NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009). Chief Judge O’Toole wrote for a unanimous panel.

NMCCA framed the issue in Craig as “whether ‘posting an image’ alone may constitute distribution.” Id., slip op. at 5. Petty Officer Craig pleaded guilty to the child pornography distribution charge. The providence inquiry established that others could download a child pornography image from Petty Officer Craig’s computer via LimeWire. But Petty Officer Craig was unaware of whether anyone had actually done so. NMCCA held that absent such an actual download, no offense is committed under § 2252A(a)(2). However, the court observed, making an image of child pornography available for download does violate other “statutory prohibitions against promoting or offering child pornography, and against its attempted distribution. See §§ 2251(d), 2252A(a)(3)(B), 2252A(a)(6), and 2252A(b).” Id., slip op. at 6.

NMCCA provided no sentence relief, reasoning that the facts that led to the distribution conviction would have been admissible in sentencing even without the finding of guilty. Id., slip op. at 7. The military judge sentenced Petty Officer Craig to confinement for 18 months, reduction to pay grade E-1, and a bad-conduct discharge.

14 Responses to “NMCCA sets aside child porn distribution conviction in published decision”

  1. John O'Connor says:

    There’s probably a simple answer to this, but why didn’t the court approve instead a conviction to the LIO of attempted distribution?

  2. Anonymous says:

    That Larry Craig, just can’t keep himself out of trouble….

  3. Anonymous says:

    On the question of the LIO, could it be that the attempt would have required the specific intent to distribute, and the record was insufficient to support the element? It would’ve been nice for the court to address the issue.

  4. Anonymous says:

    This is a good decision – the default for LimeWire is to make your folder a shared folder — the user doesn’t even know. It takes an affirmative act to make the folder not shared.

  5. Brian says:

    Anon 1911 is correct, there was no evidence elicited during the providence inquiry to demonstrate the specific intent required for attempt. That issue was briefed and discussed in oral argument.

  6. Christopher Mathews says:

    One of the many areas where the law hasn’t fully accounted for the mechanics of the technology.

    Given the speed with which new computing applications are released, and the rather less rapid pace of changes in the law, cybercrime-type offenses will probably always require agile analysis by counsel and judges alike. Chief Judge O’Toole, it seems to me, got this one exactly right.

  7. Anonymous says:

    WRT to the comments by Brian and Anon 1911, I’ve noticed what seems to be a paradox in these cases (at least in the case of a guilty plea): the attempted offense ultimately is more aggravated than the completed offense, since the attempted offense requires specific intent.

  8. Anonymous says:

    I think the main lesson to be learned is that the Govt needs to think a bit more carefully when drafting charges. From the opinion:

    “Though Congress’ intent in enacting 18 U.S.C. § 2252 was a broad one, to protect children from sexual exploitation (See S. Rep. No. 438, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S.C.C.A.N. 40, 41), we find no authority to impute a broader definition to the term “distribute” than Congress or the federal courts have provided. This is, in part, because Congress has specifically provided statutory prohibitions against promoting or offering child pornography, and against its attempted distribution. See §§ 2251(d), 2252A(a)(3)(B), 2252A(a)(6), and 2252A(b). Quite clearly, knowingly acting as a child pornography distribution node within a network of file-sharers is punishable under these statutes as a discrete offense, even when there is no evidence of a completed transfer of possession.

  9. Anonymous says:

    But, in the end, much ado about nothing.

  10. Anonymous says:

    Another guilty plea that a vigilant military judge shouldn’t have accepted.

    So if these facts weren’t a crime, how come no sentence relief? Obviously the judge erroneously thought they were a crime and he sentenced under such a belief.

    How about some meaningful sentence relief? What a ridiculous shell game.

  11. Anonymous says:

    The facts were a crime, but not the one charged.

    “The Government proceeded under 18 U.S.C. § 2252A(a)(2), by charging distribution of child pornography as a violation of that statute under Article 134, UCMJ, clause 3.”

    The problem was that the Govt charged under the general article and the MJ used a distribution definition from one of the enumerated UCMJ articles and applied it to 18 U.S.C. § 2252A(a)(2). The problem is that the 112a distribution definition includes offers or attempts to distribute when no actual distribution takes place. Where as other sections of 18 USC (not the one charged) include attempts or offers to distribute, thus the section the Govt chose to proceed under couldn’t have a distribution definition that the MJ used because it is provided for elsewhere in the Code.

    As to relief, 18 months is within what one would expect for receipt and possession of child porn, even w/o a attempted/constructive distribution offense.

  12. Anonymous says:

    So he should be punished for something he wasn’t charged with. That’s some due process there.

    This judge obviously didn’t know what was a crime and what wasn’t.

    Some sentence relief should have been in order. At least a small bone thrown to the accused for the military judge’s incompetence.

  13. John O'Connor says:

    “Some sentence relief should have been in order. At least a small bone thrown to the accused for the military judge’s incompetence.”

    The constable has erred, so the prisoner must go free.

    The better argument is not that the accused should be rewarded because the MJ was, in your view, “incompetent,” but that he should get sentence relief because (as you note earlier in your post) he was being sentenced for something he wasn’t convicted of.

    In the end, though, I’m not sure I necessarily agree even with that last point in this case. The accused was convicted of possessing the stuff, and it seems to me that the fact that he posted the stuff on a publicly-available site would be relevant aggravating evidence on the possession charge (as opposed to keeping the bad stuff in a desk drawer in his house). So either way, the accused was going to get sentenced based on an act involving the posting of the contraband. It’s true, of course, that sentencing can be affected by things such as the available maximum sentence, etc., and removing a spec could move the needle in that way. But without reviewing the whole record (maybe Cossio can post it), I can’t say the court was wrong (or necessarily right, for that matter) on sentencing.

  14. Cossio says:

    Ah, that’s funny JO’C. Of course I only have my ROT, noone elses. (16+ volumes total on two court-martials and one rehearing).

    No, I agree with this ruling, not so much on the lack of sentencing relief. I do not like the arguement “He would have gotten 18 months anyway”.

    If that is so why was he charged in the first place?

    I don’t know what goes on in the heads of some SJA’s. Why risk such a complex charge that could comeback as a rehearing?

    K.I.S.S (Keep It Simple Stupid) method should be enforced when dealing with computer crimes.

    As even the Government Hacks noted in their sentencing arguement, he probably would have gotten the same sentence.

    There is no need to throw extra charges – Wait, there is.

    We know why.

    It is an unwritten rule not to go to trial with just on or a few specs.

    The more charges, the better. Especially if you can get a Federal Statute in there.

    I guess the problem with is charging fool-osophy.