Leonard perhaps most important decision out of the C.A.A.F. this century.

While I am prone to overstatements, see e.g. engine of military justice theory, I don't think the caption of this post is an overstatement. I must begin my referencing remarks made by Mr. Fidell at NIMJ's conference last November, where he noted that sex offenses, and particularly child pornography related offenses, account for nearly thirty percent of the cases coming before the C.A.A.F. If I have not accurately reflected your comments Mr. Fidell, I apologize. Even if not attributable to Mr. Fidell, I think the numbers accurately support the proposition that such offenses account for a third of all courts martial in the military. Therefore, a case dealing with a third of the military docket, and potentially many more areas of the law, is very important.

Airman First Class Leonard downloaded pornography onto his home computer in South Dakota. In United States v. Mason, 64 M.J. 246 (C.A.A.F. 2004), and its progeny, the C.A.A.F. held that the government could permissibly charge child pornography offenses under Clauses 1 and 2 of Article 134, instead of incorporating the Child Pornography Prevention Act (CPPA) under Clause 3. In fact, in Mason, the Court found disorders charged under Clauses 1 and 2 to be "lesser included offenses" of offenses charged under Clause 3. By charging child pornography offenses under Clauses 1 and 2, the government can sidestep that pesky First Amendment requirement that the Supreme Court imposed upon the C.A.A.F. in United States v. O'Connor, 58 M.J. 450 (C.A.A.F. 2003), which required images to be of actual children.

But wait, it gets better. In United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005), the C.A.A.F. held that CPPA offenses charged under Clause 3 could not be applied extraterritorially. For you government hacks that have been in a cave since 2005, don't worry. The C.A.A.F. again suggested that the way around its decision was simply to charge the child pornography offenses under Clauses 1 and 2 of Article 134. In light of Mason and Martinelli, a Marine in a cave in Afghanistan looking at locally created Afghani virtual child pornography on his computer could still be prosecuted under Clauses 1 and 2 of Article 134. Through the power of Clauses 1 and 2, the government can avoid both the First Amendment and the presumption against the extraterritorial application of statutes. BUT WAIT THERE IS MORE!

In the wake of Mason and Martinelli, the question remained as to what the appropriate maximum sentence was under Article 134. One would assume that the sentence for the lesser-included offense charged under Clauses 1 and 2 would be "less" than the sentence imposed for a violation of the CPPA charged under Clause 3. R.C.M. 1003(c)(1)(B) provides that, if a maximum sentence is not listed in the Manual, and the offense is not closely related to any other offense, then, and only then, may the court-martial impose punishment "as authorized by the U.S. Code."

In United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005), the Court dropped an interesting appellate teaser. Specialist Hays, unable to find anything else to do in Germany, and not afforded Airman Leonard's duress defense that he had been stationed in South Dakota, downloaded pornography. The Court breathed life into the Martinelli decision, and set aside his conviction of violating the CPPA under Clause 3. But, just as it appeared that Hays would win, Clauses 1 and 2 came to the government's rescue . The Court affirmed Specialist Hays's conviction for the lesser-included offense of receiving child pornography under Clause 2. Now for the teaser. "Our approval of these [clause 2 offenses] does not alter the essential nature of these offenses. As a result, there was no prejudice as to his sentence, so a sentence rehearing is unwarranted." Id. at 168. Was C.A.A.F. engaging in unauthorized Sales analysis in Hays, or was C.A.A.F. suggesting that the maximum punishment for the lesser-included offense of receiving child pornography under Clause 2 was exactly the same of the greater offense charged under Clause 3? Until this evening, I had assumed the former.

In Leonard, the C.A.A.F. holds that it is appropriate to look to the CPPA for guidance as to the maximum punishment for child pornography offenses charged under Clauses 1 and 2. Thus, the maximum punishment for the "lesser included offenses" of receiving and possessing child pornography under Clauses 1 and 2 is exactly the same as the greater offense. And, the government does not have to prove all of the elements of the CPPA if the offense is charged under Clauses 1 and 2. In Leonard, the government did not prove the jurisdictional element that the pictures had traveled in interstate commerce. So not only does the government avoid the First Amendment protections set forth in O'Connor, the extraterritorial limitations imposed by Martinelli, and the protections of the Commerce Clause set forth in Lopez, but it gets the EXACT SAME maximum punishment as if it had complied with the CPPA! To the engine of military justice, if you EVER again charge an offense under Clause 3 incorporating 18 U.S.C. 2252(a), you should be immediately appointed to the probate bench in Florida.

While some may consider the evolution of the Court's case law between Sapp and Leonard to be judicial realism run amok, but realism targeted only at a very nasty offense and a few nasty offenders, consider that, after Mason, a violation of Clauses 1 and 2 is a lesser included offense of EVERY crime under the UCMJ. The smart prosecutor, or the nervous trial judge faced with a weak government case, will ask the required questions to sustain an offense under Clauses 1 and 2 for every offense. Consider that the right to engage in private consensual sodomy, as it exists in the military after Marcum, 60 M.J. 198 (C.A.A.F. 2004), may be entirely illusory. Would an Army, or even Coast Guard, members panel fail to convict Seaman Timmy of the lesser included offense of service discrediting conduct, if the incorporated Kansas statute ran afoul of the 14th Amendment, but after Timmy's neighbor called the military police to falsely report a burglary in the hopes that Seaman Timmy's longtime consensual homosexual relationship would be revealed?