U.S. v. Cendejas, 62 M.J. 334

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. in order to sustain a conviction under the Child Pornography Prevention Act, 18 USC 2252A, the Government must prove that an image depicts an actual child; it is no longer enough to knowingly possess, receive or distribute visual depictions that “appear to be” of a minor engaging in sexually explicit conduct; instead, proof that an actual child under the age of eighteen was used in the production of the images is a required element of a charge under the CPPA; the government bears the burden of proving each and every element of a crime beyond a reasonable doubt; and the Government is not released from its burden of proof by an accused’s failure to argue, or by an absence of evidence otherwise suggesting, the artificiality of the children portrayed
2. certain portions of the definition of child pornography in 18 USC § 2256(8) are unconstitutional, specifically the “or appears to be” language of § 2256(8)(B), and the “conveys the impression” language of § 2256(8)(D)
3. a factfinder has the prerogative to decide without expert testimony whether images of child pornography are actual or virtual; a factfinder can make a determination that an actual child was used to produce the images in question 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
4. 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

Trial Stages: Merits: Findings

1. where the military judge found the accused guilty of possessing eight images that met the existing definition of child pornography under the Child Pornography Prevention Act, a definition that included portions later found unconstitutional, his general finding of could not be upheld because it cannot not be determined on appeal whether the military judge only relied on those portions of the statutory definition of child pornography later found constitutional
2. where an accused’s conviction for possessing child pornography in violation of the Child Pornography Prevention Act, 18 USC 2252A, under clause 3 of Article 134 has been set aside, an appellate court can in some circumstances uphold a conviction to a lesser included offense under clauses 1 or 2 of Article 134 if there was sufficient evidence introduced at trial to establish that the accused’s conduct in possessing virtual child pornography was either prejudicial to good order and discipline or service-discrediting; in this case, there was no basis in the record that would support a conviction of a lesser included offense under clauses 1 or 2 of Article 134; there was no such evidence introduced at the accused’s 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

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in appropriate situations, the government may use the images of alleged child pornography themselves to make the showing that they are of actual children; an accused is then entitled to confront the government’s evidence and present his own evidence that the images are not actual; in this case, the military judge’s ruling upholding an unconstitutional definition of child pornography from the Child Pornography Prevention Act 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 accused 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 the accused’s conviction being upheld on a theory that the accused did not have the opportunity to defend against; because this action of the court of criminal appeals deprived the accused 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, the accused’s due process rights were violated; this error is not harmless beyond a reasonable doubt because with the proper opportunity to present evidence in his defense, the accused might have raised a question in the military judge’s mind about the origin of the images

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the government bears the burden of establishing that any constitutional error that occurs at trial is harmless beyond a reasonable doubt; whether the error is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo
2. 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