ACCA axes negligent possession of child pornography conviction

In addition to offenses arising from mishandling classified information, Major Amazaki pleaded guilty to and was convicted of a spec that alleged he violated Article 133 by "wrongfully and dishonorably possess[ing] a 100 ZIP Diskette, which contained 8 images of child pornography, . . . by possessing over 150 images of pornography by negligently failing to note that there was child pornography among such images, by negligently failing to eliminate said images of child pornography from the Diskette, and by negligently leaving said images of child pornography on the Diskette in his place of residence in such a manner that other persons could easily access said images of child pornography." In a published decision authored by Judge Ham, ACCA held yesterday that MAJ Amazaki didn't have fair notice that such negligent possession of child pornography was a crime. United States v. Amazaki, __ M.J. ___, No. ARMY 20070676 (A. Ct. Crim. App. March 31, 2009).

Judge Ham reasoned:

Appellant was not on notice that he was subject to criminal prosecution by failing to discover that, unbeknownst to him and without requesting, seeking, or searching for such images, a diskette a friend gave him contained illegal child pornography. Specifically, we hold appellant was not on notice the charged conduct . . . would subject him to criminal sanction under Article 133, UCMJ. Further, we disagree appellant was on notice he had any duty to use due care to review the diskette his friend provided to "make sure there was nothing illegal" on it. There is no custom, regulation, or otherwise to the contrary.

Id., slip op. at 10 (footnote omitted).

She concluded that "no reasonable officer would recognize that appellant’s unwitting conduct would bring dishonor or disrepute upon himself or his profession. To the contrary, any reasonable officer would doubt these acts constitute conduct unbecoming an officer." Id., slip op. at 11.