United States v. Rocha ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40134
________________________
UNITED STATES
Appellee
v.
Zachary C. ROCHA
Airman (E-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 16 December 2022
________________________
Military Judge: Colin P. Eichenberger.
Sentence: Sentence adjudged 19 March 2021 by GCM convened at Moun-
tain Home Air Force Base, Idaho. Sentence entered by military judge on
3 May 2021: Bad-conduct discharge, confinement for 90 days, forfeiture
of all pay and allowances, and reduction to E-1.
For Appellant: Lieutenant Colonel Todd J. Fanniff, USAF; Major Spen-
cer R. Nelson, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Cortland T. Bobczynski, USAF;
Major John P. Patera, USAF; Major Brittany M. Speirs, USAF; Mary
Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Judge
CADOTTE joined. Senior Judge POSCH filed a separate dissenting
opinion.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
United States v. Rocha, No. ACM 40134
________________________
RICHARDSON, Judge:
A general court-martial comprised of officer members convicted Appellant,
contrary to his pleas, of one specification of indecent conduct—engaging in sex-
ual acts with a sex doll with the physical characteristics of a female child—in
violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934.1 Appellant was found not guilty of an unrelated specification of receiving
child pornography between May 2018 and May 2019 in violation of Article 134,
UCMJ, 10 U.S.C. § 934 (Manual for Courts-Martial, United States (2016 ed.)).2
The military judge sentenced Appellant to a bad-conduct discharge, 90 days of
confinement, forfeiture of all pay and allowances, and reduction to the grade of
E-1. The convening authority denied Appellant’s request for waiver of forfei-
tures, and approved the sentence in its entirety.
Appellant raises several assignments of error, asserting: (1) private mas-
turbation with a doll is constitutionally protected conduct; (2) Appellant did
not have fair notice that private masturbation with a doll was subject to crim-
inal sanction; (3) the military judge erred in denying the Defense’s motion to
dismiss for failure to state an offense; (4) trial defense counsel was ineffective;
and (5) Appellant’s conviction is not legally and factually sufficient. Addition-
ally, Appellant asserts: (6) the Government cannot meet its burden to prove
that the military judge’s failure to instruct the panel that a guilty verdict must
be unanimous was harmless beyond a reasonable doubt; (7) trial defense coun-
sel was ineffective for failing to ask two panel members questions regarding
their experience and ability to sit in Appellant’s court-martial; and (8) trial
counsel engaged in prosecutorial misconduct in findings argument.3 Because
we find in Appellant’s favor on issue (2), we do not address the remaining is-
sues.
1 Unless otherwise noted, all references in this opinion to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.)
(MCM).
2 Based on the date of this alleged offense, at arraignment Appellant was given a choice
of sentencing rules, and elected to be sentenced under the rules effective for offenses
committed on or after 1 January 2019. See R.C.M. 902A(b). After findings, Appellant
chose to be sentenced by the military judge.
3 Appellant personally raises issues (6)–(8) pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
2
United States v. Rocha, No. ACM 40134
I. BACKGROUND
Appellant purchased online a short4 silicone doll with female physical char-
acteristics, including oral, anal, and vaginal orifices and small breasts.5 Appel-
lant had the doll shipped to another Airman’s house; Appellant lived on base
and could not receive the package at his on-base postal box. Appellant also
purchased clothing for the doll.
About three weeks after Appellant received the doll, Appellant’s com-
mander ordered an inspection of the dorms, including Appellant’s dorm room.
Command representatives received a briefing from agents from the Air Force
Office of Special Investigations (AFOSI) before beginning their inspection. Ap-
pellant shared a kitchen and bathroom with another Airman, but had his own
separate bedroom. A sergeant entered Appellant’s bedroom to inspect it, and
saw something on the bed. She called over to Appellant’s first sergeant, who
saw “a very life like doll on the bed.” Near the clothed doll were two body pil-
lows, each with a female anime character on the pillowcase. Unsure what to do
upon seeing the doll, they asked for assistance from AFOSI agents. Special
Agent (SA) JL arrived in response, and entered Appellant’s room. He “saw a
doll that scared [him] because it kind of looked like a child.” SA JL testified,
“Once I kind of realized that it was not a real person, I started making phone
calls immediately because it was kind of something outside of the realm that
I’ve encountered before.” One of his calls was to the legal office.
Soon thereafter, SA JL and another AFOSI agent interviewed Appellant.
They informed Appellant of his rights under Article 31, UCMJ, 10 U.S.C. § 831,
and specifically that he was suspected of the “offense of Article 134, child por-
nography;” the agents did not mention the offense of indecent conduct. Appel-
lant agreed to speak with the AFOSI agents. As the AFOSI agents began to
question Appellant about the doll, Appellant said that recently he has “started
to realize that if somebody sees [the doll] in [his] room then they’re going to get
some weird idea.” Appellant admitted he would “like to be open, more open
about this kind of stuff,” and warned agents that he talks “about some weird
stuff.” Several times during the interview, Appellant stated he was “uncom-
fortable” talking about the doll.
In his interview with the agents, Appellant agreed the doll looked like a
child. He explained that a larger doll would not fit well in his small dorm room,
4 Witnesses described the doll as being between one-and-a-half and four feet tall. It
appears from photographs in the record that the doll was on the taller side of this
range.
5 We make no finding concerning whether the doll was a representation of a child.
3
United States v. Rocha, No. ACM 40134
and would be more difficult to move around. Appellant explained how he ben-
efitted emotionally from the doll. For example, he said to agents that after the
box with the doll arrived: “I opened it up and dressed it up and we started
talking. You know it wasn’t an especially great day that day, so it helped a lot
actually, and it was a lot easier than talking to my pillows because you know
anime isn’t real.” Appellant named the doll Adele. He interacted with the doll
in many ways, such as washing and applying baby powder to it, sitting it in a
chair with a blanket or a book, and changing its clothes. Appellant denied tak-
ing the doll out of his dorm room.
Appellant admitted to owning “basically what is a child sex doll.” Appellant
told the agents that on three occasions in his bedroom, he masturbated using
the anal or vaginal orifice of the doll but did not ejaculate in it. Each time,
Appellant started to think, “[W]hat if this was a life, what if this was real,” so
he stopped his sexual activity with it. When asked whether he ever was “pic-
turing Adele as real” and was “in to it,” Appellant answered, “Real as in, like,
a real child, somebody’s daughter[?] No. No.” Appellant denied having any sex-
ual interest in children.
II. DISCUSSION
A. Additional Background
Specification 2 of the Charge alleged Appellant did:
[O]n divers occasions between on or about 24 April 2019 and on
or about 20 May 2019, commit indecent conduct, to wit: engaging
in sexual acts with a sex doll with the physical characteristics of
a female child, and that said conduct was of a nature to bring
discredit upon the armed forces.
Shortly after arraignment, the military judge summarized an issue raised
regarding this specification:
MJ [Military Judge]: Defense counsel, I know you have not sub-
mitted any pretrial filings alleging that that particular specifi-
cation or any specification failed to state an offense; however I
would like to ensure that if this is an issue that you intend to
raise, we do so now. Do you object to Specification 2 as failing to
state an offense?
DC [Defense Counsel]: Yes, Sir.
Trial defense counsel moved for the specification to be dismissed with prej-
udice for failure to state an offense. The basis of her argument was that Appel-
lant had a constitutional liberty interest in his wholly private sexual activity,
4
United States v. Rocha, No. ACM 40134
and no aggravating factor divested him of that interest.6 While the “motion
[was] made pursuant to the Fifth Amendment and Sixth Amendment to the
United States Constitution[7]; [R.C.M.] 905(b)(2) and 307(c)(3); and applicable
case law,” trial defense counsel did not specifically assert a lack of constitu-
tionally required fair notice that Appellant’s conduct was criminal. However,
she did make the following related arguments:
So, this is not the same conduct that the law and case law sup-
ports as being criminal. It doesn’t fulfill the elements that -- and
the proffered evidence that supports the aggravating circum-
stance is insufficient to criminalize this kind of conduct.
....
The specification lacks aggravating circumstances to support a
finding as a matter of law. The evidence in this case supports
that [Appellant] was not open and notorious as an aggravating
circumstance. The only aggravation present with masturbation
would be if someone witnessed it. Here, no one witnessed it and
[Appellant] was reluctant to even discuss the activity with law
enforcement.
....
If the Government’s charging scheme here is sufficient, then
they could simply charge any conduct as indecent no matter how
private and no matter whether the sexual nature of the conduct
6 In Lawrence v. Texas, 539 U.S. 558, 578 (2003), the United States Supreme Court
held that consensual sexual acts, specifically, sodomy involving two adults, was pro-
tected under the United States Constitution. It highlighted the absence of aggravating
factors: (1) minors; (2) persons who might be injured or coerced, or who were in a situ-
ation where consent might not be easily refused; and (3) public conduct or prostitution.
Id. The Lawrence liberty interest applies in the military context. “In United States v.
Marcum, consistent with the Supreme Court’s holding in Lawrence v. Texas . . . , this
Court recognized that . . . wholly private, consensual sexual activity between adults
otherwise proscribed by Article 125, UCMJ, is constitutionally protected.” United
States v. Castellano, 72 M.J. 217, 218 (C.A.A.F. 2013) (citing United States v. Marcum,
60 M.J. 198, 206 (C.A.A.F. 2004)) (additional citation omitted); see also United States
v. Goings, 72 M.J. 202, 206 (C.A.A.F. 2013) (“In Lawrence, the focal point of the consti-
tutional protection involved an act of sexual intimacy between two individuals in a
wholly private setting without more. Lawrence did not establish a presumptive consti-
tutional protection for all offenses arising in the context of sexual activity.”).
7 U.S. CONST. amend. V, VI.
5
United States v. Rocha, No. ACM 40134
is otherwise illegal. The offense as alleged does not meet the re-
quirement for aggravation, and therefore, does not state an of-
fense.
The military judge denied the defense motion.8 He found “that the Defense
[ ] failed to meet their burden to show [S]pecification 2 of the [C]harge fails to
state an offense.” The military judge cited United States v. Dear, 40 M.J. 196,
197 (C.M.A. 1994), then found that the specification alleged the essential ele-
ments of the offense, provided notice of the charge, and provided protection
against double jeopardy. With respect to the second prong, the military judge
found “the specification provides notice to [Appellant] of the charge, namely
that he engaged in indecent conduct by engaging in sexual acts with a sex doll
with the physical characteristics of a female child.”
B. Law
1. Elements
“[A]ll disorders and neglects to the prejudice of good order and discipline in
the armed forces, all conduct of a nature to bring discredit upon the armed
forces, and crimes and offenses not capital” are punishable at trial by court-
martial. Article 134, UCMJ, 10 U.S.C. § 934. The elements of an Article 134,
UCMJ, offense for service-discrediting conduct are “(a) that the accused did or
failed to do certain acts, and (b) that, under the circumstances, the accused’s
conduct was of a nature to bring discredit upon the armed forces.” Manual for
Courts-Martial, United States (2019 ed.) (MCM), pt. IV, ¶ 91.b.(2). “‘Discredit’
means to injure the reputation of.” MCM, pt. IV, ¶ 91.c.(3). The service-discred-
iting clause of “Article 134 makes punishable conduct which has a tendency to
bring the service into disrepute or which tends to lower it in public esteem.”
Id.The President enumerated the offense of Indecent Conduct under Article
134, UCMJ, and listed elements, which, relevant to this case, include: (1) the
accused engaged in certain conduct, (2) the conduct was indecent, and (3) that,
under the circumstances, the conduct was of a nature to bring discredit upon
the armed forces. MCM, pt. IV, ¶ 104.b.(1)–(3). “‘Indecent’ means that form of
immorality relating to sexual impurity which is grossly vulgar, obscene, and
repugnant to common propriety, and tends to excite sexual desire or deprave
morals with respect to sexual relations.” MCM, pt. IV, ¶ 104.c.(1). The Presi-
dent did not describe any particular conduct that would meet this definition.
8 This ruling is the subject of Appellant’s third assignment of error. The military judge
analyzed whether Appellant was on notice of the charges against him, and not whether
he was on fair notice that the alleged conduct was criminal.
6
United States v. Rocha, No. ACM 40134
The elements of Specification 2 of the Charge in this case include (1) Ap-
pellant engaged in conduct, to wit: engaging in sexual acts with a sex doll with
the physical characteristics of a female child, (2) the conduct was indecent, and
(3) that said conduct was of a nature to bring discredit upon the armed forces.
2. Standard of Review
We review de novo a claim that an appellant lacked fair notice that his
conduct was punishable under Article 134, UCMJ. See United States v. Saun-
ders, 59 M.J. 1, 6–9 (C.A.A.F. 2003).
When a litigant makes a constitutional claim at the trial level but presents
a new argument for the first time on appeal in support of that claim, we do not
consider the claim forfeited. See generally Citizens United v. Federal Election
Commission, 558 U.S. 310, 330–31 (2010) (analyzing a First Amendment9
claim, and stating that once a federal claim is properly presented, a litigant on
appeal is not limited to the precise argument made below).
3. Due Process Notice
Constitutional “[d]ue process requires ‘fair notice’ that an act is forbidden
and subject to criminal sanction” before a person can be prosecuted for com-
mitting that act. United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)
(quoting United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). “The test
for constitutional notice that conduct is subject to criminal sanction is one of
law[; i]t does not turn on whether we approve or disapprove of the conduct in
question.” United States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013). “The ‘void-for-
vagueness’ doctrine requires the criminal activity to be defined with sufficient
clarity such that ‘ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and discriminatory enforce-
ment.’” United States v. Caporale, 73 M.J. 501, 504 (A.F. Ct. Crim. App.
2013) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). “While the due
process concepts of fair notice and vagueness are related, [ ] we need not decide
whether a specification is unconstitutionally vague where, as here, [the a]ppel-
lant lacked fair notice that the alleged conduct was forbidden.” Warner, 73 M.J.
at 3 n.2 (citing Parker v. Levy, 417 U.S. 733, 757 (1974)). An enumerated Article
134, UCMJ, offense which is not void for vagueness does not necessarily pro-
vide constitutionally required fair notice that certain conduct is prohibited.10
9 U.S. CONST. amend. I.
10 On this point, we find the United States Supreme Court’s discussion regarding Ar-
ticles 133 and 134, UCMJ, apt:
7
United States v. Rocha, No. ACM 40134
“The primary obstacle to prosecuting a servicemember under [Article 134,
UCMJ,] is that the servicemember must be on ‘fair notice’ that his conduct was
punishable under the Uniform Code.” Bivins, 49 M.J. at 330 (quoting Parker,
417 U.S. at 756). Fair notice can come from “the [Manual for Courts-Martial],
federal law, state law, military case law, military custom and usage, and mili-
tary regulations.” Vaughan, 58 M.J. at 31 (citations omitted). Accordingly, a
servicemember may be prosecuted for service-discrediting conduct “even if the
conduct is not specifically listed in the Manual for Courts-Martial.” Warner, 73
M.J. at 3 (citing Saunders, 59 M.J. at 6).
In United States v. Merritt, the United States Court of Appeals for the
Armed Forces (CAAF) considered whether the appellant was on fair notice that
his conduct—viewing child pornography—alleged in violation of Clauses 1 and
2 of Article 134, UCMJ, was criminal. 72 M.J. 483 (C.A.A.F. 2013). The CAAF
noted that during the charged time frame, “the ‘viewing’ of child pornography
was not criminalized under the UCMJ, the MCM, military custom or usage,
the comprehensive federal statutes, or the majority of state statutes.” Id. at
488. The CAAF found that none of the Vaughan sources provided the appellant
with notice in that case, and found the appellant lacked sufficient notice the
viewing of child pornography was subject to criminal sanction in 2006. Id. The
CAAF set aside the finding of guilty to that specification. Id. at 492.
The day after it decided Merritt, the CAAF decided Warner. Warner, 73
M.J. at 1. In Warner, the CAAF considered whether the appellant was on fair
notice that his conduct—charged as possessing images of “child erotica”—al-
leged in violation of Clauses 1 and 2 of Article 134, UCMJ, was criminal. Id. at
2. The court found:
Simply put, although child pornography is a highly regulated
area of criminal law, no prohibition against possession of images
of minors that are sexually suggestive but do not depict nudity
It would be idle to pretend that there are not areas within the general
confines of the articles’ language which have been left vague despite
these narrowing [judicial and executive] constructions. But even
though sizable areas of uncertainty as to the coverage of the articles
may remain after their official interpretation by authoritative military
sources, further content may be supplied even in these areas by less
formalized custom and usage.
Parker, 417 U.S. at 754 (citation omitted); see also Vaughan, 58 M.J. at 31 (relying on
Parker in its discussion of sources of fair notice) (discussed infra).
8
United States v. Rocha, No. ACM 40134
or otherwise reach the federal definition of child pornography[11]
exists in any of the potential sources of fair notice set out in
Vaughan and available to [the a]ppellant. It follows that the
[a]ppellant received no such notice.
Id. at 4. The CAAF found plain error and dismissed the specification. Id.
4. Indecency
When the offense of “indecent acts with another” was enumerated under
Article 134, UCMJ, prior to 2007, it required as an element that the wrongful
act be “with a certain person.” Manual for Courts-Martial, United States (2005
ed.), pt. IV, ¶ 90.b(1)–(2). “This required the wrongful act be ‘done in conjunc-
tion or participating with another person’ and be an ‘affirmative interaction’
with the victim being more than an inadvertent or passive observer.” United
States v. Burkhart, 72 M.J. 590, 596 n.4 (A.F. Ct. Crim. App. 2013) (quoting
United States v. Miller, 67 M.J. 87, 91 (C.A.A.F. 2008)).
In 2007, the President eliminated “indecent acts with another” as an enu-
merated offense under Article 134, UCMJ, when the offense of “indecent act”
became punishable under Article 120, UCMJ, 10 U.S.C. § 920. See Exec. Order
13,447, 72 Fed. Reg. 56,179, 56,191 (2 Oct. 2007); Manual for Courts-Martial,
United States (2012 ed.) (2012 MCM), App. 28, at A28-2. After another shift
almost a decade later, “indecent acts” was removed from Article 120, UCMJ,
and the President enumerated the offense of “indecent acts” under Article 134,
UCMJ. See Exec. Order 13,740, 81 Fed. Reg. 65,175, 65,261–62 (22 Sep. 2016);
MCM, pt. IV, ¶ 104.c.(2). As was the case when it was included in Article 120,
UCMJ, the text of the offense did not include language that the indecent con-
duct be committed in “the presence of another person.” MCM, pt. IV,
¶ 104.c.(2).
“[I]n the Article 134, UCMJ, context [the CAAF] ha[s] construed the enu-
merated offense of indecent acts with another . . . not to reach the ‘wholly pri-
vate moral conduct of an individual,’ but ha[s] treated ‘open and notorious’ sex-
ual acts as outside the private sphere.” United States v. Castellano, 72 M.J.
217, 222 (C.A.A.F. 2013) (footnote omitted) (citing United States v. Berry, 20
C.M.R. 325, 330 (C.M.A. 1956)). “An act [ ] may be ‘open and notorious’ not
merely because of the locus, but because of the actual presence of other per-
sons.” Berry, 20 C.M.R. at 330. The act also can occur “under circumstances
where it is ‘reasonably likely’ to be seen by another person or where the actor
11 See, e.g., 18 U.S.C. § 2256(8) (defining “child pornography” to include “any visual
depiction” involving or appearing to involve a “minor engaging in sexually explicit con-
duct”).
9
United States v. Rocha, No. ACM 40134
knows another person is present, even though the other person did not actually
observe the act.” Burkhart, 72 M.J. at 596 (citations omitted).
Our sister court has declared, “Three factors emerge [from case law] as
hallmarks of indecent conduct: (1) lack of consent; (2) involvement of a child;
and/or (3) public visibility.” United States v. Johnston, 75 M.J. 563, 567 (N.M.
Ct. Crim. App. 2016).12
C. Analysis
At trial, Appellant attacked the specification on Fifth and Sixth Amend-
ment grounds. While the Fifth Amendment due process argument at trial fo-
cused on failure to state an offense, Appellant’s argument on appeal is lack of
fair notice—a similar attack still based on the Fifth Amendment’s due process
clause. Thus, Appellant preserved his constitutional challenge to the specifica-
tion. We review this claim de novo: Should Appellant have been on notice that
sexual acts performed with an inanimate object, alone and in a private setting,
and unknown to others, that did not also involve any clearly prohibited conduct
(e.g., production or possession of child pornography), were subject to criminal
sanction? We answer this question in the negative.13
Traditionally, obscenity or indecency “must, as a general thing, involve or
touch other persons.” United States v. Snyder, 4 C.M.R. 15, 18 (C.M.A. 1952).
This is not to say that indecent acts must be committed with another. Our re-
view of case law reveals several hallmarks of criminally indecent conduct, to
include: (1) minors or others who do not consent or may not easily either refuse
or manifest lack of consent;14 (2) prostitution, contraband, or other precursor
12 The Johnston court considered the meaning of “indecent manner” under Article
120c(d)(6) (2012 MCM) (indecent exposure), where “indecent” was defined substan-
tially the same as in indecent conduct under Article 134, UCMJ. Id. at 566; MCM, pt.
IV, ¶ 104.c.(1).
13 The Government argues that the offense of indecent conduct “has withstood void for
vagueness challenges in multiple service courts on multiple occasions over multiple
decades,” and in support of this position, cites four unpublished opinions concerning
either minors or public conduct. Appellant, however, does not claim that the offense of
indecent conduct enumerated under Article 134, UCMJ, is void for vagueness. Our
holding does not declare that the offense of indecent conduct is per se unconstitution-
ally vague. The issue in this case is not whether Appellant was on notice that commit-
ting indecent conduct was a criminal offense, but whether he was on notice that sexual
acts with a sex doll with the physical characteristics of a female child could be crimi-
nally indecent conduct.
14 See Lawrence, 539 U.S. at 578 (“The present case does not involve minors. It does
not involve persons who might be injured or coerced or who are situated in relation-
ships where consent might not easily be refused. It does not involve public conduct or
prostitution.”).
10
United States v. Rocha, No. ACM 40134
or concurrent criminal conduct;15 and (3) in public, or in an open and notorious
manner.16 See generally United States v. Goings, 72 M.J. 202, 206–07 (C.A.A.F.
2013), and United States v. Marcum, 60 M.J. 198, 207 (C.A.A.F. 2004), for a
discussion of Lawrence v. Texas, 539 U.S. 558 (2003), and related case law on
such factors. Appellant’s case includes none of these factors. Even looking be-
yond the recognized hallmarks, we find meager support for the contention that
Appellant otherwise had constitutionally required fair notice that the conduct
at issue was criminally indecent.
In its brief to this court, the Government notes that the offense of indecent
conduct is an enumerated offense under Article 134, UCMJ, in the Manual for
Courts-Martial. However, the fact that it is enumerated as an offense does not
end the inquiry into whether Appellant was provided constitutionally required
notice that his conduct was criminally indecent.17 The Government has not
identified—and we ourselves have not found—anything in the MCM, federal
law, military case law, military custom and usage, military regulations, or even
state law that criminalized the type of conduct for which Appellant was con-
victed. See Vaughan, 58 M.J. at 31. We agree with Appellant that “none of the
sources listed in Vaughan, nor the record itself, show that masturbating with
a child sex doll was subject to criminal sanction.”
The Government argues to this court that Appellant’s conduct involved a
minor and was public. We disagree. First, the Government claims, “Though
Appellant is correct that the sex doll in this case is not an ‘actual minor,’ . . .
Appellant’s conduct nonetheless ‘involves minors’ since he used the doll to sim-
ulate sexual acts with actual minors.” We disagree. Appellant’s conduct was
an actual sexual act with an object that may have simulated a minor but
plainly was not an actual minor. Additionally, internal thoughts and feelings—
15 See, e.g., United States v. Rollins, 61 M.J. 338, 345 (C.A.A.F. 2005) (where appellant
exchanged “pornographic materials with a young person as a part of a plan or scheme
to stimulate a sexual act in a public place”).
16 See, e.g., United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999) (where the
sexual intercourse was in a shared barracks room, with the door closed and no one else
present, “there [was] not sufficient evidence, as a matter of law, of the open and noto-
rious nature of the sexual conduct to sustain a finding of guilty” for indecent acts with
another).
17 Presidential enumeration of offenses is “merely indicating various circumstances in
which the elements of Article 134, UCMJ, could be met.” United States v. Jones, 68
M.J. 465, 471 (C.A.A.F. 2010).
11
United States v. Rocha, No. ACM 40134
which in this case did not include Appellant pretending the doll was an actual
child during his sexual activity—do not transform the doll into a “minor.”18
Next, the Government argues Appellant’s conduct was not a “fully private
matter,” as Appellant had the doll shipped to an Airman, “then used the child-
like sex doll multiple times in his on-base dorm room and in a shared common
area,” and the doll was discovered during a dorm inspection.19 The record does
not support a conclusion that Appellant masturbated with the doll in any
shared space—including the shower. And that the doll was shipped to another
Airman and eventually discovered during a dorm inspection are not “public” or
“open and notorious” circumstances that would put one on fair notice that mas-
turbating with the doll was criminal.
The Government asserts Appellant was on actual notice that his conduct
was proscribed. We disagree. As no source provided fair notice, it is improbable
Appellant could have had actual notice. Moreover, what the Government and
our colleague in the dissent characterize as evidence of consciousness of guilt—
e.g., concealing the doll’s purchase and presence in his room, and minimizing
his interactions with the doll in his statements to AFOSI agents—we find in-
stead is better viewed as evidence of Appellant’s efforts to keep his activity
with his doll a wholly private matter. Put another way, Appellant was not con-
cealing a crime but instead was concealing his “weird” actions. Even Appellant
feeling “bad” or “disgusted” is weak evidence to support knowledge that his
activities were criminal. As the CAAF noted in Merritt, “the fact that a service-
member may be ashamed of certain conduct is not sufficient by itself to equate
to due process notice that the conduct was subject to criminal sanction.” 72
M.J. at 487.
We find Appellant did not have fair notice that his alleged conduct was
punishable as indecent conduct, and Appellant suffered material prejudice to
18 We find this caution regarding possession of images that are not child pornography
apt to this case involving a doll of a child: “If an accused’s subjective reaction to other-
wise constitutionally protected images places the images in Article 134’s crosshairs,
the danger of sweeping and improper applications of the general article would be
wholly unacceptable.” United States v. Moon, 73 M.J. 382, 389 (C.A.A.F. 2014) (review-
ing a conviction for unlawful possession of images that did not meet any recognized
definition of child pornography). “Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression, and certain intimate conduct.” Lawrence, 539
U.S. at 562.
19 The Government asserts these facts are “military nexuses . . . sufficient to render
Appellant’s conduct outside of Lawrence’s liberty interest.” We do not reach that issue,
as our decision is based on lack of notice.
12
United States v. Rocha, No. ACM 40134
his constitutional due process right to such notice. See Article 59(a), UCMJ, 18
U.S.C. § 859(a).
III. CONCLUSION
The findings of guilty and the sentence as entered are SET ASIDE. The
charge and specification are DISMISSED WITH PREJUDICE. All rights,
privileges, and property of which Appellant has been deprived by virtue of the
findings and sentence set aside by this decision are ordered restored. See Arti-
cles 58b(c) and 75(a), UCMJ, 10 U.S.C. §§ 858b(c), 875(a).
POSCH, Senior Judge (dissenting):
Appellant’s objection at trial to Specification 2 of the Charge was that it
failed to state an offense. The defense motion, and the ruling that denied it,
were aimed at the form of the specification, that is, whether it alleged the es-
sential elements of indecent conduct and so provided notice to Appellant of
what he had to defend against. Even as Appellant’s trial motion clearly touched
on the question whether a servicemember enjoys a liberty interest or, more
broadly, a fundamental right to engage in the charged conduct, it is altogether
a different claim that Appellant did not know until Specification 2 was pre-
ferred that his conduct might be unlawful.
For the first time on appeal, Appellant contends he did not have fair notice
that private masturbation with a sex doll having the physical characteristics
of a child was subject to criminal sanction.1 Failure to first lodge a specific ob-
jection at trial will operate to forfeit the alleged error on appeal unless the error
is plain. See United States v. Goings, 72 M.J. 202, 205 (C.A.A.F. 2013) (review-
ing as-applied constitutional challenge to the Article 134, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. § 834, offense of indecent acts with another as
forfeited, and not waived); see also Rule for Courts-Martial 905(e) (effect of fail-
ure to raise defenses or objections). However, on this important point, I agree
with my colleagues that Appellant’s motion to dismiss for failure to state an
offense preserved appellate review of the question whether Appellant had fair
notice that his conduct was punishable as a violation of Article 134, UCMJ. See
United States v. Saunders, 59 M.J. 1 (C.A.A.F. 2003); United States v.
Vaughan, 58 M.J. 29 (C.A.A.F. 2003).
1 In his assignment of error brief to the court, Appellant concedes that trial defense
counsel “submitted a written motion for failure to state an offense, but it did not men-
tion the words ‘notice’ or ‘vagueness’ or argue that [Appellant] was not on notice that
his conduct was criminal.”
13
United States v. Rocha, No. ACM 40134
I reach this conclusion despite the fact that neither Appellant’s trial motion
nor the military judge’s ruling expressly address the issue, so this court must
for the first time. Because the complained-of offense was charged as a violation
of Article 134, UCMJ, it appears settled that Appellant’s motion was sufficient
to relieve him of the burden to plainly demonstrate he lacked constitutionally
required fair notice of the criminality of his conduct under the Due Process
clause of the Fifth Amendment.2 Saunders, 59 M.J. at 6 (de novo review); see
generally Vaughan, 58 M.J. at 31–33; cf. Goings, 72 M.J. at 203 (reviewing
whether military judge plainly erred in allowing certain conduct to serve as
basis for indecent act conviction under Article 134, UCMJ, in violation of a
liberty interest protected by Lawrence v. Texas, 539 U.S. 558 (2003)).
I depart from my esteemed colleagues because I find Appellant was suffi-
ciently on notice when he engaged in the charged acts that his actions consti-
tuted criminal indecent conduct. My principal departure is the application of
this court’s authority to evaluate the contested ruling, and the findings of
guilty that are a result, “on the basis of the entire record.” Article 66(d)(1),
UCMJ, 10 U.S.C. § 866(d)(1). To begin, in United States v. Boyett, the United
States Court of Appeals for the Armed Forces (CAAF) evaluated whether the
Government violated an officer’s due process rights under the Fifth Amend-
ment. 42 M.J. 150 (C.A.A.F. 1995). In Boyett, the appellant claimed a specifi-
cation charging him with engaging in a sexual relationship with an enlisted
member not under his supervision was not prosecutable and, thus, was void
for vagueness. Id. at 152. On appeal, the CAAF’s lead opinion observed that
“[c]riminal conduct requires an act . . . and appropriate notice that the act
would be criminal.” Id. The CAAF noted: “Void for vagueness simply means
that criminal responsibility should not attach where one could not reasonably
understand that his contemplated conduct is proscribed. In determining the
sufficiency of the notice a statute must of necessity be examined in the light of
the conduct with which a defendant is charged.” Id. at 153 (quoting Parker v.
Levy, 417 U.S. 733, 757 (1974)).
In its application of this standard, the CAAF’s lead opinion evaluated par-
ticular facts in the record—as must this court under Article 66, UCMJ. After
doing so, the CAAF concluded “there [was] sufficient information in th[e] rec-
ord to conclude that there was adequate notice to appellant of his potential
criminality.” Id. at 154. On the basis of the entire record, I believe Appellant
was not deprived of fair notice that his conduct was subject to criminal sanc-
tion. In that regard, circumstantial evidence at trial showed Appellant endeav-
ored to conceal his purchase of the doll. He admitted during questioning by
investigators that he arranged to have it shipped to an address off base because
2 U.S. CONST. amend. V.
14
United States v. Rocha, No. ACM 40134
“it’s obvious it’s not good to have something like that on a military base.” (Em-
phasis added). He admitted having the doll was “not good because that is rep-
resentative of a real-life human being.” Furthermore, Appellant initially lied
to investigators about whether he engaged in sexual acts with the doll. Appel-
lant stated that, after he committed sexual acts with the doll, he “felt bad be-
cause [he] did like it up until the point where [he] started thinking about if it
were . . . somebody’s daughter and [he] felt . . . disgusted with” himself. Under
these circumstances, Appellant did not lack fair notice that his conduct was
indecent and therefore punishable.
The majority cites United States v. Merritt, 72 M.J. 483, 487 (C.A.A.F.
2013), for the rule that an accused’s feeling shame is insufficient to prove con-
stitutional notice. However, Appellant’s admissions went further than embar-
rassment, reaching consciousness of guilt in the way he described concealing
his purchase and possession of the doll and initially lying about how he used it
for sexual gratification. His admissions show awareness that the doll was “ob-
vious[ly]” incompatible with keeping it on a military installation. In no small
measure, the inference that Appellant actually knew it would be incompatible
with military law to use a doll with the physical characteristics of a child in
the manner it was designed, and that the Government charged, is objectively
reasonable. Put simply, Appellant’s admissions show he did not lack constitu-
tionally required fair notice of what was forbidden.
Merritt can be distinguished another way. Unlike the offense that was
charged in that case, objectively reasonable notice of the charged conduct in-
cludes the fact that the offense of indecent conduct is proscribed by an enumer-
ated offense in the Manual for Courts-Martial, United States (2019 ed.) (MCM).
Cf. Merritt, 72 M.J. at 488 (concluding that the appellant lacked fair notice of
unenumerated Article 134 offense); Vaughan, 58 M.J. at 31 (observing “that
child neglect is not specifically listed in the MCM as an Article 134 offense,”
and noting the court “must look elsewhere to determine whether [the a]ppellant
should have reasonably contemplated that her conduct was subject to criminal
sanction” (emphasis added)). Consistent with the language of the specification
at issue, “indecent conduct” includes acts that may not involve others. In that
regard, the MCM explains that unlike “offenses previously proscribed by
‘[i]ndecent acts with another,’ . . . the presence of another person is no longer
required.” MCM, pt. IV, ¶ 104.c.(2).
The Government argues that the enumerated offense, or one like it, has
withstood due process challenge in other contexts. I agree. See, e.g., United
States v. Capps, No. ACM 38160, 2013 CCA LEXIS 842, at *8 (A.F. Ct. Crim.
App. 9 Oct. 2013) (unpub. op.) (concluding the “appellant had fair notice that
his conduct was criminal under the indecent acts statute” in his indecent com-
munications with a child); United States v. Hancock, NMCCA 201100466, 2012
15
United States v. Rocha, No. ACM 40134
CCA LEXIS 110, at *3 (N.M. Ct. Crim. App. 29 Mar. 2012) (unpub. op.) (inde-
cent conduct definition sufficient to “provide a person of ordinary intelligence
fair notice of what is prohibited” and not “so standardless that it authorizes or
encourages seriously discriminatory enforcement” (quoting United States v.
Williams, 553 U.S. 285, 304 (2008)); United States v. Rheel, NMCCA
201100108, 2011 CCA LEXIS 370, at *8–9 (N.M. Ct. Crim. App. 20 Dec. 2011)
(unpub. op.) (“The statutory definition [of indecent conduct] provides adequate
notice to an ordinary person about what conduct is forbidden.”); United States
v. Dunn, No. 200200020, 2005 CCA LEXIS 9, at *3 (N.M. Ct. Crim. App. 14
Jan. 2005) (unpub. op.) (holding “that indecent acts charged under Article 134,
UCMJ, is defined with sufficient definiteness that ordinary people can under-
stand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement”).
The Government argues, moreover, that the offense of “Indecent Conduct”
is inherently expansive in its reach. It argues that the President cannot rea-
sonably be required to foresee or enumerate with specificity all possible acts of
indecent conduct, which, per the enumerated offense, covers “immorality relat-
ing to sexual impurity which [are] grossly vulgar, obscene, and repugnant to
common propriety, and [which] tend[ ] to excite sexual desire or deprave morals
with respect to sexual relations.” MCM, pt. IV, ¶ 104.c.(1); see also Capps, 2013
CCA LEXIS 842, at *10 (“To the extent that the indecent acts statute might
lend itself to ‘close cases’ as to whether an accused’s conduct is indecent, ‘[t]he
problem [that poses] is addressed, not by the doctrine of vagueness, but by the
requirement of proof beyond a reasonable doubt.’” (first alteration in original)
(quoting Williams, 553 U.S. at 306)). I agree with the Government that Appel-
lant had objectively reasonable notice that engaging in sexual acts with a child-
like sex doll was proscribed by statute when evidence showed he engaged in
the conduct alleged in Specification 2 of the Charge, quoted supra in the opin-
ion of the court. Appellant’s furtive behavior is inferential evidence that a rea-
sonable person would know that using it to simulate anal and vaginal inter-
course with an actual child was service discrediting.
For these reasons, Appellant had fair notice of the criminality of his actions.
I would accordingly find Appellant is not entitled to relief on this basis. Fur-
thermore, I would reach the remainder of Appellant’s raised issues, and having
carefully considered them and finding no material prejudice to a substantial
right, I would resolve them adversely to Appellant—including Appellant’s sep-
arate contention raised at trial, and again on appeal, that the specification fails
to state an offense.
16
United States v. Rocha, No. ACM 40134
Accordingly, I respectfully dissent.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
17