Having defended a fair share of individuals accused of child pornography offenses as a defense counsel and argued a number of these cases for the government as an appellant counsel (including the companion case to United States v. Mason [CAAF's post-Free Speech Coalition Article 134 pronouncement] and United States v. Leonard [at AFCCA], the CAAF opinion of which is cited repeatedly in CAAF's latest opinion), I've been following the evolution of the charging and sentencing of child pornography cases for a while now. Yesterday, the Court of Appeals for the Armed Forces released another Air Force case on the subject.
In United States v. Beaty, the defense challenged the military judge's calculation of the maximum punishment for possession of what "appears to be" minors engaged in sexually explicit activity, arguing that it was inappropriate for sentencing purposes for the military judge (one of the most experienced judges in the entire USAF, if not THE most experienced) to equate the charged possession of virtual child pornography with actual pornography, as defined in the Child Pornography Prevention Act (as amended by the PROTECT Act). The government countered that, if it was error to rely (as is usual practice) on the CPPA's sentencing provisions by analogy, Beaty suffered no prejudice because the maximum punishment could have been set as high as life without possibility of parole under Article 18, UCMJ.
The majority at CAAF, in another Judge Ryan opinion, agreed with the defense that there is a substantive difference for sentencing purposes, capping the maximum sentence for possession of virtual child pornography at the maximum for disorderly conduct, resulting in a huge reduction from the maximum punishment available under the CPPA. Here are some relevant portions of J. Ryan's opinion on the issue:
Because Appellant’s offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the United States Code, the maximum
punishment is that “authorized by the custom of the service.” See R.C.M. 1003(c)(1)(B)(ii). As in Leonard, we are unaware of any “custom of the service” specific to Appellant’s offense, see 64 M.J. at 383.
...when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment “authorized by the custom of the service,” they are punishable as
“general” or “simple” disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months.
The second quote refers to the principle of lenity, noting that it wouldn't make sense to have such a large exposure to punishment under ambiguous provisions of the UCMJ for actions that Congress didn't even criminalize for civilians.
Judge Baker, as he has done a number of times this term, dissented, in part, asserting that the specification in Beaty was "the same offense" as possession under the CPPA and noting that First Amendment protections for military members have long been less than those afforded to civilians.