United States v. Sergeant RYAN M. GORSKI
2012 CCA LEXIS 916
| A.C.C.A. | 2012Background
- Appellant, a sergeant, was convicted by a military judge at a general court-martial of multiple child-pornography offenses under 18 U.S.C. § 2252A and an obstructing-justice charge under UCMJ Article 134.
- Sentence: bad-conduct discharge, 30 months confinement, and reduction to E-1; convening authority approved 15 months confinement plus rest as adjudged.
- This appellate review focuses on Specification 3 of The Charge, alleging distribution of child pornography via LimeWire peer-to-peer sharing.
- The military judge analyzed whether merely placing files in a shared LimeWire folder constitutes ‘distribution’ under § 2252A(a)(2); he relied on Christy as controlling.
- The record included a providence inquiry, a stipulation of fact, and trial-plea questions about the means of distribution and the defendant’s knowledge.
- Court concluded there was a substantial basis to question the plea to distribution; Specification 3 is set aside, but aggravation evidence remains admissible for sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether making files available via peer-to-peer is distribution under § 2252A(a)(2). | Gorski relies on Christy to define distribution as delivery via LimeWire. | Gorski contends distribution requires actual transfer to possession of another. | Distribution requires actual transfer to another’s possession. |
| Whether Specification 3 can be sustained under Clause 1 or Clause 2 of Article 134, UCMJ as a lesser-included offense. | Government contends Clause 1/2 liability was encompassed by Specification 3 and admissions | Appellant argues the Clause 1/2 theory was not properly advised or proven given focus on CPPA. | Clauses 1 and 2 cannot sustain Specification 3 as charged; the provision is set aside for distribution. |
| Whether reassessment of sentence is required after set-aside of Specification 3. | Aggravation evidence would remain; sentence likely unchanged. | Sentence could be affected if the offense were treated differently post-resection. | Sentence affirmed as approved by the convening authority after reassessment. |
Key Cases Cited
- United States v. Christy, 65 M.J. 657 (Army Ct.Crim.App.2007) (limited definition of distribution under CPPA; genuine delivery required)
- United States v. Craig, 67 M.J. 742 (N.M.Ct.Crim.App.2009) (distribution via file-sharing requires actual delivery to possession)
- United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F.2009) (compares Christy and Craig; analyzes distribution elements)
- United States v. Budziak, 697 F.3d 1105 (9th Cir.2012) (actual download by another completes distribution conviction)
- United States v. Shaffer, 472 F.3d 1219 (10th Cir.2007) (agency downloaded contraband; distribution evidenced by download)
- United States v. Beaty, 70 M.J. 39 (C.A.A.F.2011) (punishment for unspecified Article 134 offenses; general-disorder reference)
- United States v. Medina, 66 M.J. 21 (C.A.A.F.2008) (necessity to know under which clause pleading guilty; notice on multiple theories)
- United States v. Moffeit, 63 M.J. 40 (C.A.A.F.2006) (sentencing considerations; Sales framework relevance)
- United States v. Sales, 22 M.J. 305 (C.M.A.1986) (sentencing framework for errors in conviction and reassessment)