CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 -- Child Pornography (para 68b, MCM, *** Post-2012 Amendment)

2020 (October Term)

United States v. Ozbirn, 81 M.J. 38 (the receipt of child pornography as an offense under Article 134, UCMJ, has two elements:  (1) that the accused knowingly and wrongfully received child pornography, and (2) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces; the term child pornography means either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct). 

(in this case, where the specification at issue alleged that appellant attempted to receive photographs of what appeared to be minors engaging in sexually explicit conduct, the government was required to prove, beyond a reasonable doubt, that appellant had a specific intent to receive photographs that were both obscene and that included a lascivious exhibition of the genitals or pubic area; given the totality of the circumstances in which appellant asked for naked pictures from adults pretending to be minors, the evidence was legally sufficient to sustain a conviction for attempted receipt of child pornography; after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could infer from the circumstances that appellant had the requisite specific intent where (1) even though appellant only asked for naked pictures, he made the request in exchanges of messages that established a context for understanding those requests, (2) appellant believed that he was speaking to minors, (3) in vulgar language, he graphically described very specific sexual conduct with them and he asked them to engage in sexual relations with him, (4) throughout, appellant’s words evinced a specific focus on genitalia, and (5) appellant offered to send explicit pictures of his genitals in exchange for the naked photos that he requested). 

(naked photographs of persons who appear to be children are not automatically to be considered child pornography and a request for such photographs is not automatically to be construed as a request for child pornography; not all naked pictures of children are child pornography).

2018 (October Term)

United States v. King, 78 M.J. 218 (in order to convict an accused for viewing child pornography under Article 134, UCMJ, the prosecution must prove: (1) that the accused knowingly and wrongfully viewed child pornography; and (2) that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces).

(direct evidence of the offense of viewing child pornography will be rare because the offense is usually committed in private; as a result, the government often will have to rely on circumstantial evidence in attempting to prove the offense). 

(in this case, although forensics failed to conclusively determine that appellant actually saw the three charged images because the images were located in his computer’s unallocated space and browser cache as opposed to being located the computer’s logical space, the circumstantial evidence of viewing child pornography was legally sufficient where appellant password-protected his electronic devices, including his computers, where a search of his home desktop computer revealed thousands of offensive photos, where appellant searched for images in Google and Bing using terms that were indicative of child pornography, and where he freely admitted that he viewed “thrilling” images of nude children).

(while evidence found in an area of the computer with more indicia of user control (e.g., a user-created folder) carries more weight than evidence found in a cache or in unallocated space, evidence that a person has sought out or searched for child pornography on the internet and has a computer containing child pornography images, whether in the hard drive, cache, or unallocated space, can count as circumstantial evidence that a person has knowingly viewed child pornography; what weight the factfinder ascribes to that evidence is for the factfinder alone to determine).

(possession of child pornography differs in material ways from mere viewing; in this case, where appellant was charged with viewing child pornography, the government was not required to prove dominion or control, and as such, the presence of the charged images in inaccessible space takes on less significance; while an accused’s inability to access data may prove a fatal flaw in a possession case, it does not similarly cripple a viewing charge, which only requires that, at some point, the accused knowingly and wrongfully viewed the image). 

2017 (October Term)

United States v. Barker, 77 M.J. 377 (child pornography is a continuing crime: it is a permanent record of the depicted child’s abuse, and the harm to the child is exacerbated by its circulation).

2016 (October Term)

United States v. Forrester, 76 M.J. 479 (if possession of child pornography under the circumstances is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts). 

(possession of child pornography under Article 134, UCMJ, includes two elements: (1) that the accused knowingly and wrongfully possessed, received, or viewed child pornography; and (2) that the conduct was prejudicial to good order and discipline or service discrediting; possessing means exercising control over something, which may be direct or constructive, and must be knowing and conscious; child pornography means material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct; a visual depiction includes: any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image). 

(by defining child pornography as material that contains illicit visual depictions, the MCM prohibits knowing and conscious possession of the physical media or storage location that contains the offensive images).  

(appellant was convicted of four specifications of possessing child pornography on four separate materials that contained child pornography; because the MCM defines child pornography not as images but materials that contain them, it matters not that the images extant on each material listed in the bill of particulars were visually similar or identical for each count of possession; under the plain language of the MCM, appellant completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material, to include his laptop, two hard drives, and e-mail account, that contained visual depictions of child pornography; as such, appellant’s possession of each distinct material reflected a discrete and separately punishable unit of possession; the President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography; accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous; thus, the second Quiroz factor fails; and this also ends the Quiroz analysis: it simply was not unreasonable to sentence appellant for four specifications that reflected distinctly separate criminal acts). 

2013 (September Term)

United States v. Payne, 73 M.J. 19 (the military judge properly instructed the members as to what constituted child pornography by defining that term and then providing proper definitions of sexually explicit conduct and lascivious exhibition).   

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