United States v. Bowersox

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.

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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).

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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).

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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

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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

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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).

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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

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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.

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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.

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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

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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.

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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.

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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

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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

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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