Yesterday we noted NMCCA’s new published en banc decision of United States v. Yammine, __ M.J. ___, No. NMCCA 200800052 (N-M. Ct. Crim. App. May 12 2009) (en banc). The case features an interesting dispute between the majority and Judge Booker, writing separately.
The case involves the permissibility of the government’s use of child pornography evidence to prove that the accused engaged in sexual activity with a 14-year-old boy. The opinion offers a number of permutations on this theme, but here’s the most important issue that the case presents, as framed by Senior Judge Couch’s opinion of the court: “whether file names suggestive of possession of child pornography constitute a qualifying offense under MIL. R. EVID. 414, and are therefore admissible as propensity evidence against an accused in a prosecution for alleged acts of child molestation.” Id., slip op. at 6. The majority says yes; Judge Booker says no.
Military Rule of Evidence 414(a) provides: “In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of CHILD MOLESTATION is admissible and may be considered for its bearing on any matter to which it is relevant.” Mil. R. Evid. 414(a) (emphasis added). The central issue in Yammine is thus whether possession of a file whose name suggests it contains child pornography is a “child molestation” offense. The majority agrees with Judge Beal that it is. Judge Booker disagrees.
The majority provides this analysis of the question:
[T]he military judge concluded that the possession or attempted possession of child pornography, a violation of 18 U.S.C. § 2252A, constitutes “an offense of child molestation” as it involves “deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain of a child” under MIL. R. EVID. 414(d)(5). AE XXIX at 3-4. Like the military judge, we are persuaded that this ruling is correct and is in concert with at least one federal court. Id. (citing United States v. Seymour, 468 F.3d 378, 385 (6th Cir. 2006)(“Child molestation includes both conduct proscribed in Chapter 109A of Title 18, if committed against a child, and offenses involving child pornography.”)). Further, we hold that possession, or attempted possession, of child pornography also qualifies as an “offense of child molestation” under MIL. R. EVID. 414(d)(2) and (g)(5) as “sexually explicit conduct with children . . . proscribed by . . . Federal law” because it involves the “lascivious exhibition of the genitals or pubic area of any person.”
The majority adds in a footnote:
This holding is consistent with FEDERAL RULE OF EVIDENCE 414(d)(2) which defines an “offense of child molestation” as including possession or attempted possession of child pornography under chapter 110 of title 18, United States Code. 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2)); see also United States v. Bentley, 475 F. Supp. 2d 852, 856-57 (N.D. Iowa, Feb. 21, 2007), aff’d, 561 F.3d 803 (8th Cir. Iowa 2009).
In a concurring opinion, Judge Booker offers a lengthy counter-analysis that bears reading in full. Here’s a short excerpt:
MIL. R. EVID. 414 permits the Government to introduce “evidence of the accused’s commission of one or more offenses of child molestation.” The rule defines an offense of child molestation to mean an offense punishable under the UCMJ, or a crime under Federal law or the law of a State, that involved (1) any sexual act or sexual contact or (2) any sexually explicit conduct with children proscribed by the UCMJ, federal law, or state law. MIL. R. EVID 414(d). “Sexually explicit conduct” for the purposes of the Rule means actual or simulated sexual intercourse; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals.1 MIL. R. EVID. 414(g).
All the offenses included in the Military Rule involve being in the physical presence of a child. Notably, the Military Rule does not include “communicating indecent language to a child” or “transmitting obscene matter to a child” among the qualifying offenses. As noted in the Drafters’ Analysis of the Military Rule and in the few cases interpreting the Military Rule, our rule is based on FEDERAL RULE OF EVIDENCE 414. The Federal Rule notably also does not include these sorts of offenses (the “obscenity” chapter of title 18 is Chapter 71; the Federal Rule mentions only Chapters 109A and 110). I am inclined to conclude, therefore, that the Rule is intended to cover only those acts that have been committed upon or in the presence of the child by the accused.
Yammine, slip op. at 22 (Booker, J., concurring) (footnote omitted).
This issue would seem appropriate for CAAF’s resolution, though perhaps not in this case. Judge Booker concurs with the majority in affirming Sgt Yammine’s conviction and sentence, concluding that the error was harmless. Id., slip op. at 25-26. Given the disturbing frequency with which the military justice system must deal with child molestation offenses, CAAF will no doubt soon enough be presented with this issue in a case where it may affect the outcome.