UNITED STATES, Appellee 

v. 

Charles J. WOLFORD, Sergeant 

U.S. Army, Appellant 

No. 04-0578 

Crim. App. No. 20001042 

United States Court of Appeals for the Armed Forces 

Argued November 1, 2005 

Decided March 8, 2006 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and CRAWFORD and EFFRON, JJ., joined. BAKER, J., 

filed a separate opinion concurring in the result. 

Counsel 

For Appellant: Captain Todd N. George (argued); Colonel Mark 

Cremin, Lieutenant Colonel Mark Tellitocci, Major Sean S. Park

and Captain Michael L. Kanabrocki (on brief); Colonel John T. 

Phelps II. 

For Appellee: Captain Edward E. Wiggers (argued); Major William 

J. Nelson (on brief); Colonel Steven T. Salata; Lieutenant 

Colonel Theresa Gallagher; Captain Mark J. Hamel. 

Military Judge: Robert L. Swann 

This opinion is subject to revision before final publication. 
United States v. Wolford, No. 04-0578/AR 

2

Judge ERDMANN delivered the opinion of the court. 

 Sergeant Charles J. Wolford entered a plea of not guilty to 

sending, receiving, reproducing and possessing child pornography 

in violation of the Child Pornography Prevention Act of 1996 

(CPPA), 18 U.S.C. § 2252A (2000), charged under clause 3 of 

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 934 (2000). Wolford was convicted by a special court-martial 

comprised of members and was sentenced to be discharged from the 

Army with a bad-conduct discharge. The convening authority 

approved the sentence and the findings and sentence were 

affirmed by the United States Army Court of Criminal Appeals in 

an unpublished opinion. United States v. Wolford, No. ARMY 

20001042 (A. Ct. Crim. App. Apr. 27, 2004). 

A military judge is obligated to “assure that the accused 

receives a fair trial.” United States v. Graves, 1 M.J. 50, 53 

(C.M.A. 1975). This obligation includes the duty to “provide 

appropriate legal guidelines to assist the jury in its 

deliberations. . . .” United States v. McGee, 1 M.J. 193, 195 

(C.M.A. 1975) (citation omitted). Failure to provide correct 

and complete instructions to the panel before deliberations 

begin may amount to a denial of due process. United States v. 

Jackson, 6 M.J. 116, 117 (C.M.A. 1979). 

We granted review in this case to determine whether the 

panel was provided with appropriate and constitutionally correct 
United States v. Wolford, No. 04-0578/AR 

3

instructions concerning the definition of the term “child 

pornography.” We also considered whether the evidence was 

legally sufficient to support Wolford’s conviction on child 

pornography charges.1 We find that the military judge’s 

instructions did not deprive Wolford of due process and a fair 

trial. We also find that images alone can constitute legally 

sufficient evidence as to whether an actual child was used to 

produce child pornography. 

BACKGROUND

From August 1999 to May 2000, Wolford used a Microsoft 

Hotmail account to exchange child pornography with individuals 

he met through the Internet. One of his emails was discovered 

by a woman who contacted the Harris County Sheriff’s Office. 

The police, believing that there might be a federal offense 

involved, then contacted the U.S. Customs Service, which shares 

jurisdiction over CPPA investigations with the Federal Bureau of 

 

1

 We granted review of the following issues: 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN 

SUMMARILY AFFIRMING APPELLANT’S CONVICTION UNDER THE CHILD 

PORNOGRAPHY [PREVENTION] ACT (CPPA) 18 U.S.C. § 2251 et 

seq. (2000) DESPITE THE PRESENTATION OF UNCONSTITUTIONALLY 

OVERBROAD INSTRUCTIONS TO THE PANEL THAT, WHEN COUPLED WITH 

THE EVIDENCE IN THE RECORD, PERMITTED THE PANEL TO CONVICT 

APPELLANT ON BOTH A CONSTITUTIONAL AND UNCONSTITUTIONAL 

BASIS. 

WHETHER APPELLANT’S CONVICTION UNDER THE CPPA IS NOT 

SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE WHERE NO EVIDENCE 

WAS INTRODUCED AT TRIAL THAT THE DEPICTIONS WERE, IN FACT, 

PRODUCED BY USING REAL CHILDREN AS REQUIRED BY UNITED 

STATES v. O’CONNOR, 58 M.J. 450 (C.A.A.F. 2003). 
United States v. Wolford, No. 04-0578/AR 

4

Investigation and the U.S. Postal Service. The Customs Service 

identified Wolford with the help of Microsoft and Wolford’s 

Internet service provider. Customs then turned the case over to 

the Army’s Criminal Investigation Division (CID). 

CID interviewed Wolford, and he admitted to receiving, 

viewing, sending and saving approximately 100 images of child 

pornography. Wolford later argued that his confession was 

coerced and his case went to trial on his plea of not guilty. 

At trial, various witnesses testified about how Wolford was 

identified, where the images were found on his computer and how 

old the girls in the pictures appeared to be based on their 

sexual maturity. 

DISCUSSION

I. Standard of Review

Defense counsel did not object to the military judge’s 

instructions at the time of trial. Even so, “[t]his [c]ourt has 

determined that waiver must be established by ‘affirmative

action of the accused’s counsel,’ and not by ‘a mere failure to 

object to erroneous instructions . . . .’” United States v. 

Smith, 50 M.J. 451, 455-56 (C.A.A.F. 1999) (quoting United 

States v. Mundy, 2 C.M.A. 500, 502, 9 C.M.R. 130, 132 (1953)) 

(emphasis in original). Accordingly, we review Wolford’s 

instructional claims de novo. Id. at 455. If instructional 

error is found, because there are constitutional dimensions at 
United States v. Wolford, No. 04-0578/AR 

5

play, Wolford’s claims “must be tested for prejudice under the 

standard of harmless beyond a reasonable doubt.” United States 

v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). “The inquiry for 

determining whether constitutional error is harmless beyond a 

reasonable doubt is ‘whether, beyond a reasonable doubt, the 

error did not contribute to the defendant’s conviction or 

sentence.’” Id. (quoting United States v. Kaiser, 58 M.J. 146, 

149 (C.A.A.F. 2003)). 

With respect to Wolford’s legal sufficiency claim, our test

is “whether, considering the evidence in the light most 

favorable to the prosecution, a reasonable factfinder could have 

found all the essential elements beyond a reasonable doubt.” 

United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

II. Military Judge’s Instructions

Article 51(c), UCMJ, 10 U.S.C. § 851(c) (2000), and Rule 

for Courts-Martial (R.C.M.) 920 require the military judge to 

instruct the members of the court prior to any deliberations on 

findings. The military judge’s instructions are considered a 

“vital stage” of any court-martial. United States v. Groce, 3 

M.J. 369, 370 (C.M.A. 1977). As we stated above, “[t]he trial 

judge’s obligation to provide appropriate legal guidelines to 

assist the jury in its deliberations [is] an essential 

ingredient of a fair trial.” McGee, 1 M.J. at 195; Graves, 1 
United States v. Wolford, No. 04-0578/AR 

6

M.J. at 53. The military judge’s instructions are intended to 

aid the members in the understanding of terms of art, to 

instruct the members on the elements of each offense and to 

explain any available defenses. Graves, 1 M.J. at 53; see also

Groce, 3 M.J. at 370-71. 

Wolford has made three arguments concerning the military 

judge’s instructions. He argued in his brief that the military 

judge erred by: (1) using the following introductory language 

of 18 U.S.C. § 2256(8) in the instructions -- “any visual 

depiction, including . . . [a] computer generated image”; and 

(2) using the “conveys the impression” language of § 2256(8)(D) 

in the affirmative defense instruction. At oral argument, 

Wolford made no reference to the introductory language argument 

and conceded that the affirmative defense instruction was not 

problematic in the defense’s eyes. He focused instead on the 

new argument that even though the military judge omitted the 

“conveys the impression” phase from the § 2256(8)(D) definition, 

the remaining language in the subsection is unconstitutional. 

The military judge gave the following instruction defining 

“child pornography”: 

Child pornography means any visual depiction, 

including any photograph, film, video, picture or 

computer generated image or picture, whether made or 

produced by electronic, mechanical or other means of 

sexually explicit conduct where[:] 
United States v. Wolford, No. 04-0578/AR 

7

[(A)] the production of such visual depiction 

involves the use of a minor engaging in sexually 

explicit conduct, or 

[(B)] such visual depiction is of a minor engaging in 

sexually explicit conduct, or 

[(C)] such visual depiction has been created, 

adapted, or modified to appear that an identifiable 

minor is engaging in sexually explicit conduct, or 

[(D)] such visual depiction is advertised, promoted, 

presented, described, or distributed in such a manner 

that the material is or contains a visual depiction of 

a minor engaging in sexually explicit conduct. The 

words child or minor mean any person under the age of 

18 years. 

At the time of this trial in 2000, the term “child 

pornography” was defined in 18 U.S.C. § 2256(8) (amended 2003) 

as: 

any visual depiction, including any photograph, film, 

video, picture, or computer or computer-generated 

image or picture, whether made or produced by 

electronic, mechanical, or other means, of sexually 

explicit conduct, where -- 

(A) the production of such visual depiction involves 

the use of a minor engaging in sexually explicit 

conduct; 

(B) such visual depiction is, or appears to be, of a 

minor engaging in sexually explicit conduct; 

(C) such visual depiction has been created, adapted, 

or modified to appear that an identifiable minor is 

engaging in sexually explicit conduct; or 

(D) such visual depiction is advertised, promoted, 

presented, described, or distributed in such a manner 

that conveys the impression that the material is or 

contains a visual depiction of a minor engaging in 

sexually explicit conduct. 
United States v. Wolford, No. 04-0578/AR 

8

In United States v. O’Connor, we noted that the Supreme 

Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256, 

258 (2002), “determined that certain portions of the § 2256(8) 

definition are unconstitutional, specifically the ‘or appears to 

be’ language of § 2256(8)(B), and the entirety of § 2256(8)(D).” 

58 M.J. 450, 452 (C.A.A.F. 2003). We will address each of 

Wolford’s arguments in turn. 

A. Introductory Language of 18 U.S.C. § 2256(8)

Wolford’s first argument is that the military judge’s use 

of the introductory language “any visual depiction, including 

. . . [a] computer generated image,” from § 2256(8) was 

unconstitutional. The Supreme Court did not address this 

introductory language in Free Speech Coalition and instead 

focused on the language in 18 U.S.C. § 2256(8)(B) and (D). 535 

U.S. at 241-42. 

In O’Connor, we noted that the language from § 2256(8) that 

was not considered by the Supreme Court “remains subject to 

criminal sanction.” 58 M.J. at 452 n.2. Wolford complains that 

the reference to “computer generated image” is unconstitutional 

based on the Supreme Court’s treatment of § 2256(8)(B) and (D). 

However the Supreme Court left intact § 2256(8)(C) which 

prohibits computer morphing and therefore some types of 

“computer generated images” are not constitutionally protected. 
United States v. Wolford, No. 04-0578/AR 

9

Thus, it was not error for the military judge to use the 

introductory language of § 2256(8) in his instructions. 

B. Affirmative Defense Instruction

Wolford next argues that the military judge erred by using 

unconstitutional language in his affirmative defense 

instructions. During a session pursuant to Article 39(a), UCMJ, 

10 U.S.C. § 839(a) (2000), the military judge consulted with 

defense counsel before instructing the members and specifically 

asked about the need for affirmative defense instructions. 

Defense counsel told the military judge that the defense did not 

see the need for any affirmative defense instructions. Despite 

this response from defense counsel, the military judge included 

an affirmative defense instruction based on 18 U.S.C. § 2252A(c)2

for the sending, receiving and reproducing specifications: 

You are advised that the evidence has raised the issue 

of a defense in relation to this offense. One of the 

elements to this offense is that the accused’s act was 

wrongful, meaning without legal justification or 

excuse. The accused’s act is not wrongful, and the 

accused cannot be found guilty of this offense if the 

alleged child pornography was produced using an actual 

person or persons engaging in sexually explicit 

conduct; that each such person was an adult at the 

time that the material was produced; and that the 

accused did not advertise, promote, present, describe 

or distribute the material in such a manner as to 

 

2

 Section 2252A(c) was amended in 2003. The statute still 

provides an affirmative defense if only actual adults were used 

in the production of the images, § 2252A(c)(i)(A)(B) and § 

2252A(C)(2), but all reference to the manner in which the images 

were advertised, described, presented, promoted or distributed 

has been removed from the statute. 
United States v. Wolford, No. 04-0578/AR 

10

convey the impression it was, or contained, a visual 

depiction of a minor engaging in sexually explicit 

conduct. 

 The prosecution’s burden of proof to establish 

the guilt of the accused not only applies to the 

elements of the offense, but also to the issue of the 

defense; therefore, in order to find the accused 

guilty, you must be convinced beyond a reasonable 

doubt that the defense does not exist.3

 

Emphasis added. 

This affirmative defense instruction contains the language 

found in § 2256(8)(D) including the phrase “conveys the 

impression” which was found to be unconstitutional. In light of 

the Supreme Court’s ruling in Free Speech Coalition, this 

language is erroneous. We must decide, however, whether the 

error caused material prejudice to any of Wolford’s substantial 

rights or whether it was harmless beyond a reasonable doubt. 

Kreutzer, 61 M.J. at 298. 

We have held that a military judge is “more than a mere 

referee.” Graves, 1 M.J. at 53. He is charged with deciding 

whether any defense is reasonably raised by the evidence. 

United States v. Barnes, 39 M.J. 230, 232-33 (C.M.A. 1994). If 

there is “some evidence” of a possible defense –- it does not 

have to be compelling or convincing beyond a reasonable doubt –- 

the military judge is duty bound to give an instruction even if 

 

3

 The military judge used this language in regard to the sending 

and receiving specification and referenced it in regard to the 

reproducing specification. 
United States v. Wolford, No. 04-0578/AR 

11

the instruction was not requested by the parties. United States 

v. Jackson, 12 M.J. 163, 166-67 (C.M.A. 1981) (citations 

omitted). “This [c]ourt reviews a military judge’s decision to 

give an instruction . . . de novo.” Smith, 50 M.J. at 455 

(citing United States v. Maxwell, 45 M.J. 406, 424-25 (C.A.A.F. 

1996)). 

The instruction in question provided a defense to Wolford 

only if the images in question were created using adult models 

who were made to look like children. At trial, a pediatrician, 

Lieutenant Colonel Reginald Moore, M.D., testified for the 

prosecution. Dr. Moore testified that fifty-five of the eightysix images found on Wolford’s computer were of children under 

the age of eighteen. Defense counsel’s cross-examination of Dr. 

Moore was focused entirely on whether Dr. Moore had seen any of 

the pictures he reviewed in Wolford’s case in any previous case. 

Defense counsel did not ask any questions that raised the 

possibility that any of the images relied upon by the Government 

depicted an adult rather than a child. No such evidence or 

argument was introduced at any other time. Thus, there was no 

evidence in the record of a possible affirmative defense, and 

there is simply no danger that the members might have used this 

unnecessary, but erroneous, instruction. 

The lack of any evidentiary basis combined with defense 

counsel’s assurance that no instruction was needed renders the 
United States v. Wolford, No. 04-0578/AR 

12

military judge’s error harmless beyond a reasonable doubt. Cf.

United States v. Sikorski, 21 C.M.A. 345, 351, 45 C.M.R. 119, 

125 (1972) (effect of erroneous instruction need not be 

considered where instruction challenged by accused was 

specifically requested by him at trial). 

C. Constitutionality of 18 U.S.C. § 2256(8)(D) Language

Wolford’s third argument is that the military judge’s use 

of the language of § 2256(8)(D) in the instructions is 

unconstitutional even though he deleted the “conveys the 

impression” phrase. As noted earlier in this opinion, in 

O’Connor we stated that the Supreme Court in Free Speech 

Coalition had found “the ‘or appears to be’ language of § 

2256(8)(B), and the entirety of § 2256(8)(D)” to be 

unconstitutional. 58 M.J. at 452. Based upon that language, 

Wolford argues that the mere deletion of the phrase “conveys the 

impression” from § 2256(8)(D) does not remedy the constitutional 

infirmity. However, upon a close reading of Free Speech 

Coalition, it is clear that the Supreme Court’s concern with § 

2256(8)(D) centered on the “conveys the impression” language. 

Their discussion focused on the impact of this language and how 

it addressed how speech was presented, not on what was actually 

depicted. 535 U.S. at 257-59. 

Since the issuance of O’Connor, we have adopted this 

narrower interpretation of the Supreme Court’s treatment of § 
United States v. Wolford, No. 04-0578/AR 

13

2256(8)(D). In both United States v. Cook, 60 M.J. 130 

(C.A.A.F. 2004) (summary disposition) and United States v.

Lowrance, 60 M.J. 129 (C.A.A.F. 2004) (summary disposition), 

this court affirmed guilty plea convictions under the CPPA where 

the military judge omitted the phrase “conveys the impression” 

from the language of § 2256(8)(D), but used the remaining 

language from the definition. Here the military judge’s 

instruction did not use “conveys the impression” language that 

was the focus of the Supreme Court’s finding of 

unconstitutionality. Accordingly, the military judge’s 

instruction on the definition of “child pornography” was not 

erroneous. 

III. Legal Sufficiency

Wolford argues the evidence that the images were created 

using actual children was not legally sufficient. The 

Government takes the position that a factfinder has the 

prerogative to decide without expert testimony whether images of 

child pornography are actual or virtual. 

We recently addressed this issue in United States v. 

Cendejas, 62 M.J. 334 (C.A.A.F. 2006). In Cendejas, we held 

that the finder of fact can make a determination that an actual 

child was used to produce the images in question based upon a 

review of the images alone. Id. at 338. The images introduced 

by the prosecution in Wolford’s case were sufficient to enable a 
United States v. Wolford, No. 04-0578/AR 

14

reasonable factfinder to find guilt beyond a reasonable doubt. 

Turner, 25 M.J. at 324. Accordingly, the evidence was legally 

sufficient to support the members’ verdict that Wolford was 

guilty of sending, receiving, reproducing and possessing child 

pornography. 

DECISION

 The decision of the United States Army Court of Criminal 

Appeals is affirmed. 
United States v. Wolford, No. 04-0578/AR 

BAKER, Judge (concurring in result): 

Having previously concluded that the Supreme Court found 

“the ‘or appears to be’ language of § 2256(8)(B), and the 

entirety of § 2256(8)(D)” to be unconstitutional, United States 

v. O'Connor, 58 M.J. 450, 452 (C.A.A.F. 2003), this Court now 

takes the view that “the Supreme Court’s concern with § 

2256(8)(D) centered on the ‘conveys the impression’ language.” 

United States v. Wolford, 62 M.J. __ (12)(C.A.A.F. 2006). As a 

result, this Court concludes that the military judge’s 

instruction using the other elements of § 2256(8)(D) “was not 

erroneous.” Id. at __ (13).

According to the Supreme Court in Ashcroft v. Free Speech 

Coalition, 535 U.S. 234, 258 (2002): 

Section 2256(8)(D), however, prohibits a substantial amount 

of speech that falls outside Ginzburg’s rational. 

Materials falling within the proscription are tainted and 

unlawful in the hands of all who receive it, though they 

bear no responsibility for how it was marketed, sold, or 

described. The statute, furthermore, does not require that 

the context be part of an effort at “commercial 

exploitation.” Ibid. As a consequence, the CPPA does more 

than prohibit pandering. It prohibits possession of 

material described, or pandered, as child pornography by 

someone earlier in the distribution chain. The provision 

prohibits a sexually explicit film containing no youthful 

actors, just because it is placed in a box suggesting a 

prohibited movie. Possession is a crime even when the 

possessor knows the movie was mislabeled. The First 

Amendment requires a more precise restriction. For this 

reason, § 2256(8)(D) is substantially overbroad and in 

violation of the First Amendment. 
United States v. Wolford, No. 04-0578/AR 

2

Although the Supreme Court’s focus in Free Speech Coalition was 

indeed on the “conveys the impression” language, the Court’s 

constitutional concern extended beyond this language. 

Otherwise, the Court would not have held the entirety of § 

2256(8)(D) “substantially overbroad and in violation of the 

First Amendment,” nor expressed concern with the section’s 

language on pandering. Whatever this Court’s prior views as 

expressed in United States v. James, 55 M.J. 297 (C.A.A.F. 

2001), as a subordinate court we do not have the luxury of 

choosing or delimiting the Supreme Court’s constitutional 

conclusion that § 2256(8)(D), as a whole, is overbroad and 

unconstitutional. United States v. Irving, 432 F.3d 401, 411 

(2d Cir. 2005) (assuming both sections found unconstitutional); 

United States v. Bach, 400 F.3d 622, 630 (8th Cir. 2005) 

(commenting that Supreme Court held both sections in their 

entirety unconstitutional); United States v. Wyatt, 64 F. App’x 

350, 351 (4th Cir. 2003) (commenting that Supreme Court 

invalidated both sections); United States v. Kelly, 314 F.3d 

908, 910 (7th Cir. 2003) (commenting that Supreme Court struck 

down “the provisions of the CPPA that expanded the definition of 

child pornography to include virtual images”); United States v. 

Hall, 312 F.3d 1250, 1259 (11th Cir. 2002) (commenting that 

Supreme Court “struck down as unconstitutional the words ‘or 

appears to be’ from the definition of child pornography 
United States v. Wolford, No. 04-0578/AR 

3

contained in § 2256(8)(B) and the entire definition of child 

pornography in § 2256(8)(D)”). 

Nonetheless, I would affirm Appellant’s conviction on the 

ground that any instructional error on the potential defense was 

harmless beyond a reasonable doubt. In United States v. 

Martinelli, 62 M.J. 52 (C.A.A.F. 2005), albeit in the context of 

a guilty plea, we expressly left open the possibility of such a 

situation. In upholding Martinelli’s plea we noted “the absence 

of any focus on the ‘actual’ versus ‘virtual’ nature of the 

images, the use of the unconstitutional definition of ‘child 

pornography,’ and the absence of anything in the record that 

would demonstrate that Martinelli pled guilty to a 

constitutionally defined violation of federal law. Id. at 65. 

Applying this same reasoning to this contested case, I am 

confident that the use of the erroneous instruction on the 

potential defense incorporating some but not all of the language 

in § 2256(8)(D) was harmless beyond a reasonable doubt. The 

Government did not argue that Appellant had advertised, 

promoted, presented, described, or distributed the pictures in 

question “in such a manner that the material is or contains a 

visual depiction of a minor engaging in sexually explicit 

conduct.” 18 U.S.C. § 2256(8)(D) (amended 2003). There was no 

evidence presented that Appellant was being charged for 

possessing material based on the manner in which someone earlier 
United States v. Wolford, No. 04-0578/AR 

4

in the pornography food chain described it. Finally, Appellant 

did not defend on either basis. Apparently the defense theory 

was that the images were of actual children and the defense 

focused on challenging Appellant’s knowledge that he possessed 

the images. Thus, the record is clear that Appellant was 

charged, and convicted, for possessing pictures of actual minors 

engaged in sexually explicit conduct.