United States v. Taman, 201900175
| Decision Date | 11 December 2020 |
| Docket Number | 201900175 |
| Court | United States Court of Criminal Appeals, Navy-Marine Corps |
| Parties | UNITED STATES Appellee v. Vincent D. TAMAN, Jr. Lance Corporal (E-3), U.S. Marine Corps Appellant |
This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 30.2.
Sentence adjudged 1 February 2019 by a general court-martial convened at Marine Corps Base Camp Foster, Okinawa, Japan, consisting of officer and enlisted members. Sentence approved by the convening authority: confinement for six months and a bad-conduct discharge.[1]
Appellant was convicted, contrary to his pleas, of one charge of knowingly and wrongfully receiving and viewing child pornography and another charge of soliciting and advising the production of child pornography, both in violation of Article 134, Uniform Code of Military Justice [UCMJ].[4] In his sole assignment of error [AOE], Appellant avers that this Court should use its Article 66(c) authority to disapprove as unjust his convictions for solicitation, receiving, and viewing child pornography of Ms. Wilson, [5] a sixteen-year-old girl, when he could have lawfully engaged in a physical sexual relationship with the same individual raising for the first time on appeal that his constitutional rights to free speech and privacy were violated. We find no prejudicial error and affirm.
Appellant met Ms. Wilson when he was a high school senior platoon commander in Junior Reserve Officers' Training Corps [JROTC] and she was a freshman in his platoon. This shared involvement in JROTC was the extent of their in-person or online contact until two years later when he initiated contact with then-sixteen-year-old Ms. Wilson by way of a social media platform. All the offenses in question took place while Appellant was a twenty-year-old active duty Marine stationed in Okinawa, Japan.
Initially their conversations were innocuous, but they soon turned sexual in nature. Appellant sought to explore more than mere conversation with Ms. Wilson. She testified that she resisted several of Appellant's requests for her to provide nude pictures of herself to him, but she eventually relented, supplying him a picture of her naked buttocks on another online platform thinking it would be "one and done."[6] Because of Appellant's continuing popularity in her high school, Ms. Wilson felt she was the beneficiary of more attention and popularity due to her online relationship with Appellant being known to others. While she did not want to take and send nude pictures, she knew she risked her elevated social status amongst her high school classmates if she did not capitulate.
Appellant persisted in requesting nude pictures of sixteen-year-old Ms. Wilson. He asked for pictures of her exposed breasts. She refused, but eventually relented. Then he sought pictures of her exposed vagina. She again refused, but succumbed to his requests and sent him ten to fifteen pictures that met his request. He then requested photographs of her digitally penetrating her vagina. She provided those as well.
While the platform on which she had been sending Appellant the nude photographs quickly deletes images once viewed, Appellant asked Ms. Wilson if upon receipt he could take a screenshot to preserve these nude images of her vagina. She gave him permission, reasoning that in doing so she "hop[ed] that if he had them on his phone he would stop asking [her] for more."[7] Due to a notification that returned to the other party, she knew that he had performed a screenshot of the nude pictures she had sent.
Next, Appellant asked that she engage in mutual masturbation with him by means of an online video telephone application. She reluctantly agreed and they did this on approximately thirty occasions. Despite being a high school student, and to accommodate his Marine Corps working schedule in Japan, Ms. Wilson would stay up into the wee hours of the morning at her family home in the continental United States to send these online nude and explicit live-streamed videos. Appellant managed the entire production of having video sex with Ms. Wilson-from instructing her on how to masturbate to light management and camera placement in order for him "to get a better look"[8] in viewing her naked body and sexual acts.
Ultimately, this was uncovered when Ms. Wilson's parents returned home late one night and her father, a Service Member, noticed a light from underneath her bedroom door. With her door locked-a violation of family rules-and her delay in opening the door while she got dressed from what was an in-progress explicit video call to Appellant of herself masturbating, her father demanded her cell phones. As the result of seeing their earlier social media messages of a sexual nature, Appellant's demand for nude pictures of his daughter, and a photograph of her scantily-clad buttocks and another of her naked with bare breasts, Mr. Wilson notified his command who put him in touch with military and then local civilian law enforcement.
Appellant challenges his conviction as unjust, invoking this Court's statutory charge under Article 66(c), UCMJ, that we must "affirm only such findings of guilty . . . as [we] find[ ] correct in law and fact and determine[ ], on the basis of the entire record, should be approved." We review de novo statutory interpretations as questions of law.[9]
At the root of Appellant's claim is his assertion that Article 134, UCMJ, is unconstitutional as applied to the facts of his case, a matter we consider de novo through conducting a fact-specific inquiry.[10] However, as neither of Appellant's as-applied constitutional challenges were raised during the course of his trial, we review for plain error, granting relief "only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of [an] accused."[11] The Court of Appeals for the Armed Forces [CAAF] has determined that Article 134, UCMJ, is a facially constitutional criminal statute and, as such, to succeed in his as-applied claim, "Appellant must point to particular facts in the record that plainly demonstrate why his interests should overcome Congress' and the President's determinations that his conduct be proscribed."[12] We will first focus on each of his underlying constitutional claims.
Appellant avers that he was in a "long-distance relationship" with Ms. Wilson and the only means by which they could engage in consensual sexual acts as part of their relationship was over the internet.[13] At issue is whether Appellant's repeated solicitation and advice to Ms. Wilson, a sixteen-year-old "minor"[14] for purposes of Article 134, UCMJ, our child pornography statute, seeking her production of still and video images of herself engaged in sexually explicit conduct and his receipt and viewing of those same images are constitutionally protected.
Appellant readily admits that "no court has expressly held that child pornography laws, used to prosecute people in a consensual relationship, violate the Constitution."[15] This Court will not be the first. We uniformly reject Appellant's claims that the Constitution affords protection to one in Appellant's situation engaged in the production, receipt, and viewing of child pornography.
In New York v. Ferber, [16] the United States Supreme Court considered a state statute criminalizing the pornographic display of children. The New York Court of Appeals had held the statute violated the First Amendment. In the "first examination of a statute directed at and limited to depictions of sexual activity involving children, "[17] the Court contrasted unprotected obscenity from protected expression: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem."[18] Not only was it "implicit in the history of the First Amendment" that obscenity was "utterly without redeeming social importance," but legislation from the States and Congress, and even international agreements all provided examples of its legal proscription.[19]
While the New York Court of Appeals applied the obscenity standard from Miller v. California[20] to delineate between protected and unprotected expression, the Supreme Court found its previous caution of the "inherent dangers of undertaking to regulate any form of expression"[21] did not apply in the same way to child pornography, itself an area where the government was "entitled to greater leeway in the regulation of pornographic depictions of children."[22] Specifically, the Ferber Court found "compelling" the government's interest in "safeguarding the physical and psychological well-being of a minor, "[23] "even when the laws have operated in the sensitive area of constitutionally protected rights."[24] "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance."[25] Moreover, the Court noted that both legislatures and professional literature found that the "use of children as subjects of pornographic...
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