United States v. Ober , 66 M.J. 393 ( 2008 )

UNITED STATES, Appellee
v.
Andrew P. OBER, Specialist
U.S. Army, Appellant
No. 07-0722
Crim. App. No. 20040081
United States Court of Appeals for the Armed Forces
Argued March 17, 2008
Decided June 16, 2008
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, STUCKY, and RYAN, JJ., joined. ERDMANN, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain William J. Stephens (argued); Major
Teresa L. Raymond (on brief); Lieutenant Colonel Steven C.
Henricks, Captain Seth A. Director, and Captain Sean F. Mangan.
For Appellee: Captain Larry W. Downend (argued); Colonel John
W. Miller II and Major Elizabeth G. Marotta (on brief).
Military Judges: Debra L. Boudreau (arraignment) and Gregory A.
Gross (trial)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ober, No. 07-0722/AR
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of making a
false official statement, knowingly and wrongfully transporting
child pornography in interstate commerce, and knowingly and
wrongfully possessing child pornography, in violation of
Articles 107 and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 907, 934 (2000). The sentence adjudged by the
court-martial included confinement for three years, a
dishonorable discharge, forfeiture of all pay and allowances,
and reduction to the lowest enlisted grade. The convening
authority approved confinement for thirty months and approved
the balance of the sentence. The United States Army Court of
Criminal Appeals affirmed. United States v. Ober, No. ARMY
20040081 (A. Ct. Crim. App. May 25, 2007) (unpublished).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUPPORT A FINDING OF GUILT FOR TRANSPORTING CHILD
PORNOGRAPHY IN INTERSTATE COMMERCE WHEN NO
EVIDENCE EXISTS THAT APPELLANT UPLOADED CHILD
PORNOGRAPHY FROM HIS COMPUTER TO THE INTERNET
FILE-SHARING PROGRAM “KAZAA.”
II. WHETHER THE ARMY COURT ERRED IN AFFIRMING THE
FINDING OF GUILTY FOR SPECIFICATION 1 OF CHARGE I
WHEN THE COURT AFFIRMED UNDER A DIFFERENT THEORY
OF LIABILITY THAN WAS PROFFERED TO THE MILITARY
PANEL, IN CONTRAVENTION OF CHIARELLA v. UNITED
STATES, 445 U.S. 222 (1980).
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III. WHETHER THE MILITARY JUDGE FAILED TO PROPERLY
INSTRUCT THE PANEL ON THE ELEMENTS FOR
SPECIFICATION 1 OF CHARGE I, BY: (1) OMITTING
THE CHARGED LANGUAGE “CAUSE TO BE TRANSPORTED”
FROM THE ORAL AND WRITTEN INSTRUCTIONS; (2)
FAILING TO INSTRUCT ON A POSSIBLE GOVERNMENT
ALTERNATE THEORY OF LIABILITY UNDER ARTICLE 77,
UCMJ; AND (3) FAILING TO PROPERLY INSTRUCT ON THE
TERM “UPLOADING” WHEN THE COMPUTER EXPERTS AT
TRIAL PROVIDED TWO VARYING DEFINITIONS.
For the reasons set forth below, we affirm.
I. BACKGROUND
The present appeal focuses on the circumstances under which
child pornography was obtained through the use of Appellant’s
computer. The prosecution’s primary theory was that Appellant
used a peer-to-peer file sharing program to obtain child
pornography from other participants in the file sharing network.
The primary defense theory of the case was that other
individuals were responsible because they had access to
Appellant’s computer, Appellant had an alibi for the times when
child pornography was transported to the computer, and there was
ample exculpatory evidence to place the blame on others.
Section A describes the file sharing program at issue in
this case. Section B summarizes the evidence developed during
the initial investigation. Section C sets forth the evidence
and the theories presented by the parties at trial.
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A. APPELLANT’S FILE SHARING PROGRAM
Appellant built a computer from individual parts, which he
maintained in his barracks room. He also created a network that
connected his computer with the computers of three other
soldiers in the barracks, enabling them to utilize his high-
speed Internet connection. The computers on the network
included the computer of Appellant’s roommate, Specialist B.
Appellant permitted Specialist B and several other soldiers to
use his computer.
Appellant installed various programs on his computer,
including KaZaA, a peer-to-peer file sharing program.1 According
to expert testimony introduced at trial, the KaZaA program
installed on Appellant’s computer enabled KaZaA users to share
computer files, including music, movies, and images, over the
Internet with other KaZaA users.
The KaZaA program provided two primary means of moving
files between users of the program. In the first method, a
KaZaA user who wanted to make files hosted on his or her
computer available to other KaZaA users could do so by
configuring the KaZaA program preferences to permit access by
others. Setting the preferences involved a simple adjustment
1
The opinion of the court below and the parties’ briefs refer to
various spellings of the program’s name. For purposes of this
opinion, we use the spelling reflected in the record of trial.
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that could be changed at will by the host computer’s user to
enable or preclude access to files by other KaZaA users.
In the second method, the KaZaA program enabled a user to
utilize a search function, similar to an Internet web browser,
to obtain files hosted on the computers of other KaZaA users.
To obtain files from other computers, the KaZaA user would open
the KaZaA program and enter a search term. In response to the
search request, the KaZaA program would display a list of file
names and descriptions obtained from other KaZaA users whose
preferences permitted such access. The KaZaA user who initiated
the search could then view the names and file descriptions
identified by the search and double click on the name of the
files that the user wanted to obtain. The download process
would begin once the user double clicked on the desired file.
The KaZaA program would complete the download without further
action by the user. The KaZaA user could limit the number of
downloads that could take place at any one time. If the host
logged out of the KaZaA program or otherwise blocked access to a
file before the requested download was completed, the KaZaA
program would attempt to obtain the file from another available
user or would reinitiate the download when the host subsequently
reopened the KaZaA program. Through the search function, the
KaZaA program enabled the user, through a series of keystrokes,
to identify a file, upload the file from the host computer, and
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download the file to the user’s computer. From the perspective
of the KaZaA user seeking to obtain a file hosted by another
computer, the actions of uploading and downloading were part of
a continuous process managed by that user.
B. THE INITIAL INVESTIGATION
Appellant spent a substantial amount of his free time
maintaining and upgrading his computer. The chain of events
leading to the present case began when he returned from shopping
for a computer device and thought that he was locked out of his
third-floor barracks room. He attempted to enter through an
outside window, but fell to the ground and suffered a serious
injury requiring about a week of hospitalization and thirty days
of convalescent leave.
While Appellant was absent from the barracks on
convalescent leave, Specialist B and another soldier used
Appellant’s computer to play video games. As they were perusing
his files for other available video games, they came across a
file titled “13 year old,” located in a KaZaA folder. They
opened the file, saw a picture of a young, naked female, and
closed the file. At that time, they did not advise anyone of
what they had seen. A month later, Specialist B mentioned the
incident in the course of a casual conversation with a
noncommissioned officer. After an initial inquiry by the
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noncommissioned officer, the Army’s Criminal Investigation
Command (CID) initiated a formal investigation.
CID agents obtained a statement from Appellant in which he
acknowledged using his computer to access adult pornography but
denied using it to access child pornography. In the course of
the interview, Appellant provided CID with consent to examine
the hard drive of his computer.
CID arranged for an analysis of the hard drive by a
forensic expert. The forensic analysis identified 592 files
containing possible child pornography on the hard drive,
including 460 files located in a KaZaA folder. At the time of
the forensic analysis, the preferences for the KaZaA program on
Appellant’s computer were set to: (1) permit the user to obtain
files from other KaZaA users and download up to ten files at a
time; and (2) preclude other KaZaA users from obtaining files
from Appellant’s computer.
In a second interview with CID, Appellant stated that he
had downloaded and saved approximately forty files containing
child pornography on his computer. He acknowledged that he had
been viewing child pornography on his computer “[o]nce every two
weeks” for about eight months, and that he knew that it was
illegal to view and download child pornography. When asked
whether he knew that the files contained pictures of children
before he opened the files and viewed them, he said: “Some of
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the pictures did not have accurate descriptions of what was in
the file. Others had a description. I knew that some of the
files would contain underage people in the pictures before I
opened them.” In response to the question of whether he saved
some of the pictures, he stated: “You can’t open the pictures
until you download them. After I downloaded the pictures and
viewed them I never deleted them.” When asked whether he had
passed on the child pornography to anyone else through the
computer, he responded: “No.” Appellant explained that in his
previous statement to CID agents, he had denied using his
computer to view child pornography because he was afraid of the
consequences. In addition, Appellant stated that he had acted
out of a lack of self-control and he knew that what he did was
wrong.
Following the investigation, the Government charged
Appellant with three offenses: (1) transporting child
pornography in violation of Article 134, UCMJ; (2) possessing
child pornography in violation of Article 134, UCMJ; and (3)
making a false official statement about the use of his computer
to access child pornography in violation of Article 107, UCMJ.
The present appeal focuses primarily on the first offense, in
which Appellant was convicted of a charge that he “did . . .
knowingly and wrongfully cause to be transported in interstate
commerce child pornography by uploading pictures of child
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pornography to a shared internet file named ‘KAZAA’, in
violation of 18 U.S.C. 2252A(a)(1).”
C. DEVELOPMENTS AT TRIAL
1. The prosecution and defense theories of the case
The prosecution, in its opening statement, advised the
members that the evidence would show that Appellant “searched
for, possessed, stored, shared, and viewed child pornography on
his personal computer” and that “the evidence is going to show .
. . that he was downloading child pornography on [his]
computer.” The prosecution stated that it would offer expert
testimony to show that the KaZaA program “allows subscribers to
download files.” The prosecution also noted that the expert
testimony would show that KaZaA “allows subscribers to upload
their own personal files and retrieve files from other
computers, and that these pornographic images, these movies, and
these still photographs were obtained via this file sharing
program.” The prosecution described two methods used by
Appellant to transport pornography: (1) Appellant “downloaded
these images and possessed them on his computer”; and (2) “he
allowed others to view them as they were transmitted from his
computer.”
Defense counsel, in his opening statement, observed that
“if what the government promises you is true, it looked like
they’ve got a pretty good case.” Defense counsel reminded the
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panel that the issues of “alibi” and “false confessions” had
been discussed during voir dire.
With respect to the forensic evidence, counsel emphasized
that the defense was going to focus on whether the evidence
established that Appellant was the person responsible for the
child pornography on his computer:
They’re going to bring in detectives to show you
there’s child pornography on this computer; and they
may, in fact, show you that there is real child
pornography on the computer, but the issue here is
that the government’s got the wrong guy. Now that may
be hard to believe based on what you’ve heard.
Now, what the defense is going to ask you to do
is take a look as this case develops, keep an open
mind, and see how good a job CID did do, how good a
job the Defense Computer Forensic Lab did. Take a
look at Specialist Ober and figure out if this is
really the right guy for this crime.
Defense counsel proceeded to detail the defense theory of
the case, based on alibi and exculpatory evidence: many others
had direct access to Appellant’s computer and access through the
network established by Appellant; Appellant was in the field or
on leave for extended periods when others had access to the
computer; and his admissions to CID agents were the product of
traumatic brain injury and stress. Defense counsel told the
members that “at the end of this trial you’re going to see the
government does have the wrong guy.”
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2. Evidence presented by the prosecution
The prosecution introduced into evidence Appellant’s
confession that he downloaded child pornography on his computer
knowing that it was illegal to do so, as well as related
testimony regarding the circumstances surrounding the CID
investigation and interrogation of Appellant. The prosecution
also introduced into evidence specific images of the alleged
child pornography, as well as expert testimony identifying the
images as depictions of actual children. The defense stipulated
that certain of the images consisted of child pornography of
actual children.
The prosecution presented the testimony of a computer
forensics expert, Jason Upchurch, regarding the alleged child
pornography on Appellant’s computer. The evidence presented by
Mr. Upchurch indicated that there were 592 images of possible
child pornography on the hard drive of Appellant’s computer, and
that the majority of the images were in the folder used for
sharing files through KaZaA. Mr. Upchurch testified that there
was no evidence that a computer virus had placed the pornography
on the hard drive.
In response to a question from the prosecution, Mr.
Upchurch noted that from his analysis, he could not determine
the individual responsible for the images on Appellant’s
computer. Mr. Upchurch explained: “We can determine in most
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cases . . . which account it came from, as well as, file dates
and times; but as far as who put the images there, no, we can’t
determine that.” When asked whether there were “any pointers”
to Appellant as “the individual who downloaded the child
pornography found on the computer,” Mr. Upchurch testified that
“the majority of the images belonged to the account called
‘Oberator,’ as well as, the computer was registered to a Mr.
Ober.”
Mr. Upchurch testified that the KaZaA preferences on
Appellant’s computer were set so that Appellant could obtain
files from other KaZaA users. The settings permitted him to
“download 10 files at a time,” which was “a fairly optimized
setting to maximize your download.”
Mr. Upchurch explained how files were moved to Appellant’s
computer using KaZaA. He noted that there were “many versions”
of KaZaA, and the version on Appellant’s computer operated as a
modified web browser. When the computer was turned on and the
Internet connection was active, the user of the KaZaA program
could “click on the search button,” which enabled the user to
“search for anything from movies to music or any other files by
either keywords or file name.” The KaZaA program also provided
the user with the ability to search for particular types of
files by descriptions.
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According to Mr. Upchurch, KaZaA would not cause child
pornography to be downloaded on the computer without the user’s
knowledge. He explained the specific actions that a user would
have to take to obtain files from another computer using KaZaA:
When you do the search it doesn’t automatically
download everything. All it does is present you with
files to download. So you go through and look at
which files that you particularly want to download,
the human element in it, and download those particular
files. So the search term gives you the results, and
then a human goes in and picks those results.
The expert added that the user could not view the image
based upon the results of the search. The user first had to
make a determination whether to download the file based upon the
file name and other information associated with the file. He
added that with regard to some of the child pornography found in
the KaZaA file on Appellant’s computer, the file names and other
information associated with the files were consistent with the
age of the children depicted in the images.
The expert further explained the process used by KaZaA to
obtain files selected by the user from another computer:
[I]f the computer is on and KaZaA is running and
you’ve selected files, KaZaA will continue to try to
download those continuously until you tell it to stop.
Even if at the other end if somebody logs off and the
. . . file transfer is stopped because the other end
is no longer available[, w]hen that other end comes
back up KaZaA will see that and begin downloading
again from the . . . same user because it all actually
keeps track of files . . . .
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Q. So the user can be away from the computer at the
time that the --
A. Absolutely, days, weeks, yes.
At the time Appellant’s computer was seized, the settings
for the KaZaA program were set to prohibit other users from
obtaining files from Appellant’s computer. However, there was
no way to determine when those settings took effect.
Defense counsel used the cross-examination of Mr. Upchurch
to confirm that other KaZaA users could not upload files from
Appellant’s computer when the file sharing option was turned
off. Counsel then focused on the dates that files were
downloaded and accessed on Appellant’s computer, with a view
toward showing that someone other than Appellant had downloaded
the files. On recross-examination, defense counsel again
focused on questions that would suggest that Appellant was not
the person who obtained the files.
During cross-examination of the other Government witnesses,
defense counsel pointed to evidence that other individuals had
access to Appellant’s computer and the potential that others may
have been responsible for the child pornography on his computer,
the impact of the injury from Appellant’s fall on his cognitive
abilities and emotional state, the extended period in which
Appellant was not in his barracks room, and related matters
concerning the reliability of his confession.
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3. Motion to dismiss
At the conclusion of the prosecution’s case, the defense
moved to dismiss the transportation of child pornography charge
(Specification 1 of Charge I) on two grounds. First, the
defense asserted that the prosecution “has failed to prove the
element of distribution.” Second, the defense contended that
the prosecution “has failed to show any evidence that pictures
were uploaded to the KaZaA file. All the evidence that came in
this case indicated that pictures were downloaded to that file .
. . .”
The prosecution responded that the charged offense at issue
involved transportation, not distribution, of child pornography.
The prosecution also noted that the manner in which a user of
the KaZaA program obtained a file involved transportation:
“Specification 1 merely requires that we show that child
pornography was transported via the Internet so even by virtue
of conducting a search and accessing child pornography from
another KaZaA user that causes that particular image to be
transported via the Internet.”
The military judge observed that Appellant was charged with
transporting, not distributing, child pornography; that he would
give the members a definition of transporting; and that there
was enough evidence on every element of the offense for the
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issue to be decided by the panel rather than by a motion to
dismiss.
4. The defense
Appellant testified as the first witness called by the
defense. In response to defense counsel’s question as to
whether he committed the charged offenses, he responded: “No.
I never did the offenses I’m accused of.” He detailed the
number of other individuals who had access to his computer. He
also stated that he was not protective of his password, that he
rarely logged off of his computer, that he frequently kept the
computer on when he left his room, and that he was frequently
away from his room performing assignments in the field.
Appellant explained that other individuals who had access to his
computer had an interest in pornography. He testified that his
fall from the third floor of the barracks left him barely
conscious, unable to eat, and fatigued, that he spent time on
convalescent leave away from the base, and that the accident
affected his memory and his performance.
Appellant acknowledged that he used the KaZaA program on
his computer, that he had viewed adult pornography on his
computer, and that child pornography was found on his computer.
He denied downloading the child pornography himself or knowing
that it was there before CID confronted him with the accusation.
He stated that he confessed to downloading child pornography
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during his second interview with CID because of his brain
injury. Appellant testified that after a CID agent accused him
of offenses involving child pornography, he felt his situation
was hopeless. Appellant further explained that the agent told
him that if he cooperated, the command would go easy on him.
Appellant stated that the confession he gave to the CID agent
was not true.
With respect to KaZaA, Appellant testified that it “was
accessible to everyone.” He added: “I used KaZaA to download
music, and -- music was pretty much all I downloaded.” He
stated that he did not use KaZaA to download any pornography,
child or adult.
The defense presented the testimony of a computer forensics
expert who had performed an examination of Appellant’s computer
similar to the examination conducted by the prosecution’s
expert. The defense expert testified that he reviewed the
computer files at issue in the present case to determine where
in the hard drive they were located, the dates and times
associated with the files, and “where those files came from.”
He also sought to determine whether other individuals had
connected to Appellant’s computer, and identified information
indicating that at a particular time “someone was on this
computer system, and the name does not correspond with the
defendant.” When the trial counsel questioned the relevance of
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the defense expert’s testimony, defense counsel responded:
“[F]irst we’re showing alibi, and the second portion is for
showing that other people used Specialist Ober’s computer, and
that goes to possible exculpatory evidence.” The military judge
overruled the prosecution’s objection. The expert then
testified that there was information indicating that a person
with a user name other than the name typically employed by
Appellant used the computer at the time that child pornography
“came into the system” onto Appellant’s computer, and that the
date in question was a date on which Appellant was in the
hospital.
In response to questions from the military judge about the
meaning of the “File Created” designation on the computer, the
defense expert noted that the date of creation would be “the
date that [the] file was, in this situation, brought in . . .
from KaZaA.” The expert also noted that files could be added to
the hard drive without a person actually sitting at the computer
if the person had scheduled the downloads to take place on a
particular date.
The military judge asked about the relationship between
“download” and “upload.” The defense expert responded that
downloading “is brining [sic] something to you.” He then noted
that uploading could involve two different types of activity by
the user of the computer hosting the files: first, “if you had
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an open portal where you’re allowing somebody to take away from
you,” and second, if “you’re physically going out and sending
something out.”
The military judge then asked the defense expert whether it
would be “fair to make an analysis or an analogy that
downloading is pulling, and uploading is pushing.” The expert
responded that the evidence in the present case involved the
host allowing another user to obtain the material from the
host’s computer:
In this situation, which we really didn’t see any
uploading going on, but in that type of situation it’s
-- if you were to open up the portal you are letting
people pull it from you. You’re not pushing it to
them.
The expert also testified that he had seen no evidence that
files from Appellant’s computer had been pulled to another
computer, but the expert noted that he did not have the
equipment necessary to verify that determination. In addition,
the expert stated that files could have been placed on
Appellant’s hard drive by another computer in the network.
The military judge then asked the defense expert whether it
was necessary for a person to participate actively in the
physical downloading of material from KaZaA:
Q. Could a file that is on that hard drive that came
from KaZaA . . . be inserted or put onto that hard
drive, whatever the correct term might be, without
someone sitting at the computer and downloading that?
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A. That’s always possible. Yes.
In response to a question from the prosecution, the expert
clarified that a download from KaZaA might be initiated by a
virus; otherwise, however, it would be necessary for an
individual to start the download by clicking on a file.
During recross-examination by the prosecution, the defense
expert witness emphasized that: “[I]f you are using KaZaA you
are actually searching for something.” The expert also
explained that a download may not be completed on the day that
the user first seeks to obtain the material. For example, if
the user of the host computer prevented access to a particular
file during the downloading process, that file could not be
downloaded. In such a case, KaZaA would continue searching, and
once another host opened up the file to permit access, KaZaA
would complete the download of the file. Similarly, if the
requested file was large, or if a user’s KaZaA settings limited
the number of downloads, the download might take place on a
different day.
The military judge asked the defense expert about the
origin of files downloaded through KaZaA. The expert reflected
his agreement with the description of KaZaA offered by the
prosecution’s expert:
KaZaA is just a tool, for instance, like Mr. Upchurch
had said it’s like a browser and you’re looking at the
whole Internet and other folks who have KaZaA running
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and shares running on their computer systems. You --
depending on the software, if you’re using their
versions you can get an address of who it’s coming
from, but it’s coming from somebody else’s computer
generally out there on the World Wide Web.
The expert’s answers to a member’s questions clarified that the
expert was able to identify use by different user names, but not
by specific individuals.
5. Rebuttal
In rebuttal, the prosecution recalled Mr. Upchurch to
discuss the evidence in light of the defense theories that
others had used Appellant’s computer at the time child
pornography had been obtained. During the rebuttal testimony,
the military judge asked the expert whether any action was
required on the part of the owner of the host computer beyond
making the host computer’s files available through the KaZaA
settings:
Q. Mr. Upchurch, another question that was asked in
this case was the definition of upload. I believe Mr.
Lakes stated that when you -- uploading something is
actually -- is not necessarily receiving --
A. Giving.
Q. Giving. Right. Now, on KaZaA when a user
conducts a search on KaZaA or if you download a file
from KaZaA, what happens on the computer that you’re
downloading from, on the actual user that you’re
trying to share from? What happens on that computer?
A. So if I was downloading a file from my computer --
from someone else’s computer, what happens on the
other person’s computer?
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Q. On the other person’s computer if you seek to
access a file on the other computer?
A. It causes an upload to occur on the other person’s
computer.
Q. Okay, and is that -- does that person have to
specifically do anything to cause that upload?
A. No. Everything is done prior in his settings.
Q. So by virtue of the software you can cause the
uploading [of] something on another individual’s
computer?
A. On your computer.
Q. On your computer?
A. Yes, on your computer.
In its cross-examination of Mr. Upchurch, the defense
focused on matters related to Appellant’s alibi defense,
suggesting that the use of the computer to play a particular
computer game pointed to another individual as the user. The
defense did not challenge Mr. Upchurch’s explanation of the
process used to obtain files by KaZaA.
At one point during Mr. Upchurch’s testimony, he identified
a series of dates and times that suspected child pornography was
created and accessed on Appellant’s computer. The military
judge specifically instructed the members that the information
about dates was being offered in regards to the defense of
alibi; that the defense had stipulated that several of the
images consisted of actual minors; and that it was the panel’s
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responsibility to decide whether the other images consisted of
real children.
6. The military judge’s instructions to the panel
The military judge provided the parties with his proposed
instructions. He noted for the record that he had “asked if
there were any specific instructions that either side wanted”
and that the parties had replied in the negative. Later,
following argument, the military judge asked if there were any
objections to the instructions or requests for additional
instructions, and noted that no objections were made.
The military judge instructed the members regarding the
transporting charge:
In Specification 1 of Charge I, the accused is
charged with the offense of knowingly transporting
child pornography in interstate commerce, in violation
of Title 10 [sic], U.S. Code, Section 2252A(a)(1). In
order to find the accused guilty of this offense, you
must be convinced by legal and competent evidence
beyond a reasonable doubt:
One, that on or about and between 1 April 2002
and 27 December 2002, at Fort Hood, Texas, the accused
knowingly transported material containing one or more
visual depictions by uploading the material to a
shared Internet file named KaZaA . . . .
The military judge provided further instructions on the
remaining elements of the transporting charge, along with
specific instructions on the terms “wrongful,” “visual
depiction,” “minor,” “sexually explicit conduct,” “lascivious,”
“interstate commerce,” and “knowingly.”
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United States v. Ober, No. 07-0722/AR
In defining “visual depiction,” the military judge noted
that the term “includes . . . data stored on a computer disk or
hard drive or by electronic means, which is capable of
conversion into a visual image.” With respect to interstate
commerce, the military judge stated:
Material traveling over the Internet, by its very
nature, is within the definition of interstate
commerce. The use of the Internet to send an image
from one computer to another constitutes transporting
the image in interstate commerce even if the receiving
computer and the sending computer are located in the
same state.
With respect to the term “knowingly,” the military judge
explained that the accused must have known the “nature and
character of the material being transported . . . that it was a
minor engaged in sexually explicit conduct.” He added that
“while the accused did not have to know that he was placing the
items in interstate commerce, the items must have actually been
transported in interstate commerce.”
The military judge’s instructions also expressly recognized
Appellant’s alibi defense:
The evidence has raised the defense of alibi in
relation to the offense of transporting child
pornography. “Alibi” means that the accused could not
have committed the offense charged because the accused
was at another place when the offense occurred. Alibi
is a complete defense to the offense of transporting
child pornography. In this regard, there has been
evidence that the accused was in the field and/or on
leave during portions of time alleged in the
specification.
24
United States v. Ober, No. 07-0722/AR
The burden is on the prosecution to establish the
guilt of the accused. If you are convinced by [sic] a
reasonable doubt that the accused was present at the
time and place of the alleged offense, then the
defense of alibi does not exist.
The military judge’s instructions provided that the offense
of transporting was not limited to the question of whether the
accused committed the offense by uploading:
[I]f you have doubt that the alleged material was
transported by uploading, you may still reach a
finding of guilty so long as the elements of the
offense are proved beyond a reasonable doubt, but you
must modify the specification to correctly reflect
your findings.
7. Closing arguments by the parties
The prosecution, in its closing argument, noted Appellant’s
confession to knowingly downloading, retaining, and repeatedly
viewing child pornography on his computer. The prosecution also
addressed the evidence in the case apart from the confession,
particularly in light of the defense position that Appellant did
not know that there was child pornography on his computer,
including his alibi defense. In the course of arguing that the
members should reject Appellant’s alibi defense, the prosecution
noted: “Don’t step on that land mine. He downloaded that child
pornography. He viewed that child pornography.”
With respect to the charge of transporting child
pornography, the prosecution specifically addressed the
mechanics of transporting images over the Internet using KaZaA.
25
United States v. Ober, No. 07-0722/AR
The prosecution reiterated its argument that Appellant was
guilty of transporting child pornography because downloading the
images caused an upload to occur on the host computer. The
trial counsel said to the members:
On the Internet it’s not like someone has to deliver
it to you. You can deliver it to yourself, and read
the specification. He’s charged with causing child
pornography to be uploaded and transported via the
Internet, so he could -- on the Internet you could
reach out that long arm, and nobody has to give it to
you. It’s there. It’s just sitting there out in
cyberspace, and all you’ve got to do is reach out,
grab it, and carry it over interstate lines to your
computer, and that’s what he did. No one caused that
file to be uploaded on the Internet except him because
KaZaA allows you to reach out and grab it, and that’s
what he did. So consider the definition of transport,
consider the nature of the Internet and how it allows
us to transport without it being a two-party
transaction.
The defense, in its closing argument, emphasized the alibi
defense:
Members of the Panel, we’ve seen a lot of evidence on
the case today. We talked with you a lot about could
somebody else have done it? Do they have the wrong
guy?
The defense described the time periods in which Appellant was in
the hospital or otherwise away from his computer. In addition,
the defense focused on the evidence that other individuals had
access to his computer, the different accounts used to access
child pornography, and the relationship between his injury and
the likelihood of a false confession.
26
United States v. Ober, No. 07-0722/AR
In an effort to underscore Appellant’s alibi defense, the
defense counsel specifically acknowledged the use of the KaZaA
program on Appellant’s computer to access child pornography:
Now, we also know that KaZaA was used at the same
time Specialist [B] was on the computer. You found
that KaZaA logo floating out there at the same time
that [Specialist B] was on the computer, again, from
Specialist Ober’s hard drive.
Defense counsel also acknowledged the presence of child
pornography in the KaZaA folder in the course of contending that
the material was accessed by someone else, as suggested by the
presence of child pornography in other folders associated with a
different user name.
While suggesting that the members should not rely on
Appellant’s confession, defense counsel sought to contrast the
presence of child pornography in the KaZaA folder with the
absence of any reference to KaZaA in his confession: “Is there
child pornography on this computer? No one’s denying that
there’s child pornography on his computer, but this statement is
not corroborated by the evidence.” Moreover, in discussing the
expert testimony, defense counsel questioned whether the
Government expert’s testimony could be used to identify who was
using Appellant’s computer when files were downloaded via the
KaZaA program, and highlighted the defense expert’s testimony to
suggest that another person was using the computer at that time.
27
United States v. Ober, No. 07-0722/AR
Defense counsel’s closing argument addressed the charge of
transporting from two different perspectives -- whether
Appellant permitted others to transport child pornography from
his computer and whether Appellant used KaZaA to obtain images
from other computers:
Let’s talk about that first charge that he’s charged
with, uploading files to the Internet using KaZaA.
Well, we know from his end of it, the KaZaA shared
feature was disable[d], and so nobody took a single
file off of his computer. We have no evidence one way
or the other to tell you if Specialist Ober was even
using it to take MP3 files, but you’ve got zero
evidence that he himself was going out and reaching
for these things, and there’s zero evidence to tell
you a single file was taken off of his computer.
Defense counsel proceeded on the basis that KaZaA had been used
to access child pornography on Appellant’s computer, but asked
the members to conclude that “access” to child pornography on
Appellant’s computer occurred “when Ober wasn’t there,”
emphasizing that his roommate, Specialist B, had access during
that period. As such, defense counsel’s closing argument
focused on who used Appellant’s computer to access child
pornography, not whether the computer was used to transport
child pornography.
II. DISCUSSION
We are presented with three separate questions in this
appeal: (1) whether the evidence is legally sufficient to
support Appellant’s conviction for transporting child
28
United States v. Ober, No. 07-0722/AR
pornography; (2) even if the evidence is legally sufficient,
whether the Court of Criminal Appeals affirmed on a different
theory of liability than was presented by the prosecution at
trial; and (3) whether the military judge failed to properly
instruct the members.
A. LEGAL SUFFICIENCY OF THE EVIDENCE
We review de novo the question whether the evidence is
legally sufficient to support a finding of guilty for
transporting child pornography in interstate commerce. See
United States v. Young, 64 M.J. 404, 407 (C.A.A.F. 2007). The
test for legal sufficiency of the evidence is “whether,
considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
At trial, the prosecution initially offered two theories of
transporting: (1) that Appellant used KaZaA to download child
pornography on his computer; and (2) that Appellant made child
pornography available to other KaZaA users. See supra Part
I.C.1. These two theories were not mutually dependent. Even if
the prosecution did not provide sufficient evidence to prove
that Appellant allowed other KaZaA users to obtain child
pornography hosted on his computer, the prosecution could rely
29
United States v. Ober, No. 07-0722/AR
on its other theory, that Appellant transported child
pornography by using KaZaA to obtain files hosted on other
computers.
During its case-in-chief, the prosecution offered extensive
testimony about how KaZaA operated to prove that Appellant
transported child pornography by obtaining it from other KaZaA
users. See supra Part I.C.2. The evidence demonstrated that a
user could obtain child pornography via KaZaA by entering search
terms into the KaZaA program, reviewing a list of shared file
names and descriptions generated by the search, and initiating a
process that uploaded files from the host computer and
downloaded them to his computer.
The defense did not challenge the prosecution’s evidence
that child pornography was transported from a host computer to
Appellant’s computer through the KaZaA program. The defense and
Government experts both agreed that a file could be moved
through the Internet via the KaZaA program when a KaZaA user
selected a file from a host computer’s shared files and caused
the host computer to upload the requested file. See supra Part
I.C.2, I.C.4, I.C.5. The contested issue at trial was not
whether Appellant’s computer had been used to upload child
pornography from another computer and download it to Appellant’s
computer. The issue at trial was whether the person using the
30
United States v. Ober, No. 07-0722/AR
computer to transport child pornography was Appellant or whether
it was another person who had access to the computer.
On appeal, Appellant argues that there is no evidence that
he “uploaded those [child pornography] files, made those files
available for uploading, or stored those files in a location
where other individuals could access them through the internet.”
This argument fails to take into account Appellant’s admissions
that he acquired child pornography via the Internet, the
evidence introduced by both the prosecution and the defense
regarding the use of Appellant’s computer to transport child
pornography, and the expert testimony that using KaZaA to
download files also involved uploading from the host computer.
See supra Part I.C.2, I.C.4, I.C.5. In light of Appellant’s
pretrial confession to CID agents, the expert testimony
regarding the files found on Appellant’s computer, and the
testimony regarding the underlying investigation of Appellant,
the evidence at trial provided a legally sufficient basis upon
which a reasonable factfinder could have found beyond a
reasonable doubt that Appellant transported and possessed child
pornography.
B. THE THEORY OF LIABILITY ON APPEAL
An appellate court cannot affirm a criminal conviction on
the basis of a theory of liability not presented to the trier of
fact. Chiarella v. United States, 445 U.S. 222, 236-37 (1980).
31
United States v. Ober, No. 07-0722/AR
“To uphold a conviction on a charge that was neither alleged in
an indictment nor presented to a jury at trial offends the most
basic notions of due process.” Dunn v. United States, 442 U.S.
100, 106 (1979); see also United States v. Riley, 50 M.J. 410,
415 (C.A.A.F. 1999).
As noted above, Appellant was expressly charged with
“knowingly and wrongfully caus[ing] to be transported in
interstate commerce child pornography by uploading pictures of
child pornography to a shared internet file named ‘KAZAA.’” The
prosecution offered two different theories of transporting at
the outset of the trial: (1) that Appellant downloaded child
pornography onto his computer via the KaZaA program; and (2)
that Appellant allowed other KaZaA users to obtain child
pornography from his shared files. See supra Part I.C.1. After
the Government’s computer forensics expert testified that
Appellant’s KaZaA settings did not permit other KaZaA users to
access his files, the Government focused primarily on the theory
that Appellant was guilty of transporting child pornography
based on his act of downloading such files via KaZaA. See supra
Part I.C.2, I.C.5. The Government’s expert testified that
downloading images to Appellant’s computer through KaZaA caused
an upload to occur on the host computer. The prosecution’s
closing argument specifically contended that by downloading
32
United States v. Ober, No. 07-0722/AR
child pornography via the KaZaA program, Appellant “caused that
file to be uploaded on the Internet.”
The Army Court of Criminal Appeals sustained Appellant’s
transporting conviction on the theory that “[A]ppellant’s method
of acquiring child pornography through use of peer-to-peer file
sharing constituted transportation by uploading.” Ober, No.
ARMY 20040081, slip op. at 4. In reaching its decision, the
Court of Criminal Appeals cited the testimony of the
Government’s computer forensics expert that a KaZaA user’s
download caused an upload on the host user’s computer. Id. at
2-3. Although that specific description was not initially
placed before the members in the prosecution’s opening
statement, it was referenced in the charging document
(“uploading pictures of child pornography to a shared internet
file named ‘KAZAA’”) and it was presented through expert
testimony during the course of the trial. That is sufficient
under Chiarella. Chiarella, 445 U.S. at 236. Under these
circumstances, we conclude that the theory of liability relied
upon by the Court of Criminal Appeals was one of the alternative
theories of liability presented by the Government at trial, not
a different theory.
C. ADEQUACY OF THE INSTRUCTIONS
Whether a panel was properly instructed is a question of
law reviewed de novo. United States v. Maxwell, 45 M.J. 406,
33
United States v. Ober, No. 07-0722/AR
424 (C.A.A.F. 1996) (citing United States v. Snow, 82 F.3d 935,
938-39 (10th Cir. 1996)). The military judge has an independent
duty to determine and deliver appropriate instructions. United
States v. Westmoreland, 31 M.J. 160, 163-64 (C.M.A. 1990).
“‘[T]he military judge must bear the primary responsibility for
assuring that the jury properly is instructed on the elements of
the offenses raised by the evidence as well as potential
defenses and other questions of law.’” Id. at 164 (quoting
United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975)).
On appeal, Appellant argues that the military judge made
three errors in instructing the members. First, he argues that
the military judge erred by omitting the charged language “cause
to be” from the oral and written instructions on the
transporting charge. According to Appellant, this omission was
plain error because the military judge failed to give proper
guidance to the members. Second, Appellant claims that the
military judge erred by failing to instruct the members on a
theory of aiding and abetting under Article 77, UCMJ, 10 U.S.C.
§ 877 (2000). Appellant claims that this instruction was
mandatory because the Government theory of liability on the
transporting charge involved the participation of another party.
Third, Appellant argues that the military judge erred by failing
to give the members a definition of “uploading.” He contends
that “uploading” was used by the Government in a manner
34
United States v. Ober, No. 07-0722/AR
inconsistent with its normal usage, and thus the military judge
should have provided a definition of the term to the members to
eliminate any confusion as to its meaning or effect.
We address each of these contentions in turn. With
respect to omission of the words “cause to be,” we note that the
military judge instructed the members that Appellant was charged
with “knowingly transporting child pornography in interstate
commerce.” He further instructed that to convict Appellant, the
members had to be convinced beyond a reasonable doubt that,
among other elements, Appellant “knowingly transported material
containing one or more visual depictions by uploading the
material to a shared Internet file named KaZaA.” Regarding the
omission of the “cause to be” language that appeared in the
specification, Appellant contends that the panel might have
ignored that language or used it to convict Appellant under
another theory of liability for which they were not instructed.
As a threshold matter, Appellant has not demonstrated how
omission of the words “cause to be” -- which are not part of the
underlying statute -- changed the nature of the offense or left
the members with a misunderstanding of the transporting charge
and its specification. The defense did not object to the
military judge’s proposed instructions on the transporting
charge, nor did the defense request any additional instructions
to clarify the elements of the offense. Appellant’s speculation
35
United States v. Ober, No. 07-0722/AR
about the effect of the omission does not carry his burden to
show an unfair prejudicial impact on the members’ deliberations
or material prejudice to his substantial rights. See United
States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998) (holding that
plain error not objected to at trial does not compel reversal
without a further determination that the error materially
prejudiced the accused’s substantial rights).
With respect to whether the military judge should have
instructed on an aiding and abetting theory, we note that
Appellant was charged and prosecuted with transporting child
pornography as a primary actor. See Article 77, UCMJ. The
Government focused its case on proving that Appellant was guilty
of transporting child pornography based on his own act of
obtaining files via KaZaA. Neither party requested an aiding
and abetting instruction. Irrespective of whether the
Government could have relied on an aider and abettor theory in
this case, Appellant was not prejudiced by the decision of the
military judge to focus his instructions on the primary theory
presented by the prosecution.
The military judge did not provide a definition of
“uploading” during the instruction phase of the trial. However,
the computer forensics experts who testified for the Government
and the defense offered comprehensive explanations of the KaZaA
process, including uploading. See supra Part I.C.2, I.C.4,
36
United States v. Ober, No. 07-0722/AR
I.C.5. The testimony did not produce a material difference
between the parties or their experts regarding the operation of
KaZaA or how KaZaA could be used to obtain files. The defense
did not challenge the Government expert’s testimony that
downloading files through KaZaA caused an upload to occur on the
host computer. Instead, the defense embraced the evidence of
how KaZaA worked in an effort to convince the panel members that
someone other than Appellant was responsible for downloading the
child pornography on Appellant’s computer. See supra Part
I.C.1, I.C.4, I.C.7. The defense did not object to the military
judge’s proposed instructions, nor did the defense request
additional instructions on uploading. In light of the manner in
which both parties presented their evidence and theories at
trial regarding the use of KaZaA, Appellant has not demonstrated
that the absence of a further description of uploading -- a
description not requested by the defense -- constituted material
prejudice to the substantial rights of Appellant. See Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
III. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
37
United States v. Ober, No. 07-0722/AR
ERDMANN, Judge (dissenting):
Because of the cumulative effect of errors at both the
court-martial and Court of Criminal Appeals levels, I
respectfully dissent. This case involves the Internet-based,
peer-to-peer file-sharing network Kazaa. The Kazaa network does
not utilize a main server where members can post images and
other files, but rather Kazaa allows members to search for and
download files located in the Kazaa folders on the individual
computers of other members. Ober was a member of Kazaa and had
the application on his computer. Images of child pornography
which had been downloaded using Kazaa were found on Ober’s
computer. In addition to being charged with possession of child
pornography, Ober was also charged with transporting child
pornography by “uploading pictures of child pornography to a
shared internet file named ‘KAZAA.’”
My initial concern is that in affirming Ober’s
“transporting” conviction, the Court of Criminal Appeals relied
on a theory not presented to Ober or the members until the
Government’s case in rebuttal. Consistent with the charged
language, the Government initially proceeded on a theory that
Ober had made images available to other Kazaa users by putting
the images in his shared folder. Accordingly, in his opening
statement the trial counsel stated Ober was guilty because “he
allowed others to view [child pornography images on his
United States v. Ober, No. 07-0722/AR
computer] as they were transmitted from his computer.” Ober had
notice and the opportunity to respond to this “uploading” theory
because it was presented in the specification and the opening
statement.
In developing this theory during its case-in-chief,
however, the Government’s computer forensic expert testified
that the Kazaa application on Ober’s computer was set to prevent
uploading. Under this setting Ober could obtain files using
Kazaa, but other Kazaa users could not access files on Ober’s
computer. In other words there could be no “upload” from Ober’s
computer.
The Government did not present the theory upon which the
Court of Criminal Appeals based its decision until rebuttal,
when the defense had already responded to the Government’s case-
in-chief.1 This alternative theory of the case was presented
when the Government’s expert testified on rebuttal that when an
1
The majority contends that the Government presented both
theories in its opening statement because trial counsel
discussed downloading of images. See United States v. Ober, __
M.J. __ (9, 32) (C.A.A.F. 2008). However, trial counsel never
equated downloading images with “causing an upload” during his
opening statement, nor did any witness make this strained
connection during the Government’s case-in-chief. Instead,
trial counsel discussed downloading during his opening statement
in the context of explaining why Ober would be found guilty of
the possession charge, which is not in issue before this court.
Only one theory of liability for the transportation
specification was presented to the panel before the defense
responded with its case-in-chief.
2
United States v. Ober, No. 07-0722/AR
individual downloads a file using Kazaa that action “causes an
upload to occur on the other person’s computer.” During closing
arguments, trial counsel focused on the Government expert’s
rebuttal testimony: “No one caused that file to be uploaded on
the Internet except him.” While evidence was presented in the
Government’s case-in-chief that images of child pornography had
been downloaded to Ober’s computer using Kazaa, this evidence
supported the possession specification and the Government did
not equate this action with “uploading” until rebuttal. The
Government abandoned the theory it relied upon in its case-in-
chief and contended that Ober “caused an upload” when he
“downloaded” files via Kazaa. The Court of Criminal Appeals
affirmed Ober’s conviction on this basis. See United States v.
Ober, No. ARMY 20040081, slip op. at 3-4 (A. Ct. Crim. App. May
25, 2007) (unpublished).
Affirming a conviction based on a theory not presented in
the Government’s case-in-chief raises concerns regarding basic
notions of due process.2 Based on the charging language and the
Government’s case-in-chief, Ober did not have notice that when
the Government charged him with “uploading,” they intended the
term to mean “downloading.” Such a convoluted theory begs the
2
Cf. United States v. Russo, 74 F.3d 1383, 1396 (2d Cir. 1996)
(concluding that the prosecutor’s behavior was improper where he
created a “last minute” argument on rebuttal to which the
defendant could not properly respond).
3
United States v. Ober, No. 07-0722/AR
question as to why the Government just didn’t charge him with
“downloading.” Due process notice and fundamental fairness
require that the Government present its theory of the case to
the factfinder and the accused before the accused’s case-in-
chief.
If this were the only error, I would be inclined to affirm
as the “download means upload” theory was at least presented
during rebuttal and the defense did not request additional time
to respond. This error is compounded, however, by the military
judge’s failure to instruct the members on the definition of
“uploading” and “downloading” and his failure to instruct the
members as to the “cause to be” element in the charged offense.
As Ober was specifically charged with “uploading pictures
of child pornography to a shared internet file named ‘KAZAA’”,
the meaning of the term “uploading” was critical to the members’
deliberations. There was, however, conflicting testimony as to
the meaning of the term. While the military judge provided the
members with definitions of a number of terms referenced in the
elements of the offense,3 he failed to instruct the members as to
the definition of the most critical term -- “uploading.”
During the Government’s case-in-chief, the Government
expert testified that Ober’s computer contained child
pornography that had been downloaded from Kazaa and that, under
3
See Ober, __ M.J. at __ (23-25).
4
United States v. Ober, No. 07-0722/AR
Ober’s computer settings, no one could “upload” files from
Ober’s computer. This testimony would have been helpful to the
Government had Ober been charged with “downloading” rather than
“uploading.” On rebuttal the Government expert revised his
definition when he essentially testified that utilizing the
Kazaa network, if member A “downloads” a file from member B’s
computer, that “download” causes an “upload” from member B’s
computer.
In regard to these terms, the defense expert testified
that: “‘Downloading’ is brining [sic] something to you; and
‘uploading,’ in this situation, would be is if you had an open
portal where you’re allowing somebody to take away from you, or
you’re physically going out and sending something out.” At best
the various definitions discussed by the experts are very
confusing.
While the majority concludes that the experts provided
“comprehensive explanations of the KaZaA process, including
uploading” and that these explanations were not materially
different, this conclusion discounts the significant
distinctions between the language initially used by both experts
and the Government expert’s subsequent recasting of the term.
See United States v. Ober, __ M.J. __ (36-37) (C.A.A.F. 2008).
Additionally, the “uploading means downloading” definition upon
which the Government relies is counterintuitive and contrary to
5
United States v. Ober, No. 07-0722/AR
the common understanding of the term “uploading,”4 which further
supports the need to define the term for the members. In this
instance the definition of the term “uploading” is not a
disputed fact to ultimately be found by the members, but is a
legal term in the specification. Because the experts provided
conflicting definitions of this crucial term, the military judge
erred in not providing an instruction as to its meaning.
A military judge has an obligation to “instruct the members
of the court as to the elements of the offense.” Article 51(c),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 851(c)
(2000); see also Rule for Courts-Martial (R.C.M.) 920(e)(1)
(requiring the military judge to describe the elements of the
offense to the panel). These instructions must be “tailored to
fit the circumstances of the case, and should fairly and
adequately cover the issues presented.” R.C.M. 920(a)
Discussion.
Specification 1 charged that Ober did: “knowingly and
wrongfully cause to be transported in interstate commerce child
pornography by uploading pictures of child pornography to a
shared internet file named ‘KAZAA’, in violation of 18 U.S.C.
4
See, e.g., A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004,
1011 n.1 (9th Cir. 2001) (“To download means to receive
information, typically a file, from another computer to yours
via modem. . . . The opposite term is upload, which means to
send a file to another computer.”) (citation and quotation marks
omitted).
6
United States v. Ober, No. 07-0722/AR
[§] 2252A(a)(1).” While the military judge did explain the
various elements of this specification in his instruction, he
did not reference or define the “cause to be” language.
Although the Government has argued that the “cause to be”
language is merely surplusage, it is clear that “cause to be
transported” is not the same as “transported.” As instructed,
the members convicted Ober of “transporting” rather than
“caus[ing] to be transported.”
Before this court, the Government relied extensively on the
Government expert’s rebuttal testimony that accessing files on
Kazaa “causes an upload to occur on the other person’s
computer.” “Causes to be” must have meaning in order for the
Government’s rebuttal theory to be successful. As such, the
term was critical to the Government’s case and cannot be
considered surplusage. When a case is premised on particular
language in the specification, it cannot be disregarded. See
United States v. Smith, 21 C.M.A. 264, 267, 45 C.M.R. 38, 41
(1972); United States v. Rowe, 13 C.M.A. 302, 310, 32 C.M.R.
302, 310 (1962). The military judge, therefore, erred when he
failed to explain this phrase to the members in his
instructions.5 The military judge did not meet his clear
obligation to present each element to the panel, tailor the
5
Although the military judge informed that parties that he would
define the term “transporting”, he also failed to define that
term.
7
United States v. Ober, No. 07-0722/AR
instructions to the facts of the case, and give definitions of
key terms, particularly those in conflict.
Given the cumulative effect of the due process error and
the instructional errors, I would reverse the decision of the
United States Army Court of Criminal Appeals as to this
specification and order the record of trial returned to the Army
Judge Advocate General for a new trial.
8