United States v. Meakin ( 2019 )

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Scott A. MEAKIN, Lieutenant Colonel
United States Air Force, Appellant
No. 18-0339
No. ACM 38968
Argued January 23, 2019—Decided May 7, 2019
Military Judges: Joshua Kastenberg and
Natalie D. Richardson
For Appellant: Major Mark C. Bruegger (argued); Major
Allen S. Abrams (on brief); Lieutenant Colonel Anthony D.
Ortiz.
For Appellee: Captain Michael T. Bunnell (argued); Lieu-
tenant Colonel Joseph Kubler, Colonel Julie L. Pitvorec,
and Mary Ellen Payne, Esq. (on brief).
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges OHLSON,
SPARKS, and MAGGS, joined.
_______________
Judge RYAN delivered the opinion of the Court.
Appellant is a lieutenant colonel in the United States Air
Force accused of transmitting obscenity over the internet by
describing and encouraging the sexual exploitation and sex-
ual abuse of children. A military judge sitting as a general
court-martial convicted Appellant, contrary to his pleas, of
two charges and seventeen specifications of conduct unbe-
coming an officer and a gentleman, in violation of Article
133, UCMJ, 10 U.S.C. § 933 (2012). Consistent with his
pleas, he was acquitted of one specification of conduct unbe-
coming an officer and a gentleman, in violation of Article
133, UCMJ. He was sentenced to confinement for twenty
United States v. Meakin, No. 18-0339/AF
Opinion of the Court
months, forfeiture of all pay and allowances, and dismissal
from the service.1
The AFCCA affirmed the findings and sentence. We
granted review to determine:
Whether Appellant’s conviction for engaging in
anonymous, private, and consensual communica-
tions with an unknown partner(s) in the privacy of
his home was legally sufficient.
Finding no violation of Appellant’s constitutional rights,
we hold that his conviction was legally sufficient and affirm.
I. Facts
Using the pseudonym “John Jones,” Appellant engaged
in a series of online conversations where he described in lu-
rid detail the abuse, molestation, and rape of children with
individuals through email, chat rooms, and instant messag-
ing. At no time did Appellant provide his actual name, re-
veal that he was a member of the United States Air Force, or
disclose his status as a commissioned officer. Appellant did
not use a government computer to facilitate these conversa-
tions nor was there evidence that he sent the emails or mes-
sages from anywhere other than his private, off-base home.
Appellant endeavored to keep his discussions secret, though
there was no way to discern what happened to his emails or
messages once he sent them.
Unbeknownst to Appellant, one of his online “friends”
was actually Todd Martin, a detective working in the Inter-
net Child Exploitation Unit of the Holton Regional Police
Service in Ontario, Canada. Detective Martin created a pro-
file on a pornographic website under the username
“daddydaycare80,” and posed as a father who was offering
1 The United States Air Force Court of Criminal Appeals
(AFCCA) denied Appellant relief from his claims that the speech
underlying his convictions was protected by the First Amendment.
Upon finding an error in the Addendum to the Staff Judge Advo-
cate’s Recommendation, as well as a violation of Article 12, UCMJ,
10 U.S.C. § 812 (2012), the AFCCA set aside the convening au-
thority’s action and ordered new post-trial processing. Subse-
quently, the convening authority approved nineteen months and
fifteen days of confinement, and otherwise approved the adjudged
sentence.
2
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his minor daughter for sexual exploitation. Appellant, under
the username “dadmangles” met “daddydaycare80” in a chat
room labeled “incest.” The two exchanged instant messages
in the chat room for approximately half an hour, and, among
other things, discussed sexually assaulting a very young
(three- or four-year-old) girl as well as forcing each of their
minor daughters to perform oral sex. The conversation
moved from the chat room to email and continued for several
months, with Appellant using his love2ski4@yahoo.com ad-
dress and “daddydaycare80” using a
daddydaycare80@gmail.com address.
During the course of these email exchanges, Appellant
communicated, inter alia: requests for nude photographs of
daddydaycare80’s three- or four-year-old daughter; offers to
let daddydaycare80 sexually exploit Appellant’s own nine-
year-old daughter (he did not in fact have a daughter);
detailed descriptions of forcing both daughters to perform
oral sex; suggestions that the adults hire a prostitute to
engage in sex acts with daddydaycare80’s daughter;
descriptions of urinating inside of the child; and discussions
of forcing the child to eat food containing semen in order to
acclimate her to the taste. Appellant also sent a photograph
of an erect penis to “daddydaycare80,” asking if his daughter
would like it. While “daddydaycare80” did not actually have
a daughter, Appellant clearly believed that
“daddydaycare80” was offering a real child for sexual
exploitation. The communications with “daddydaycare80”
formed the basis for Specification 1.
This series of internet correspondence ultimately culmi-
nated in an agreement to meet in person. Appellant planned
to fly to Toronto to meet with daddydaycare80 and his minor
daughter. The two would then bring the child to a motel and
sexually exploit her. While they discussed both the exploita-
tion and the travel plans in some detail, Appellant ultimate-
ly backed out and terminated the conversation, stating: “Hey
man, I’m not going to come. I’m all talk man. I could never
do what I’ve been saying. Just like to talk.”
Detective Martin then traced Appellant’s IP address and
forwarded the information to the Department of Homeland
Security (DHS). Based on the information provided, DHS
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subsequently obtained a search warrant, executed a search
of Appellant’s residence, and seized numerous personal elec-
tronic devices. During a warned interview with OSI, Appel-
lant admitted to being responsible for the chats, using the
identity “John Jones,” and owning both the
love2ski4@yahoo.com account and the “dadmangles” profile
from the pornographic website.
A search of the seized personal electronic devices yielded
a lengthy record of internet messages between Appellant
and “daddydaycare80” as well as records of emails sent be-
tween Appellant and seventeen additional unique online
identities: (1) “Austin Hickey,” (2) “bjgoodson,” (3) “Chronic
Bator,” (4) “foodspunker,” (5) “funninezerosix,” (6)
“jes120652,” (7) “Jpunani3607,” (8) “grobbles77,” (9)
“maggiemos13,” (10) “meiert69,” (11) “mondyman1969,” (12)
“rcj303,” (13) “std4uanme,” (14) “steve636,” (15)
“stwiggy1988,” (16) “taylor23cd,” and (17) “wxlp97xqc.”
Emails from Appellant described in great and graphic detail
the sexual abuse of minors, as well as suggestions that the
unknown users engage in the sexual abuse of their minor
children. Following a pattern similar to the electronic “con-
versations” with “daddydaycare80,” the emails from Appel-
lant included, but were not limited to: requests for photo-
graphs of nude children; descriptions of children crying and
whimpering during intercourse and choking on Appellant’s
penis; descriptions of getting children drunk and forcing
them to perform oral sex; and descriptions of raping chil-
dren. The descriptions were vivid. The evidence adduced
from these additional conversations formed the basis for
Specifications 2 through 17 and the Specification of the Ad-
ditional Charge.
II. Procedural History
Prior to his court-martial, Appellant moved to dismiss
the charges and their specifications on the basis that his in-
ternet communications were private and thus constitutional-
ly protected. While not contesting that the writings were ob-
scene, Appellant relied primarily on Stanley v. Georgia, 394
U.S. 557 (1969), and Lawrence v. Texas, 539 U.S. 558 (2003),
to assert that he had a fundamental right to engage in sexu-
al conduct and expression within the privacy of his own
4
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Opinion of the Court
home, and that “[c]riminalizing the communication within
[his] private conversations cuts against the foundation of
[his] fundamental right” to privacy. The military judge de-
nied the motion to dismiss, noting that the Government al-
leged that Appellant’s written communications in the online
group chat and emails were distributed outside the privacy
of his home or private space, and thus fell outside of the
First Amendment protection afforded by Stanley. While cit-
ing Miller v. California, 413 U.S. 15 (1973), and United
States v. Moore, 38 M.J. 490 (C.A.A.F. 1994), rather than
Lawrence, the military judge also determined that the per-
sonal relationship between the parties was unknown, and
the language was of a nature to encourage and normalize
child exploitation and molestation.
On appeal to the AFCCA, Appellant argued, inter alia,
that his convictions should be set aside because the evidence
was both legally and factually insufficient. Specifically, as
relevant to the granted issue, Appellant renewed his argu-
ment that his speech over the internet was protected under
Stanley and the First Amendment because it was private,
anonymous, and apparently consensual. He further claimed
that this “speech” could not form the basis for an Article 133,
UCMJ, offense because there was no evidence that his com-
munications adversely affected the military or incited illegal
activity. He asserted that the AFCCA should apply the
heightened “clear and present danger” test articulated in
United States v. Hartwig2 when evaluating an Article 133,
UCMJ, offense involving an officer’s private speech. Appel-
lant argued that a reasonable officer would not have antici-
pated that his private, anonymous, and consensual email
communications would pose a “clear and present danger” to
his status as an officer.
2 39 M.J. 125, 128 (C.M.A. 1994) (“When an alleged violation
of Article 133 is based on an officer’s private speech, the test is
whether the officer’s speech poses a ‘clear and present danger’ that
the speech will, ‘in dishonoring or disgracing the officer personal-
ly, seriously compromise[] the person’s standing as an officer.’ ”
(citation omitted)). But this test only applies when the officer’s
private speech is entitled to First Amendment protection. Roth v.
United States, 354 U.S. 476, 486 (1957); see Moore, 38 M.J. at
492–93.
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The AFCCA declined to expand Stanley’s holding to cover
Appellant’s conduct, observing that “the zone of privacy
Stanley protected does not extend beyond the home,” and it
“did not create a right to receive, transport, or distribute ob-
scene material.” Because the AFCCA determined that Ap-
pellant’s indecent speech was not entitled to First Amend-
ment protection, rather than applying Hartwig’s “clear and
present danger” test, it simply asked whether Appellant’s
online chats and emails were legally sufficient to constitute
conduct unbecoming an officer. Noting that both private
speech and private conduct—even that which would be con-
stitutionally protected in civilian society—could constitute
an offense under Article 133, UCMJ, it determined that Ap-
pellant’s conduct was disgraceful to himself and the reputa-
tion of the military and affirmed the conviction.3
III. Discussion
Before this Court, Appellant again argues that his con-
viction is legally insufficient. First, citing Stanley, he argues
that his conviction for private, noncommercial communica-
tions with willing partners, even if indecent, is legally insuf-
ficient because he sent the communications from his private
home. Second, citing Lawrence, he claims his conviction for
these same internet writings is legally insufficient because
the writings are protected by his fundamental right to priva-
cy under the Fourteenth Amendment’s Due Process Clause.
Lastly, he asserts that the charged violations of Article 133,
UCMJ, are legally insufficient because a reasonable officer
would not have anticipated that private, anonymous, and
consensual email communications would pose a “clear and
present danger” to his status as an officer. For the reasons
set forth below, we disagree.
A.
This Court reviews questions of legal sufficiency de novo.
United States v. Kearns, 73 M.J. 177, 180 (C.A.A.F. 2014).
The test for legal sufficiency is whether, considering the evi-
3 As previously noted, see supra note 1, the AFCCA set aside
the convening authority’s action and ordered new post-trial pro-
cessing, and the convening authority approved nineteen months
and fifteen days of confinement and otherwise approved the ad-
judged sentence.
6
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Opinion of the Court
dence in the light most favorable to the prosecution, a rea-
sonable factfinder could have found all the essential ele-
ments beyond a reasonable doubt. United States v. Green, 68
M.J. 266, 268 (C.A.A.F. 2010). In order to convict Appellant
for conduct unbecoming an officer and a gentleman under
Article 133, UCMJ, as charged in this case, the prosecution
needed to prove beyond a reasonable doubt: (1) that the ac-
cused wrongfully and dishonorably communicated, in writ-
ing, certain indecent language; and (2) that, under the cir-
cumstances, these acts constituted conduct unbecoming an
officer and a gentleman. Manual for Courts-Martial, United
States pt. IV, para. 59.b. (2012 ed.) (MCM). Given the ob-
scene nature of the speech at issue in this case, all of which
was presented to the trier of fact, we easily conclude that the
charge and specifications in this case were legally sufficient.
B.
The primary thrust of Appellant’s first two arguments is
that the charges are legally insufficient because the conduct
at issue was private and thus constitutionally protected by
either the First Amendment and/or the Due Process Clause
of the Fourteenth Amendment. The First Amendment pro-
vides that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend. I. As related to Ap-
pellant’s argument, the Fourteenth Amendment4 provides
that no state may “deprive any person of life, liberty, or
property, without due process of law” and has been inter-
preted by the Supreme Court to contain a substantive due
4 Of course, it is the Due Process Clause of the Fifth Amend-
ment rather than that of the Fourteenth Amendment that applies
to the military justice system, an instrument of the federal gov-
ernment rather than the states. United States v. Bess, 75 M.J. 70,
74 n.3 (C.A.A.F. 2016). However, the Fifth Amendment also pro-
vides that no person shall be “deprived of life, liberty, or property,
without due process of law” and there is no reason to expect that
the general scope of the protections would be different in this con-
text. U.S. Const. amend. V; see United States v. Marcum, 60 M.J.
198, 206–08 (C.A.A.F. 2004) (conducting an analysis of the consti-
tutionality of Article 125, UCMJ, 10 U.S.C. § 925, under the test
articulated by Lawrence). We will, therefore, discuss the issue uti-
lizing the language set forth in the Supreme Court’s decision in
Lawrence.
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process protection for a liberty interest to form intimate,
meaningful, and personal bonds that manifest themselves
through sexual conduct. U.S. Const. amend. XIV; Lawrence,
539 U.S. at 564.
It is well-settled law that obscenity is not speech protect-
ed by the First Amendment, regardless of the military or ci-
vilian status of the “speaker.” United States v. Williams, 553
U.S. 285, 288 (2008); United States v. Wilcox, 66 M.J. 442,
447 (C.A.A.F. 2008). Appellant concedes that the writings
that formed the basis for the charges and specifications in
this case constituted obscenity.
Moreover, at trial, the parties agreed that para. 89 of pt.
IV of the MCM offered the appropriate definition for “inde-
cent.” That definition states:
“Indecent” language is that which is grossly offen-
sive to modesty, decency, or propriety, or shocks the
moral sense, because of its vulgar, filthy, or dis-
gusting nature, or its tendency to incite lustful
thought. Language is indecent if it tends reasona-
bly to corrupt morals or incite libidinous thoughts.
The language must violate community standards.
MCM pt. IV, para. 89.c. This Court has long held that
“indecent” is synonymous with obscene. Moore, 38 M.J. at
492. Obscenity can consist of visual images or language:
“there is no distinction as to the medium of the expression
when dealing with obscene material. Obscenity can manifest
itself ‘in conduct . . . or in the written and oral description of
conduct.’ ” United States v. Meakin, No. ACM 38968, 2017
CCA LEXIS 476, at *10–11, 2017 WL 3311199, at *4 (A.F.
Ct. Crim. App. July 14, 2017) (citing Kaplan v. California,
413 U.S. 115, 119 (1973)). And no one, including Appellant,
disputes that the speech in this case conveyed patently
offensive, “repugnant sexual fantasies involving children”
(from Appellant’s brief) that appealed, and was intended to
appeal, to the prurient interest. Such speech is not protected
by the First Amendment. Miller, 413 U.S. at 24.
1.
Appellant nonetheless argues that his obscenity, trans-
mitted from his home computer to anonymous third-parties
via online instant messages and emails, is analogous to hav-
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Opinion of the Court
ing a private discussion within the seclusion of his home and
thus protected under Stanley. We disagree.
The analogy is entirely inapt. First, the zone of privacy
that Stanley protects does not extend beyond the confines of
the home. United States v. Bowersox, 72 M.J. 71, 76
(C.A.A.F. 2013) (“ ‘The Court has consistently rejected
constitutional protection for obscene material outside the
home.’ ” (quoting United States v. Orito, 413 U.S. 139, 141–
42 (1973))). In this case the obscenity was both transported
and distributed via the internet. The Supreme Court has
consistently rejected the idea that “the right to possess
obscene material in the privacy of the home . . . creates a
correlative right to receive it, transport it, or distribute it.”
Orito, 413 U.S. at 141. Moreover, such transmissions
constitute “travel” in interstate commerce. United States v.
Pierce, 70 M.J. 391, 395 (C.A.A.F. 2011) (“Every court to
address the issue agrees with the unremarkable proposition
that the Internet is a means of interstate commerce.”); see,
e.g., United States v. Kammersell, 196 F.3d 1137, 1138–39
(10th Cir. 1999) (a defendant’s transmission of threatening
communication from his computer via “instant message,” to
recipient’s computer in the same state, was sufficient to
satisfy jurisdictional element of interstate commerce
regardless of where the recipient resided). Neither
transmission nor distribution of obscenity in interstate
commerce bears any resemblance to Stanley’s protection of
the mere private possession of obscene material within the
confines of one’s home.
Second, Stanley is predicated on both the sanctity of the
home and solitude. See 394 U.S. at 565 (“a State has no
business telling a man, sitting alone in his own house, what
books he may read or what films he may watch” (emphasis
added)). The Supreme Court has consistently declined to ex-
tend First Amendment protection where obscenity is physi-
cally taken outside of the home, even where it is intended for
private, noncommercial purposes. See United States v. Thir-
ty-Seven (37) Photographs, 402 U.S. 363, 376 (1971). Unlike
Stanley, Appellant’s obscenity was not contained within his
home for consideration within his own mind. Instead, he
produced, preserved, and transmitted his written obscenities
to seventeen separate individuals.
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While Stanley notes that our “whole constitutional herit-
age rebels at the thoughts of giving government the power to
control men’s minds,” 394 U.S. at 565, there is a stark dif-
ference between thinking thoughts within the confines of the
home and reaching outward to share obscenity and encour-
age strangers across the world to sexually abuse their chil-
dren. As the AFCCA ably explained, reliance on extending
Stanley to this case is misplaced:
In Stanley v. Georgia, 394 U.S. 557, 568 (1969), the
Supreme Court found a limited right to possess ob-
scene material in the privacy of one’s home. . . .
Since issuing this opinion, however, the Supreme
Court has made clear that its holding in Stanley is
a narrow one. See United States v. Reidel, 402 U.S.
351. 357 (1971). . . . Stanley emphasized the free-
dom of thought and mind in the privacy of the
home; Stanley did not create a right to receive,
transport, or distribute obscene material.5
Meakin, 2017 CCA LEXIS 476, at *10, 2017 WL 3311199, at
*4. This Court has repeatedly limited Stanley to its facts and
we see no reason to depart from our previous rulings. See,
e.g., United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005);
Hartwig, 39 M.J. 125; Moore, 38 M.J. 490.
2.
Appellant’s attempt to rely on Lawrence is similarly
flawed. In Lawrence the Supreme Court overruled Bowers v.
Hardwick, 478 U.S. 186 (1986), and held that a statute crim-
inalizing homosexual sodomy violated the Due Process
Clause of the Fourteenth Amendment. 539 U.S. at 564.
Lawrence grounded its analysis in a fundamental liberty in-
terest to form intimate, meaningful, and personal bonds that
manifest themselves through sexual conduct. Id. at 567.
Lawrence did not purport to include any and all behavior
touching on sex within its purview, and did not “conclude
that an even more general right to engage in private sexual
conduct would be a fundamental right.” Seegmiller v.
5 We acknowledge that it is unclear how people are to enjoy
the protection that Stanley carves out for privately possessing ob-
scenity in one’s home when it remains criminal to receive,
transport, or distribute it. See Orito, 413 U.S. at 141.
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LaVerkin City, 528 F.3d 762, 771 (10th Cir. 2008) (no protec-
tion for off-duty sexual conduct of police officers that violat-
ed department ethics guidelines); see also Erotic Service
Provider Legal Education and Research Project v. Gascon,
880 F.3d 450, 455–57 (9th Cir. 2018) (no fundamental due
process right to engage in prostitution).
In essence, Appellant seeks to place distributing or
transmitting obscenity to individuals whose true names he
did not even know and whom he had not met, on par with
the liberty interest and fundamental right to form intimate,
meaningful, and personal bonds that manifest themselves
through sexual conduct described in Lawrence. We agree
with the court in United States v. Stagliano, which observed,
when upholding statutes that criminalize the interstate traf-
ficking of obscenity against a challenge similarly grounded
in Lawrence, that:
What is evident from the Supreme Court’s decision
is its intent to prevent the state from burdening
certain intimate, consensual relationships by crim-
inalizing the private sexual acts that are instru-
mental to those relationships. In defining the con-
tours of the liberty interest, the Supreme Court
made a point to note that the statutes challenged in
Lawrence “seek to control a personal relationship
that . . . is within the liberty of persons to choose
without being punished as criminals.” 539 U.S. at
567. The defendants, in effect, demean [Lawrence’s]
liberty interest by defining it as a right to sexual
privacy, when it is really about the right to form
meaningful, personal bonds that find expression in
sexual intimacy.
693 F. Supp. 2d 25, 38 (D.D.C. 2010) (ellipsis in original).
We reject Appellant’s argument that distributing or
transmitting obscenity that encourages, describes, and rev-
els in the sexual exploitation of children over the internet
falls within the fundamental liberty interest recognized in
Lawrence.
C.
Finally, Appellant argues that even if his conduct wasn’t
constitutionally protected (and it was not) the charge of Ar-
ticle 133, UCMJ, was legally insufficient because he (1)
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couldn’t know that private consensual communications were
illegal or would pose “a clear and present danger” to his sta-
tus as an officer, and (2) there was “no connection at all be-
tween Appellant’s speech and the military mission.” We are
unpersuaded.
First, the “clear and present danger test” only applies to
speech that is protected by the First Amendment, not ob-
scenity. See supra, note 2.
Second, this Court has previously held an officer’s con-
duct need not violate other provisions of the UCMJ or even
be otherwise criminal to violate Article 133, UCMJ. United
States v. Lofton, 69 M.J. 386, 388 (C.A.A.F. 2011). “The gra-
vamen of the offense is that the officer’s conduct disgraces
him personally or brings dishonor to the military profession
such as to affect his fitness to command the obedience of his
subordinates so as to successfully complete the military mis-
sion.” Id. (internal quotation marks omitted) (citation omit-
ted); see also Parker v. Levy, 417 U.S. 733, 763 (1974)
(Blackmun, J., with whom Burger, C.J., joined, concurring)
(“[T]here are things which are malum in se and . . . things
which are merely malum prohibitum. . . . In military life
there is a higher code termed honor, which holds its society
to stricter accountability; and it is not desirable that the
standard of the Army shall come down to the requirements
of a criminal code.” (internal quotation marks omitted) (cita-
tion omitted)).
Third, this Court has long held that “[t]he conduct of an
officer may be unbecoming even when it is private.” Moore,
38 M.J. at 493. Indeed, we have recognized that “[c]onduct
which is entirely unsuited to the status of an officer and a
gentleman often occurs under circumstances where secrecy
is intended.” United States v. Norvell, 26 M.J. 477, 478
(C.M.A. 1988). Conduct that violates Article 133, UCMJ,
may consist of an “action or behavior in an unofficial or pri-
vate capacity which, in dishonoring or disgracing the officer
personally, seriously compromises the person’s standing as
an officer.” MCM pt. IV, para. 59.c.(2) (emphasis added).
Finally, we have long approved the enforcement of mili-
tary customs and usages by courts-martial to narrow the
otherwise broad scope of Article 133, UCMJ, Parker, 417
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U.S. at 753, and it has historically been the case that officers
are held to a higher standard of behavior. See id. at 743–45;
see also William Winthrop, Military Law and Precedents 711
(2d ed., Government Printing Office 1920) (1895) (“So, this
term [“Gentleman”] is believed to be used, not simply to des-
ignate a person of education, refinement and good breeding
and manners, but to indicate such a gentleman as an officer
of the army is expected to be. . . .” (emphasis added)).
This more exacting standard of conduct can be traced
back at least to “the days of knighthood” where “knights
were held to a higher standard of conduct than their fellow
countrymen” in “the Court of Chivalry.” James Snedeker,
Military Justice under the Uniform Code 887 (1953). An ex-
amination of the British antecedents of our military law
shows that the military law of Britain long contained re-
markably similar language to the current Article 133,
UCMJ. Parker, 417 U.S. at 745. In 1775, a conduct unbecom-
ing article was adopted into the Articles of War. Id. at 745–
46. And that language remained essentially unchanged from
1806, until it was enacted as Article 133 of the UCMJ in
1951. Id. The discussion to Article 133, UCMJ, further
notes:
There are certain moral attributes common to the
ideal officer and the perfect gentleman, a lack of
which is indicated by acts of dishonesty, unfair
dealing, indecency, indecorum, lawlessness, injus-
tice, or cruelty. Not everyone is or can be expected
to meet unrealistically high moral standards, but
there is a limit of tolerance based on customs of the
service and military necessity below which the per-
sonal standards of an officer . . . cannot fall without
seriously compromising the person’s standing as an
officer . . . or the person’s character as a gentleman.
MCM pt. IV, para. 59.c.(2) (emphasis added).
This heightened standard for officers commands respect
and obedience and preserves their ability to lead and com-
mand their subordinates. Parker, 417 U.S. at 743–45; see
also Winthrop, supra, p. 13, at 710–11 (stating that the of-
fense intended “to establish a higher standard of character
and conduct for officers of the army”). An officer is called up-
on to be a leader as well as a warrior, which necessitates
that commissioned officers are subject to stricter accounta-
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bility for their actions. Moore, 38 M.J. at 493 (citing Parker,
417 U.S. at 765 (Blackmun, J., with whom Burger, C.J.,
joins, concurring)); Fletcher v. United States, 26 Ct. Cl. 541,
563 (1891), rev’d sub nom. United States v. Fletcher, 148
U.S. 84 (1893).
Unlike Article 134, UCMJ, which is applicable to all
servicemembers, the plain text of Article 133, UCMJ, con-
tains no reference to the military service. Rather, it is a per-
sonal offense committed by commissioned officers, cadets, or
midshipmen that dishonors or disgraces them personally.
Thus, even conduct that has no bearing on military disci-
pline might establish the basis for an Article 133, UCMJ,
charge. See Fletcher, 148 U.S. at 91–92 (finding that failure
to pay certain debts was facially sufficient to establish the
offense of conduct unbecoming an officer and gentleman).
In sum, even if it were the test, we readily reject Appel-
lant’s claim that a reasonable officer, by reference to either
plain common sense or the customs of the service, would not
have anticipated that transmitting speech that describes,
encourages, and normalizes child sexual exploitation and
molestation in graphic detail would surpass the “limit of tol-
erance based on customs of the service and military necessi-
ty below which the personal standards of an officer . . . can-
not fall without seriously compromising the person’s
standing as an officer . . . or the person’s character as a gen-
tleman.” MCM pt. IV, para. 59.c.(2). We further reject Appel-
lant’s claim that a connection to the military mission is re-
quired to prosecute a violation of Article 133, UCMJ. As
such, under the facts of the case, we hold that the evidence
was legally sufficient.
IV. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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