
For Appellant: Capt Jason Wareham, USMC.
For Appellee: Maj Crista Kraics, USMC.

                           28 February 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification each of receiving, possessing, and producing child
pornography in violation of Article 134, Uniform Code of
Military Justice, 10 U.S.C. § 934. Members with enlisted
representation sentenced the appellant to ten years confinement
and a dishonorable discharge. There was no pretrial agreement.
The convening authority (CA) approved the sentence as adjudged
and, except for the dishonorable discharge, ordered the sentence
executed.

      The appellant raises seven assignments of error:

     1) That the military judge committed plain error by failing
to provide a sentencing “spillover” instruction;

     2) That the military judge committed plain error in
admitting additional images of “morphed”1 child pornography
during presentencing where the appellant pleaded guilty to
producing only one such image;

     3) That the military judge committed plain error when he
allowed victim impact testimony from the mother of the subject
of the “morphed” image produced by the appellant;

     4) That the military judge committed plain error when he
allowed the trial counsel to argue facts not in evidence when
arguing for an appropriate sentence;

     5) That the appellant’s sentence is excessive in comparison
to similar cases and therefore inappropriate;

      6) That cumulative errors in the case warrant relief; and

     7) That the definition of child pornography contained in
Title 18 U.S.C. § 2256(8) as used in this case and applied to
the “morphed” image of child pornography is facially overbroad
or as applied to this case where said images are so poor in
quality that their alteration do not contain indistinguishable
minors.2



1
  At trial, “the parties agree[d] that a morphed image is one that is created
by using part of one image and digitally merging it with another image so as
to create a new, distinct image.” Appellate Exhibit XXXVII, Ruling on
Defense Motion to Dismiss of 17 Aug 2012 at 2.
2
  Although he references “images” in his assignment of error, the appellant
only addresses the one morphed image to which he pleaded guilty. The image
described by the appellant during his providence inquiry and on brief appears
in Prosecution Exhibit 2. Aside from the easily recognizable face, the image
depicts a full frontal view of a naked female subject in a lascivious pose
with a full display of her genitalia. The girl in question appears to be
approximately 12 – 14 years old. Even absent the morphed facial image, the

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                            Factual Background

     The appellant, a Navy Reservist who deployed to Iraq in
2007 and again to Afghanistan in 2010, downloaded images and
videos of child pornography onto his personal laptop and a thumb
drive. He began downloading and viewing child pornography prior
to his first deployment in 2007 and continued doing so until his
discovery in 2012. After his discovery, he told investigators
that he routinely viewed these images for his sexual arousal and
gratification.

     Among these images were a series of digitally altered or
“morphed” images in which the appellant “Photoshopped” faces of
young girls onto images of naked young girls and/or adult women.
These morphed images included some in which the appellant
superimposed his own naked image next to a morphed image of a
young girl. At least one of these latter images displayed the
morphed girl appearing to touch the appellant’s exposed penis.
One of the subjects of his morphed images was a ten or eleven-
year-old girl who lived in the appellant’s neighborhood.

     At trial, the appellant pleaded guilty to possessing and
receiving child pornography, and to producing one morphed image
of child pornography, as that phrase is defined under 18 U.S.C.
§ 2256(8).

     During presentencing, the trial counsel presented images
and videos of child pornography recovered from the appellant’s
computer and thumb drive, and called a computer forensic expert
who testified that among the images and videos recovered were 39
known victims of child pornography. Record at 429; Prosecution
Exhibits 1, 2, 3, 19. Trial counsel also called two police
officers who each testified to the impact of the sexual abuse on
two of the children depicted in the videos and images possessed
by the appellant.3 Additionally, trial counsel called the mother
of the young girl in the morphed image, who testified as to the
impact of the appellant’s conduct on the girl and their family.
Record at 476-86. Trial counsel also introduced additional
morphed photos of the girl recovered from the appellant’s

picture appears to display an identifiable minor engaging in sexually
explicit conduct. 18 U.S.C. § 2256(8).
3
    Record at 456-71.

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computer and their corresponding sexually explicit filenames.
Id. at 397-403, 442-45; PE 2.

                            Analysis

1. Sentencing Spillover Instruction

     Prior to assembly, the military judge and both counsel
discussed the applicable maximum punishment based on the
appellant’s guilty pleas. Citing the analogous federal offenses
of receiving and possessing child pornography under 18 U.S.C.
§2252A, the trial counsel proffered a maximum confinement
penalty of 30 years. However, on the remaining offense of
producing a single morphed image of child pornography, the trial
counsel stated that “[al]though [the Government has] referenced
[18 U.S.C. § 2256(8)] in [the specification], the morphing of
images is not contemplated as production under [18 U.S.C. §
2252A].” Record at 103. The military judge accepted the trial
counsel’s explanation without comment and instructed the
appellant that the production offense carried a maximum
confinement penalty of four months.

     In a novel argument, the appellant contends that due to the
wide disparity in maximum punishment and the fact that the
Government’s case in aggravation weighed heavily toward the girl
in the morphed image, the military judge had a sua sponte duty
to “instruct the members to parse out the evidence and apply it
only to those maximum sentences that the evidence supports.”
Appellant’s Brief of 13 May 2013 at 13-14 (footnote omitted).
We disagree.

     A military judge has an independent duty to properly
instruct the panel, United States v. Ober, 66 M.J. 393, 405
(C.A.A.F. 2008). When the instruction at issue is non-
mandatory, we review for an abuse of discretion. United States
v. Barnett, 71 M.J. 248, 249 (C.A.A.F. 2012). But since the
appellant raised no objection to the military judge’s
instructions at trial, we review for plain error. United States
v. Garner, 71 M.J. 430, 434 (C.A.A.F. 2013). Here we find no
error, much less plain and obvious error. The military judge
properly advised the panel that they must consider all evidence
admitted and must only punish the appellant based on those
offenses for which he had been found guilty. Record at 661-62.

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The appellant offers no authority for his novel proposition that
when separate offenses carry disparate maximum penalties a
military judge must instruct the panel to parse the evidence
accordingly, and we decline to create any such requirement.

     We also note that the appellant characterizes the morphing
offense as separate and distinct from the remaining offenses of
possession and receipt of child pornography. However, in his
confession to investigators (PE 7) and during the providence
inquiry, he admitted that he stored this morphed image he
creates with many other images and videos of child pornography.
Moreover, he admitted to the military judge that this morphed
image met the same definition of child pornography as the other
images of child pornography he downloaded and possessed on his
computer. Record at 112-16; 130-35; 137-45. It follows then
that this morphed image was but one of many other images of
child pornography knowingly possessed by the appellant. We
therefore disagree with the appellant’s contention that the
Government’s aggravation evidence concerning the morphed image
was relevant only to the production offense. We find it
relevant to both the possession and production offenses. Id.

     Last, while much of the Government’s case in aggravation
focused on the morphed image of the young girl, this morphed
image the appellant created is far less graphic than other
images and videos recovered from his computer media.4 PEs 1 and
19. Moreover, the appellant himself admits in his statement to
investigators that he downloaded and possessed child
pornography, and created morphed images of child pornography,
all for his own sexual arousal and self-gratification. PE 7.
In these regards, we find that much of the evidence in
aggravation pertaining to the young girl in the morphed image,
like much of the remaining evidence in aggravation, illustrated

4
  The police officers described how two children depicted in images and videos
possessed by the appellant were sexually abused over a number of years by
their respective fathers, and how each father made the depiction available
for online consumption. Both officers testified as to the impact of the
abuse on the child and their knowledge that their chronicled abuse resided in
perpetuity online, aggravating factors absent in the case of the morphed
image of the neighbor child. Therefore, we are not persuaded by the
appellant’s argument that “[t]he most powerful evidence the Government
offered was, without a doubt, the testimony of [that child’s mother].”
Appellant’s Brief at 13.


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the broader issue of the appellant’s perverse and sexually
deviant desire to collect and view disturbing images of child
pornography. Accordingly, we find this assignment of error
without merit.

2. Improper Aggravation through Uncharged “Morphed” Images

     Next, the appellant argues that the military judge
committed plain error when he admitted as evidence in
aggravation 15 additional morphed images, 12 of which
incorporated images of the same young neighbor girl.
Appellant’s Brief at 19-23.5 He contends that these additional
morphed images were more graphic than the sole image to which he
pleaded guilty, and therefore the military judge erred by
failing to sua sponte exclude them under MILITARY RULE OF EVIDENCE
403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). We disagree.

     The appellant created images of child pornography by
superimposing recognizable facial images of young girls,
including his young neighbor, onto images of other female
subjects engaging in sexually explicit conduct. Record at 347,
378-79, 382-83, 397-403, 442; PE 2. Some of these subjects are
easily identifiable as prepubescent girls even without a
“Photoshopped” child’s face. PE 2. Among these are images of a
morphed girl depicted in a lascivious pose. Others display an
erect penis interposed amongst morphed children. Id. Still
others display morphed children appearing to engage in sexual
acts with adults. Id. True, these latter images are more
graphic than the single image to which the appellant pleaded
guilty; however, as discussed infra, these morphed images
incorporating identifiable images of children engaging in
sexually explicit conduct share the same impetus for the
appellant as the remaining child pornography he possessed -
sexual arousal and gratification. PE 7. In that vein, we agree
with the Government’s argument on brief that these additional
images are probative of “the full scope and seriousness of
Appellant’s commitment to producing pornographic images
involving a ten year-old [girl].” Government Answer of 12 Aug

5
  Although he cites error by the military judge in admitting PEs 1-3, the
appellant focuses his argument on those additional morphed images of his
young neighbor admitted in aggravation, all of which are contained on PE 2.


                                      6
2013 at 19. We also find that the probative value of these
additional morphed images is not substantially outweighed by the
danger of unfair prejudice. MIL. R. EVID. 403. Consequently, we
conclude that the appellant has failed to meet his burden of
demonstrating plain error.

3. Unconstitutionally Overbroad Definition of Child Pornography
in 18 U.S.C. § 2256(8) as Applied to the Facts of this Case

     The appellant argues that the definition of child
pornography in § 2256(8), as pled in the specification and
applied to the morphed image which he pleaded guilty to
producing, is unconstitutionally overbroad as the image “[is] so
poor in [its] alteration that [it does] not contain [an]
indistinguishable minor[].” Appellant’s Brief at 35. Assuming
arguendo that the § 2256(8) definition as applied was
constitutionally overbroad, the appellant’s argument still
fails. The appellant was convicted of service discrediting
conduct under clause (2) of Article 134, UCMJ. The normal
concerns involved with over breadth challenges6 are absent here,
where the focus is on the character of the appellant’s conduct
as being prejudicial to good order and discipline or service
discrediting. Even conduct which may otherwise be
constitutionally protected can be prosecuted under clauses (1)
and (2) of Article 134. See, e.g., United States v. Barberi, 71
M.J. 127, 131 (C.A.A.F. 2012) (recognizing that
unconstitutionally overbroad portion of child pornography
definition in 18 U.S.C. § 2256(8) at issue in Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002) did not prohibit
prosecution for “virtual” child pornography under clauses (1) or
(2) of Article 134).

     Although not raised, we have also considered whether the
specification as pled, and the image in question, sufficiently
placed the appellant on notice that his conduct was subject to
criminal sanction. See United States v. Warner, 73 M.J. 1, 5-7
(C.A.A.F. 2013) (holding that specification alleging possession
of images that depicted minors “as sexual objects or in a
sexually suggestive way” lacked sufficient notice of criminality

6
  See United States v. Williams, 553 U.S. 285, 292 (2008) (defining as
unconstitutionally overbroad those statutes that prohibit a substantial
amount of protected speech under the First Amendment).

                                      7
where images in question displayed no nudity or sexually
explicit conduct). In light of the definition used by the
military judge, and the clearly recognizable image of the young
neighbor’s face superimposed onto a naked subject with fully
exposed genitalia, we readily conclude that the appellant
received sufficient notice as envisioned under the Due Process
Clause of the Fifth Amendment.

4. Remaining Assignments of Error.

     Having reviewed the record, we find those remaining
assignments of error raised by the appellant to be without
merit. United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A.
1992).

                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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