UNITED STATES, Appellee
v.
Timothy L. MERRITT Sr., Master Sergeant U.S. Air Force, Appellant
No. 13-0283
Crim. App. No. 37608
United States Court of Appeals for the Armed Forces
Argued September 17, 2013
Decided December 5, 2013
ERDMANN, J., delivered the opinion of the court, in which STUCKY and RYAN, JJ., and EFFRON, S.J., joined. BAKER, C.J., filed a separate concurring opinion.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain Christopher D. James (on brief).
For Appellee: Colonel Don M. Christensen (argued); Major Joseph Kubler and Gerald R. Bruce, Esq. (on brief).
Military Judge: Jennifer L. Cline
This opinion is subject to revision before final publication. United States v. Merritt, No. 13-0283/AF
Judge ERDMANN delivered the opinion of the court.
A military judge sitting as a general court-martial
convicted Master Sergeant Timothy L. Merritt, contrary to his
pleas, of one specification of wrongfully and knowingly
receiving one or more visual depictions of minors engaging in
sexually explicit conduct and one specification of wrongfully
and knowingly viewing one or more visual depictions of minors
engaging in sexually explicit conduct, in violation of Article
134, UCMJ, 10 U.S.C. § 934 (2006). The military judge merged
the two specifications for sentencing purposes and sentenced
Merritt to twenty-four months of confinement, reduction to E-2,
and a bad-conduct discharge. The convening authority approved
the adjudged sentence. The United States Air Force Court of
Criminal Appeals affirmed the findings and sentence. United
States v. Merritt, 71 M.J. 699, 708 (A.F. Ct. Crim. App. 2012).
“[A] servicemember must have fair notice that his conduct
is punishable before he can be charged under Article 134 with a
service discrediting offense.” United States v. Vaughan, 58
M.J. 29, 31 (C.A.A.F. 2003) (quotation marks and brackets
omitted). In addition, “[d]ue process entitles convicted
servicemembers to a timely review and appeal of court-martial
convictions.” United States v. Moreno, 63 M.J. 129, 132
(C.A.A.F. 2006). We granted review of this case to determine:
(1) whether Merritt had notice that the act of viewing child
2 United States v. Merritt, No. 13-0283/AF
pornography was conduct that could be prosecuted subject to
criminal sanction; and (2) whether a delay of 1,024 days between
the docketing of Merritt’s appeal at the United States Air Force
Court of Criminal Appeals (CCA) and the CCA’s decision
constituted a denial of his due process right to a speedy post-
trial review.1 We hold that Merritt was not on notice that the
act of viewing child pornography could be prosecuted and that
Specification is set aside. While the delay in processing
Merritt’s appeal was excessive, Merritt was not legally
prejudiced by the delay and consequently he is not entitled to
relief for appellate delay.
Notice
Background
In 2007, an investigation initiated by German authorities
led the Air Force Office of Special Investigations (OSI),
1 We granted review of the following issues:
I. Whether Appellant’s constitutional right to fair notice that an act is criminal was violated in Specification 2 of the Charge, where the alleged offense occurred in May 2006 but Congress did not criminalize the intentional viewing of child pornography until October 2008.
II. Whether Appellant’s due process right to timely appellate review was violated where the Air Force Court decided Appellant’s case one thousand and twenty-four days after it was docketed.
United States v. Merritt, 72 M.J. 264 (C.A.A.F. 2013) (order granting review). 3 United States v. Merritt, No. 13-0283/AF
located at Spangdahlem Air Base, to question Merritt as to
whether he had accessed child pornography on the Internet.
Following a rights advisement, Merritt waived his rights and
told agents that he had clicked on Internet ads for child
pornography and viewed images of minors engaging in sexual
activity. In a statement written for investigators, Merritt
wrote, “I am deeply [a]shamed for having even looked at such
images even out of curiosity. It is to great horror that have
[sic] to recall these images that I tried so hard to forget
seeing . . . .” Merritt’s computer equipment was seized and a
forensic examiner reviewed the data contained on Merritt’s
laptop and hard drives prior to the court-martial.
Merritt was charged with two specifications alleging
violations of Article 134, UCMJ. The first Specification, which
alleged that Merritt wrongfully and knowingly received child
pornography, is not at issue in this appeal. The second
Specification alleged that Merritt:
[D]id, at or near Spangdahlem Air Base, Germany, on divers occasions between, on or about 6 May 2006, and on or about 13 May 2006, wrongfully and knowingly view one or more visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
At Merritt’s court-martial the defense filed a Motion to Dismiss
Specification 2 of the Charge arguing that “[n]o offense of
4 United States v. Merritt, No. 13-0283/AF
‘wrongful and knowing viewing’ of such depictions is listed in
the UCMJ, 10 USC §§ 877-934, (Punitive Articles), nor is such an
offense enumerated under Article 134.” The defense argued that
there was no federal law, military case law, custom or usage
which prohibited the mere viewing of child pornography in 2006.
In response to the motion, the government argued that it
was well settled that conduct which is not criminal in a
civilian setting could be criminalized in the military. The
government cited this court’s decision in United States v.
Medina, 66 M.J. 21, 27 (C.A.A.F. 2008), in which we stated that
“[i]t is intuitive that the viewing of child pornography
discredits those who do it, as well as the institutions with
which those persons are identified.” Finally, the government
cited Merritt’s statement to OSI in which he wrote that he was
ashamed of his conduct, as evidence that he undoubtedly knew
that viewing child pornography was prohibited.
The military judge denied Merritt’s motion to dismiss. The
military judge ruled:
[W]hen looking at the combination of and interplay between federal law, military law and custom, and state law, it is clear that the Accused had fair notice that the wrongful and knowing viewing of visual depictions of minors engaging in sexually explicit conduct, if shown to be prejudicial to good order and discipline and/or service discrediting, is criminal.
5 United States v. Merritt, No. 13-0283/AF
Consistent with the government’s argument, the military judge
relied on Medina and noted also that “viewing of these types of
images has been subjected to criminal sanction in some states
. . . and the Supreme Court has stated that states are
authorized to criminalize the viewing of these types of images.”
The military judge found that a servicemember “would be on fair
notice that knowing and intentional involvement with child
pornography is a crime.”
The military judge ultimately found Merritt guilty of
viewing child pornography by exceptions to the service
discrediting conduct. During sentencing, the government
suggested that the maximum confinement for the charge was thirty
years, based on twenty years of confinement for the receipt
specification and ten years for the viewing specification.
However, the military judge merged the two specifications for
sentencing and applied a maximum sentence of twenty years, which
was the maximum punishment for receipt of child pornography
under the federal statute. Merritt was sentenced to twenty-four
months of confinement, reduction to E-2, and a bad-conduct
discharge.
On appeal to the CCA, Merritt argued that he was not on
notice that viewing child pornography was criminalized by the
UCMJ. Merritt, 71 M.J. at 704. The CCA found that Merritt
“knew, or should have known” that his conduct was service
6 United States v. Merritt, No. 13-0283/AF
discrediting based on his statement that he was “deeply a shamed
[sic] for having even looked at such images,” and “[i]t is to
great horror that [I] have to recall these images.” Id. (first
and third set of brackets in original). The CCA also found that
military case law on possession of child pornography provided
support for the conviction, reasoning “[w]e can find no logical
distinction between the knowing possession and the viewing of
such images with regard to the service discrediting nature of
the act.” Id. at 705.
Discussion
Before this court Merritt renews his argument that none of
the sources identified by our decision in Vaughan, 58 M.J. at
31, provided him with notice that viewing child pornography was
criminal in 2006. Specifically, he notes that the federal Child
Pornography Prevention Act (CPPA), Pub. L. No. 104-208, 110
Stat. 3009, 3009-26 to 3009-31 (1996) (codified as amended at 18
U.S.C. §§ 2251-2260A (2006)), did not include the viewing of
child pornography as a punishable offense in 2006. Merritt also
asserts that the overwhelming majority of states have not
criminalized the viewing of child pornography. In addition, he
argues that military case law has not recognized the mere
viewing of child pornography as a crime and, while military law
has long recognized that possession of child pornography is
criminal, there is no definable custom or usage regarding the
7 United States v. Merritt, No. 13-0283/AF
viewing of child pornography that would provide notice that it
was a criminal offense.
In response, the government argues that state laws provided
notice to Merritt, despite his duty station in Germany, that
child pornography was widely criminalized long before 2006. The
government cites a number of state statutes which make “every
conceivable route [Merritt] could take in order to intentionally
view child pornography illegal by making actions like control,
use, access, enter and receive subject to criminal sanction.”
The government reasons that it is impossible to wrongfully view
child pornography without committing one or several of the other
criminal acts along the way, therefore Merritt surely had notice
that viewing child pornography could subject him to criminal
sanction.
Whether the military judge correctly understood and applied
the proper legal principle in denying the motion to dismiss is a
question we review de novo. United States v. Saunders, 59 M.J.
1, 6 (C.A.A.F. 2003) (citing United States v. Hughes, 48 M.J.
214, 216 (C.A.A.F. 1998)). “Article 134, UCMJ, the ‘General
Article,’ criminalizes service-discrediting conduct by military
service members.” Saunders, 59 M.J. at 6 (citing Manual for
Courts-Martial, United States (2002 ed.) (MCM)). Although
“[c]ertain specified offenses are included under this Article,”
conduct that isn’t listed in the MCM may nonetheless constitute
8 United States v. Merritt, No. 13-0283/AF
service discrediting conduct and “may be used to allege the
offense.” Id. (quotation marks omitted).
“[A]s a matter of due process, a service member must have
fair notice that his conduct [is] punishable before he can be
charged under Article 134 with a service discrediting offense.
This Court has found such notice in the MCM, federal law, state
law, military case law, military custom and usage, and military
regulations.” Vaughan, 58 M.J. at 31 (brackets in original)
(citations and quotation marks omitted).
The UCMJ did not criminalize the viewing of child
pornography at the time of the charged conduct in May of 2006.2
Nor did the federal CPPA which criminalized the knowing
transport, receipt, distribution, production, sale, or
possession of child pornography. See 18 U.S.C. § 2252 (2006).3
“Viewing” child pornography was not included in this long list
of punishable offenses related to child pornography.
In affirming Merritt’s conviction, the CCA relied, in part,
on decisions from the federal courts of appeals, writing,
“various federal circuits have held that the act of viewing
child pornography violated the [CPPA], even though viewing was
not specifically listed in the statute until 2008.” Merritt, 71
2 The MCM’s current language criminalizes the viewing of child pornography. MCM, pt. IV, para. 68b.b.(1) (2012 ed.). 3 The 2008 amendment to 18 U.S.C. § 2252(a)(4)(B) did not criminalize “viewing” but rather criminalized “knowingly access[ing] with intent to view” child pornography. 9 United States v. Merritt, No. 13-0283/AF
M.J. at 705 (citing United States v. Pruitt, 638 F.3d 763, 766-
67 (11th Cir. 2011); United States v. Bass, 411 F.3d 1198, 1201-
02 (10th Cir. 2005)). However, neither Pruitt nor Bass support
the CCA’s holding.4 In fact, we have found no federal court
decision which interpreted the CPPA to criminalize the viewing
of child pornography in 2006.
The CCA also relied on Merritt’s statement that he was
ashamed of looking at the images as “powerful evidence that
[Merritt] was fully aware that viewing child pornography could
call the Air Force into disrepute and thereby violate the UCMJ.”
Merritt, 71 M.J. at 704. However, the fact that a servicemember
may be ashamed of certain conduct is not sufficient by itself to
equate to due process notice that the conduct was subject to
criminal sanction.
The government argues that a number of state statutes which
criminalized the “viewing” of child pornography adequately
provided Merritt with notice. The government urges the court to
find that, taken together, the various state statutes put
Merritt on notice of the “general criminality” of child
4 Pruitt and Bass did not involve convictions for “viewing” child pornography. While Pruitt referenced the “intentional viewer of child[]pornography,” the case turned on the definition of “receipt,” pursuant to the charged conduct. Pruitt, 638 F.3d at 766-67. In Bass the court relied on the Oxford English Dictionary’s definition of “possession” to decide whether Bass had possession of child pornography despite the fact that there was no evidence that he actually viewed child pornography. Bass, 411 F.3d at 1201-02. 10 United States v. Merritt, No. 13-0283/AF
pornography. However, as the government’s own research
indicates, only a handful of states explicitly criminalized
viewing child pornography in 2006.5
We previously concluded that, under appropriate
circumstances, state statutes may provide fair notice of a
possible Article 134 prosecution even when the servicemember is
stationed outside the United States. See Vaughan, 58 M.J. at 32
(“The locus of the charged conduct does not change the measure
of notice.”). However, under the circumstances of this case,
where the “viewing” of child pornography was not criminalized
under the UCMJ, the MCM, military custom or usage, the
comprehensive federal statutes, or the majority of state
statutes, the fact that three states criminalized the conduct
does not satisfy the constitutional requirement of fair notice.6
The government also argues a “general criminality” theory
with respect to the treatment of child pornography in the
military.7 Underlying this argument is the government’s theory
5 Our review of the state statutes cited by the Government indicates that three states -- Arkansas, New Jersey, and Ohio -- explicitly criminalized “viewing” child pornography in 2006. Ark. Code Ann. § 5-27-304 (1991), N.J. Stat. Ann. § 2C:24-4 (West 2001), Ohio Rev. Code Ann. § 2907.323 (LexisNexis 1995). 6 The number of states that may have criminalized certain conduct is not, by itself, determinative as to whether there is sufficient notice that the conduct is subject to criminal sanction. That determination is dependent on the facts of the particular case. 7 Both the CCA and the government rely on the comment in Medina that “‘[i]t is intuitive that the viewing of child pornography 11 United States v. Merritt, No. 13-0283/AF
that there is an aura of criminality surrounding child
pornography which placed servicemembers on notice that any
conduct involving child pornography constitutes criminal conduct
even though that conduct was not criminalized by almost all
traditional sources of due process notice.8 While actions
related to viewing child pornography may well subject a
servicemember to prosecution for violation of other criminal
offenses involving child pornography (such as possession or
transmission), it does not follow that conduct not otherwise
prohibited becomes criminalized solely due to its proximity to
the prohibited conduct. In this case, the government’s argument
suggests that Merritt was on notice that there was an additional
criminal act that occurred when he viewed the very same pictures
that he was charged with possessing.
We decline to adopt such an amorphous standard and adhere
to the traditional sources of notice set forth in Vaughan.
Given that none of the Vaughan sources provided Merritt with
notice in this case, we hold that he did not have sufficient
discredits those who do it, as well as the institutions with which the persons are identified.’” Merritt, 71 M.J. at 705 (quoting Medina, 66 M.J. at 27). Not only was Medina decided two years after the conduct at issue in this case, “intuition” is not a listed source of due process notice in Vaughan. 8 “Since there was no way to wrongfully view without committing one or several of the other criminal acts along the way, Appellant had fair notice that viewing child pornography could subject him to criminal sanction by virtue of the predicate criminal acts.” Brief of Appellee at 7, United States v. Merritt, No. 13-0283 (C.A.A.F. July 1, 2013). 12 United States v. Merritt, No. 13-0283/AF
notice that the viewing of child pornography was subject to
criminal sanction in 2006. At that time, there was no federal
statute or federal judicial decision interpreting federal law
which prohibited the viewing of child pornography and only a few
states even mentioned viewing in their respective child
pornography statutes. In addition, neither the MCM nor military
courts interpreting its provisions gave notice that the act of
viewing child pornography without more was prohibited in 2006
and the government has not established that such a prohibition
was a custom or usage of the service. The finding as to
Specification 2 of the charge is set aside.
Appellate Due Process
Merritt was sentenced on September 2, 2009 and the
convening authority took action 139 days later on January 19,
2010. The case was docketed at the CCA thirty-one days later on
February 24, 2010. Merritt’s counsel was granted six
enlargements of time in which to file his initial brief, which
was ultimately filed on February 16, 2011, almost one year after
docketing. The government was granted four enlargements of time
and filed its answer brief on August 11, 2011, nearly six months
after the defense brief was filed. Merritt was granted one
enlargement of time for his reply brief, which was filed on
August 25, 2011.
13 United States v. Merritt, No. 13-0283/AF
On August 10, 2012, while his appeal was pending before the
CCA, Merritt filed a Motion for Leave to File Supplemental
Assignment of Error and a Motion for Expedited Review. Merritt
argued that expedited review was necessary because the case
“languished for 29 months, 11 months past the [18-month] time
limit set in Moreno.” See Moreno, 63 M.J. at 142. The motion
was filed over two years after the case was docketed at the CCA
on February 24, 2010. The CCA summarily denied the Motion for
Expedited Review on August 17, 2012.9 On September 5, 2012,
Merritt filed a Petition for Extraordinary Relief in the Nature
of a Writ of Mandamus seeking similar relief from this court,
which was denied on October 11, 2012. United States v. Merritt,
71 M.J. 440 (C.A.A.F. 2012) (summary disposition).
The CCA issued its decision in Merritt’s case on December
14, 2012, 1,024 days after docketing. In disposing of Merritt’s
appellate delay claim, the CCA assumed error but summarily
concluded that it was harmless beyond a reasonable doubt.
Citing United States v. Allison, 63 M.J. 365, 370 (C.A.A.F.
2006), the CCA held it was unnecessary to engage in an analysis
of the Moreno factors for the adjudication of post-trial
appellate delay. Merritt, 71 M.J. at 708.
9 The CCA granted Merritt’s Motion for Leave to File Supplemental Assignment of Error on August 29, 2012, and addressed the appellate delay issue in its opinion. Merritt, 71 M.J. at 708. 14 United States v. Merritt, No. 13-0283/AF
“This court has recognized that convicted servicemembers
have a due process right to timely review and appeal of courts-
martial convictions.” Moreno, 63 M.J. at 135. We employ a
four-factor test to review claims of unreasonable post-trial
delay, evaluating (1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of the right to
timely review and appeal; and (4) prejudice. Id. “Once this
due process analysis is triggered by a facially unreasonable
delay, the four factors are balanced, with no single factor
being required to find that post-trial delay constitutes a due
process violation.” Id. at 136.
(1) Length of the Delay
“[U]nless the delay is facially unreasonable, the full due
process analysis will not be triggered.” Id. The CCA found the
delay facially unreasonable and the government concedes in its
brief that the delay in Merritt’s case triggers the full four-
part analysis. Merritt, 71 M.J. at 708. “[I]f the
constitutional inquiry has been triggered, the length of delay
is itself balanced with the other factors and may, in extreme
circumstances, give rise to a strong presumption of evidentiary
prejudice affecting the fourth Barker [v. Wingo, 467 U.S. 514
(1972)] factor.” United States v. Toohey, 60 M.J. 100, 102
(C.A.A.F. 2004) (quotation marks omitted). The length of delay
15 United States v. Merritt, No. 13-0283/AF
calculation “includes time caused by failures of appointed
counsel and delays by the court itself.” Id. (brackets and
quotation marks omitted). The delay in Merritt’s case is
facially unreasonable and we proceed to the analysis of the
remaining three factors.
(2) Reasons for the Delay
“Under this factor we look at the Government’s
responsibility for the delay, as well as any legitimate reasons
for the delay, including those attributable to an appellant.”
Moreno, 63 M.J. at 136. The court will “examine each stage of
the post-trial period because the reasons for the delay may be
different at each stage and different parties are responsible
for the timely completion of each segment.” Id.
In considering this factor, we have declined to attribute
to individual appellants the periods of appellate delay
resulting from military appellate defense counsels’ requests for
enlargements of time where the basis for the request is
excessive workload. Diaz v. Judge Advocate General of the Navy,
59 M.J. 34, 38 (C.A.A.F. 2003) (“Appellate counsel caseloads are
a result of management and administrative priorities and as such
are subject to the administrative control of the Government. To
allow caseloads to become a factor in determining whether
appellate delay is excessive would allow administrative factors
to trump the Article 66 and due process rights of appellants.”);
16 United States v. Merritt, No. 13-0283/AF
see also Moreno, 63 M.J. at 137. In this case, however, Merritt
was represented by civilian counsel and the government opposed
his requests for enlargement. As a result, the appellate filing
delays requested by appellate defense counsel are attributable
to Merritt.10
The six enlargements of time granted to Merritt’s counsel
amounted to 357 days between the docketing of his case and the
filing of his initial brief. Following the filing of that
brief, the government appellate division sought five
enlargements of time to file the answer brief and one
enlargement to file an answer to the supplemental issue. The
government concedes that it is responsible for the 228-day delay
encompassed by the six enlargements of time.
Before this court, Merritt focuses on the 351-day delay
between the submission of his reply brief and the filing of his
Motion for Expedited Review. He argues that this period is
nearly twice the “allowance” this court established in Moreno
and the CCA provided no reason for its delay. Although “[w]e
[ . . . ] apply a more flexible review of this period,
recognizing that it involves the exercise of the Court of
Criminal Appeals[’] judicial decision-making authority,” Moreno,
63 M.J. at 137, lengthy delays at the CCA are particularly
10 The requests for enlargement of time indicated that Merritt agreed with the requests. 17 United States v. Merritt, No. 13-0283/AF
problematic given that the CCA is “directly responsible for
exercising institutional vigilance over [all] cases pending
Article 66 review.” Diaz, 59 M.J. at 40 (quotation marks
omitted).
Merritt misreads Moreno when he argues that case
established a six-month standard in which the CCA should decide
a case after the briefing is complete. In Moreno we considered
the circumstances of that case and stated that “a period of
slightly over six months is not an unreasonable time for review
by the Court of Criminal Appeals.” 63 M.J. at 137-38. While we
did not establish a firm standard, we noted earlier in Moreno
that “[u]ltimately the timely management and disposition of
cases docketed at the Court of Criminal Appeals is a
responsibility of the Courts of Criminal Appeals.” Id. at 137.
The lengthy briefing period of over a year and a half, as
well as the time taken by the CCA to decide this case, are
troubling. As we stated in Diaz, this is partially because:
Unlike the civilian criminal justice system, the Courts of Criminal Appeals have unique fact finding authority, and that aspect of a servicemember’s case is not concluded until that review is completed. The nature of this review calls for, if anything, even greater diligence and timeliness than is found in the civilian system.
Diaz, 59 M.J. at 38. Given the delays in this case, and the
lack of institutional vigilance by the Air Force CCA, this
factor weighs in Merritt’s favor.
18 United States v. Merritt, No. 13-0283/AF
(3) Assertion of Right to Timely Review
“This factor calls upon [the court] to examine an aspect of
[Appellant’s] role in this delay.” Moreno, 63 M.J. at 138.
Merritt argues that he not only filed a supplemental issue
relating to post-trial delay but also filed a writ of mandamus
seeking relief from this court. As we have noted, Merritt filed
the motion after his counsel requested six enlargements of time
and after the case languished at the CCA for over two years.
Thus, Merritt’s assertion of this right was not timely and this
factor weighs slightly against him. See United States v.
Othuru, 65 M.J. 375, 380 (C.A.A.F. 2007).
(4) Prejudice
Prejudice should be assessed in light of the interests of those convicted of crimes to an appeal of their convictions unencumbered by excessive delay. [There are] three similar interests for prompt appeals: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired.
Moreno, 63 M.J. at 138-39 (quoting Rheuark v. Shaw, 628 F.2d
297, 203 n.9 (5th Cir. 1980)). We review each of the three
prejudice subfactors in turn.
a. Prevention of Oppressive Incarceration
Merritt was incarcerated on September 3, 2009, and his
appeal was docketed with the CCA on February 24, 2010.
19 United States v. Merritt, No. 13-0283/AF
According to Merritt’s Motion for Expedited Review, he was
released from confinement on appellate leave in April 2011, four
months before his counsel filed his reply brief.
As we explained in Moreno:
[The oppressive incarceration pending appeal] sub- factor is directly related to the success or failure of an appellant’s substantive appeal. If the substantive grounds for the appeal are not meritorious, an appellant is in no worse position due to the delay, even though it may have been excessive. . . . . However, if an appellant’s substantive appeal is meritorious and the appellant has been incarcerated during the appeal period, the incarceration may have been oppressive.
Id. at 139 (citations omitted).
Because Merritt has prevailed on his substantive appellate
issue, we must determine whether his incarceration was
oppressive. While we have set aside the “viewing” of child
pornography specification, Merritt remains convicted of
“receiving” child pornography. During his sentencing, Merritt’s
counsel argued that the two specifications should be considered
multiplicious for sentencing purposes. The military judge
agreed, stating:
Based on the facts in this case I am going to combine the two charges for sentencing. The maximum punishment is 20 years, which comes from the maximum punishment for receipt from the Federal law, in addition to the dishonorable discharge, reduction in rank to E-1, and total forfeiture of all pay and allowances.
20 United States v. Merritt, No. 13-0283/AF
Since the military judge merged the two charges for sentencing
purposes, we are satisfied that Merritt’s sentence would have
been the same had he only been charged with “receiving” child
pornography and therefore he is in “no worse position due to the
delay even though it may have been excessive.” Id.
Merritt also argues that he was prejudiced under this
subfactor because he lost retirement income while his case was
being reviewed by the CCA. Lost pay, though surely a concern
for any servicemember on appeal, does not bear on the
consideration of whether Merritt suffered from oppressive
incarceration. Therefore, even though his substantive appeal
was successful, Merritt suffered no prejudice as a result of
oppressive incarceration.
b. Minimization of Anxiety and Concern
As to this subfactor, we require:
an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision. This particularized anxiety or concern is thus related to the timeliness of the appeal, requires an appellant to demonstrate a nexus to the processing of his appellate review, and ultimately assists this court to “fashion relief in such a way as to compensate [an appellant] for the particular harm.”
Id. at 140 (brackets in original).
Merritt argues that he suffered anxiety after registering
as a sex offender following his release from confinement and
also due to lost retirement income. Merritt claims these
21 United States v. Merritt, No. 13-0283/AF
concerns raised his anxiety above the normal anxiety experienced
by defendants awaiting the outcome of an appeal.
While Merritt’s anxiety over sex offender registration is
understandable, he has not made a strong case that he
experienced the “particularized anxiety” that is
“distinguishable from normal anxiety experienced by prisoners
awaiting an appellate decision.” See Moreno, 63 M.J. at 139-40.
Because Merritt remains convicted of receiving child
pornography, he would be required to register as a sex offender
upon release from confinement regardless of any delay. See
United States v. Arriaga, 70 M.J. 51, 58 (C.A.A.F. 2011).
Therefore, Merritt cannot rely on the sex offender registration
as cause for anxiety and concern related to the delay. Finally,
similar to our discussion under the “oppressive incarceration”
subfactor, loss of retirement income, while a concern for any
servicemember on appeal, does not constitute “particularized
anxiety” under this subfactor.
c. Impairment of Ability to Present a Defense at a Rehearing
Merritt argues that if he is successful on his substantive
issue, the delay at the CCA could have a negative impact on his
ability to prepare for a rehearing given the passage of time and
availability of witnesses. As we have set aside the finding on
the “viewing” charge for lack of due process notice, there can
22 United States v. Merritt, No. 13-0283/AF
be no rehearing on that charge. Thus, Merritt cannot
demonstrate prejudice by arguing an inability to prepare for
retrial.
(5) Summary -- Appellate Delay
While we find the length of appellate delay was clearly
unreasonable and the trend of delay at the Air Force CCA is
troublesome, in this case Merritt has not shown that he was
prejudiced by the appellate delay and consequently he is not
entitled to relief on this issue. See Othuru, 65 M.J. at 380
(finding “no good cause” for lengthy appellate delay, but
holding that there was no basis for a finding of prejudice).
DECISION
The finding as to Specification 2 of the Charge (viewing
child pornography) is set aside and that Specification is
dismissed. Because the military judge merged Specifications 1
and 2 for sentencing and relied on the maximum punishment for a
finding of guilty to Specification 1 (receipt of child
pornography), we are confident that Merritt would not have
received a lesser sentence if the military judge had dismissed
Specification 2. See United States v. Custis, 65 M.J. 366, 372
(C.A.A.F. 2007). The decision of the United States Air Force
Court of Criminal Appeals with respect to Specification 1 of the
Charge (receipt of child pornography) and the sentence are
affirmed.
23 United States v. Merritt, No. 13-0283/AF
BAKER, Chief Judge (concurring):
On Issue I, I would reach the same result, but on narrower
grounds, addressed to the specific circumstances of this case.
When charged in tandem with a possession count for the exact
same child pornography, I would agree that Appellant was not on
fair notice that he may have committed an additional crime by
viewing the very same pictures he was charged with possessing.
I also agree that those factors specifically delineated in
United States v. Vaughan –- the Manual for Courts-Martial,
United States, case law, federal or state law, and military
regulations -- do not give notice that viewing child pornography
could be charged as a separate crime. United States v. Vaughan,
58 M.J. 29, 31 (C.A.A.F. 2003). However, the Vaughan factors do
not provide an exhaustive list and meeting those factors is not
the only avenue through which a party could receive fair notice
as to the criminality of an offense under Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012). I
would not rule out the possibility that, under certain
circumstances, other factors including the elements, custom and
common sense could have put a reasonable servicemember on notice
that viewing child pornography was of a nature to be service
discrediting, especially where viewing involved actions akin to
the possession of child pornography. The notice problem in this
case is that Appellant was charged with possessing and viewing United States v. Merritt, No. 13-0283/AF
the same child pornography, and in that context, he was not on
notice as to what distinct criminal conduct was included within
the viewing specification that was not subsumed within or
implied by the possession specification.