It’s been a relatively long time since a cert petition in a military justice case (the last one I tracked was Dalton v. United States, No. 13-589 (synopsis in this TWIMJ post) (cert denied on Jan. 10, 2014)). But last Sunday I noted a cert petition in Finch v. United States, No. 13-1440 (CAAFlog case page).

 I received a copy of the petition and it’s available hereThe question presented is:

[W]hether a divided Court of Appeals for the Armed Forces erred when it affirmed Petitioner’s sentence in violation of Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) and Alleyne v. United States, 133 S. Ct. 2151 (2013)?

The petition concludes:

The crux of the issue in the present case is whether the offenses for which Petitioner was found guilty are directly analogous to 18 U.S.C. § 2252A(a)(2) and (5). In a 3-2 decision, the Court of Appeals for the Armed Forces held that it is.

However, in coming to its decision, it appears the majority did not consider how U.S.C. § 2252A(a)(2) and (5) have been modified by Ashcroft. As noted in the dissent by the Honorable Margaret Ryan, Court of Appeals for the Armed Forces, “the United States Code may constitutionally criminalize only child pornography that either involves actual children or is obscene.” Finch, 73 M.J. at 150 n.2; see also Ashcroft, 535 U.S. at 251.

That issue was not considered by the majority when it determined the federal statute was essentially the same as the charged offense. Put simply, because the federal code cannot charge someone with the possession or distribution of virtual child pornography while the military can, the crimes are not directly analogous. Because there exists no statute in federal law analogous to the offenses for which Petitioner was found guilty (see Ashcroft), the maximum confinement Petitioner should have faced was four months for each specification, or eight months total. See Beaty, 70 M.J. at 45.

Further, even assuming the statutes were analogous, in order to punish the Petitioner under the higher federal maximums, his guilt to possession of actual images would have to be proven beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2160. That did not occur. Instead, Petitioner was only found guilty of possession and distribution of images that had no requirement (or proof) that they “include actual images of minors,” as articulated by the military judge.

Pet. at 13-15.

One Response to “The cert petition in Finch”

  1. RKincaid3 (RK3PO) says:

    I made a similar argument in–in Iraq.  Simply stated, my position to the court was that if the government couldn’t (or wouldn’t) expend the time and money necessary to prove that real kids were involved in the child porn at issue, then the most analogous offense in the UCMJ for the Art 134, clause 1 and 2 offense was NOT 18 USC 2252A.  The government wanted better than 20 yrs.  The judge creatively agreed with the defense and grabbed the punishment from Article 134 – (Mails: depositing or causing to be deposited obscene matters in), based upon the fact that internet traffic is mail in the sense that it involves the delivery of “packets of information” being sent from one place to another–classic mail defintion and example.  This decision was a much more lenient punishment for my client than was the 20 + years the government sought–and my client also avoided sex offender registration because no real kids were involved in a 134 mail offense. 
    I hope the SCOTUS takes this case as this is an important issue–how much energy, expense and effort does the government have to actually expend in order to fully satisfy due process?  If an accused is put on notice of an Art 134 offense–that doesn’t require certain burdens of proof be met–why can the government simply grab the penalty without first meeting its legal obligations justifying the imposition of the punishment for a particular offense?
    This will re-enforce the concept of “limited government”–rightly so!!