United States v. Reeves , 62 M.J. 88 ( 2005 )

UNITED STATES, Appellee
v.
Marc R. REEVES, Sergeant
U.S. Army, Appellant
No. 03-0595
Crim. App. No. 20010497
United States Court of Appeals for the Armed Forces
Argued February 23, 2005
Decided September 29, 2005
ERDMANN, J., delivered the opinion of the court, in which EFFRON
and BAKER, JJ., joined. GIERKE, C.J., filed a separate opinion
concurring in part and dissenting in part. CRAWFORD, J., filed
a dissenting opinion.
Counsel
For Appellant: Captain Karen W. Riddle (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G.
Lambert (on brief); Colonel Robert D. Teetsel and Captain
Gregory M. Kelch.
For Appellee: Captain Mason S. Weiss (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Lieutenant
Colonel Theresa A. Gallagher (on brief); and Captain Janine P.
Felsman.
Amicus Curiae for Appellee: Damian P. Richard (law student)
(argued); Gregory M. Huckabee (supervising attorney) (on brief) –
for the University of South Dakota School of Law.
Military Judge: Kenneth H. Clevenger
This opinion is subject to revision before final publication.
Judge ERDMANN delivered the opinion of the court.1
Sergeant Marc R. Reeves was convicted of violating certain
provisions of the Child Pornography Prevention Act of 1996
(CPPA),2 charged as a “crime or offense not capital” under the
third clause of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2000). This is the same statute we
addressed in United States v. O’Connor, 58 M.J. 450 (C.A.A.F.
2003), and more recently United States v. Martinelli, 61 M.J.
___ (C.A.A.F. 2005). As in Martinelli, the conduct underlying
Reeves’ convictions occurred in Germany. We granted review of
this case to examine the extraterritorial application of the
CPPA and the effect of that issue on the underlying charges in
this case.
In Martinelli we considered whether the CPPA had
extraterritorial application and concluded that it did not.
Consistent with Martinelli, we hold that the three sections of
the CPPA under which Reeves was charged do not extend to his
conduct in Germany. We further hold that none of Reeves’
conduct in Germany continued into the United States. Thus, none
1
We heard oral argument in this case at the University of South
Dakota School of Law, Vermillion, South Dakota, as part of this
court’s “Project Outreach.” This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military justice system.
2
The CPPA consists of §§ 18 U.S.C. 2251, 2252, 2252A,
2260(b)(2000).
2
of Reeves’ conduct falls within the domestic application of the
CPPA. We also hold that Reeves’ guilty pleas to the CPPA-based
Article 134, clause 3 specifications cannot be deemed provident
as to lesser included offenses under either Article 134, clauses
1 or 2.
PROCEDURAL BACKGROUND
Reeves entered guilty pleas and was convicted by a general
court-martial in April and May of 2001 of violating a lawful
general regulation in violation of Article 92, UCMJ, 10 U.S.C. §
892 (2000), and possessing child pornography, receiving child
pornography, and using a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such
conduct in violation of the CPPA as a “crime or offense not
capital” under clause 3 of Article 134, UCMJ.
Reeves was sentenced to a dishonorable discharge,
confinement for fifty-six months, forfeiture of $250.00 pay per
month for twelve months, reduction to pay grade E-1, and a
reprimand. Pursuant to a pretrial agreement, the convening
authority reduced the confinement to thirty-six months and
approved the balance of the sentence. The United States Army
Court of Criminal Appeals affirmed the findings but deleted a
portion of the reprimand3 and affirmed the remaining sentence.
3
The Court of Criminal Appeals deleted that portion of the
reprimand that referred to “distributing” child pornography
3
We granted review to determine whether Reeves’ conviction of
possessing, receiving, and producing child pornography, charged
under clause 3 of Article 134, could be upheld in light of
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).4 We
specified five additional issues addressing whether the CPPA had
extraterritorial application.5
because Reeves did not distribute child pornography. United
States v. Reeves, No. ARMY 20010497, slip op. at 2 (A. Ct. Crim.
App. May 30, 2003).
4
We granted review of the following issue raised by appellate
defense counsel:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED IN UPHOLDING APPELLANT’S CONVICTION
UNDER THE CHILD PORNOGRAPHY PROTECTION [sic]
ACT, 18 U.S.C. § 2251, ET SEQ., DESPITE THE
SUPREME COURT’S PRONOUNCEMENT THAT THE CPPA
DEFINITION OF CHILD PORNOGRAPHY IS
UNCONSTITUTIONAL, ASHCROFT v. FREE SPEECH
COALITION, 535 U.S. 234 (2002), AND THIS
COURT’S DECISION THAT ASHCROFT v. FREE
SPEECH COALITION REQUIRES THAT ACTUAL MINORS
WERE USED IN PRODUCING THE PORNOGRAPHIC
IMAGES. SEE UNITED STATES v. O’CONNOR, 58
M.J. 450 (C.A.A.F. 2003).
United States v. Reeves, 60 M.J. 376-77 (C.A.A.F. 2004)(order).
5
The specified issues were:
I. WHETHER 18 U.S.C. § 2252A(a)(2), WHICH IN PART
PROSCRIBES KNOWING RECEIPT OF CHILD PORNOGRAPHY
THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS
EXTRATERRITORIAL APPLICATION.
II. WHETHER 18 U.S.C. § 2252A(a)(5), WHICH PROSCRIBES
KNOWING POSSESSION OF CHILD PORNOGRAPHY “ON ANY
LAND OR BUILDING OWNED BY, LEASED TO, OR
OTHERWISE USED BY OR UNDER THE CONTROL OF THE
4
FACTUAL BACKGROUND
A. Specifications 1 and 2: Receiving and Possessing Child
Pornography
Sergeant Reeves was assigned to the 502d Engineer Company
of the 565th Engineer Battalion located at Pioneer Kaserne, a
United States Army installation, in Hanau, Germany. He resided
with his family at New Argonner Kaserne, another U.S. Army
installation in Hanau. On a number of occasions from March to
December 2000, Reeves went to the public library at Pioneer
Kaserne and used the library computers to sign on to the
Internet.
U.S. GOVERNMENT,” HAS EXTRATERRITORIAL
APPLICATION.
III. WHETHER 18 U.S.C. § 2251(a), WHICH IN PART
PROSCRIBES USING A MINOR TO ENGAGE IN SEXUALLY
EXPLICIT CONDUCT FOR THE PURPOSE OF PRODUCING A
VISUAL DEPICTION OF THAT CONDUCT USING MATERIAL
THAT HAS TRAVELED IN “FOREIGN COMMERCE,” HAS
EXTRATERRITORIAL APPLICATION.
IV. WHETHER 18 U.S.C. § 2252A(a)(2) IS BEING APPLIED
DOMESTICALLY OR EXTRATERRITORIALLY WHEN APPLIED
TO THE ACT OF DOWNLOADING AND RECEIVING CHILD
PORNOGRAPHY AT A COMPUTER LOCATED IN GERMANY WHEN
THAT MATERIAL WAS “SENT FROM THE U.S. THROUGH THE
INTERNET.”
V. WHAT EFFECT, IF ANY, IS THERE ON APPELLANT'S
GUILTY PLEA TO RECEIVING CHILD PORNOGRAPHY IN
VIOLATION OF 18 U.S.C. § 2252A(a)(2), FROM
APPELLANT’S ADMISSION DURING THE PROVIDENCE
INQUIRY THAT THE IMAGES “WERE SENT FROM THE U.S.
THROUGH THE INTERNET TO ME.”
5
Once on the Internet, Reeves would enter “teen” chat rooms
where he would communicate with individuals who indicated they
were twelve to fifteen years old. Reeves received e-mail that
contained digital images, including images of minors “in a state
of nudity involving a lewd exhibition or graphic focus on a
minor’s genitals.” Reeves also belonged to “e-mail distribution
groups” from which he automatically received child pornography.
Reeves would download and view these images on the library
computers and print them out on the library printers. After his
conduct was discovered and reported to law enforcement, various
printed images containing child pornography were found in
Reeves’ vehicle and in his quarters.
Based upon these facts, Reeves was charged with the
following violations of the CPPA under clause 3 of Article 134:
Specification 1: . . . at or near Hanau, Germany, on land
used by and under the control of the United States
Government, to wit: New Argonner Kaserne, between on or
about 01 March 2000 and 05 December 2000, knowingly and
wrongfully possess[ed] about 46 computer printouts
containing child pornography in violation of Title 18 U.S.
Code § 2252A(a)(5)(A).
Specification 2: . . . at or near Hanau, Germany, between
on or about 01 March 2000 and 05 December 2000, knowingly
and wrongfully receive[d] child pornography that had been
transported in interstate commerce or foreign commerce by
means of a computer to wit: downloading electronic files
containing child pornography from the internet and copying
said files onto the hard drive of a computer located at the
Pioneer Library in Hanau, Germany in violation of 18 U.S.
[Code] § 2252A(a)(2).
6
B. Specification 3: Producing a visual depiction of a minor
engaged in sexually explicit conduct
The facts underlying this offense occurred in the summer of
2000 when Reeves used a camcorder to videotape “two little
German girls” near the Main River in Hanau, Germany. (PE 1).
From a distance of about 200 feet, Reeves filmed the girls,
focusing in on their “genital areas”, and focusing in particular
on one of the girls “in a way to see into the little girl’s
shorts” and intending “to satisfy [his] lust.”
Based upon these facts, Reeves was charged with the
following violation of the CPPA under clause 3 of Article 134:
Specification 3: at or near Hanau, Germany, on or about
between May 2000 and August 2000, use[d] a minor to engage
in sexually explicit conduct for the purpose of producing a
visual depiction of such conduct using material that had
been mailed, shipped or transported in interstate commerce
or foreign commerce in violation of 18 U.S. [Code] §
2251(a).
DISCUSSION
A. Standard of Review
This case involves a guilty plea. For this court to reject
a guilty plea on appellate review, the record of trial must show
a substantial basis in law and fact for questioning the plea.
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)(citing
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).
Whether Congress intended 18 U.S.C. §§ 2251(a) and 2252A(a)(2)
and (a)(5)(A) to have extraterritorial application is a question
7
of statutory interpretation. Interpretation of a statute and
its legislative history are questions of law that we review de
novo. United States v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999);
Martinelli, 61 M.J. at ___ (8).
B. The Nature of the Charge under Article 134
Reeves’ possession, receipt and production of child
pornography were charged as violations of Article 134, UCMJ --
the “General Article.” Conduct is punishable under Article 134
if it prejudices “good order and discipline in the armed forces”
(clause 1), if it is “of a nature to bring discredit upon the
armed forces” (clause 2), or if it is “a crime or offense not
capital” (clause 3). O’Connor, 58 M.J. at 452; Martinelli, 61
M.J. at __ (8). As was the case in both O’Connor and
Martinelli, Reeves’ offenses under Article 134 were specifically
charged as “clause 3” offenses, with 18 U.S.C. §§ 2251(a) and
2252A(a)(2) and (a)(5)(A) serving as the “crimes or offenses not
capital.”
As in Martinelli, the principal issue that we specified for
review is whether the CPPA applies to Reeves’ conduct in
Germany. If we find that the CPPA is not applicable to Reeves’
conduct in Germany, we must then consider whether, due to the
nature of his usage of the Internet, his conduct fell within the
domestic application of the CPPA. Finally, if we find that
Reeves’ pleas were improvident under clause 3 of Article 134, we
8
must determine whether they would be provident to a lesser
included offense under clause 1 or 2 Article 134.
C. The Extraterritorial Application of the CPPA
(1) Extraterritorial Application of § 2252A
In Martinelli this court determined that § 2252A did not
apply extraterritorially to Martinelli’s conduct in Germany.
Under the rationale of United States v. Bowman, 260 U.S. 94
(1922) and Equal Employment Opportunity Commission v. Arabian
American Oil Co. (Aramco), 499 U.S. 244, 248 (1991), we
concluded that the CPPA is subject to a presumption against
extraterritoriality and that there was nothing in the language
of the statute or the legislative history to overcome this
presumption. Martinelli, 61 M.J. at __ (25-26). As a result
there was a substantial basis on which to question the
providence of Martinelli’s guilty plea to the CPPA-based clause
3 offenses resulting from conduct occurring in Germany.
Reeves’ receipt and possession of child pornography –-
charged under § 2252A –- also occurred in Germany and in that
respect this case is indistinguishable from Martinelli.
Therefore, consistent with our holding in Martinelli, we find
that § 2252A does not have extraterritorial application and is
inapplicable to Reeves’ conduct in Germany.
9
(2) Extraterritorial Application of § 2251(a)
Unlike Martinelli, Reeves was also charged with producing a
visual depiction of sexually explicit conduct by a minor in
violation of § 2251(a). We have not previously considered the
question of the extraterritorial application of § 2251(a).6
As with § 2252A, we begin with a presumption against
extraterritoriality. The Supreme Court has recognized as a
longstanding principle of American law “that legislation of
Congress, unless a contrary intent appears, is meant to apply
only within the territorial jurisdiction of the United States.”
Aramco, 499 U.S. at 248 (quoting Foley Bros. v. Filardo, 336
U.S. 281, 285 (1949)). As we stated in Martinelli, we must
assume that Congress legislates against the backdrop of this
presumption. Martinelli, 61 M.J. at ___ (10). Moreover,
offenses created by the CPPA do not fall within the Bowman
exception to the presumption against extraterritoriality. Id.
at ___ (12) (citing United States v. Bowman, 260 U.S. at 97-98,
for the proposition that certain “criminal statutes which are,
as a class, . . . enacted because of the right of the government
to defend itself against obstruction, or fraud wherever
perpetrated” are not accorded a presumption of
6
Section 2251(a) was originally enacted in 1978 as part of the
Protection of Children Against Sexual Exploitation. It was
amended a number of times over the years and in 1996 it was
incorporated into the CPPA.
10
extraterritoriality). We look next “to see whether ‘language in
the [relevant statute] gives any indication of a congressional
purpose to extend its coverage beyond places over which the
United States has sovereignty or some measure of legislative
control.’” Aramco, 499 U.S. at 1230 (quoting Foley Bros., 226
U.S. at 285); see also Small v. United States, 125 S. Ct. 1752
(2005). To answer this question we look at the text of the
statute, its structure and its legislative history. Martinelli,
61 M.J. at __ (15-16).
(a) Text and Structure
As in Martinelli, the statutory section in question
includes references to “interstate and foreign commerce.” This
language is “not, in and of [itself], a ‘clear expression’ of
any congressional intention that the acts proscribed by the
statute constitute a federal crime no matter where in the world
they occur.” Id. at __ (18). As in Martinelli, we decline to
find congressional intent for extraterritorial application based
solely on the use of the words “interstate and foreign
commerce.”7
7
Our discussion of Congress’ intent is also informed by an
analysis of the “Territory or Possession of the United States”
language in § 2251. Although this phrase refers to physical
locations outside of the fifty United States, it is not a broad
or all encompassing phrase. The “territories” of the United
States are generally defined as including Guam, the United
States Virgin Islands and American Samoa, as well as the
Commonwealths of Puerto Rico and the Northern Mariana Islands.
11
In addition, Congress’ intent to limit the reach of
§ 2251(a) is made more clear by reference to § 2260. In 1994,
Congress adopted § 2260, which specifically targets “[a] person
who, outside the United States, employs, uses, persuades,
induces, entices, or coerces any minor to engage in . . . any
sexually explicit conduct for the purpose of producing any
visual depiction of such conduct . . . .” Emphasis supplied.
In other words, there is another statutory section that
addresses all of the same acts when such acts are committed
outside of the United States with the intent that the materials
be sent into the United States. If Congress intended § 2251(a)
to apply extraterritorially, there would have been no need for
§ 2260 because such behavior would already have been
criminalized regardless of whether the accused intended to
import the visual depictions into the United States.
See Daniel H. MacMeekin, The Overseas Territories and
Commonwealths of the United States of America (2000), available
at http://www.macmeekin.com/Library/terr+commonw2.htm. The
United States also asserts sovereignty over, and administers, a
number of small islands which do not have permanent populations.
These islands are often referred to as “possessions”. These
include Howland, Baker, and Jarvis Islands; Kingman Reef; and
Johnson, Palmyra, Wake, and Midway Atolls, all in the Pacific;
and Navassa Island in the Caribbean. Id. Congress’ decision to
use the phrase “Territories and Possessions of the United
States” suggests that Congress wished to limit the statute’s
application rather than to broaden it.
12
(b) Legislative History
Having concluded that the text and structure of § 2251(a)
do not express any clear intent by Congress that the statute
apply extraterritorially, we turn to its legislative history.
We conclude that it too gives no indication that Congress
intended § 2251(a) to apply extraterritorially. The clear focus
of that legislative history is on the patent evils of child
pornography and the concern that “child pornography and child
prostitution have become highly organized multimillion dollar
industries that operate on a nationwide scale.” S. Rep. No. 95-
438, at 5 (1977). Although the history of § 2251(a) contains
extensive discussion of the nationwide problem of child
pornography, it does not discuss issues of extraterritoriality,
much less include any clear expression of congressional intent
in that regard.
D. The Domestic Application of the CPPA
In Martinelli, we also considered whether any of
Martinelli’s conduct could be characterized as domestic conduct
as he had stipulated that all of the e-mails that he sent or
received were routed through servers in the United States. 61
M.J. at ___ (26-27). We concluded in that case that the act of
“sending” e-mails containing child pornography was a “continuing
offense” because Martinelli’s conduct continued as the e-mail
traveled through the Internet to its destination. Id. at ___
13
(29). Because the e-mails in Martinelli traveled through the
United States en route to their destination, we found that the
sending offense occurred in both Germany and the United States
and therefore the CPPA applied domestically to that
specification. Id.
We went on to conclude that other specifications, which
charged Martinelli with “receiving child pornography” and
“reproducing child pornography for distribution”, were not
“continuing offenses” as they did not involve any conduct that
started in Germany and continued into the United States.
Therefore, there was no domestic application of the CPPA
available for those offenses. Here, as in Martinelli, each
specification alleges different conduct and each must be
examined individually.
Specification 1 (possession): This specification charged
Reeves with violating 18 U.S.C. § 2252A(a)(5)(A) by possessing
child pornography on land used by and under the control of the
United States Government. This specification is a “situs” based
possession charge and does not allege movement of child
pornography through the Internet. The principle of “continuing
jurisdiction” is therefore inapplicable to this specification
and there is no basis for finding a domestic application of the
CPPA.
14
Specification 2 (receiving): This specification charged
Reeves with violating 18 U.S.C. § 2252A(a)(2) by receiving child
pornography that had been transported through the Internet.
Reeves admitted during his providence inquiry that the images
were “sent from the U.S. through the Internet to me.” Had
Reeves been charged with “sending” e-mails containing child
pornography through the Internet, the principle of a “continuing
offense” may have established domestic U.S. application of the
CPPA. However, Reeves was charged with “receiving”8 e-mails
containing child pornography. Here, Reeves did not knowingly
receive the images until he accessed the pictures in Germany and
the act of opening the images did not trigger a chain of events
that continued into the United States. His conduct therefore
can not be subject to a domestic U.S. application of the CPPA.
Martinelli, 61 M.J. at ___ (30).9
8
The military judge defined “receiving” as “to take into one’s
possession and control or accept custody of . . . .”
9
With respect to the question of whether all of the email
messages in Reeves’ Excite account were “resident” on Internet
servers located in the United States, Excite.com (which was
operated by At Home or Excite@Home until the company declared
bankruptcy in late 2001) had both domestic and international
operations during the time period in which Reeves was using his
excite.com account to receive child pornography. See At Home
Corporation, Form 10-K, Annual Report for Fiscal Year 2000,
available at
http://www.sec.gov/Archives/edgar/data/1020620/00010128700100149
8/0001012870-01-001498-0001.txt (“We also lease space at smaller
facilities in various locations throughout the
15
Specification 3 (production): This specification charged
Reeves with violating 18 U.S.C. § 2251(a) by using a minor to
engage in sexually explicit conduct for the purpose of producing
a visual depiction of such conduct. Although Reeves admitted
that the camcorder he used to videotape the German girls had
been manufactured in Japan, purchased in the United States and
transported by him to Germany, in videotaping the girls he did
not begin any conduct that continued into the United States.
His conduct occurred entirely in Germany and there can be no
domestic application of the CPPA. Martinelli, 61 M.J. ___ (29-
30).
In summary, none of acts identified in the specifications
in Charge II constitute a “continuing offense” and therefore
there can be no domestic application of the CPPA in this case.
E. The Possibility of Lesser Included Offenses
The conclusion that Reeves’ guilty pleas are not provident
under clause 3 of Article 134 does not end our inquiry. We have
recognized in the past that an improvident plea to a CPPA-based
clause 3 offense may, under certain circumstances, be upheld as
a provident plea to a lesser included offense under clause 2 of
Article 134. See, e.g., United States v. Augustine, 53 M.J. 95
United States as well as in several international locations.”).
Reeves admitted only that images were sent to him from the U.S.
“through the Internet . . . .” The record does not include any
information about where the servers on which his opened and
unopened email messages were located.
16
(C.A.A.F. 2000); United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F.
2000); O’Connor, 58 M.J. at 454–55; United States v. Mason, 60
M.J. 15, 20 (C.A.A.F. 2004); Martinelli, 61 M.J. at __ (35).
The question is whether those circumstances are present in
Reeves’ case.
Augustine and Sapp were two pre-Free Speech Coalition10
cases where:
the guilty pleas . . . were entered to a violation of
Article 134, clause 3, based on possession of child
pornography in violation of the CPPA. As in this case, the
guilty pleas were found to be improvident as to the clause
3 offense in light of certain requirements under the CPPA
that were not established in the record. In those cases,
however, we concluded that the guilty pleas were provident
as to the lesser-included offense of engaging in “conduct
of a nature to bring discredit upon the armed forces” under
clause 2 and upheld the convictions under Article 134.
Augustine, 53 M.J. at 96; Sapp, 53 M.J. at 92.
O’Connor, 58 M.J. at 454. Sapp and Augustine dealt with the
possibility of a lesser included offense under clause 2 of
Article 134 where a guilty plea to a CPPA-based clause 3 Article
134 charge was found improvident. In those cases, where no
10
In Free Speech Coalition the Supreme Court determined that
certain portions of the definition of term “child pornography”
used in § 2252A were unconstitutional, specifically the “or
appears to be” language of § 2256(8)(B) and the entirety of
§2256(8)(D), specifically the “conveys the impression” language.
535 U.S. at 256, 258. Prior to Free Speech Coalition, knowing
possession and receipt of images of child pornography, actual or
virtual, was sufficient to establish one of the factual
predicates for a provident guilty plea under the CPPA.
Following the decision, the actual character of the visual
depictions is a factual predicate to any plea of guilty under
the CPPA therefore requiring an inquiry into the “virtual” or
“actual” nature of the images. O’Connor, 58 M.J. at 453.
17
constitutional considerations were involved, we found the pleas
provident to a violation of clause 2 of Article 134.
After the Free Speech Coalition decision, we explained in
O’Connor, Mason and Martinelli that where the constitutional
rights of a servicemember could come into play, we will apply
closer scrutiny to the providence inquiry before upholding a
plea as provident to a lesser included offense under clause 1 or
2 of Article 134. See O’Connor, 58 M.J. at 454–55; Mason, 60
M.J. at 19; Martinelli, 61 M.J. at ___ (36-37). The difference
between our review of a providence inquiry under the
O’Connor/Mason/Martinelli standard and our review under the less
strict Augustine/Sapp standard is a qualitative difference.
“Although the understanding required of the servicemember
remains the same, we require a clearer more precise articulation
of the servicemember’s understanding under O’Connor than we
require in cases where the accused’s First Amendment rights are
not implicated.” Martinelli, 61 M.J. at ___ (37).
During Reeves’ providence inquiry the military judge
defined the term “child pornography” for purposes of
Specifications 1 and 2 without utilizing the language determined
to be unconstitutional by the Supreme Court in Free Speech
18
Coalition.11 Specification 3 charged a violation of 18 U.S.C. §
2251(a) which does not contain the term “child pornography”.12
With no constitutional dimension at play in the providence
inquiry, our analysis into the possibility of a lesser included
offense is governed by the principles embodied in Augustine and
Sapp rather than O’Connor, Mason, or Martinelli.
Nevertheless, the providence inquiry must reflect that the
accused “clearly understood the nature of the prohibited
conduct.” Sapp, 53 M.J. at 92. In both Augustine and Sapp the
accused admitted the service discrediting character of his
conduct during the plea inquiry and we characterized those
discussions as demonstrating that the accused “clearly
understood the nature of the prohibited conduct.” Augustine, 53
M.J. at 96; Sapp, 53 M.J. at 92.
In this case, however, there is an absence of any inquiry or
discussion of service discrediting conduct or conduct that is
prejudicial to good order and discipline. The military judge
did not list service discrediting conduct or conduct that is
prejudicial to good order and discipline as an element of any of
11
Here the military judge did not use the “or appears to be” or
the “conveys the impression” language focused on by the Supreme
Court.
12
The phrase “engaged in sexually explicit conduct” as found in
§ 2251(a) is defined in § 2256 to be a depiction of “lascivious
exhibition of the genitals.” That term has been held to be
constitutional. United States v. Wiegand, 812 F.2d 1239 (9th
Cir. 1987).
19
the child pornography offenses. The plea inquiry focused
entirely on the elements of the clause 3 offenses. Thus, the
providence inquiry simply does not provide a sufficient basis
for determining that Reeves’ pleas are provident to the lesser
included offenses of conduct that is service discrediting or
prejudicial to good order and discipline under clause 1 or 2 of
Article 134.
DECISION
The decision of the United States Army Court of Criminal
Appeals as to Charge II and its specifications and the sentence
is reversed, but is affirmed in all other respects. The
findings of guilty to Charge II and its specifications and the
sentence are set aside and the record of trial is returned to
the Judge Advocate General of the Army for a rehearing on Charge
II and its specifications and the sentence.13 If a rehearing on
Charge II and its specifications is deemed impracticable, that
charge and those specifications may be dismissed and a rehearing
held on the sentence alone. Thereafter, the provisions of
Articles 66(b) and 67(a), UCMJ, 10 U.S.C. §§ 866(b), 867(a)
(2002), shall apply.
13
Because of our decision in this case, the specifications of
Charge II will necessarily have to be amended prior to any
rehearing to allege lesser included offenses of conduct
prejudicial to good order and discipline in the armed forces, or
of a nature to bring discredit upon the armed faces in violation
of clauses 1 and/or 2 of Article 134, UCMJ.
20
United States v. Reeves, No. 03-0595/AR
GIERKE, Chief Judge (concurring in part and dissenting in
part):
The bottom line is that I agree with the majority as to both
reasoning and result to affirm only Appellant’s guilty plea to
Charge I and its sole specification. Therefore, I concur in
part.
But with respect to the three Child Pornography Prevention
Act (CPPA) offenses all in Charge II, I disagree with the
majority as to either its reasoning (Charge II, specifications 1
and 2) or to both its reasoning and result (Charge II,
specification 3). So I also respectfully dissent in part.
The result that I reach is not so different from the
majority, but the judicial path to resolve this case is both
different and important. As we agree to the disposition as to
Charge I, I focus only on the three specifications under Charge
II.
In United States v. Martinelli,1 I concluded that the CPPA
has extraterritorial application. I disagree with the conclusion
that the Congress that enacted the CPPA did not intend it to
apply extraterritorially to reach the actions of a servicemember
when he possesses, receives, and produces child pornography2
1
61 M.J. __, __ (1-23)(C.A.A.F. 2005) (Gierke, C.J., concurring
in part and dissenting in part).
2
Section 2252A(a)(2) of Title 18 of the U.S. Code proscribes the
knowing receipt of child pornography, 18 U.S.C. § 2252A(a)(5)
prohibits the knowing possession of child pornography, and 18
U.S.C. § 2251(a) makes it a crime to use a minor to engage in
sexually explicit conduct for the purpose of producing a visual
depiction of that conduct.
United States v. Reeves, No. 03-0595/AR
merely because he is outside the territorial boundaries of the
United States.
Also as I stated in Martinelli, I do not read the language
in Bowman3 as narrowly as does the majority.4 I believe that to
do so, the majority incorrectly interprets the underlying
rationale of the exception to the presumption against
extraterritoriality and also misevaluates the nature and impact
of the offenses in this case. Given the limitless boundaries of
cyberspace, child pornography over the Internet is just the type
of offense to which the exception to the presumption against
extraterritoriality should apply.
And, as I fully discussed in Martinelli,5 interpreting the
plain language of the statute, its legislative history, and the
comprehensiveness of the scheme of the entire statute, I believe
Congress clearly meant the CPPA to reach the acts of a United
States servicemember who possesses and receives child pornography
on a U.S. military base in Germany. For the same reasons, I
believe Congress intended the statute to reach Appellant’s
offense of involving young German girls in the production of
child pornography that occurred off-base in Germany.
Additionally, § 2260 clearly pertains to the production
of child pornography with the intent to import that pornography
3
United States v. Bowman, 260 U.S. 94, 96 (1922).
4
See Martinelli, 61 M.J. at __, __ (3-11)(Gierke, C.J.,
concurring in part and dissenting in part).
5
Id. at __ (11-23)(Gierke, C.J., concurring in part and
dissenting in part).
2
United States v. Reeves, No. 03-0595/AR
into the United States. Under that statute, the Government is
required to prove the additional element of intent to import the
child pornography into the United States in order to prosecute an
accused. Thus, I am not persuaded by the majority’s argument
that § 2260 eliminates the need to decide if § 2251(a) applies
extraterritorially to cover Appellant’s act of producing a visual
depiction of a minor engaged in sexually explicit conduct.6
Rather, I believe that § 2251(a) reaches Appellant’s CPPA-based
offenses in this case precisely because it does have
extraterritorial application.
As I conclude that the three CPPA-based specifications under
which Appellant was charged extend to Appellant’s criminal
conduct in Germany, I respectfully dissent in part. Having
established this point, Appellant’s guilty plea to all three
CPPA-based offenses under Charge II initially appears provident.
But, unlike the majority, I view Appellant’s guilty pleas to the
possessing and receiving pornography (Charge II, specifications 1
and 2) to be improvident in light of the Supreme Court’s decision
in Ashcroft v. Free Speech Coalition.7 This conclusion results
in my agreeing with the majority’s decision to remand the
specifications, but for the different reason I have stated.
As to specification 3 of Charge II, I disagree with the
majority that Appellant’s guilty plea is provident only to the
lesser included offense. I view Appellant’s plea to the charged
6
See United States v. Reeves, 61 M.J. __ (12-13) (C.A.A.F.
2005).
3
United States v. Reeves, No. 03-0595/AR
offense provident because the constitutionally-objectionable
“child pornography” language is not included in that
specification. Therefore, I would affirm Appellant’s guilty plea
to this offense.
In summary, I concur with the disposition of Charge I and the
majority’s result in addressing Charge II, specifications 1 and
2. I dissent from the disposition of Charge II, specification 3.
7
535 U.S. 234 (2002).
4
United States v. Reeves, 03-0595/AR
CRAWFORD, Judge (dissenting):
For the reasons thoroughly explained in United States v.
Martinelli, 61 M.J. __, __ (C.A.A.F. 2005) (Crawford, J.,
dissenting), I respectfully dissent and offer a few additional
comments.
Like Specialist Martinelli, Appellant was stationed at a
United States military installation in Germany, subscribed to a
web-based e-mail account, and used a public computer to commit
violations of 18 U.S.C. § 2252A, as well as Article 92, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2000). Unlike
Martinelli, who used an off-post Internet café, Appellant used
U.S. Government-owned computers in the post library to effect
receipt of, as well as to view and print, pornographic images of
actual children. In addition, Appellant, while among the German
civilian populace near Hanau, used actual German children to
produce a sexually explicit videotape in violation of 18 U.S.C.
§ 2251(a).
DOMESTIC ASPECT OF APPELLANT’S CRIMES
Prosecution Exhibit 1, Appellant’s stipulation of fact
(including the documents comprising TAB B) and his responses
during the Care inquiry,1 establish that Appellant had a web-
based e-mail account at Excite.com which afforded him electronic
“space” on Excite.com’s servers in the United States. Using a
1
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
United States v. Reeves, 03-0595/AR
web browser on the library’s computers, Appellant gained access
to his e-mail account which he then used as an address at which
to receive pornographic images, view them, store them, and
download them to the hard drives of the library computers for
printing. He admitted that these images had been “transported
in interstate or foreign commerce” because “they were sent from
the U.S. through the Internet to me.”2 Appellant’s receipt of
child pornography occurred in the United States, just as it did
on a U.S. military post in Germany.
APPLICATION OF § 2252A TO OVERSEAS MILITARY INSTALLATIONS
After printing images of child pornography, using the
library’s printers, Appellant stored numerous images of child
pornography at his family quarters, in his automobile, and his
quarters storage area, all on a U.S. Army Kaserne near Hanau,
Germany. All of the theories I voiced in Martinelli pertain a
fortiori to Appellant’s possession of child pornography on a
U.S. military installation.
APPLICATION OF § 2251(a) TO OVERSEAS CONDUCT
While the jurisdictional theories I advanced in Martinelli
also apply to Appellant’s prosecution under this statute, I must
reject the majority’s attempt to distinguish the jurisdictional
language in this statute from that in § 2260. The majority
2
Appellant’s use of “Me” refers to his web-based address on the
servers of Excite.com. Some of these images clearly indicate
that they were routed through commerce repeatedly.
2
United States v. Reeves, 03-0595/AR
contends that territorial application of § 2251(a) was not
intended by Congress because § 2260, with express
extraterritorial application “addresses all of the same acts.”
United States v. Reeves, 61 M.J. __, __ (12) (C.A.A.F. 2005).
Not quite. First, § 2260 carries with it no requirement that
any of the criminal acts be connected to interstate or foreign
commerce, giving § 2260 far greater breadth. Second, it is
clear to my reading that § 2260 was enacted not only to expand
the scope of existing prohibitions, but to serve as an emphatic
statement of congressional intent to exercise jurisdiction over
non-U.S. citizens who may produce child pornography in their own
countries for importation into the territory or waters of the
United States. Even if there is overlap between these statutes,
I believe they have related but different purposes.
WAIVER
Appellant has waived this issue, both as to § 2252A and
§ 2251(a). See United States v. Martin, 147 F.3d 529, 533 (7th
Cir. 1988).3 In the stipulation of fact, Appellant stipulated
that “there are no impediments to the jurisdiction of the
court.”
3
“A challenge to the indictment based on the adequacy of the
interstate commerce stipulation had no relation to subject
matter jurisdiction –- the power to adjudicate –- but instead
went only to an alleged failure of proof.”
3
United States v. Reeves, 03-0595/AR
JURISDICTION UNDER § 2252A BASED ON COMMERCE
Appellant also stipulated that these images were sent from
or through a site in the United States and that he knowingly
received and transported the pictures “in interstate or foreign
commerce.” When questioned by the military judge, he said the
images “were sent from the United States through the Internet to
me.” When the military judge asked Appellant whether he was
satisfied that this amounted to interstate or foreign commerce,
he agreed.
PROVIDENCE TO CLAUSES (1) AND (2) OFFENSES
Appellant, a sergeant with a high school diploma, over five
years of active duty, and then serving at his fourth permanent
duty station, pleaded guilty to violating a lawful general
regulation by viewing child pornography. He admitted to
understanding that the regulation prohibiting viewing of child
pornography was lawful because it was “reasonably necessary to
safeguard and protect the morale, discipline, and usefulness of
the members of the command and is directly connected to the
maintenance of good order and discipline.” He admitted that his
conduct in viewing child pornography was wrongful and that he
had no legal justification or excuse. He stipulated to leaving
images of child pornography on the printer at the installation
library where soldiers, civilians, and dependents could find it,
and to taking his very young daughter with him to the library
4
United States v. Reeves, 03-0595/AR
where he would view and print images of child pornography. He
stipulated to standing on one side of the Main River and, for
between twenty and thirty minutes, training his video camera on
the genital area of two young German girls, while accompanied by
his own young daughter. All of these images and films he
secreted in his vehicle, quarters, and quarters storage area.
Even if these were the only facts we had to go on, I would
find it impossible to conclude that Sergeant Reeves did not
understand “the nature of the prohibited conduct.” Said another
way, how could Sergeant Reeves admit that the Commander of U.S.
Army, Europe, could lawfully prohibit the viewing of child
pornography so as to “promote the morale, discipline, and
usefulness of the members of the command” and that such
prohibition was “directly connected to the maintenance of good
order and discipline” without knowing that using the post
library’s computers and printers to receive, download, and print
child pornography in front of his two and one-half-year-old
daughter and leaving child pornography on the printer for all to
see was prejudicial to good order and discipline? He could not.
And it is only the smallest of steps to conclude that, on
this record, Appellant also knew that openly focusing his video
camera, for twenty to thirty minutes on the pubic area of seven-
year-old German national children as they played by a public
river, was equally prejudicial and service discrediting as well.
5
United States v. Reeves, 03-0595/AR
This record overwhelmingly supports affirmation of a lesser
included offense under either or both clauses (1) and (2) of
Article 134, UCMJ.
CONCLUSION
There is no substantial basis in law or fact to question
the providence of Appellant’s pleas. Even if the record were
insufficient to uphold Appellant’s pleas to violations of §§
2252A and 2251(a), however, the record strongly supports
conviction for disorders on the same facts. For all these
reasons, I respectfully dissent.
6