On Friday, CAAF granted review in two cases, ordering briefs in one but not the other. Here are the three issues in the case in which CAAF ordered briefs to be filed:
WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILT FOR TRANSPORTING CHILD PORNOGRAPHY IN INTERSTATE COMMERCE WHEN NO EVIDENCE EXISTS THAT APPELLANT UPLOADED CHILD PORNOGRAPHY FROM HIS COMPUTER TO THE INTERNET FILE-SHARING PROGRAM “KAZAA.”
WHETHER THE ARMY COURT ERRED IN AFFIRMING THE FINDING OF GUILTY FOR SPECIFICATION 1 OF CHARGE I WHEN THE COURT AFFIRMED UNDER A DIFFERENT THEORY OF LIABILITY THAN WAS PROFFERED TO THE MILITARY PANEL, IN CONTRAVENTION OF CHIARELLA v. UNITED STATES, 445 U.S. 222 (1980).
WHETHER THE MILITARY JUDGE FAILED TO PROPERLY INSTRUCT THE PANEL ON THE ELEMENTS FOR SPECIFICATION 1 OF CHARGE I, BY: (1) OMITTING THE CHARGED LANGUAGE “CAUSE TO BE TRANSPORTED” FROM THE ORAL AND WRITTEN INSTRUCTIONS; (2) FAILING TO INSTRUCT ON A POSSIBLE GOVERNMENT ALTERNATE THEORY OF LIABILITY UNDER ARTICLE 77, UCMJ; AND (3) FAILING TO PROPERLY INSTRUCT ON THE TERM “UPLOADING’ [sic] WHEN THE COMPUTER EXPERTS AT TRIAL PROVIDED TWO VARYING DEFINITIONS.
United States v. Ober, __ M.J. ___ No. 07-0722/AR (C.A.A.F. Dec. 14, 2007).
Here’s a link to ACCA’s unpublished opinion in the case. United States v. Ober, No. ARMY 20040081 (A. Ct. Crim. App. May 25, 2007). ACCA tells us that the government conceded that “the evidence is factually and legally insufficient to support the finding of guilty as to transporting child pornography in interstate commerce (Charge I, Specification 1).” Id., slip op. at 1. But ACCA “decline[d] to accept that concession and [found] the evidence legally and factually sufficient.” Id. That should make GAD’s brief to CAAF interesting reading. Will GAD argue that it was right the first time?