United States v. Bowersox , 72 M.J. 71 ( 2013 )

UNITED STATES, Appellee
v.
Ryan A. BOWERSOX, Specialist
U.S. Army, Appellant
No. 12-0398
Crim. App. No. 20100580
United States Court of Appeals for the Armed Forces
Argued December 3, 2012
Decided April 2, 2013
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN, J., and EFFRON, S.J., joined. STUCKY, J., filed
a separate dissenting opinion.
Counsel
For Appellant: Captain James P. Curtin (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, and
Major Richard E. Gorini (on brief); Captain Matthew T. Grady.
For Appellee: Captain Bradley M. Endicott (argued); Lieutenant
Colonel Amber J. Roach and Major Catherine L. Brantley (on
brief); Captain Stephen E. Latino.
Military Judge: Gary J. Brockington
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bowersox, 12-0398/AR
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, a military judge sitting as a
general court-martial convicted Appellant of two specifications
of knowingly possessing a total of 224 obscene visual depictions
of minors engaging in sexually explicit conduct in violation of
18 U.S.C. § 1466A(b)(1) (2006), incorporated by clause 3,
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934 (2006). Appellant was acquitted of an additional
specification of wrongfully and knowingly possessing and viewing
child pornography in violation of Article 134, UCMJ. The
adjudged and approved sentence provided for a bad-conduct
discharge, confinement for four months, forfeiture of all pay
and allowances, and reduction to E-1.
The United States Army Court of Criminal Appeals (ACCA)
reviewed the special findings of the military judge with respect
to each depiction but affirmed the findings with respect to only
193 depictions, concluding that the remaining depictions either
were not obscene or did not depict sexually explicit conduct
and, therefore, were not factually sufficient to establish
violations of § 1466A(b)(1). United States v. Bowersox, 71 M.J.
561, 563 (A. Ct. Crim. App. 2012). The ACCA then reassessed and
affirmed the approved sentence. Id. at 565.
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United States v. Bowersox, 12-0398/AR
We granted review of the following issue:
WHETHER APPELLANT’S CONVICTION OF VIOLATING 18 U.S.C.
§ 1466A(b)(1), AS IMPORTED THROUGH CLAUSE 3 OF ARTICLE 134,
UCMJ, IS UNCONSTITUTIONAL AS APPLIED TO HIM BECAUSE THE
MINORS DEPICTED IN THE MATERIAL AT ISSUE WERE NOT ACTUAL
MINORS. SEE ASHCROFT v. FREE SPEECH COALITION, 535 U.S.
234 (2002); UNITED STATES v. WHORLEY, 550 F.3d 326 (4th
Cir. 2008).1
First, we hold that § 1466A(b)(1) applies to Appellant’s
conduct because the statute expressly provides that the minors
depicted need not actually exist. 18 U.S.C. § 1466A(c) (“It is
not a required element of any offense under this section that
the minor depicted actually exist.”). Second, § 1466A(b)(1) is
constitutional as applied to Appellant because the statute
requires that the proscribed visual depiction be obscene, 18
U.S.C. § 1466A(b)(1)(B) (“is obscene”), and the limited holding
of Stanley v. Georgia, 394 U.S. 557, 568 (1969), which
recognized an individual’s right to possess obscene materials
“in the privacy of his own home,” does not extend to Appellant’s
possession of obscene materials in his shared barracks room.
For these reasons, the decision of the ACCA is affirmed.
I. FACTS
Appellant lived with Specialist (SPC) Andy Bryant in a
shared military barracks room located on Fort Bragg, North
Carolina. One day in early February 2009, after entering the
1
United States v. Bowersox, 71 M.J. 362 (C.A.A.F. 2012) (order
granting review).
3
United States v. Bowersox, 12-0398/AR
shared barracks room, SPC Bryant observed Appellant abruptly
stand up, and step in front of his computer, obscuring SPC
Bryant’s view of the computer screen. SPC Bryant testified that
he found Appellant’s behavior “odd.”
Shortly thereafter, Appellant asked SPC Bryant for the
phone number of their superior, Sergeant (Sgt) Clark. When SPC
Bryant asked Appellant why he wanted the phone number, Appellant
said that he wanted to report a web site and asked SPC Bryant to
come over and see the web site for himself. Appellant then
showed SPC Bryant his computer screen, on which there were
images of minors engaged in sexual activities. Appellant asked
SPC Bryant if he should report the web site. SPC Bryant told
Appellant to report the web site and left the room.
Approximately one week later, SPC Bryant asked Sgt Clark if
Appellant had reported the web site; Appellant had not. After
confronting Appellant, who feigned ignorance of the web site,
SPC Bryant reported the incident to his first sergeant, who
immediately sent him to Criminal Investigation Command (CID) to
make an official report.
Appellant’s shared barracks room was subject to inspection
under Military Rule of Evidence (M.R.E.) 313(b), which
authorizes “commanding officers to conduct inspections of their
units -- ‘as an incident of command’ -- when ‘the primary
purpose . . . is to determine and to ensure the security,
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United States v. Bowersox, 12-0398/AR
military fitness, or good order and discipline of the unit,’”
United States v. Jackson, 48 M.J. 292, 293 (C.A.A.F. 1998)
(alteration in original) (quoting M.R.E. 313(b)), and may
include “‘an examination to locate and confiscate unlawful
weapons and other contraband.’” Id. at 294 (quoting M.R.E.
313(b)). However, the “‘primary purpose’ of an inspection
cannot be to ‘obtain[] evidence for use in a trial by court-
martial.’” Id. (alteration in original) (quoting M.R.E.
313(b)). Therefore, pursuant to CID regulations, Special Agent
(SA) Jeremy Kamphuis obtained a verbal authorization from a
military magistrate to search Appellant’s room for computer
electronic devices, and then obtained a warrant from the same
magistrate the following day. During the authorized search, CID
seized, among other things, Appellant’s desktop and laptop
computers.
The computers were sent to SA Kirk Ellis, the Computer
Crimes Coordinator for the 10th MP Battalion, who conducted a
search of the computers’ hard drives. The search of the laptop
computer’s hard drive uncovered approximately twenty-seven
images depicting minors engaged in sexual activities. The
search of the desktop computer’s hard drive uncovered
approximately 318 images depicting minors engaged in sexual
activities. None of the images found on Appellant’s computers
depicted real children. In a sworn statement made to CID,
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United States v. Bowersox, 12-0398/AR
Appellant admitted that he was “addict[ed] to Anime”2 and, on
multiple occasions, had viewed and downloaded anime images that
depicted minors engaging in sexual activities.3
II. THE ACCA OPINION
As relevant to the granted issue, the ACCA held that 18
U.S.C. § 1466A(b)(1) is constitutional as applied to Appellant
because “the circumstances of [A]ppellant’s case remove it from
the circumscribed protections afforded in Stanley.” Bowersox,
71 M.J. at 564. The lower court observed that “‘[t]he threshold
of a barracks/dormitory room does not provide the same sanctuary
as the threshold of a private home.’” Id. (quoting United
2
While Appellant described the images as “anime” in a sworn
statement to CID they are more accurately described as realistic
computer animation. Anime is “a style of animation originating
in Japan that is characterized by stark colorful graphics
depicting vibrant characters in action-filled plots often with
fantastic or futuristic themes.” Merriam-Webster’s Collegiate
Dictionary 49 (11th ed. 2008). In contrast, the images at issue
depict real-looking children and adults engaged in sexual
conduct. The images are created with such realism that they
show expressions of pain and pleasure on the child participants’
faces, the children’s shadows on the ground, and even depict the
leg hairs of the men engaging in sex with the children. While
the record does not establish that these images portray real,
living children, it does demonstrate that these images are far
removed from the fanciful cartoon caricature commonly understood
to be “anime.”
3
In his statement, Appellant described various files on his
computer. One file consisted of “six minors (less than 10 years
of age) in a multiracial setting with one adult at the end, all
engaged in sexual acts.” Other files consisted of: (1)
“shotacon” images, which generally depict “two minor boys
engaged in sexual activities,” (2) “straight shotacon” images,
which generally depict “animated girls who are older than the
boys engaged in sexual activities,” and (3) images of incest.
6
United States v. Bowersox, 12-0398/AR
States v. Conklin, 63 M.J. 333, 337 (C.A.A.F. 2006)). The ACCA
therefore concluded that “[t]here is no constitutionally
recognized right to possess” “obscene visual depictions of a
minor engaging in sexually explicit conduct . . . in a shared
barracks room in the special maritime and territorial
jurisdiction of the United States.”4 Id.III. DISCUSSION
Appellant argues that § 1466A(b)(1) is unconstitutional as
applied to him both because none of the images found on his
computers were of real minors, and because the limited right to
possess obscenity in the privacy of one’s own home, as
recognized in Stanley, 394 U.S. 557, extends to Appellant’s
shared barracks room. We disagree.
A.
First, Appellant claims that the application of
§ 1466A(b)(1) to his case is unconstitutional because the
statute requires that a real minor be depicted and no real
4
The scope of 18 U.S.C. § 1466A is limited by subsection (b) to
“[a]ny person . . . in a circumstance described in subsection
(d).” 18 U.S.C. § 1466A(b). The “circumstance” listed in
subsection (d), as relevant to Appellant, is that “the offense
is committed in the special maritime and territorial
jurisdiction of the United States or in any territory or
possession of the United States.” 18 U.S.C. § 1466A(d)(5).
Here, Appellant and SPC Bryant’s shared barracks room is in
building H-4812 on Fort Bragg, North Carolina. No one disputes
that Appellant’s shared barracks room is in the “special
maritime and territorial jurisdiction of the United States.”
See 18 U.S.C. § 7 (2006).
7
United States v. Bowersox, 12-0398/AR
minors were depicted in the images found on Appellant’s
computers.
Under § 1466A(b)(1) and (d)(5), it is a criminal offense to
“knowingly possess[],” “in the special maritime and territorial
jurisdiction of the United States,” “a visual depiction of any
kind, including a drawing, cartoon, sculpture, or painting,
that . . . depicts a minor engaging in sexually explicit
conduct[,] and . . . is obscene.”5 18 U.S.C. § 1466A(b)(1), (d).
Contrary to Appellant’s argument, § 1466A(b)(1) does not
require proof that the depictions represent “real” minors.
First, and most importantly, § 1466A(c) expressly states, “[i]t
is not a required element of any offense under this section that
the minor depicted actually exist.” Despite the clarity of this
language, Appellant contends that it does not mean what it says,
but rather means that Congress intended subsection (c) to
“reliev[e] the Government from the burden of exhaustively
searching the country to identify conclusively the children
involved in the production of the child pornography.” Brief for
Appellant at 9, United States v. Bowersox, No. 12-0398 (C.A.A.F.
Aug. 28, 2012) (quoting United States v. Whorley, 550 F.3d 326,
5
A minor is “any person under the age of eighteen years.” 18
U.S.C. § 2256(1). “Sexually explicit conduct” includes actual
or simulated sexual intercourse, sodomy, masturbation,
bestiality, sadistic or masochistic abuse, or lewd public
behavior. 18 U.S.C. § 2256(2)(A).
8
United States v. Bowersox, 12-0398/AR
351 (4th Cir. 2008) (Gregory, J., concurring in part and
dissenting in part)).
Appellant’s argument fails for at least two reasons.
First, Congress provided equally clear and alternative language
for doing exactly what Appellant describes when it defined an
“identifiable minor” in another section of that chapter --
“[this definition] shall not be construed to require proof of
the actual identity of the identifiable minor.” 18 U.S.C.
§ 2256(9)(B) (emphasis added). That is not the language
Congress used in the statute before us. See United States v.
Wilson, 66 M.J. 39, 45-46 (C.A.A.F. 2008) (“‘[Where] Congress
includes particular language in one section of a statute but
omits it in another section . . . it is generally presumed that
Congress acts intentionally and purposely in the
disparate . . . exclusion.’” (alteration in original) (quoting
Russello v. United States, 464 U.S. 16, 23 (1983) (internal
quotation marks omitted)).
Second, even if the words that a minor need not “actually
exist,” 18 U.S.C. § 1466A(c), are open to alternative
interpretations, that they mean the depictions need not be of a
real minor is further illustrated by the list of visual
depictions prohibited under the statute, which specifically
lists both drawings and cartoons. See 18 U.S.C. § 1466A(b).
Moreover, visual depictions are themselves defined to include a
9
United States v. Bowersox, 12-0398/AR
“computer image or picture, or computer generated image or
picture, whether made or produced by electronic, mechanical, or
other means.” 18 U.S.C. § 1466A(f)(1). Neither drawings nor
cartoons nor computer-generated images necessarily or logically
require a real minor. In our view, the express reference to
“computer image or picture, or computer generated image or
picture,” and to drawings and cartoons, makes clear that the
statute envisioned and made criminal the possession of precisely
the type of depictions on which Appellant’s conviction was based
-- obscene, computer-generated images of minors engaged in
sexually explicit conduct.
In sum, we agree with the Fourth Circuit’s analysis of a
related statutory subsection in United States v. Whorley:
While § 1466A(a)(1) would clearly prohibit an obscene
photographic depiction of an actual minor engaging in
sexually explicit conduct, it also criminalizes
receipt of “a visual depiction of any kind, including
a drawing, cartoon, sculpture, or painting,” that
“depicts a minor engaging in sexually explicit
conduct” and is obscene. Id. § 1466A(a)(1) (emphasis
added). In addition, Whorley overlooks § 1466A(c),
which unambiguously states that “[i]t is not a
required element of any offense under this section
that the minor depicted actually exist.” 18 U.S.C.
§ 1466A(c). The clear language of § 1466A(a)(1) and §
1466A(c) is sufficiently broad to prohibit receipt of
obscene cartoons, as charged in Counts 21–40.
Whorley, 550 F.3d at 336.6
6
We further agree with Whorley that Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002), is inapposite. Whorley, 550
F.3d at 336. The statute at issue in Ashcroft was held to be
10
United States v. Bowersox, 12-0398/AR
B.
Appellant also claims that § 1466A(b)(1) is
unconstitutional as applied to him because he has the right to
possess obscenity in the privacy of his shared barracks room.
The First Amendment states that “Congress shall make no
law . . . abridging the freedom of speech . . . .” U.S. Const.
amend. I. However, “obscene material is unprotected by the
First Amendment.” Miller, 413 U.S. at 23. Nonetheless, in
Stanley, 394 U.S. at 568, the Supreme Court held that a statute
prohibiting the possession of obscene material within the home
was unconstitutional. In doing so, the Court stated that, “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.” Id.
at 565. The constitutional principle underlying the holding in
Stanley is less than clear. Compare United States v. 12 200-Ft.
Reels of Super 8mm. Film, 413 U.S. 123, 126 (1973) (“Stanley
depended, not on any First Amendment right to purchase or
possess obscene materials, but on the right to privacy in the
home.”), with Osborne v. Ohio, 495 U.S. 103, 108 n.3 (1990) (“We
constitutionally overbroad because it reached and proscribed
speech that was neither child pornography under New York v.
Ferber, 458 U.S. 747, 764-66 (1982), nor obscene under Miller v.
California, 413 U.S. 15, 24 (1973). Ashcroft, 535 U.S. at 240.
In contrast, § 1466A(b)(1) only prohibits depictions of minors
engaging in sexually explicit conduct if the depictions are
obscene. 18 U.S.C. § 1466A(b)(1)(A)-(B).
11
United States v. Bowersox, 12-0398/AR
have since indicated that our decision in Stanley was ‘firmly
grounded in the First Amendment.’”) (citation omitted). But no
one disputes that: (1) obscenity itself is not protected speech
under the First Amendment, see Miller, 413 U.S. at 23; (2)
Stanley’s protection was grounded in the paramount importance
accorded in our society to the “privacy of a person’s own home,”
Stanley, 394 U.S. at 564 (emphasis added) (finding that “[the]
right to receive information and ideas, regardless of their
social worth . . . takes on an added dimension” -- “the
[fundamental] right to be free . . . from unwanted governmental
intrusions into one’s privacy” -- where the prosecution is for
“mere possession of [obscene] matter in the privacy of a
person’s own home”); and (3) Stanley has been strictly limited
to its facts, see Osborne, 495 U.S. at 108 (“Stanley was a
narrow holding.”).
After Stanley, “the States retain[ed] broad power to
regulate obscenity; that power simply does not extend to mere
possession by the individual in the privacy of his own home.”
Stanley, 394 U.S. at 568. Because “[t]he Constitution extends
special safeguards to the privacy of the home,” United States v.
Orito, 413 U.S. 139, 142 (1973), “Stanley should not be read too
broadly,” Osborne, 495 U.S. at 108. “The Court has consistently
rejected constitutional protection for obscene material outside
the home.” Orito, 413 U.S. at 143. Because the zone of privacy
12
United States v. Bowersox, 12-0398/AR
that Stanley protected does not extend beyond the home, id. at
141-43, the issue is whether a shared barracks room is a “home.”7
While we agree with Judge Stucky that servicemembers have a
reasonable expectation of privacy in a shared barracks room that
protects them from unreasonable government intrusions, we do not
agree that one’s privacy interest in a shared barracks room is
coextensive with one’s privacy interest in their home, see
United States v. McCarthy, 38 M.J. 398, 403 (C.M.A. 1993)
(“[T]he threshold of a barracks/dormitory room does not provide
the same sanctuary as the threshold of a private home.”); a
place where “[t]he Constitution extends special safeguards,”
Orito, 413 U.S. at 142. In discussing a servicemember’s
reasonable expectation of privacy in a shared barracks room, the
Court has acknowledged that:
[t]here are substantial differences between [a
barracks room and a private home]. Appellant was
assigned his room; he did not choose it. Appellant
was assigned his roommate; he did not choose him.
Appellant could not cook in his room, have overnight
guests, or have unaccompanied underage guests.
Appellant knew that he was subject to inspection to a
degree not contemplated in private homes.
McCarthy, 38 M.J. at 403. Thus, a soldier has less of an
expectation of privacy in his shared barracks room than a
7
Since the First Amendment’s protections do not otherwise depend
on whether one’s conduct occurred within the privacy of one’s
home, we rely on our Fourth Amendment jurisprudence to determine
whether a shared barracks room is a “home” for purposes of
Stanley.
13
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civilian does in his home. See, e.g., id. at 401 (“‘The soldier
cannot reasonably expect the Army barracks to be a sanctuary
like his civilian home.’” (quoting Committee for GI Rights v.
Callaway, 518 F.2d 466, 477 (D.C. Cir. 1975))); see also Rule
for Courts-Martial (R.C.M.) 302(e)(1), (2) (“apprehension[s] may
be made at any place, except” at a “private dwelling,” the
definition of which includes “single family houses, duplexes,
and apartments,” on or off a military installation, but
explicitly excludes “living areas in military barracks”); M.R.E.
313(b) (permitting inspection “of the whole or part of a
unit . . . as an incident of command . . . to ensure the
security, military fitness, or good order and discipline of the
unit”).8
Here, the fact that Appellant purposefully exposed SPC
Bryant to the obscene computer depictions in their shared
barracks room highlights the divergent natures of a shared
barracks room and a private home. See Stanley, 394 U.S. at 565(“If the First Amendment means anything, it means that 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.”). The very
8
Application of McCarthy and reference to R.C.M. 302(e) and
M.R.E. 313, which all assist in discerning the scope of the
Fourth Amendment’s right of privacy in the military context, are
appropriate here where we are confronted with the question
whether the barracks is a home for purposes of Stanley. See
Stanley, 394 U.S. at 564-65.
14
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nature of a shared barracks room increases the risk that obscene
materials will be viewed by those who do not wish to view them.
Cf. id. at 567 (concluding that an individual’s private
possession of obscene material in the home does not present the
danger that “it might intrude upon the . . . privacy of the
general public”). The “natural tendency of material in the home
being kept private,” Orito, 413 U.S. at 143, is substantially
diminished in a shared barracks room.
Moreover, while a servicemember has a reasonable
expectation of privacy in the files kept on a personal,
password-protected computer for purposes of the Fourth
Amendment, see Conklin, 63 M.J. at 337 (finding the warrantless
search of a servicemember’s computer illegal because “an
individual sharing a two-person dormitory room has a reasonable
expectation of privacy in the files kept on a personally owned
computer”), that privacy interest is not congruent with the
discrete and special privacy interest in one’s home recognized
by Stanley and was, in this case, overcome by a lawful warrant
authorizing a search for contraband based on probable cause.
See United States v. Leedy, 65 M.J. 208, 214-17 (C.A.A.F. 2007)
(finding a search warrant that authorized a search of the
appellant’s personal computer in his shared dormitory room for
child pornography valid where it was based on probable cause);
cf. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617,
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United States v. Bowersox, 12-0398/AR
653 n.15 (1989) (“[T]he law recognizes no right to possess
[contraband].” (citing One 1958 Plymouth Sedan v. Pennsylvania,
380 U.S. 693, 699 (1965))). Stanley has been limited to its
facts, and we decline to extend its holding to a shared barracks
room.9 See 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. at 127(observing that the holding in Stanley rests on an “explicitly
narrow and precisely delineated privacy right,” and “reflects no
more than what Mr. Justice Harlan characterized as the law’s
solicitude to protect the privacies of the life within [the
home]” (alteration in original) (internal quotation marks and
citation omitted)).
IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
9
To be clear, that Appellant’s conduct occurred “in the special
maritime and territorial jurisdiction of the United States” is
relevant to our analysis only insofar as it satisfies 18 U.S.C.
§ 1466A(d)(5). Our conclusion that Appellant’s conduct is not
protected is based on the determination that Stanley does not
extend beyond the home, see Orito, 413 U.S. at 143, and that the
shared barracks room at issue in this case does not merit the
protections of a home, for purposes of Stanley.
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STUCKY, Judge (dissenting):
I disagree with the majority’s holding that 18 U.S.C.
§ 1466A(b)(1) (2006) is constitutional as applied. Where a
statute seeks to prohibit constitutionally protected conduct,
the statute cannot be examined in a vacuum. This Court must
consider how the relevant statutory provisions interact with
each other, and examine this interaction in light of the
Constitution, Supreme Court precedent, and the facts and
circumstances of the case. In this case, Appellant was
convicted only of mere possession of obscenity -- conduct that
is constitutionally protected in some circumstances under
Stanley v. Georgia, 394 U.S. 557 (1969). Therefore, it is
necessary to address the applicability of Stanley to determine
the constitutionality of § 1466A(b)(1) as applied to Appellant.
I believe Stanley applies to the barracks under these
circumstances, and would therefore hold that § 1466A(b)(1) is
unconstitutional as applied to Appellant.
I.
Generally, obscenity is not protected by the First
Amendment. Miller v. California, 413 U.S. 15 (1973); Roth v.
United States, 354 U.S. 476 (1957). Specifically, the Supreme
Court has held that the production, receipt, transportation, and
distribution of obscene materials are not constitutionally
protected. United States v. Reidel, 402 U.S. 351 (1971); United
United States v. Bowersox, No. 12-0398/AR
States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376
(1971); United States v. Orito, 413 U.S. 139, 142 (1973).
However, mere possession of obscene material in one’s home is
constitutionally protected. Stanley, 394 U.S. at 559.
In Stanley, federal and state agents secured a warrant to
search Stanley’s home to investigate alleged bookmaking
activities. Id. at 558. They found little evidence of
bookmaking, but found “obscene” films in a bedroom desk drawer.
Id. Stanley was subsequently convicted of knowingly possessing
obscene matter in violation of Georgia law. Id. The Supreme
Court overturned his conviction:
Whatever may be the justifications for other statutes
regulating obscenity, we do not think they reach into
the privacy of one’s own home. If the First Amendment
means anything, it means that 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.
Id. at 565. Stanley has been repeatedly limited to mere
possession within the “home.” See, e.g., Smith v. United
States, 431 U.S. 291, 307 (1977). The threshold issue in this
case is whether a shared barracks room may ever constitute a
“home” under Stanley.
The majority bases its holding that Stanley does not apply
in the barracks on Fourth Amendment grounds: a servicemember
does not have the same expectation of privacy in a barracks room
as he would in a civilian home. While I agree as a general
2
United States v. Bowersox, No. 12-0398/AR
matter that the barracks does not provide the same expectation
of privacy as a civilian home, I do not agree that a
servicemember’s privacy interest in a shared barracks room must
be coextensive with the privacy interest in a home to trigger
the protections of Stanley, and I cannot reconcile the
majority’s holding with this Court’s Fourth and First Amendment
jurisprudence.1
Aside from a limited inspection regime and the need for
discipline and military readiness, a servicemember has Fourth
Amendment protections in a shared barracks room. See United
States v. Thatcher, 28 M.J. 20 (1989) (recognizing that an
1
I agree with the majority that the Supreme Court has wavered
regarding the import of the constitutional principles underlying
Stanley. See United States v. 12 200-Ft. Reels of Super 8mm.
Film, 413 U.S. 123, 126 (1973) (suggesting that Stanley was
rooted in the Fourth Amendment rather than the First Amendment);
but see Osborne v. Ohio, 495 U.S. 103, 108 n.3 (1990) (“We have
since indicated that our decision in Stanley was ‘firmly
grounded in the First Amendment.’” (citing Bowers v. Hardwick,
478 U.S. 186, 195 (1986), overruled on other grounds by Lawrence
v. Texas, 539 U.S. 558 (2003)). While the Supreme Court has
gone back and forth about the main constitutional support for
Stanley, looking at the plain language of the opinion and
decades of application, Stanley is now what it originally was --
an opinion rooted in both the First and Fourth Amendments.
Which amendment was more central to the holding of Stanley is
not dispositive of any one case; rather, the relative importance
of each amendment to a particular case will vary depending on
the facts and circumstances. In other words, Stanley rests on
the intersection of First and Fourth Amendment rights, and it is
necessary to consider both aspects of Stanley to determine its
applicability -- specifically, whether the shared barracks room
in this case constitutes a “home” under Stanley.
3
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inspection regime and the need for military fitness and
readiness does not preclude a servicemember’s reasonable
expectation of privacy in the barracks). Undoubtedly, these
military needs limit the application of some Fourth Amendment
rights in the barracks. See United States v. McCarthy, 38 M.J.
398, 403 (C.M.A. 1993) (“the threshold of a barracks/dormitory
room does not provide the same sanctuary as the threshold of a
private home”). However, this Court has acknowledged that “[i]n
the military context, the barracks or dormitory often serves as
the servicemember’s residence, his or her home.” United States
v. Macomber, 67 M.J. 214, 219 (C.A.A.F. 2009). To this end,
this Court has specifically held that servicemembers have some
Fourth Amendment protections in a shared barracks. See, e.g.,
United States v. Conklin, 63 M.J. 333 (C.A.A.F. 2006) (holding
that an accused has a privacy interest in files on his
personally owned computer); United States v. Middleton, 10 M.J.
123 (C.M.A. 1981) (recognizing that a locked wall locker is
protected by the Fourth Amendment). Indeed, a servicemember’s
Fourth Amendment protections are at their apex when it comes to
secured personal property within the barracks.
This Court has also upheld a servicemember’s First
Amendment rights as long as the speech does not have a “direct
and palpable connection” to “the military mission or military
environment.” See United States v. Wilcox, 66 M.J. 442, 448–49
4
United States v. Bowersox, No. 12-0398/AR
(C.A.A.F. 2008) (finding a conviction for making anti-
government, disloyal, and racially intolerant statements online
legally insufficient under Article 134, Uniform Code of Military
Justice, 10 U.S.C. § 934 (2006)).
Like Stanley, this case lies at the intersection of First
and Fourth Amendment rights. Appellant was charged with conduct
protected by the First Amendment -- mere possession -- in a
place expressly protected by the Fourth Amendment -- a password-
protected computer. Whatever the limits of constitutional
protections in the barracks are,2 where, as here, a
servicemember’s First and Fourth Amendment rights intersect, the
barracks are most like the “home” envisioned by the Supreme
Court in Stanley.
The majority attempts to distinguish the protections
identified above from “the discrete and special privacy interest
in one’s home recognized by Stanley.” This “discrete and
special privacy interest” is not separate from a servicemember’s
First and Fourth Amendment rights; rather, it is just an
acknowledgment that in certain circumstances the protections
overlap:
2
To be clear, I do not believe that Stanley applies in the
barracks under every circumstance. For example, the
constitutional protections outlined in Stanley would not extend
to hanging obscene posters in a barracks dormitory because of
the potential effect on military discipline.
5
United States v. Bowersox, No. 12-0398/AR
[The] right to receive information and ideas,
regardless of their social worth, is fundamental to
our free society. Moreover, in the context of . . . a
prosecution for mere possession of [obscenity] in the
privacy of a person's own home -- that right takes on
an added dimension . . . the right to be free, except
in very limited circumstances, from unwanted
governmental intrusions into one's privacy.
Stanley, 394 U.S. at 564 (internal citation omitted).
These constitutional protections cannot be overcome, as the
majority asserts, by a lawful warrant authorizing a search for
contraband. Stanley does not address the authorization to
search for such materials in the home. See Stanley, 394 U.S. at
568 (overturning Stanley’s conviction even though there was a
lawful warrant to search for contraband). As in Stanley, a
lawful warrant may grant access to search a private place, but
it cannot negate Stanley’s prohibition on criminalizing mere
possession of obscene materials.3
Even assuming, as the majority does, that the application
of Stanley depends entirely on the Fourth Amendment, I would
hold that Stanley applies in the barracks under these
circumstances. Bowersox, __ M.J. at __ (13) n.7. The
Constitution does not end at the barracks door, and the Fourth
Amendment applies to the area at issue -- a password-protected
3
The cases the majority cites to support this proposition are
inapposite as they address searches for materials that are not
constitutionally protected, such as contraband and child
pornography. United States v. Bowersox, __ M.J. __ (15-16)
(C.A.A.F. 2013).
6
United States v. Bowersox, No. 12-0398/AR
computer in a shared barracks room. Here we are dealing with
private materials in a private space that, by virtue of password
protections, was inaccessible by others. Unlike choosing a
roommate, cooking, inspections, overnight guests, or
apprehension by military police, the “use” of the barracks room
at issue did not implicate the shared or command aspects of the
barracks room -- the aspects that make a barracks room less like
a “home.”4 Rather, this case only involves aspects of a barracks
room that are most like a “home” and are specifically protected
under the Fourth Amendment.
Assuming Stanley applies, the next question is whether
§ 1466A (b)(1) is unconstitutional as applied to Appellant.
II.
Possession of actual child pornography functions as an
exception to the constitutional protections in Stanley and
4
The fact that Appellant invited his roommate, SPC Bryant, over
to his side of the room and showed him an image on his computer
does not negate Appellant’s privacy interest in everything else
on the computer. Furthermore, Appellant did not expose SPC
Bryant to any of the obscene materials at issue; Appellant
apparently only showed him the images he was found not guilty of
possessing. Where an individual voluntarily looks at something
when asked by his roommate, the risk of exposure to obscene
materials is no greater than in a college dormitory or other
civilian roommate situation and it certainly does not “intrude
upon the privacy of the general public.” Bowersox, __ M.J. at
__ (15) (ellipsis and quotation marks omitted) (quoting Stanley,
394 U.S. at 567). It cannot be the case that the “home”
envisioned in Stanley excludes shared living situations because
of an increased “risk that obscene materials will be viewed by
those who do not wish to view them.” Id.7
United States v. Bowersox, No. 12-0398/AR
Miller because of the dangers it presents to real children. See
New York v. Ferber, 458 U.S. 747, 757–61 (1982); Osborne, 495
U.S. at 109. To further protect children, Congress passed the
Child Pornography Prevention Act of 1996 (CPPA), which
criminalized aspects of child pornography, including virtual
child pornography. 18 U.S.C. § 2256. In 2002, the Supreme
Court held that the CPPA was overbroad and unconstitutional
because it banned speech that was neither actual child
pornography covered by Ferber, nor obscene under Miller.
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 239–40, 258
(2002). After Ashcroft, to “restore the government’s ability to
prosecute child pornography offenses successfully” Congress
remedied the error in the CPPA and enacted new laws to address
virtual child pornography. S. Rep. No. 108-2, at 1, 4–6;
PROTECT Act, Pub. L. No. 108-21, § 504, 117 Stat. 650, 680–82
(2003) (codified as amended at 18 U.S.C. § 1466A).
Appellant was charged with violating 18 U.S.C.
§ 1466A(b)(1), which prohibits knowing possession of “a visual
depiction of any kind” that “depicts a minor engaging in
sexually explicit conduct” and is obscene. The statute
expressly provides that it “is not a required element of any
offense under this section that the minor depicted actually
exist.” § 1466A(c). Five circumstances trigger application of
the statute. § 1466A(d)(1)–(5). The first four involve
8
United States v. Bowersox, No. 12-0398/AR
communicating or transporting virtual child pornography through
interstate or foreign commerce by any means, including a
computer. § 1466A(d)(1)–(4).
If Appellant had been charged under any of the first four
triggering circumstances, he would not be entitled to the
protections of Stanley because he would have been charged with
activity beyond mere possession. Indeed, besides Stanley, all
of the cases cited by the majority to support its holding
involve conduct beyond mere possession, or involve possession of
actual child pornography -- both of which raise different
constitutional issues. However, the triggering circumstance
charged in this case was that Appellant committed the offense in
the barracks which is “in the special maritime and territorial
jurisdiction of the United States.” § 1466A(d)(5). In other
words, Appellant was charged with the knowing possession of
virtual child pornography in the special maritime and
territorial jurisdiction of the United States.
While Congress does have the full and exclusive authority
to legislate for the special maritime and territorial
jurisdiction of the United States and therefore the barracks, it
cannot legislate without regard for constitutional rights
recognized by the Supreme Court. I can find no support, in law
or logic, for the proposition, implied by § 1466A(d)(5), that
Stanley does not apply in the special maritime and territorial
9
United States v. Bowersox, No. 12-0398/AR
jurisdiction of the United States. Even if Congress intended to
criminalize the depictions at issue, where an accused is only
convicted of constitutionally protected conduct, the fact that
the statute expressly provides that it “is not a required
element of any offense under this section that the minor
depicted actually exist” does not save the statute.5 § 1466A(c).
Where there is tension between a constitutional right and a
statute, the constitution trumps. See Marbury v. Madison, 5
U.S. 137, 180 (1803) (“a law repugnant to the constitution is
void”).
I may not agree with Appellant’s choice of reading
material, but he was charged only with constitutionally
protected conduct, in a place deserving of constitutional
protection, and I would therefore reverse the decision of the
United States Army Court of Criminal Appeals.
5
I agree with Part III.A of the majority’s decision insofar as
it suggests that the combination of § 1466A(a)(1) and § 1466A(c)
is not constitutionally deficient. Bowersox, __ M.J. at __ (8–
10); see also United States v. Whorley, 550 F.3d 326 (4th Cir.
2008) (finding the accused’s conviction under § 1466A(a)(1) for
the receipt of obscene depictions of minors constitutional).
However, unlike the charge for receiving obscenity under
§ 1466A(a)(1) in Whorley, Appellant was charged with
constitutionally protected possession under § 1466A(b)(1).
Therefore, the Whorley court’s analysis of § 1466A(c) is
distinguishable to the point of irrelevance, and this Court must
look specifically to the interaction between § 1466A(b)(1) and
(c).
10