Court-Martial Trial Practice Blog
Case Summary and Analysis: United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009), that your military defense lawyer should consider. The Court of Appeals for the Armed Forces is about to get the case of United States v. Rocha, to consider private conduct which may or may not offend.
I. Background and Procedural History
Lieutenant Junior Grade Brendan C. Forney, U.S. Navy, was convicted at a general court-martial of conduct unbecoming an officer and a gentleman under Article 133, UCMJ, 10 U.S.C. § 933, for possessing child pornography. The pornography, consisting of approximately 1,700–1,800 images of naked adolescent girls aged 10–15, was found on government computers aboard the USS David R. Ray while the ship was underway.
Originally, Forney was convicted under both Articles 133 and 134 of the UCMJ. The Article 134 convictions relied on the Child Pornography Prevention Act (CPPA), 18 U.S.C. § 2252A, and the definition of child pornography codified at 18 U.S.C. § 2256(8). However, the U.S. Supreme Court held in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), that the CPPA was overbroad to the extent it criminalized possession of “virtual” (i.e., computer-generated or simulated) child pornography. As a result, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) set aside the Article 134 conviction.
The case was then remanded by the U.S. Court of Appeals for the Armed Forces (CAAF) for reconsideration, particularly in light of the Court’s decisions in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006), which addressed post-trial delay and fair trial concerns. On remand, the NMCCA affirmed the Article 133 conviction and approved the sentence of dismissal, setting aside confinement due to post-trial delay.
II. Core Legal Issues
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Can constitutionally protected possession of virtual child pornography support a conviction under Article 133, UCMJ?
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Did the use of a subsequently invalidated statutory definition of “child pornography” render the court-martial conviction unlawful?
III. Court’s Holdings and Reasoning
A. Military Distinction from Civilian Free Speech Norms
CAAF, per Judge Stucky, held that possession of virtual child pornography may constitute “conduct unbecoming an officer,” even if that possession is protected speech under the First Amendment in civilian society. CAAF emphasized the principle from Parker v. Levy, 417 U.S. 733 (1974), that the military operates as a “specialized society” with unique discipline requirements that justify limits on constitutional protections otherwise afforded to civilians.
“Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command; if it does, it is constitutionally unprotected.” (Forney, 67 M.J. at 274–75).
Thus, the court rejected Forney’s argument that Ashcroft shielded him from liability under military law.
B. Validity of the Military Judge’s Instructions
Although the military judge relied on the CPPA’s now-partially-invalid definition of “child pornography” from § 2256(8), the CAAF found no prejudicial error. The court emphasized that:
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The offense was charged under Article 133 (not the unconstitutional provisions of the CPPA);
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The instructions tied the possession to the military context (use of Navy computers aboard a ship underway); and
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The record contained substantial evidence that Forney knowingly possessed the images, which were described as becoming increasingly graphic and exploitative.
Therefore, any error in defining the term was deemed harmless beyond a reasonable doubt under the totality of the circumstances.
IV. Concurrence and Dissent
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Chief Judge Effron concurred in the result but expressed concerns about the application of unconstitutional statutory language in defining a military offense.
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Judge Erdmann dissented, joined by Judge Ryan, arguing that the use of an unconstitutional statute for definitional purposes infected the fairness of the proceedings and undermined the legitimacy of the conviction.
V. Legal and Policy Implications
This case illustrates the military judiciary’s willingness to apply military-specific disciplinary standards to conduct that may otherwise be constitutionally protected in civilian life. The court explicitly differentiated the First Amendment’s application in military versus civilian contexts, reinforcing military command authority over moral and ethical conduct of officers.
It also set a precedent that “virtual” child pornography, while potentially protected in the civilian world post-Ashcroft, can nevertheless be punished under Article 133 when it compromises the moral character expected of commissioned officers.
Conclusion
United States v. Forney solidifies the principle that the unique moral and disciplinary requirements of the military can justify criminal sanctions for conduct that would not be punishable in civilian society, particularly under Article 133, UCMJ. This case highlights the broader tension between individual rights and military necessity, particularly in the context of expressive or digital conduct.