Last week’s oral argument in United States v. McClain, No. 12-0099/AR, involved a straightforward issue that arises from a complicated fact pattern. The question before the court was:
Whether the evidence is legally sufficient to support appellant’s conviction of possessing child pornography.
However, the facts involve a sort of interpretative technological dance to determine that the appellant possessed child pornography.
The appellant was convicted, contrary to his pleas and by a military judge sitting as a general court-martial, of one specification each of possession of child pornography and distribution of visual depictions of minors engaging in sexually explicit conduct to internet users, in violation of Article 134, UCMJ. He was sentenced to confinement for 14 months (reduced to 13 months by the convening authority), reduction to E-1, and a BCD. However, the ACCA found the evidence supporting the distribution specification legally and factually insufficient, stating: “We are not convinced beyond a reasonable doubt appellant maintained the specific intent to place child pornography in a shared, peer-to-peer software program and make that child pornography available for viewing or downloading by other Limewire users.” United States v. McClain, No. 20090446, Slip op. at 4 (A. Ct. Crim. App., August 19, 2011) (memorandum opinion). The court reassessed the sentence, and affirmed it as approved by the convening authority.
At trial, an NCIS Special Agent testified that while he was conducting an undercover investigation for personnel distributing child pornography over the internet, he attempted to download what appeared to be child pornography from what was later identified as the appellant’s computer (via the peer-to-peer file sharing program Limewire). However, he was unable to download any of the files that the appellant was later charged with possessing. Instead, he downloaded files from other Limewire users that had the same titles, file type, file size, and “SHA1 value” as the files on the appellant’s computer. Subsequently, the appellant admitted, in a sworn statement, to downloading child pornography.
Unfortunately for the government, the Special Agent testified as a lay witness, and the court-martial heard no formal expert testimony about the meaning of a “SHA1 value” (which is an algorithm used to create a digital fingerprint – also known as a “hash” – of a digital file, and is often used in child pornography cases). This created two arguments for the appellant before CAAF: (1) the Special Agent’s testimony was actually improper expert testimony, and (2) the Special Agent never viewed the actual files on the appellant’s computer, and therefor couldn’t confirm that he knew what they were or that they could even be viewed by the appellant.
In it’s brief, the government describes the appellant’s arguments as separate issues, one evidentiary and one involving legal sufficiency. The difference is significant, because an error involving erroneously-admitted evidence can result in a rehearing, whereas a failure by the government to present sufficient evidence results in dismissal. The government’s brief emphasizes the appellant’s confession, characterizes the admitted files as “copies” of the files on the appellant’s computer, and maintains that the Special Agent’s testimony was proper lay testimony, in part because of its limited scope.
During the oral argument the appellant’s counsel opened with two lines of argument, first that the content of the files (videos) that were on the appellant’s computer remains unknown, and second that there is insufficient evidence as to the appellant’s dominion and control of the files. But he faced immediate skepticism based upon the the fact that the testimony and evidence presented at trial must be viewed in the light most favorable to the government under the standard of review for legal sufficiency. The appellant’s counsel didn’t seem to overcome this skepticism during his initial argument. For example, at 3:10 in the argument audio, the Chief Judge asked, “how do you deal with the appellant’s statement, which some would describe as a confession?” And then at 4:05 he asks, “why does the agent’s testimony no corroborate [the] appellant’s statement?” Indeed.
When the government’s counsel had a turn, he seized on the court’s skepticism to emphasize that the (copies of the) videos were admitted at trial, that the accused confessed, and that the court-martial had evidence to sustain the conviction, which is the only issue before the court.
One possible argument that wasn’t raised during the argument is a challenge to the use of the hash value (the “SHA1 value”) to identify the files possessed by the appellant. The appellant’s counsel touched somewhat on the technical aspects of the case, particularly in his rebuttal argument, but there was no frontal attack on this method of file identification. Of course, this wasn’t part of the granted issue, but it seemed to be just below the surface throughout the arguments from both sides.
The total argument was relatively short (using only 28 of the possible 40 minutes). Based on the court’s skepticism of the appellant’s claim, I anticipate that the court will find that the evidence was sufficient to support the conviction, and affirm the ACCA’s action.