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Thursday, January 08, 2009
Still another CAAF opinion
United States v. Kuemmerle, __ M.J. ___, No 08-0448/NA (C.A.A.F. Jan. 8, 2009). CAAF splits 4-1 over whether a servicemember can be tried at court-martial for distributing child pornography where he posted a child pornography image online before going on active duty and left it there after he was on active duty, at which point a law enforcement officer accessed it. CAAF said yes, providing a comprehensive definition of "distribution." Judge Stucky in dissent said no.
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12 comments:
Judge Ryan keeps me guessing -- most reading would suggest that she has the most restrictive view of military justice jurisdiction on the court and, given her comments that there is no realm of concurrent jurisdiction between military and civilian life in Denedo, among other Thomas-style textual interpretations like her dissent in Confliffe, I would expect her to have authored a dissent here.
Judge Baker's opinion is flawed because his underlying factual assumption (i.e. - Appelant made an affirmative decision to keep the image posted online after entering the service) is inaccurate. His reliance on the stipulation of fact to support his argument is misplaced.
He states the following: "Significantly, however, Appellant stipulated that he accessed his Yahoo! account while on active duty. He also stipulated that he had the ability to access the profile while on active duty, including the capacity to remove the image of child pornography." However, there was no evidence at trial indicating that the Appellant actually accessed his profile with the image or that he still knew on 10 August 2006 that the image was still on his profile - capability and action are two different things. TDC even objected to the argument that the Appellant "knew" that the image was on his profile on 10 August 2006. During providency, the Appellant acknowledged that the image was on his profile on 10 August 2006, but this was only based on discovery provided by the government.
The opinion further states: "Indeed, after he was already charged, Appellant took steps to remove the image on June 28, 2007, the same day on which he was convicted. By implication, Appellant made an affirmative decision while on active duty to keep the image posted on his profile." Once again, Judge Baker draws an unwarranted conclusion (i.e. - that the Appellant exercised control of the image on his profile) out of the stipulation of fact. The "steps" the Appellant "took" was the TDC telling TC to please have NCIS remove the image from his profile. This is a far cry from the Appellant exercising direct control over his profile or the image.
~ K's TDC
This case is a perfect example of why Congress decided that the judges on CAAF shouldn't be fact-finders. Minimal trial experience on the resumes of these five appellate judges and Judge Baker has none.
Apart from whether the majority opinion is otherwise correct, it does seem to me that the real question as to the charged offense is whether the accused committed any act of distribution on 10 Aug 2006.
If the defense honestly believed the answer was "no" (i.e. that the offense actually occurred on 7 Sep 2000), how could it have agreed to plead guilty to the charged offense in the first place?
Isn't this just a question of whether the plea was provident, and not really a question of jurisdiction -- and isn't it framed as a jurisdictional question, only because the last thing the defense wants (given the effect of the PTA on the adjudged sentence) is for the plea to be set aside?
In response to K's TDC - if your client didn't know that he was distributing CP on the date in question, how could you have possibly let him plead to it? Isn't this a lack of candor to the tribunal?
As a fellow TDC, I can understand your desire to get through providency with a plea, but it seems that this was square peg, round hole type lawyering.
As much to the point, however, why did the military judge -- if the defense at trial was alleging that the accused did not commit the offense, as alleged, on 10 August 2006 -- ever accept the plea, instead of simply rejecting it?
To be fair both to DC and MJ, wasn't this really an question of law (no one really seemed to dispute the underlying facts), to which there was no clear answer at the time?
While something like a conditional plea might have been cleaner, I think the defense could fairly enter into the PTA and the MJ properly accept the pleas, despite the remaining question eventually resolved by CAAF.
Based upon Anon 0633's enlightening comments, I've got real problems with the MJ accepting this plea. But, no one probably wanted to try the case.
K's TDC response to concerns about lack of candor to tribunal and providency:
(1) My concerns about K's knowledge of the image still being posted were raised during an 802 conference and I objected on the record as to whether the Accused actually knew (really remembered) on the date of the offense that the image was still on his profile. The MJ accepted K's providency inquiry nonetheless.
(2) After the PTA was signed, I filed a motion to dismiss the distribution charge for lack of jurisdiction, in part, based on the definition of distribution under the Sentencing Guidelines. Given the PTA contemplated K still filing motions for "lack of jurisdiction", then the PTA would arguably still have been valid if the distribution charge was dismissed for lack of jurisdiction and assuming the CA did not withdraw from the PTA. If it were a providency issue, then the PTA would have been in jeopardy. The case law was unclear at the time of what constituted distribution and when distribution occurs. Now that CAAF has decided the issue or at least given more guidance (even though I agree with the dissent), it appears that this would now be an issue of providency.
I would note that even though the MJ accepted providency for distribution, the MJ stated on the record that he did not consider the distribution charge in awarding the sentence. This was apparently based on the evolving definitions of distribution under the Sentencing Guidelines.
Thanks K's TDC. That clarifies a lot of things. And I agree with your position, it would seem to me that the proper focus should be on the actus reus component, i.e., the actual "posting" of the image. Thus, the Solorio jurisdiction issue seems controlling. But, what's "wrong" with the military justice system is a MJ who denies your Motion to Dismiss, but then is worried about it, and couches his Sentence announcement to try and take away any "prejudice."
Was the definition used that in USSG 2G2.2:
"“ ‘Distribution’ means any act, including possession with intent to distribute, production, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant."
That's the later definition which added the "posting" provision, which was not in the earlier definition.
Dew Process - Please see an excerpt from my brief submitted at the trial level. It is the second argument I advanced for asserting jurisdictional and potential constitutional issues. I believe it played a role in the judge deciding not to punish K for the distribution charge.
...
Moreover, [K's] act of posting an image on a website was arguably not encompassed in the sentencing guidelines’ definition of distribution when [K] created his Yahoo profile on 7 September 2000. In September 2000, the definition of distribution included “any act related to pecuniary gain, including production, transportation, and possession with intent to distribute.” U.S.S.G. § 2G2.2 (1998). Here, when [K] posted the image, it was not an act related to pecuniary gain. In November 2000, the definition was further revised to “means any act, including production, transportation, and possession with intent to distribute, related to the transfer of material involving the sexual exploitation of a minor.” U.S.S.G. § 2G2.2 (2000). Subsequently, in 2004, the definition was amended further to include “posting material involving the sexual exploitation of a minor on a website for public viewing." U.S.S.G. § 2G2.2 (2004).”
As a consequence of these amendments, the government is now attempting to prosecute and punish [K] in an ex post facto manner. The guidelines specify that “[i]f the court determines that the use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” U.S.S.G. § 1B1.11 (2006). In the alternative, the government’s prosecution violates the Due Process Clause by prosecuting [K] under a statute that was so unconstitutionally vague in application to his conduct that Congress amended the definition to better identify the chargeable conduct. “A judicial construction of an existing criminal statute, already on the books at the time of the conduct in question, cannot be a violation of the ex post facto clause. It can, of course, be a violation of the Due Process Clause … if a law is interpreted in an unexpected fashion, if a statute narrowly and precisely drafted is unexpectedly expanded to cover conduct without fair notice.” Knutson v. Brewer, 619 F.2d 747, 751 (8th Cir. 1980).
OK - great points, especially the ex post facto provision in the USSG. THat's what I was thinking, but didn't know what definition was used at trial. Did the MJ even address that? We know that CAAF didn't!
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