CAAFlog » September 2011 Term » United States v. McClain

As predicted, CAAF made quick work of the question of legal sufficiency in United States v. McClain, No. 12-0099/AR, 71 M.J. 80 (C.A.A.F. Apr. 10, 2012) (CAAFlog case page) (link to slip op.), ruling for the government in a short per curiam opinion published today. The court avoids the technological tall grass, resolving the case in a way that only reinforces the importance of never missing an opportunity to keep your mouth shut when an investigator gives you a rights advisory:

The statement made by McClain on July 16, 2008, and admitted as Prosecution Exhibit 3 was sufficiently corroborated by the other evidence, both direct and circumstantial, for the military judge to admit the statement. McClain did not object at trial to the statement’s admission nor is he now asserting on appeal that the military judge erred by admitting the statement. That statement provides direct evidence that McClain intentionally sought pornography on the Internet using a Limewire software program that he installed on his computer, knowingly downloaded what he thought were videos containing child pornography, and then viewed those videos.

We hold that based on this evidence, including every reasonable inference that can be drawn from the evidence when viewed in the light most favorable to the Government, a rational trier of fact could find the essential elements of the charged offense of possession of child pornography beyond a reasonable doubt.

Slip op. at 4-6.

Unfortunately, the facts of this case prevented an effective inquiry into the apparently commonplace testimonial use of SHA1 values – as opposed to actually viewing the files and testifying about what was seen – in child pornography cases (a practice that is, to my knowledge, still unchallenged in military appellate caselaw).

Case Links:
ACCA’s opinion
Appellant’s brief
Appellee’s (government) brief
Oral argument audio
Blog post: Argument recap
CAAF opinion
Blog post: Opinion analysis

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.

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Links to the audio of this week’s oral arguments: