## Facts

- Private Gary D. Warner, U.S. Army, was tried by a general court-martial, military judge alone, on multiple Article 134, UCMJ, specifications.
- One contested specification alleged that, at or near Fort Riley, Kansas, between on or about April 6, 2009 and November 17, 2010, Warner knowingly possessed a Western Digital hard drive containing images that “depict minors as sexual objects or in a sexually suggestive way,” and that the conduct was prejudicial to good order and discipline and service-discrediting.
- At trial, the government introduced twenty images of prepubescent and pubescent girls posed in sexually suggestive ways.
- None of the images depicted nudity; the girls wore revealing clothing (including, in some images, G-strings).
- Several images included superimposed captions that were sexually violent or demeaning.
- Warner was convicted, contrary to his pleas, of the “sexual objects/sexually suggestive” possession specification, along with other Article 134 offenses (including a separate child pornography possession specification).
- The convening authority approved the adjudged sentence, which included a bad-conduct discharge and confinement (100 days).
- The United States Army Court of Criminal Appeals affirmed.
- Before the United States Court of Appeals for the Armed Forces (CAAF), Warner argued that due process was violated because he lacked fair notice that possession of these non-nude images—distinct from statutory child pornography—was subject to criminal punishment under Article 134.

## Issues

1. Whether Warner had constitutionally sufficient fair notice that possessing images “that depict minors as sexual objects or in a sexually suggestive way” was prohibited and subject to criminal sanction under Article 134.
2. If fair notice existed, whether the evidence was legally sufficient to support the conviction on that specification.

## Decision

- CAAF held Warner did not have fair notice that the charged conduct (possession of non-nude, sexualized images of minors described in the specification) was punishable under Article 134.
- CAAF reversed the lower court as to the challenged specification and set aside that finding of guilty.
- Because lack of notice resolved the case, CAAF did not reach the legal-sufficiency issue.
- The remaining findings were left undisturbed, and the case was returned for further proceedings consistent with CAAF’s opinion (including action on the sentence in light of the dismissed specification).
- Chief Judge Baker dissented, concluding Warner had adequate notice and would have affirmed the conviction on the specification.

## Legal Principles

- Due process requires fair notice that specific conduct is criminally punishable before a servicemember may be convicted under Article 134 for an unenumerated offense.
- Fair notice may come from recognized legal sources such as the UCMJ, the Manual for Courts-Martial, federal law, state law, military case law, military custom and usage, or regulations and orders that clearly address the conduct.
- General Article 134 language (“prejudicial to good order and discipline” / “service discrediting”) does not, by itself, supply notice that particular conduct—especially conduct outside a settled statutory category like child pornography—will be treated as a crime.
- Where the charged conduct is framed more broadly than established child pornography definitions (for example, “sexually suggestive” non-nude images), the government must point to an objective, preexisting legal basis showing servicemembers were on notice that mere possession is punishable.
- Moral offensiveness or “obvious wrongfulness” is not a substitute for legally adequate notice of criminal liability.

## Conclusion

United States v. Warner holds that, absent a clear legal source warning that possession of non-nude, sexualized images of minors is criminal, due process bars an Article 134 conviction for such possession; CAAF therefore set aside and dismissed the challenged specification and did not address whether the evidence was otherwise sufficient.


United States v. Warner, 73 M.J. 1 (2013)