U.S. v. Forney, 67 M.J. 271

First Principles: Constitutional Matters: First Amendment

1. that the possession of virtual child pornography may be constitutionally protected speech in civilian society does not mean it is protected under military law
2. while the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections; speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command; if it does, it is constitutionally unprotected; in this case, appellant’s receipt and possession of virtual child pornography disgraced him personally and compromised his fitness to command the obedience of his subordinates

Military Justice Personnel: Military Judge: Instructions

1. the military judge did not err by instructing the members using the definition of child pornography from 18 USC § 2256 of the Child Pornography Prevention Act to explain the term in the context of a conduct unbecoming an officer and a gentleman charge, even though the Supreme Court later held that this definition violated the First Amendment to the extent that it criminalized the possession and distribution of certain “virtual” images – images that were neither obscene nor produced by the exploitation of actual children; speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command, and if it does, it is constitutionally unprotected; the First Amendment does not protect a military officer from prosecution under Article 133 for wrongfully possessing virtual child pornography on government computers on a Navy warship underway
2. before a military judge is required to give an affirmative defense instruction, there must be some evidence in the record to which the members might attach credit
3. constitutional free speech protection of virtual child pornography in civilian society was not a defense to a charge of conduct unbecoming an officer based on appellant’s possession of virtual child pornography on government computers on a Navy warship underway; in any event, in this case, there is absolutely no evidence that the images were or might have been virtual; thus, even if appellant’s defense were recognized in military law, and it is not, the military judge would not have been required to instruct on it

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. the receipt and possession of virtual child pornography may also constitute conduct unbecoming an officer
2. an officer’s conduct that disgraces him personally or brings dishonor to the military profession affects his fitness to command the obedience of his subordinates so as to successfully complete the military mission – that is the gravamen of the Article 133 offense of conduct unbecoming an officer
3. conduct need not be a violation of any other punitive article of the UCMJ, or indeed a criminal offense at all, to constitute conduct unbecoming an officer
4. the essence of an Article 133 conduct unbecoming offense is not whether an accused officer’s conduct otherwise amounts to an offense, but simply whether the acts meet the standard of conduct unbecoming an officer; the appropriate standard for assessing criminality under Article 133 is whether the conduct or act charged is dishonorable and compromising, notwithstanding whether or not the act otherwise amounts to a crime
5. while the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections; speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command; if it does, it is constitutionally unprotected; in this case, appellant’s receipt and possession of virtual child pornography disgraced him personally and compromised his fitness to command the obedience of his subordinates
6. constitutional free speech protection of virtual child pornography in civilian society was not a defense to a charge of conduct unbecoming an officer based on appellant’s possession of virtual child pornography on government computers on a Navy warship underway; in any event, in this case, there is absolutely no evidence that the images were or might have been virtual; thus, even if appellant’s defense were recognized in military law, and it is not, the military judge would not have been required to instruct on it

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. before a military judge is required to give an affirmative defense instruction, there must be some evidence in the record to which the members might attach credit
2. constitutional free speech protection of virtual child pornography in civilian society was not a defense to a charge of conduct unbecoming an officer based on appellant’s possession of virtual child pornography on government computers on a Navy warship underway; in any event, in this case, there is absolutely no evidence that the images were or might have been virtual; thus, even if appellant’s defense were recognized in military law, and it is not, the military judge would not have been required to instruct on it

Trial Stages: Merits: Instructions › Generally

1. the military judge did not err by instructing the members using the definition of child pornography from 18 USC § 2256 of the Child Pornography Prevention Act to explain the term in the context of a conduct unbecoming an officer and a gentleman charge, even though the Supreme Court later held that this definition violated the First Amendment to the extent that it criminalized the possession and distribution of certain “virtual” images – images that were neither obscene nor produced by the exploitation of actual children; speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command, and if it does, it is constitutionally unprotected; the First Amendment does not protect a military officer from prosecution under Article 133 for wrongfully possessing virtual child pornography on government computers on a Navy warship underway

Trial Stages: Merits: Instructions › Affirmative defenses

1. before a military judge is required to give an affirmative defense instruction, there must be some evidence in the record to which the members might attach credit
2. constitutional free speech protection of virtual child pornography in civilian society was not a defense to a charge of conduct unbecoming an officer based on appellant’s possession of virtual child pornography on government computers on a Navy warship underway; in any event, in this case, there was absolutely no evidence that the images were or might have been virtual; thus, even if appellant’s defense were recognized in military law, and it is not, the military judge would not have been required to instruct on it

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even if it were error for the military judge to reference a federal definition for child pornography that was later partially held unconstitutional by the Supreme Court -- arguably suggesting that the possession of virtual child pornography was illegal in civilian society, when it was not –- such error was harmless beyond a reasonable doubt, where there was no reasonable possibility that any such error might have contributed to appellant’s conviction for conduct unbecoming an officer; in light of the totality of the circumstances –- appellant’s receiving and possessing such images on government computers on a Navy warship underway, the discovery of the misconduct by an enlisted person in the performance of his duties, and the focus of the offense and the military judge’s instructions on the military nature of the offense -- any such error would have been unimportant in relation to everything else the members considered on the issue in question; a rational court-martial would have found appellant guilty absent the alleged error