United States v. Martinelli

STATES, Appellee, UNITED

Christopher MARTINELLI, Specialist, P. Army, Appellant.

U.S.

No. 02-0623.

Crim.App. No. 20000311. Appeals

U.S. Court of Armed Forces. April 13,

Argued 2004 and March Sept.

Decided

ERDMANN, J., opinion delivered BAKER, Court, EFFRON and in which GIERKE, C.J., JJ., separate joined. filed dissenting opinion concurring part CRAWFORD, J., dissenting filed part. opinion. Captain A. Appellant: Charles Kuh-

For Odegard, H. fahl, (argued); Adele Jr. Colonel Teetsel, D. Colo- Colonel Robert Lieutenant Tellitocci, Park, Major nel Sean S. Mark Stone, Captain Mary Major Jeanette K brief). (on Vergoña C. Appellee: Captain P. Felsman For Janine (argued); Captain S. Colo- Mason Weiss Leeker, T. B. nel Lauren Colonel Steven Salata, Margaret B. Lieutenant Colonel Baines, A. Theresa Lieutenant Colonel Gallagher, and Colonel Mark L. Lieutenant (on brief). Johnson Judge opinion ERDMANN delivered the court. yet presents This another issue aris- case prosecution from the of servicemembers relating violating federal criminal statutes wake Ashcroft Coalition, Speech v. Free (2002). Special- 152 L.Ed.2d are Christopher ist Martinelli’s convictions upon Pornogra- based violations of Child (CPPA), phy Act Prevention of 1996 (2000), the same statute that U.S.C. 2252A O’Connor, we v. addressed (C.A.A.F.2003), and in United M.J. 450 2004). (C.A.A.F Mason, 60 M.J. 15 Unlike circumstances in O’Connor and Mason, however, underlying the conduct outside the Martinelli’s conviction occurred Darmstadt, specifically in United States — Germany. granted We review of this case the CPPA examine the of whether months, applies engaged approved outside the teen but the balance territorial boundaries the United States sentence. charged when clause of Article Army Ap Before the Court of Criminal (UCMJ), Military Uniform Code of Justice peals, argued Martinelli that his child U.S.C. 934 pornography conviction must be reversed We hold that the CPPA does not have underlying because the statute un was and therefore constitutionally vague overbroad. does extend to Martinelli’s conduct in Martinelli based this contention on Germany. We further hold that Martinelli’s Ninth Circuit decision had been Specification conduct under 1 in occurred granted yet certiorari but not decided Germany both and the United States and Supreme the United States Court. See therefore falls applica- within the domestic Reno, Speech Free Coalition v. tion the CPPA. We also hold that Marti- (9th Cir.1999), granted 1083 cert. sub plea Specification nelli’s provi- 1 was not Coalition, v. Speech nom. Free Ashcroft Finally, dent under although O’Connor. we 1124, 876, 121 148 L.Ed.2d prose- have held that servicemembers can be (2001). Supreme 788 Prior to the 1 2 of cuted under clauses Article 134 decision, however, issuing its the Court of children, involving offenses “virtual” Marti- Appeals Criminal reviewed Martinelli’s guilty pleas nelli’s specifi- the CPPA-based summarily case and affirmed his convic provident cations cannot be deemed to lesser tion and v. sentence. United States Mar

included offenses under clauses 1 and 2 un- tinelli, (A.Ct.Crim. Army No. 20000311 Mason, principles der the in discussed 60 2002) 7, App. (unpublished). Feb. atM.J. 18-20. petitioned

Martinelli then this court for Appeals review the Court of Criminal deci PROCEDURAL BACKGROUND time, By sion. Supreme Court had guilty pleas Martinelli entered and was upheld ruling upon the Ninth Circuit which by general April convicted court-martial challenge Martinelli had based the to his on four specifications CPPA-based un- Speech conviction. See v. Free Co Ashcroft 134, der 3 of (sending, clause Article UCMJ alition, 122 S.Ct. U.S. receiving, reproducing possessing granted L.Ed.2d 403 We review pornography) specification and one of ob- challenged Issue I in he Martinelli’s which structing justice in violation of Article his CPPA-based convictions under 3 of clause UCMJ. He was sentenced Speech in light Article 134 of Free Coalition judge discharge, to a dishonorable confine- specified addressing we issue whether years, pay ment for three forfeiture all the CPPA application.1 had extraterritorial and allowances and reduction to the lowest issues,2 Following argument on these initial grade. enlisted In accordance with the pretrial supplemental terms of the court agreement, convening briefing ordered on authority eigh- reduced the confinement two additional issues related the extrater- granted On November we review of II. WHETHER 18 U.S.C. SECTIONS 2252A(a)(l)-(a)(3) (a)(5)(A) following issues: AND APPLY TO CONDUCT ENGAGED IN OUTSIDE I. WHETHER APPELLANT’S GUILTY OF THE THE TERRITORIAL LIMITS 1, 2, PLEAS TO SPECIFICATIONS UNITED STATES WHEN CHARGED AND OF THE CHARGE WERE IM- UNDER CLAUSE 3 OF ARTICLE PROVIDENT BECAUSE THE MILITARY UCMJ. JUDGE PROVIDED AN UNCONSTITU- TIONALLY OVERBROAD DEFINITION argument 2. We first case at the heard oral this OF CHILD PORNOGRAPHY AND DID Guard New Lon- Coast Academy, ADEQUATE NOT CONDUCT AN PROVI- "Project don, as Connecticut, of this court’s part REQUIRED INQUIRY, DENCE AS BY Outreach.” This was practice part developed CARE, UNITED STATES program of a awareness demonstrate public (1969), U.S.C.M.A. C.M.R. of a Federal Court of operation Appeals justice AND ITS PROGENY. the militaiy system. Darmstadt, Germany. At the case stallation application of the CPPA.3 The ritorial keep images he would either reargued of the two addi- barracks with inclusion the hard drive of them onto the disk load tional issues. computer. his following charged with the Martinelli was FACTUAL BACKGROUND CPPA under clause 3 violations of the ground- convictions are Martinelli’s CPPA Article 134: ed four discrete actions that he took mailing, knowingly trans- Specification 1: respect images pornography.” of “child porting shipping continuing Beginning January 1999 and (by commerce com- interstate January through Martinelli downloaded 2252A(a)(l) (specifi- puter) violation images from Inter- images cally, sending over the Internet off-post using computers located at the net in from the Internet Café Network Darmstadt, in Ger- Network Internet Café Darmstadt, Germany); many. He would search Internet websites knowingly receiving child Specification 2: in order to log into Internet chat rooms mailed, shipped pornography that has been willing communicate with individuals to send foreign transported in interstate or ultimately images. him He secure would (by computer) in violation of commerce images through one two routes: distinct 2252A(a)(2)(A) (specifically, downloading § (1) he would receive materials via electronic in images from the Network the Internet (e-mail) e- mail sent other individuals to Darmstadt, Germany); Internet Café he mail accounts that maintained with either knowingly reproducing Specification 3: or Hotmail or he be direct- Yahoo! would through pornography distribution for to respective ed their web individuals mails, or in interstate or com- pages, from which Martinelli would secure (by computer) merce violation scenario, directly. images Under either 2252A(a)(3) (specifically, downloading images e- he download the from the would Internet; images copying from the them page mail attachments web contents to transmitting copied hard drive and computer hard of a at the drive Network approximately twenty files to individuals sixty-four Café. received at Martinelli least over the in the Network Internet Internet images pornography in this of child fashion. Darmstadt, Germany); Café in Specification knowingly possessing 4: receiving images, After Martinelli building and in a on land copy them would them order distribute under control of used the Unit- to other individuals in the form attach- ed in violation He States Government ments to e-mail transmissions. transmit- 2252A(a)(5)(A) possessing (specifically, images to ted some of these other individuals fifty accounts, containing approximately diskettes sending via his Yahoo! and Hotmail bufldings messages the Cam- approximately twenty such over Kaserne). brai Fritsch period. time relevant copied images also from Martinelli DISCUSSION computers hard at the Netz- drives A. Review Standard of disk, separate work a which he then Café guilty plea. to his case involves a For this took back barracks at Cambrai This Kaserne, reject Army guilty plea appellate in- States court to Fritsch 2252A(a)(l)- granted §§ 2004 we the additional IV. WHETHER 18 U.S.C. On October (a)(3) issues: specified ARE BEING APPLIED DOMES- 2252A(a)(l)- §§ III. WHETHER 18 U.S.C. TICALLY OR EXTRATERRITORIALLY (a)(3) WHO APPLY TO AN INDIVIDUAL WHEN E-MAILS CONTAINING CHILD RECEIVES, AND REPRO- SENDS, ARE SENT THROUGH PORNOGRAPHY DUCES ELECTRONIC FILES CON- PRO- E-MAIL OR INTERNET SERVICE AT TAINING CHILD PORNOGRAPHY THE VIDER SERVERS LOCATED IN CAFÉ OFF AN INTERNET LOCATED UNITED STATES. POST IN GERMANY.

review, trial Courts-Martial, the record of must show a sub- Manual United States (2002 ed.) (MCM), IV, 60.c.(4)(c)(i) (em- stantial law questioning pt. basis and fact for H added). plea. Jordan, phasis v. United States As a M.J. uniformed servicemem- Germany, ber (C.A.A.F.2002)(citing stationed Martinelli Prater, (C.M.A.1991)). unquestionably subject jurisdiction v. 32 M.J. 2(a)(1) the UCMJ. See Articles Whether intended the CPPA UCMJ, 802(a)(1), §§ 10 U.S.C. have extraterritorial is question question CPPA, There is no also that the if statutory interpretation. Interpretation charged clause 3 Article would legislative history a statute its ques- are applicable to Martinelli’s conduct had he tions of law we review de novo. United engaged in these acts in Internet cafe Falk, (C.A.A.F. 50 M.J. Killeen, Texas and then carried the disks 1999). back a barracks room on Fort Hood. Similarly, might punisha- his conduct well be

B. The Charge Nature under Arti- ble under clauses 1 of Article 134 cle 13h regardless of where it occurred. Martinelli’s charged conduct was as a vio today we address is not the lation Article UCMJ —the itself, “General of the UCMJ but rather Article.” punishable Conduct is under Arti whether the appli- CPPA has extraterritorial “prejudices good cle 134 if it cation under clause 3 of 134.4 If order and disci Article we (clause CPPA, pline find that a 1), the armed forces” if “crime offense it is capital,” applicable not is not to bring “of a Martinelli’s upon nature to discredit Germany, (clause conduct we must then 2), consider armed forces” or if it is a crime whether, usage due the nature of his (clause 3). capital O’Connor, offense not Internet, his fell within the do- atM.J. 452. As was the case in both O’Con application mestic of the To CPPA. the ex- Mason, nor and Martinelli’s spe conduct was tent that find we that Martinelli’s conduct fell cifically charged offense, as a “clause 3” with CPPA, within the application domestic of the serving the CPPA as the “crime or offense we must guilty then consider his whether capital.” not pleas provident light were of O’Connor. question The specified initial that we for Finally, if pleas we find that Martinelli’s ostensibly review is straightforward —does improvident were under clause 3 of Article apply the CPPA Martinelli’s conduct reason, for either we must determine Germany? President, The in the Manual they provident whether would for be to lesser Courts-Martial, has stated that: included offenses under clauses or 2 of Article 134. person subject may A the [UCMJ] punished be under clause 3 of Article 134 an offense place a occurred C. The Application Extraterritorial in question

where the law apply. did not the CPPA For example, person may pun- not be (1) Presumption Against Extraterritorial- 13Jp ished under clause 3 Article when ity foreign the act country occurred in a

merely because that act would have been The application of Federal under the United States Code any question statutes does not involve offense as to had the act occurred in the United States. authority Congress’ its enforce criminal Regardless committed, where such an act beyond laws the territorial boundaries of the might punishable be under clauses 1 or Congress clearly has that au- States — Bowman, thority. of Article 134. v. 260 U.S. question Congress particular of the extraterritorial statute have extraterri- nothing application. of federal statutes has to do with the torial See Fire Ins. Co. Hartford jurisdiction 764, 813, California, is a federal courts. It 509 U.S. 113 S.Ct. law, (Scalia, (1993) J., of substantive which turns dissenting). intent L.Ed.2d 612 (1922). locality for the 98-103, dent on their Government’s L.Ed. 149 43 S.Ct. Rather, jurisdiction, is but are enacted because question here whether Con authority, itself gress right in fact exercised that of the Government defend has statutory obstruction, a matter of construction. or fraud wherever which is Employment Opportunity Equal Commis its especially if committed perpetrated, (Aramco), v. Arabian American Oil Co. citizens, sion such agents. Some officer own 244, 248, 111 S.Ct. 499 U.S. only within the can be committed offenses (1991). L.Ed.2d jurisdiction of the Government territorial required to consti- local acts because of the recognized Supreme has limit are that to tute them. Others such American law longstanding principle as a “ juris- strictly territorial their locus to legislation Congress, a con ‘that unless greatly to curtail diction would be trary appears, apply is meant to intent of the statute and scope and usefulness territorial of the Unit within the immunity large for frauds as open leave Foley (quoting Bros. v. ed States.’” easily high committed citizens on the 281, 285, Filardo, 336 U.S. 69 S.Ct. foreign countries as at home. seas and (1949)); see also Small v. United L.Ed. 680 cases, thought has not such 1752, 1755, 161 385, 125 S.Ct. provision in necessary specific to make L.Ed.2d 651 We must assume high law that locus shall include Congress legislates against backdrop of countries, but allows it to seas and extraterritoriality. presumption against inferred from the nature of offense. Aramco, 499 U.S. at 111 S.Ct. 1227. Unless the “affirmative intention” of Con Bowman, 98, 43 39. We 260 U.S. at gress give extraterritorial to a stat effect previously characterized Bowman as have “clearly expressed,” presumed it is ute drawing a distinction between: “primarily concerned that the statute against punishing statutes crimes (quoting Benz v. domestic conditions.” Id. peace good community and order of the S.A., Compania Hidalgo, Naviera (which with- apply committed [acts] (1957) 138, 699, 147, 77 S.Ct. 1 L.Ed.2d 709 jurisdiction in the territorial United Bros., 285, Foley 336 at 69 U.S. S.Ct. Congress specifically had di- States unless 575). otherwise); punish- statutes rected presumption against The extraterrito against ing the Unit- fraud obstructions riality recognized specific has been (which States Government include ed statutes, “excep of criminal with an context implication acts which were committed for a certain class offenses: tion” countries). against private or them Crimes individuals Gladue, (C.M.A. 1, 5 v. 4 M.J. murder, assaults, burglary, property, like 1977). embezzlement, arson, larceny, robbery, principles Supreme articulated kinds, and fraud of all which affect the can har- Court Aramco and Bowman be community, peace good order of the analytical provide following course, monized to must of be committed within the assessing for the CPPA framework whether government territorial may If extraterritorial effect: properly pun- it exercise it. was intended to have where falling in- ishment of them is to be extended to CPPA can viewed as Unless the be of the category clude those committed outside strict within the second described Bow- jurisdiction, (“criminal are, class, it is natural for territorial which as a man statutes statute, say so in the right gov- ... enacted because of the negative purpose failure to do so will obstruction, against defend itself ernment to regard---- Congress in this 260 at perpetrated,” or fraud U.S. wherever 39), subject 43 the statute interpretation But rule of the same presumption against extraterritoriality recog- applied not be to criminal statutes should are, class, Aramco. logically depen- as a not nized both Bowman and which

doWe not believe that gressional the CPPA can be applica intent for extraterritorial category” viewed as a “second offense tion in under several circumstances that do not Bowman and exempt Government, thus from involve against crimes in presumption against cluding pornography-related extraterritoriali- child offenses. ty. See, objective e.g., The ultimate Harvey, behind the crimi- States F.3d (3d nal proscription of pertaining guide activities Cir.1993)(sentencing offenses); protect pornography child lines for child is to children from Thom as, Coalition, (production 893 F.2d at Speech abuse. Free 1068-69 at U.S. 2251). S.Ct. 1389. few We While crimes are disagree, however, expanded s morally more serious Baker repugnant, category” view of the “second offenses in abuse does not involve “fraud” or “obstruc- phrase Bowman. from against tion” “inferred the United States Government. nature Rather, of the offense” in Bowman was clear epitomizes abuse that class of “[cjrimes ly cast in reference the “class” criminal against private individuals [includ- involving statutes fraud or obstruction peace good children]” “affect the against the Government and is not free community” order of the described standing principle statutory construction: category first of Bowman. 260 U.S. S.Ct. 39. But the same of interpretation rule should not applied to criminal statutes which law, We body are aware of the primarily are, class, logically dependent not Circuit, from the Ninth that does not read locality their jurisdic- the Government’s category the second in Bowman as limited to tion, but are enacted right because of the against See, crimes e.g., Government. Government to defend itself v. Vasquez-Velasco, 15 F.3d obstruction, or perpetrat- fraud wherever (9th Cir.1994); n. 4 United States v. ed, especially if committed its own citi- Thomas, (9th Cir.1990). 893 F.2d zens, cases, agents.... officers or In such roots, all Those cases trace their fash- one Congress has thought necessary another, ion or back United States v. provision specific make in the law that the Baker, (5th Cir.1980), high locus shall include the seas and for- where the Fifth Circuit read Bowman as countries, eign but allows it to be inferred allowing court, the absence of ex- from the nature of the offense. pression intent, congressional to “infer” Congress’ provide intent to for extraterritori- 260 U.S. at 43 S.Ct. 39.6 application al “from the nature of the of- Accordingly, we adhere to the view Congress’ legislative fenses and other efforts originally expressed we in Gladue. The type to eliminate the of crime involved.”5 category exempt of offenses under the lan The Baker court concluded that a federal guage any presumption of Bowman from prohibiting possession statute drug with in- against extraterritoriality and for which a tent to distribute fell within “the second cate- congressional for appli intent extraterritorial gory described Bowman” and thus was can cation be “inferred from the of nature apply intended to extraterritorially. Id. at involving the offense” are those “obstruc against tions” “frauds” the Government. holding in Gatlin, Baker has subsequent been See United States v. ly (2d support Cir.2000). used to the “inference” of a con 211 n. 5 For critical concept discussion of the roles of Con- 6. We also note that the Baker of “infer- gress, judiciary regarding Executive and ring” extraterritorial intent based on the nature statutes, application the extraterritorial of federal Congress' of offense and other efforts to Gibney, see Applica- Mark P. The Extraterritorial type apply eliminate the of crime involved could tion Governance, U.S. Law: The Perversion Democratic of of anywhere any to almost crime committed in the Roles, The Reversal Institutional presumption against This world. would turn the Imperative Establishing and the Normative on its head where Principles, Comp. 19 B.C. Int'l & L.Rev. criminal statutes are involved. (cid:127) intent sell (2) possession or sale Congressional Intent Indicia of (1) has moved pornography child that the CPPA is sub Our conclusion foreign or commerce in interstate ject extraterritorial presumption means, including by computer or any end ity and Bowman does not under Aramco have produced using materials that now inquiry applicability. its We our into (2) any child or moved commerce ‘language [rele “look to see whether special “in the maritime pornography any gives of a con indication statute] vant jurisdiction of Unit- and territorial coverage its gressional purpose extend States, building any or or on land ed beyond places over which to, used by, or otherwise owned leased leg sovereignty or has some measure of has of the United by or under the control ” Aramco, 499 U.S. at islative control.’ Government, or in the Indian Bros., Foley (quoting 111 S.Ct. 1227 (as country section defined 575). searching 1151)....” (18 2252A(a)(4)(A), re congressional intent expression clear (B)); and Aramco, not limited quired by we are (cid:127) (1) possession ‘all can “consider text the statute and or that has moved in interstate meaning available evidence’ about means, by any including commerce structure, statute, text, leg including its computer produced using mate- or was Gatlin, history.” F.3d at islative or rials that have moved commerce Inc., Council, (quoting Haitian Ctrs. Sale (2) spe- “in any 155, 177, 2549, 125 113 S.Ct. U.S. cial maritime and territorial (1993)). L.Ed.2d 128 any land or the United to, building by, or other- owned leased (a) Text and Structure the control wise used or under Government, the United States reading Our of the CPPA does not find (as country in the Indian defined in the text and structure of the indication 1151)....” (18 U.S.C. in section congressional purpose statute of extend (B)). 2252A(a)(5)(A), Shannon, coverage. Bradley its See Scott The Jurisdictional Limits Federal Crimi acts in the three subsec- criminal first Law, Pornography 21 Hawaii nal Child por- of child tions all refer to movement (noting L.Rev. the lan foreign com- nography “in interstate or guage clearly of the CPPA ex “do[es] merce,” moving the act of whether apply an intent” press that the statute is (§ 2252A(a)(l)) itself or the acts of material extraterritorially). The text and structure reproducing receiving, distributing or for dis- prohibits categories statute five of con moved in that tribution materials have duct: (§ 2252A(a)(2)-(3)). fashion (cid:127) mailing, transporting shipping The criminal acts in the final two subsec- foreign in or interstate sell, sale, possession tions with intent to are any means, by including by commerce possession. simple Under these subsec- (18 2252A(a)(l)); § computer U.S.C. tions, ei- liability criminal can attach under (cid:127) pornog- receipt or distribution separate ther of two circumstances. The mailed, or raphy shipped that has been foreign first involves the same “interstate or foreign in transported interstate or context attendant to offenses commerce” means, by by any including commerce 2252A(a)(l)-(3). § in circum- second (18 2252A(a)(2)(A), § computer U.S.C. purely dependent physical loca- stance is on (B)); tion or the “situs” the defendant —if the

(cid:127) “in reproduction requisite special for act occurs maritime by jurisdiction or of the mail or interstate and territorial

distribution commerce, States, by, including by any building on or owned foreign com- or land (18 2252A(a)(3)(A)); by puter § to or otherwise used or under the U.S.C. leased Government,” control of control the United States Govern- ment”; pornogra- does matter whether phy moved in ever commerce. See (cid:127) (as in country” “the Indian defined (5)(A). 2252A(a)(4)(A), § 1151). § statutory aspects There are two country The reference to Indian reflects a 2252A(a)(l)-(a)(5) language §in that could congressional complex jurisdictional on focus possibly expressing congressional be read as unique, that flow issues from the and inher- (1) intention to extraterritorial effect — domestic, ently relationship between the foreign references to “interstate or com- United States Government and In- American merce” and in language the situs certainly dians. It does not reflect clear 2252A(a)(4)(A), (a)(5)(A). In terms of the legislative for out- arising concern matters former, not, themselves, they in are and of side the territorial boundaries of the United expression” any congressional “clear inten- States. proscribed by tion that the acts the statute “special The term maritime and territorial constitute a crime in federal no matter where jurisdiction is, United States” like Rather, they the world occur. we view them country,” “Indian a term of art that carries straightforward aas reference to the source its own distinct definition. See 18 U.S.C. authority Congress proscribing these term That of art has been the sub- instance, i.e., acts as in criminal the first ject interpretations of different as to ex- its Commerce Clause of the United States Con- reach, particularly traterritorial whether it stitution: territory extends to lands within the of a Many Congress Acts of are on the based See, sovereign foreign e.g., nation. authority body regulate of that com- (9th Corey, among merce the several and the Cir.2000)(term property includes Yo- inside parts setting of these Acts forth the basis Japan kota Air private apart- Base jurisdiction for legislative obviously will re- building ment rented United States em- way fer to such commerce one anoth- Gatlin, bassy Philippines); 216 F.3d at 220 er. permit possible, If we were to or even (term housing complex include on does not plausible, interpretations language such Darmstadt, Army Germany). U.S. base pre- as that involved here override the depth complexity We conclude that the sumption against applica- Corey of the debate reflected in and Gatlin tion, pre- there would be little left of the inherently something demonstrates less than sumption. expression” congressional a “clear inten Aramco, U.S. S.Ct. “special term tion maritime and “foreign The use of term commerce” territorial of the United States” addition “interstate commerce” does not to lands of a extends inside the boundaries conclusion, Supreme alter that as the Further, nation. has since repeatedly “has held” that even statutes that specific subject acted to resolve expressly “foreign refer commerce” do not Gatlin, Corey debate in which was nar apply abroad. Id. at rowly focused the reach certain federal engaged criminal statutes over language That leaves situs accompany employed seas civilians 2252A(a)(4)(A) 2252A(a)(5)(A) §§ as a Military the armed forces. See Extrater possible overcoming presump- basis for ritorial Jurisdiction Act of Pub.L. No. against extraterritoriality. tion There are (codified 106-523, 114 at 18 Stat. three alternative locations in referenced the (MEJA). 3261) Congress § used MEJA to statute: create a new federal criminal involv offense (cid:127) special ju- “the maritime and territorial ing engaged in conduct “outside the United States”; risdiction of the or that a States” would otherwise constitute (cid:127) building by, or “any felony engaged land owned leased if the had been in conduct

to, by special used or under “within the maritime otherwise the and territorial statutory a the text reflect requires co that 18 U.S.C. jurisdiction of the United States.” Congress’ 3261(a) (2000).7 intent that the expression clear of § Aramco, reach. have extraterritorial statute language remaining The situs refers 248, 1227. The lan- 111 S.Ct. building any land or occurring conduct “on a enough to overcome guage must be clear to, by or by, used owned leased otherwise apply it presumption that was intended Gov- under the control of the United States plau- domestically, simply itself to a not lend undoubtedly language re- That ernment.” applies that it overseas. argument sible criminally congressional flects a intent not to over- plausibility Mere sufficient proscribe physical locations where conduct presumption. the context come the enjoys some the United States Government “any we not the presumption, of do view that type of control over location. proprietary the building” language of land however, provide language, The does 2252A(a)(5)(A) 2252A(a)(4)(A) as a §§ congressional intent that clear evidence of a by Congress that it have expression” “clear apply the statute should outside the bound- application. language That aries of the United States. (b) History Legislative just only to easily apply as land and could territorial United buildings located within the the text and struc- Having concluded that parks, as federal office States such national any clear express CPPA do not ture of the buildings and domestic installations. apply by Congress intent the statute extraterritorially, the conclu- we reach same concerning language note that the We also respect legislative history. to its sion with alone, building” “land or does not stand but history legislative focus of that clear by dealing language is instead bracketed of patent on the evils “special with the maritime territorial computer technology the new dimension that jurisdiction of and “the States” Congressional See Find- adds to those evils. (as 1151).” country Indian defined section ings, following 18 States”); boundaries,” Congress provided United 18 U.S.C. has that the 2251(c)(l)(“[a]ny § person employs, who occurring ... statute extends to “conduct outside uses, in, any ... engage minor to or who has of the United addition to conduct in, person engage a minor assist other occurring inside of the United States” and any sexually explicit “[tjhere of conduct outside juris- is extraterritorial Federal States”). United range diction” over the wide of offenses de- scribed in the statute. See U.S.C. Congress clearly expressed has intent its 2332(e), (2000). § (g)(1) examples These Biolog- other criminal as well: statutes express congressional intent constitute vari- Weapons ical Anti-Terrorism Act of 1989 indicia, ous none present of which are with provides, “There is extraterritorial federal respect to the CPPA. jurisdiction over offense under this section by against committed a or national of the by To reach the urged conclusion the Gov- 175(a) States,” (2000); § United 18 U.S.C. ernment, Congress intended the CPPA Drug the Maritime Law Enforcement Act to criminalize conduct inside the boundaries provides, “This section is intended to reach countries,8 sovereign foreign we would manufacture, possession, acts of or distribu- disregard have to the Bowman and Aramco juris- tion committed outside the territorial presumption and the absence of these indicia. app. diction United States.” U.S.C. statutory The rules of construction laid down 1903(h) (2000). § by Supreme simply not support do § also amended 18 U.S.C. that conclusion. (2000), “special which defines the maritime jurisdiction” and territorial of the United Accordingly, we cannot view the part Uniting Strength- as overcoming CPPA as presumption ening Providing America Appropriate against dictated Required Intercept Tools and Obstruct charges Bowman and Aramco. The (USA Act), Terrorism Act PATRIOT against squarely Martinelli fall within the 107-56,115 (2001). Pub.L. No. Stat. example the President described the Man USA Act PATRIOT amendments a inserted Courts-Martial, i.e., person may ual “a that, provision respect new to “offenses punished not be under clause 3 of Article 134 committed a national of the country foreign when the act occurred States,” special extends the maritime merely because that act would have been an and territorial of the United offense United States Code had States under “premises 18 U.S.C. the act occurred in the United States.” consular, diplomatic, of ... other MCM, IV, 60.c.(4)(c)(i). result, pt. U As a States____” ... foreign missions ... there is a substantial basis law and fact for (codified §Act USA PATRIOT at 18 viewing guilty pleas Martinelli’s 7(9)(A)). expression This clear is a CPPA-based clause 3 offenses under Article congressional intent crime commit- occurring Germany for conduct special ted in “the maritime and territorial improvident. jurisdiction” may now includes in some instances have occurred inside the D. Application The Domestic foreign boundaries of a nation. CPPA Finally, Congress’ ability we note to make stipulated regard its intentions in this Martinelli that all of the e-mails clear with re- spect range to a that he broad of criminal acts rather sent received his Yahoo! or single electronically legislation proscrib- than a crime. Hotmail e-mail accounts were transcending through “[a]cts terrorism national routed servers by Congress, Delgado-Garcia, 8. Unless with a restricted statute 1344-45 (D.C.Cir.2004); congressional (Rogers, clear intent ef- id. at of extraterritorial see also 1351-62 fect, J., (Third) applies dissenting); Foreign nationals as well as Unit- Restatement interpretation §§ ed States nationals. Such an rais- Relations Law the United States 401-03 es See international law concerns. traveled from place take as Moneini’s letters This connection to the United States.9 California, Italy giving the court territorial possibility that the CPPA States raises the found, jurisdiction.” in Id. trial court domestically three applied be could alternative, jurisdic- the extraterritorial specifications upon that were e-mail based proper. tion Id. would messages through received Martinel- sent or argues that li’s e-mail accounts.10 Martinelli appeal was convicted and on he Moncini charge alleges specification, in each sheet jurisdiction. again The Ninth urged a lack only near that the conduct occurred “at or decision affirmed the lower court’s Circuit Darmstadt, Germany” and therefore “[¿jurisdiction if explaining proper him on the mis- put Government notice that offense, offense, with- part of the occurred argues in Germany. He occurred (citing Rocha States.” Id. the United Germany that the offenses situs of the was (9th Cir. may material and fact that the have been 1961)). explain The court went on to through routed an Internet located server mailing pornography “Moncini’s child was does not what the United States transform offense, continuing part so that act was an into a domestic extraterritorial committed in the United States offense was act. through mail as his letters traveled to their were delivered destination.” responds was Government that there “reject[ed] argument The court Moncini’s more for than one situs Martinelli’s miscon- was the time complete that the crime prosecution proper duct and that was Italy.” deposited letter was in the mail a domestic or either Id. The Ninth Circuit did not reach the application of the CPPA. The Government extraterritoriality. contends that server because Internet was in the The obvious distinction between Moncini located United States and due is that and this case this case child continuing nature of the involved offenses pornography through flowed the Internet (sending, receiving, reproducing child statute, through rather than the mails. The part pornography) a of each offense was however, is not limited “mail” but includes committed United States. Therefore “mail, transport ship” as such includes argues ap- the Government that a domestic through It material routed the Internet. can plication is proper. of the CPPA The Gov- disputed purposes that for sending not be Moncini, ernment cites States v. communications, receiving the Internet (9th Cir.1989), in support F.2d 401 of its system rapidly becoming e-mail the 21st position. century equivalent century postal of the 20th Moncini, Italy a citizen and resident of system. The domestic as he entered arrested the United States possible CPPA is therefore under the “con- and was tried in the United District theory tinuing Specifications offense” 1-3. Court for the District Central of California specification alleges As different mis- each Italy for mailing pornography child from conduct, individually. must be each examined undercover officer California viola- Moncini, tion of 2252. F.2d 18 U.S.C. speci This Specification (sending): at 403. Prior to his trial filed a Moncini charged that “elec fication Martinelli used motion to dismiss the for lack of indictment containing tronic mail to send electronic files personal jurisdiction. The trial court denied pornography through the Internet”. mailings ground his on the that the agree motion with the Ninth that “send We Circuit “continuing continuing were ing” offenses which continued to is a of- Specification possession We those where e-mails 4 is the situs based address instances through were e- routed Martinelli’s U.S.-based charge specification allege did not move- stipulate, mail Martinelli did nor accounts. through the ment Internet. record, is there he evidence on utilized U.S.-based servers he downloaded when directly we from websites and address that therefore do not issue.

fense that as continuing continues the e-mail travels in nature and provide do not for through the Internet to its In application destination. domestic of the CPPA. this routing case travels those included a through servers located the United States. E. Guilty The Providence Martinelli’s result, application

As a domestic of the Specification Plea 1 to CPPA Specification appropriate. 1 is Having determined that the CPPA is Moncini, 882 F.2d at 403. domestically applicable Specification and Specification (receiving): specifica- 2 This finding no question therefore basis to Marti charged tion that Martinelli received “child plea Specification nelli’s 1 on extraterrito pornography had transported been ... riality grounds, we must now determine by ... computer means of a to wit: down- guilty whether plea speci Martinelli’s to that loading files containing por- electronic child O’Connor, fication provident was nography from the Internet.” Unlike the M.J. at 453-60. “sending” specification, Martinelli’s acts

receiving the child were not Inquiry The Providence and Record of any start of conduct continued into the Trial “receiving” United States. His the e-mails in Germany only occurred and Specification Under Martinelli there can application be no domestic charged with violation of the as a CPPA CPPA to specification.11 this capital” “crime or offense under clause 3 military judge explained Article 134. The Specification (reproducing): speci- This to Martinelli that clause 3 of Article 134 charged fication “reproduced that Martinelli prohibits the commission of and of- crimes by computer means of a capital fenses not and that he had been for downloading distribution ... from charged with violation of 18 2252A. copying Internet electronic files ... said files military judge explain went on to computer sending copied diskettes and knowingly elements wrongfully and mail- files ... electronic mail.”12 Similar to the ing, transporting shipping or pornogra- “receipt” specification, in reproducing for dis- phy by using mail electronic to send electron- tribution, Martinelli commenced no conduct containing ic files pornography through that continued into the United States and Internet, acknowledged which Martinelli there can application be no domestic he judge understood. then read CPPA. Martinelli the definition several terms summary, Specifica- we find that while 2252A, were including used 18 U.S.C. tion involves conduct that into continued pornography, the definition of child which the provides the United States and therefore for military judge noted was found in U.S.C. CPPA, Speci- § domestic military judge 2256. The defined “child fications involve conduct pornography” that is not follows: 10-K, respect 11. With of whether Year Form available at (follow messages http://www.microsoft.com/msfi/sec.mspx all of e-mail in Martinelli's hyperlink) (listing "Fiscal Year Form 10-K" Yahoo! and Hotmail accounts were "resident” Dublin, European Operations Center in Ireland Internet servers located in the United noting fully that: "Our are used (which facilities operated both Yahoo! and Hotmail is operations segments...."/. current all Marti- MSN, Corp.) division Microsoft have stipulated messages nelli that his e-mail had significant operations. international See Yahoo! through been routed setvers located in the United Report, Annual at available any States. The does not include record informa- http://yhoo.client.shareholder.com/annual.cfm opened tion about the on which servers his (follow Report" hyperlink) (listing "2004 Annual unopened messages e-mail were stored. thirty-three locations in cities around office noting principal world offense, that: "Our Web server "Sending” not an element of this equipment operations are maintained "reproducing rather the offense for distribu- "sending” allegation and several other domestic and tion" and the was included California locations."); international Fiscal to meet the “distribution” element. Microsoft specifically the distinction including discussed [A]ny depiction, photo- visual film, pornography and video, computer, “virtual” child picture, or between graph, picture, pornography and concluded image or “actual” computer-generated electronic, restricting pornographic produced by rationales for whether made mechanical, involving actual do not sexually ex- children or other means materials conduct, simulations computer-generated plicit where: extend 249-56[, images. 1389]. 122 S.Ct. (A) production depiction of such visual the Supreme concluded that The Court in engaging use of a minor involves the any prosecu- prohibits First Amendment conduct; sexually explicit on “virtual” under the CPPA based tion (B) is, appears to depiction or such visual pornography. be, sexually in engaging of a minor conduct; explicit Coalition, Speech knowing Prior to Free created,

(C) depiction such visual has been of receipt images of possession and appear adapted, to that an or modified actual, or pornography, virtual was suffi- engaging minor in sexu- identifiable is predi- of factual to establish one the cient ally conduct; explicit or plea guilty for a of under the CPPA. cates (D) advertised, depiction is such visual “actual” The “virtual” or character described, presented, or promoted, itself, not, a images was in and of factual in distributed such a manner that con- plea predicate guilty to a liabili- —criminal veys impression the material the ty could under either circumstance arise depiction or a of a is contains visual ____ Speech In the of Free wake Coali- sexually explicit in engaged minor con- tion, provisions of 18 the relevant U.S.C. duct. 2256(8) depiction § visual require the inquire military judge sexually The did not as to engaging minor in be of an actual Martinelli that his conduct whether believed The of explicit conduct. “actual” character prejudicial to good was either order and dis- depictions predi- a factual the visual now in cipline discrediting. As any plea service O’Con- guilty of under the CPPA. cate nor, judge’s pre-Free the use omitted). (internal at 452-53 footnote M.J. pornog- “child Speech Coalition definition of O’Connor, the to the situation in Similar properly at raphy” reflected the law the time military judge definition used the in this inquire of trial. His failure to into the “actu- portions included of the definition case those al” or “virtual” distinction or discuss the Supreme the Court in later struck down possible discrediting” “prejudicial “service military judge Speech Free Coalition. discipline” good order and characteristics aspects the not discuss those of CPPA did O’Connor, perfectly understandable. Supreme by the that were not affected at 453. M.J. i.e., ruling, pornogra- “actual” Court’s (B) 2256(8)(A), § phy under Plea The Providence the Under of images of an “computer morphed” identifi- Clause 3 2256(8)(C). O’Connor, § minor able under at 452. As we noted Mason: guilty

In this M.J. O’Connor court reviewed plea Article clause 3 134 CPPA offense O’Connor, a provi- our decision Under light Supreme the Court’s decision plea the guilty to a violation of CPPA dent Speech Free Coalition: the must reflect accused violated Coalition, Supreme portions Free the of the statute not affected Speech

In those portions Supreme ruling Free determined that certain Court’s 2256(8) § at 454. The Speech definition are unconstitution- Coalition. M.J. al, any “or lan- focus on or discussion con- specifically appears be” absence 2256(8)(B), cerning aspects entirety those the statute guage of 2256(8)(D). 256, 258[, coupled the use of the present record 1389], former, unconstitutionally definition striking In overbroad during plea colloquy potential Mason’s preclude availability render this does not indistinguishable case from O’Connor. a lesser included offense under these circum- stances. As noted Manual atM.J. Courts-Martial, may conduct that not consti- Similarly, reasons, and for same tute a violation of clause 3 in a coun- absence of focus “actual” versus try may punishable still be under clauses images, “virtual” nature the use of the 60.c.(4)(c)(i). MCM, and 2. pt. See IV. 1Í unconstitutional pornogra- definition “child phy,” and anything the absence of recognized O’Connor we that after Free record that would demonstrate that Marti- Speech possession receipt Coalition the pled guilty constitutionally nelli to a defined protected “virtual” child law, violation of federal we find Martinelli’s speech First Amendment: guilty plea Specification improvident. Supreme Court has now extended cloak of First protection Amendment Possibility F. The Lesser Included depictions certain engaging minors in Offenses sexually explicit Accordingly, conduct. the improvidence The of Martinelli’s question possession or whether not the pleas inqui under clause 3 does not end our of such visual depictions can be viewed ry improvident plea to a CPPA-based —an discrediting service now has a constitution- may, clause 3 offense under certain circum al dimension that was not at issue in Sapp stances, upheld provident be as a plea to a Augustine.14 or lesser included offense under 1 clauses or 2 explained 58 M.J. at 454. We then Mason, 18-19; of Article 134. 60 M.J. at where rights the constitutional of a service- O’Connor, only question 58 M.J. at 454. The play, closely member could come into we will present is whether those circumstances are providence the inquiry. scrutinize If there Martinelli’s case.13 implications, are constitutional we will re- The nature the defects in Martinelli’s quire showing a more definite that the ser- pleas regard 3 Specification clause to 1 clearly vicemember which understood of his regard Specifications 2, and to 4 3 and are prohibited why acts were and those acts were defect, Specification 1 different. the simi- service-discrediting prejudicial good or or- Mason, lar to O’Connor and involved the discipline der and before we will find that an impact of Supreme Court’s decision in improvident plea to a 3 CPPA-based clause Speech Free Coalition on the CPPA offense. provident plea offense is a to a lesser includ- respect Specifications 2, defect The with 3 ed 1 offense under clause or 2. Id. at 455. 4 and question involves the threshold whether applies the CPPA to Martinelli’s The difference between our review aof the first instance. providence inquiry under the O’Connor stan- conclude, however, dard our any qualitative

We and under the less review strict plea difference in the nature of the Augustine/Sapp qualitative defect standard dif- ruled, James, providence 13. This court in United States v. 55 "virtual” children but whether (C.A.A.F.2001), M.J. CPPA was con- inquiry was sufficient sustain a conviction images applied stitutional as of "virtual” chil- a lesser included under 2 of offense clauses or Court, however, Supreme The dren. ruled to the Article 134. contrary Speech in Free Coalition we are required precedent. Supreme to follow that (C.A.A.F. Sapp, 14. United States v. 53 M.J. 90 not, Speech in Free did decision Coalition 2000), Augustine, and United States 53 M.J. 95 however, military-specific prohibitions address (C.A.A.F.2000), pre-dated Speech Free Coalition Accordingly, 2 of clauses Article 134. we possibility and dealt with the of a lesser included military personnel, have held that unlike their 2 of offense under clause Article where counterparts, prosecuted civilian be can guilty plea to a CPPA-based clause Article 134 pornogra- clauses 1 and 2 of Article for child cases, charge improvident. was found In those phy involving offenses "virtual" children. Ma- son, Thus, where no constitutional considerations were in- we M.J. at reach volved, provident today military pleas personnel we found the to a clause is not whether can be prosecuted punished involving cases Article 134 offense. may may apart from how it or understanding Article Although the re- ference. separate have the elements remains the not met quired of the servicemember underlying the clause same, require precise ar- criminal statute we a clearer more (internal charge. quotation marks omit- under- ticulation the servicemember’s 455). O’Connor, ted)(citing 58 M.J. at require in standing under than we O’Connor cases the accused’s First Amend- where support present record does rights implicated. are not ment in- plea type of determination. Martinelli’s underlying stipulation fact were scrutiny, quiry and we exam- Applying this stricter demonstrating how solely at his con- directed providence inquiry in ined the O’Connor respect duct with plea was not determined that O’Connor’s For exam- met elements the CPPA. to a included offense under provident lesser ple, during plea inquiry clause 2 of Article 134 because “[T]here judge the elements of each offense Appellant set out specific no discussion con- (1) mailed, knowingly (e.g., that the accused cerning service-discrediting character of conduct, shipped transported less im- his much constitutional (2) commerce, may may that such plications his conduct not have interstate O’Connor, wrongful, that the action was accused had.” 58 M.J. images knew the nature analysis year The next we used the same offense). He pornography at time of the Mason, but reached different conclusion pornography” term then defined the “child providence pleas. 60 M.J. at about using complete set out in 18 definition military judge In Mason the used 18-20. walking through 2556. After the did language the unconstitutional but not time, elements of the offense one at the the focus on discuss distinction between military judge then asked: or “actual” Id. at “virtual” children. 18. Counsel, you any MJ: Trial ... have [d]o did, however, military judge The discuss the or not concerns about whether the Court underlying and character the conduct Ma- correctly has described offense as to the agreed son that his conduct was both service- you inquire Do me to elements? wish discrediting prejudicial good and to order any about further elements? discipline. at 19. and Id. No, Your Honor. [Trial Counsel]: providence inquiry held that the suffi- We Weir, Major you MJ: do believe there are ciently the nature of Mason’s established prop- further elements that are not service-discrediting prejudicial conduct as offense, erly in this that the described discipline good to order and even the ought inquire to about? absence of discussion about the “virtual” or Id. at images. “actual” character of 19- No, Counsel]: sir. [Defense The difference between Mason and There no reference to or discussion dur- military judge was that the O’Connor Ma- ing providence inquiry of Martinelli’s specifically son discussed the character service-discrediting prejudicial conduct as underlying agreed and that conduct Mason good discipline. order and absence service-discrediting his conduct was both and type inquiry this when is even clearer discipline. prejudicial good order and inquiry viewed in concern- contrast ing justice speci- implications, separate obstruction of Given constitutional fication, stipulation dis- inquiry critical here is whether the record where both the and military judge and clear appropriate reflects an discussion of fo- cussion with the make to the character of Martinelli’s con- cus on the character issue reference prejudicial service-discrediting prejudicial service-discrediting duct as and/or and/or circumstances, discipline. good at 19. Under these good order and order. words, guilty plea conspicuously we view Martinelli’s other the record must cannot provi- “clearly pornography-related that accused understood conduct as reflect prohibited conduct” as dent to a lesser included offense under clause the nature be- Article clause clause 1 or 2 of ing a violation of 1 and clause major this reached in case. But because the DECISION ity extraterritoriality to decide chooses Army The decision of the States issue, respectfully part. I must I dissent Appeals Specifica- Court of Criminal as to agree that cannot the CPPA does not have through Charge tions 1 4 of the and the application. reversed, sentence is but is affirmed in all respects. findings guilty other important if step determining The most Specifications 1 through Charge 4 of the applies extraterritorially the CPPA in this the sentence are set aside and the record case is to discern whether intended Judge trial is returned to the Advocate Gen- prohibit the CPPA to acts of a service- Army rehearing Specifi- eral of the for a on sends, member stationed who overseas re- through 4 cations 1 and the sentence.15 If ceives, reproduces, possesses por- rehearing Specifications through 4 is task, nography.5 complete To this we must impracticable, Specifications deemed 1 engage Judge in what Learned Hand called may through rehearing and a dismissed “[by] greatest part” of far the the law: “the Thereafter, held on the sentence alone. so, interpretation of words.”6 As we do we 66(b) UCMJ, provisions 67(a), of Articles interpret must that we remember the words 867(a) 866(b), (2000), §§ ap- 10 U.S.C. shall instances,” many including “cover diverse in- ply- fully stances that their authors did fore- Interpretation “necessarily

see.7 an act of imagination” requires judges creative GIERKE, Judge (concurring Chief in part put place themselves author of dissenting in part): those words and “how he determine would I agree majority Appellant’s with the have dealt with the instance that has aris- plea specification improvident 1 was en.”8 O’Connor,1 agree and I guilty pleas his specifications Putting myself to the other place of the Con- gress based on Pornography adopted the Child Prevention the CPPA determin- (CPPA)2 provi Act of 1996 cannot be deemed “how would have dealt with the in- [it] arisen,”9 disagree dent to the lesser included offenses has stance that I with the 2 majority’s Congress clauses 1 and of Article 1343 based the conclusion that did not principles prohibit pos- discussed in States v. intend to a United Mas servicemember from majority sessing pornography on.4 Because the remands each of a on United States specifications the military receiving CPPA-based due to the or installation from re- improvidency Appellant’s pleas, pornography of I producing believe that same that was through the of whether the CPPA has extra routed in Internet servers located application Appellant territorial does need to be the United States.10 Because case, 6, (2d Specifi- 15. Cir.l959)(proceedings special Because of our decision in this F.2d 28 of a through necessarily Appeals cations 4 will have to be session of the United Court of States for Circuit, 10, 1959). any rehearing prior allege Apr. amended to to the lesser Second prejudicial good included offenses of conduct to forces, discipline order in a the armed or of 7. Id. bring upon nature to discredit the armed forces of clauses 2 of violation Article 134. and/or 8. Id. (C.A.A.F.2003). 1. 58 M.J. 450 9. (2000). 2. 18 2251A U.S.C. perplexing part today's 10. The most result is (C.A.A.F.2004). 3. 60 M.J. 15 that a it allows servicemember accused of violat- prosecuted domestically the CPPA to be for Justice, UCMJ, Military Code Uniform Internet, sending pornography over the the (2000). directly but not for his other related to offenses majori- pornography. the same The result Bowman, 5. See United States v. ty’s holding is that the servicemember can be 67 L.Ed. prosecuted "domestically” sending pornogra- for Hand, phy Germany. cafe in 6. The Learned In Commemora- from an off-base Internet Honorable Service, possessing prosecuted Fifty Years But he be for that tion Federal Judicial cannot erf sovereignty has or some the United Germany pornography sent the States when he Internet, with the disagree I also legislative over the measure of control.”15 Appel- majority applying that the CPPA to Bowman, Supreme v. the In United States sending pornogra- the child lant’s offense jurisdictional a confronted with Court was I phy application a is domestic Act.11 citi- involving in a three American issue case ap- the to intended CPPA believe planned to who zens and one British citizen reach- ply extraterritorially and that the Act a the United corporation defraud which in this Appellant’s es case.12 un- The statute States was a stockholder.16 presumption against I. The extraterrito- prose- to der which the defendants were riality explicit grant no extrater- cuted contained jurisdiction try ritorial the offenders pre- Supreme explained the The Court seas, took high where the crime Equal against extraterritoriality in sumption place.17 response explicit v. Employment Opportunity Commission In absence (Aramco).13 Company American Arabian Oil statement of extraterritorial that involved racial Aramco was civil case statute, particular Supreme criminal that employment practices discrimination applied exception and clarified the employ who companies United States against extraterritoriality.18 presumption Supreme citizens States abroad.14 types Supreme Court delineated two applied presumption Court thus nature of criminal offenses Bowman. The extraterritoriality employment practices offenses, such as those of some criminal exactly -which is the kind of domestic abroad against private crimes individuals or their presumption ap- concern to which the should property peace good “affect which so, ply. doing Supreme Court made community,” is such order that presumption applies clear that unless the acts constitute the offenses occur local- “language gives any in the [relevant statute] But criminal offenses “are such other congressional purpose indication of to ex- ly.19 strictly coverage beyond places locus tend its over which limit their territo- beyond jurisdictional scope his believe [it] same barracks on United installation, receiving regulation.”). States national reproducing the child over same U.S.-based Internet servers establish 13. 499 U.S. 111 S.Ct. charge. jurisdictional sending (1991)(noting "longstanding basis for the L.Ed.2d 274 principle legislation Con- of American law that gress, contrary appears, See, unless a intent is meant e.g., Noriega, F.Supp. apply only within the territorial (S.D.Fla.l990)(the 1512-13 protect against the ... United States serves exercising jurisdiction would be laws those unintended clashes between our prosecute person standing "a Canada who which of other nations could result in interna- fires a bullet across the border which strikes a (internal quotations tional discord” omit- States”); person standing in the second Bros., Filardo, ted)(quoting Foley Inc. v. 336 U.S. Baker, 134, (5th States v. 609 136 F.2d 281, 285, 575, (1949); 69 S.Ct. 93 L.Ed. 680 Cir.l980)(the United States exercises extraterri- de v. Sociedad Nacional Marineros de McCulloch jurisdiction to reach committed in torial offenses 10, Honduras, 20-22, 671, 83 9 372 U.S. "marginal past just the sea” which is located the (1963))). L.Ed.2d 547 sea” "territorial and between three twelve coast). miles off the 246, 14. Id. at 111 S.Ct. 1227. Jr., Regula- 12. Walter C. See Dauterman Internet (internal quotation omitted)(quoting Id. 15. marks Foreign tion: Actors Local Harms —at the Bros., 285, 575). Foley at 69 S.Ct. Pornography, Speech, and Crossroads Hate of Expression, 28 & Freedom N.C.J. Int'l L. Com. of 95-96, 43 16. U.S. at S.Ct. 39. 177, (2002)("[The] Reg. the view that Inter- beyond regulation ig- somehow national net is at 17. Id. 43 S.Ct. 39. cyberspace. the While it is true nores realities of may nature of Internet that the transnational the 98-103, 18. Id. 43 S.Ct. 39. jurisdictional complicated issues more ... make populated [gjiven that the real Internet harm, causing people Id. at 43 S.Ct. real there is no reason to 19. 39. greatly

rial would be to curtail nal statutes —those enacted so that the Gov- scope of the and usefulness the statute against ernment can defend itself obstruction ____”20 Thus, Congress when ex- does not However, or fraud.23 I do not read this plicitly plain language partic- state in the of a language narrowly majority. as as the Nota- ular criminal statute that it intends for that Bowman bly, against awas case about fraud apply extraterritorially, statute courts can and, thus, limiting Government lan- such “from infer intent the nature of the guage majority directly on which the relies Congress’ legislative offenses and other ef- applies to the circumstances that case.24 type forts to in- eliminate the crime Moreover, I believe that a narrow inter- volved.”21 pretation of Bowman is inconsistent interpret the Bowman language I as draw- purpose of exception the criminal offense ing dividing line those criminal between Supreme recognized. Judge Like offenses that are “domestic” nature and Sand, I think underlying purpose those whose nature “warrant[s] a broad in Bowman is two- exception criminal offense sweep power.”22 example, For a U.S. hand, fold.25 On the one the United States neighbor citizen’s assault on his next-door right protect has the “to itself from harmful “peace good would affect the order irrespective of the locus of con- this conduct — community” neighborhood in his and is a hand, duct.”26 a presumption On the other domestic crime. The nature this offense exists that both would not “enact sweep power any does not warrant a designed protective statute to serve this provided broader than that police local function, However, proscribes and —where the statute force arrest him. if a U.S. citizen commits a criminal offense ef- just readily performed whose as acts could particular are not fects confined to si- one outside the United States as within it ... example, smuggling illegal drugs tus —for protective undermine this intention limit- trafficking between por- countries the statute’s to United States then, nography over the na- Internet — territory.”27 By reading the Bowman lan- ture that offense warrants a broader guage to exception limit the criminal offense power. sweep to crimes of fraud obstruction Government, majority ignores I believe the in Aram- majority language reads the underlying co and Bowman to allow an exception rationale of the exception to the presumption only types against extraterritoriality. for certain of crimi- presumption See U.S. at S.Ct. 39. Vasquez-Velasco, 21. United States v. 15 F.3d Laden, F.Supp.2d 25. See United States v. Bin (9th Cir.1994) (quoting (S.D.N.Y.2000)(holdingthe Bowman ex- Felix-Gutierrez, (9th F.2d ception presumption against extraterritori- Cir.1991)(internal quotation marks and citations statutes, ality applies to various criminal such omitted)); Baker, 136; see also 609 F.2d at Unit prohibiting statutes malicious destruction Wright-Barker, ed States v. 166-67 property possessed owned or the United (3d Cir.1986). generally Christopher See L. killing the course of an attack Blakesley Stigall, Wings & Dan Talons: The for facility involving dangerous weapon, a federal Case the Extraterritorial Over Jurisdiction Sex holding exception but also that the does not Exploitation through Cyberspace, ual Children of apply penalizing to the statute the murder within that, Wayne (2004)(asserting L.Rev. "special jurisdiction and of maritime territorial situations, ig in certain the States United will States”). the United general against ap the nore rule extraterritorial plication, jurisdiction and assert "over nationals Id.) Blakesley Stigall, supra 26. see also & note ap though who commit crimes abroad even the ("The interposes at 141-42 Constitution no propriate explicitly not statute did declare that bar as such to the extraterritorial applied extraterritorially”). thus, law,” Congress proscribes criminal and if conduct, is “United States law Baker, 22. 609 F.2d at 137. satisfied."). Martinelli, (C.A.A.F. 23. 62 M.J. 57-58 See Laden, 2005). F.Supp.2d 27. Bin at 194. jurisdiction occur the territorial over the that outside pornography, particularly Child Internet, that just type the of offense falls the is but that affect the United within the Bowman criminal statute squarely And the Gov- States.31 United States United against extra- exception presumption to the taking invading right or is some ernment not is territoriality.28 pornography not an Child foreign away government of a some interest “inherently domestic” crime because it can send by prosecuting those individuals who the from and sent United be received into the United States pornography child key by simple a few strokes on the States country or receive foreign from that who Images engaging minors computer. that has sent been sexually explicit proscribed the example, For through the States. through Internet’easily, the can travel CPPA Corey,32the defendant was United States v. ready pedophiles.29 providing access Philip- lived citizen who United States Therefore, underlying reason the first for Japan during employment his pines and in against extraterritoriality— presumption the postmaster. with the Air Force as civilian legislates Congress with domestic con- that aggravated he sex- When was accused inapplicable to cerns in mind —is offenses stepdaughter, neither the ual abuse of his trafficking pornography. related protested Philippines Japan the United nor Concluding the did intend jurisdiction de- over the States’ assertion simply can to reach those individuals who fendant, though physically he was locat- even pornographic images to a website download country e-mail he the from another and them ed in those countries when committed through are located in the servers that Unit- “Quite contrary, offenses.33 both coun- Congress’ goal ed States is inconsistent with prosecut- abjured tries have interest eradicating child pornography. The ma- defendant], recognizing no [the doubt holding jority’s “greatly ... curtail[s] mat- involves internal U.S. case scope and usefulness”30of the CPPA con- ters.”34 cluding apply 2252A does not extra- Of this case course territorially. protest juris- Germany whether would U.S. Furthermore, underlying the other reason Appellant. diction over And the answer is given presumption for the extraterri- certainly Because the Status no. toriality avoid clashes unintended —to Agreement Forces that exists between governments countries —is also Germany Germany, targeted inapplicable offenses agreed that have the the United States would It is well CPPA. settled jurisdiction right all can assert over offenses exercise over communication, Blakesley exploitation Stigall, supra & has become 28. See note at 152 education, ("Cyberspace ais tool for problem. wonderful no There can be international communication, entertainment, giving users targets makes doubt that the Internet children access to massive volumes of information and pedophiles globe. an interna- for around As connecting people around the world. Unfortu- system, ... tional the Internet considered nately, generated opportunities this has also new (for a) hunting ground pedophile, absolute best predators pornographers to victimize distribution most efficient children.”); Dauterman, supra note at 177- (internal engine quotations and even conceived.” Internet, ("The telephone and the like omitted)). citations way press, people printing has revolutionized communicate, providing global audience with Bowman, U.S. at 43 S.Ct. 39. cultural, political, access to a instant wealth data____ Unfortunately, though, and scientific side is a much and sinister there darker Internet, speech pornogra- one full hate phy. ... Sexual deviants have used Internet (9th Cir.2000). 32. 232 F.3d being forcibly exchange pictures children of sodomized.”). raped and at 33. Id. 1171. 21, Blakesley Stigall, supra & note at 153— 29. See ("With technological 34. 54 the recent advances 72 apply. by Judge

servicemembers that the U.S. sends to should As Ger- articulated many.35 Hand, important aspect Learned the most of statutory construction is to look mean- to the The actions of support other countries ing of the words the statute and discern jurisdiction States’ assertion over legislature’s intent in adopting those proscrib- U.S. citizen who violates statute “[wjherever Furthermore, possible, words.40 pornography. “Every child nation has statutes should construed in a common- children, criminalized the sexual abuse of honoring plain meaning sense ... manner majority leg- the vast of states have enacted avoiding ... and absurd or counterintuitive against pornography.”36 islation child Addi- denying results.”41 I believe that CPPA “[ijnternational tionally, conventions on the extraterritorial effect is counterintuitive rights of children favor the strict enforce- light plain meaning § of the 2252A and ment of support such laws and lend Congress’ intent forms eradicate all jurisdiction assertion of extraterritorial pornography passing CPPA.42 types Therefore, asserting these of eases.”37 jurisdiction particularly federal U.S. appro- Section can 2252A be divided into four priate light Appellant’s of the nature of (1) types of child offenses: offenses.38 (2) mailing knowingly or transporting; know- (3)

ingly receiving distributing; knowing- (4) ly reproducing; selling knowingly II. meaning Plain the CPPA possessing. proscription mailing, The presumption of whether the shipping, “foreign transporting com- extraterritorial is rebut- applies merce” to all four types of offenses.43 particular ted for a statute “is a matter of statutory Supreme “foreign construction” turns on Court has wheth- defined particular er that a intended stat- commerce” as commerce between the United application.39 ute have States and a nation.44 I believe the Therefore, statutory the tools of “foreign construction CPPA’s of the use commerce” lan- Dauterman, Agreement 12, supra 35. See (noting Between the Parties to the 38. See note at 219 Treaty Regarding North Atlantic "universally recognized Status that the consensus that VII, 1(a), 19, 1951, Their Forces art. June is an evil that be elimi- should 1792; Martinelli, U.S.T. see also M.J. at 56-57 prosecute nated enables states offenders out- (Crawford, J., dissenting); James B. & Roan borders"). side of its Buxton, Cynthia Military The American Justice Millennium, System in the New 52 A.F. L.Rev. Martinelli, 4) (n. (citing 39. M.J. at 56-57 185, (2002)(noting 191 n. 32 that the “German 764, California, Fire Co. v. U.S. Ins. Hartford government agreed general has to a waiver 113 S.Ct. 125 L.Ed.2d their due to the United States mili- J., (1993)(Scalia, dissenting)). tary's proven ability disciplinary prob- to handle through Military Code [Uniform lems tice]”). Jus- Hand, Judge supra 40. 28. Learned note at Dauterman, Carroll, (1st supra 36. at note 203. 41. 1997) (internal omitted). Cir. citations (discussing 37. Id. at 204 that the Convention on Child, Rights created the United Stigall, Blakesley supra & See note ISO- 1989, provides Nations basic international (discussing proscribing federal laws how guidelines protection for the of children from exploitation apply extraterritorially must offenses exploitation pornography); sexual via child see based on the offense international nature of the Note, Scott, also Allison M. From a State-Cen- technological due to commu- recent advances in Approach Openness: tered to Transnational nication, comprehensiveness legislative Adapting Hague Contempo- Convention with already judicially scheme been deter- that has rary Rights Human Standards Codified apply extraterritorially, mined to and American Child, Rights Convention on the J. 11 Ind. jurisprudence). Legal (noting Global Stud. 235 n.18 Rights Convention on of the Child 2252A(a)(l)-(3), (5). 43. See 18 U.S.C. countries, has been ratified the United States and Somalia have not ratified it, 1, 193, (9 Wheat.) formally signed Ogden, but the United has Gibbons v. U.S. Convention). L.Ed. 23 guage scope defines the of materials Con- side of the territorial borders United gress pornog- intended to reach —those child States. raphy foreign materials that have traveled in ease, unique Because of the facts of this it or interstate is than commerce —and more particularly appropriate is the CPPA

just jurisdictional words, a hook. In other application. have extraterritorial “Given the “foreign the inclusion of the commerce” lan- cyberspace fact that has no borders and dis- guage straightforward was not “a reference irrelevant, tance is in that [sic] realm is there authority Congress to the source of why is no reason U.S. courts should not proscribing these acts as criminal the first eschew reliance on traditional notions of ter- instance, i.e., Clause,”45 the Commerce but ritoriality directly rule that such statutes rather, description a prohibit- the material application.”49 have extraterritorial ed “By proscribing under the statute. pornography distribution of child in ‘foreign “All recognize nations of the world ‘the commerce,’ Congress intended the criminal principle country that a man who outside of a apply sanctions to part even where some of willfully puts in motion a force to take effect the criminal conduct occurred outside the in it place is answerable at the where the evil ’ territorial ”50 limits of the United States.”46 is done.... Similar to a bullet shot from Therefore, just as applies the statute to an country, image another pornogra- of child individual who pornography sends child from phy can be “shot” across borders with the city state, in one state to another common- computer key. touch of a And like the indi- logic sense and would dictate “Congress standing vidual in Canada who fires bullet would equally in preventing interested States, into the United the U.S. servicemem- that same citizen from making the same dis- Germany ber in who sends or receives the city] tribution to a foreign [U.S. from a coun- subject to U.S. federal try.”47 jurisdiction. Appellant used his Hotmail and Yahoo! e- plain language of the statute reaches accounts, mail which are located on a server Appellant’s possessing, acts of sending, re- States, in the United to send and receive e- ceiving, reproducing mail messages with embedded or attached “mailed, shipped that has been transport- images. Appellant Because Germany was in ed in interstate or commerce.”51 The and outside of the base when he sent “foreign language commerce” of the statute images, received the the CPPA would Appellant’s satisfied admission that he reach his if it has extraterritorial acts send, used Hotmail and Yahoo! accounts to application. In considering the extraterrito- receive, pornographic and store the images. CPPA, rial persua- I find Moreover, States, this link to the United sive reasoning Judge Hoeveler of the sending images through storing United States District Court for the South- images in Internet servers located in the ern District of Florida. He stated that the States, United implausi- makes it even more “unquestionably States would have Congress ble that did not intend the CPPA authority prosecute person standing in Appellant’s. reach conduct like Canada who fires a bullet across the border person which strikes a standing second plain statute, Based on the meaning of the United States.”48 So applies appears U.S. law extra- explicitly wanted to territorially because the actor is out- located extend over those individuals Martinelli, 45. 62 M.J. at injury, may 60. certainly itself from be exercised beyond territory.”). the limits of its Martens, 46. United States v. 59 M.J. (A.F.Ct.Crim.App.2003). Blakesley Stigall, supra 49. & note at 147. 47. Noriega, F.Supp. (citing at 1513 Rivard v. (5th Cir.1967)). 1512-13; Noriega, F.Supp. see also Hubbart, (2 Cranch) 187, 234, Church v. (1804)("[A power 2252A(a)(l)-(3). L.Ed. 249 nation's] to secure 51. See 18 U.S.C. majority agree I that neither the only with- with possess pornography

who child in the territorial boundaries of United “spe- “foreign language nor the commerce” States, building any also on land or but jurisdiction of cial maritime and territorial under the control of the United States.52 language alone evidences the United States” words, Congress’ of the “on other addition congressional for a statute to a clear intent to, by, any building owned leased or land or extraterritorially.57 But apply otherwise used or under the control of the particular is not whether words within language clearly United States Government” statute can defined to establish extraterri- jurisdiction over an individual establishes jurisdiction, Congress in- torial but whether property being who admits to on “under apply Appel- to to tended the statute itself pos- control of the United when he States” in further lant’s offenses.58 As discussed Ap- sessed the obscene material.53 Because below, part detail the CPPA was enacted as being property “under pellant admitted to on comprehensive congressional of a scheme the control of the United States” —his bar- eradicating pornography. I Kaserne, aimed at child racks at the Cambrai Fritsch Army language interpreting plain States installation Darms- that believe tadt, Germany possessing offense of CPPA, compre- its structure and the —his mili- on a United States statute, to hensive scheme of the entire leads tary proscribed installation is the CPPA. clearly Congress conclusion that meant majority language argues extraterritorially this apply the CPPA “just easily only ... apply would do key Appellant’s reach acts this case. The military mestic installations.”54 We have ex Congress passed question is whether the rejected reading “territory plicitly such a prohibit the CPPA intended to or allow jurisdiction” under the control or of the Unit pornography on a possession of child U.S. Wilmot,55 ed States. In United States v. we military answer is base overseas. The obvi- language Nar held that this included ous. cotics Control Act of 195656made the statute Relying two criminal cases—this applicable drug committed at Yo offenses Japan. opinion v. kota Air Force Base Court’s 1977 United States Gla- 2252A(a)(5)(A),(B). 7(3) (2000), § § Section decide whether 18 U.S.C. which 52. See 18 U.S.C. 2252A(a)(5)(A) proscribes knowingly possessing jurisdic- "special defines maritime and territorial States,” "special in the maritime and tion of the United has extraterritorial jurisdiction of the United or on territorial Compare in this case. to, building by, Gatlin, land or owned leased or (2d Cir.2000)(hold- F.3d otherwise used or under the control of the 7(3) apply § extrater- that 18 U.S.C. does not Government.” Section United 2252A(a)(5)(B) ritorially appellant's to reach offense of sexual knowingly possessing proscribes abuse of a minor on a United States "mailed, pornography that has been Republic Germany), installation in the Federal shipped transported in interstate Corey, (holding at that 18 F.3d means, including by comput- by any commerce 7(3) applies extraterritorially appel- § er." of a minor on an lant’s offense of sexual abuse Japan pri- in an off-base Air Force base in 2252A(a)(5)(A). 53. See 18 U.S.C. apartment building Philippines). vate See Blakesley Stigall, supra note at 147 also & Martinelli, 62 M.J. at 61. Gatlin, (asserting holding reasoning as on the same flawed based 698, 702, 55. 11 C.M.A. 29 C.M.R. holdings Corey, 232 F.3d at Cream, (N.M.Ct. States v. 58 M.J. "[tjhere Crim.App.2003), is no need to because 84-728, (repealed 56. Pub.L. No. 70 Stat. 567 7(3) to U.S.C. or traditional notions look 1970). territoriality jurisdiction over the acts of to find cyber- pedophiles Given the fact that abroad. Martinelli, M.J. at 59-61. 57. See space and distance in that realm has no borders irrelevant, why U.S. courts there is no reason 58. Because the issue in this case is whether on traditional notions should not eschew reliance apply the CPPA to extraterri- intended offenses, territoriality directly that such stat- rule torially Appellant's and be- to reach does, application.”). need to utes have extraterritorial I that it there is no cause believe Gatlin,60 due59 ease— ed to the text of the statute itself. To the Second Circuit majority opinions multiple dismisses the contrary, permitted to are consider [courts] interpret of other federal courts meaning ‘all available evidence’ about the Bowman exception apply broadly more statute, structure, text, including its solely than to offenses that involve fraud or 1996, legislative history.”63 Congress In add- against obstruction the Government.61 The § Chapter to of the ed 2252A 110 of Title 18 majority opinion is also inconsistent with Code, which the of- defines precedent appel from our intermediate level Exploitation fenses to the and related Sexual which, binding although late courts not on history Other Abuse of Children.64 The Court, this have construed the CPPA the CPPA can traced to 1977 when Con- be applies extraterritorially.62 it decided that gress passed the Protection of Children Against Exploitation Sexual Act.65 Comprehensive scheme the CPPA III. period time initial between the en- determining ap- whether a statute

When plies extraterritorially, today, Congress courts are not “limit- of the 1977 Act actment 1, (C.M.A.1977). sentencing guideline addressing 59. 4 M.J. 5 I believe our Court the offense of exception causing engage sexually in Gladue misread the explicit Bowman to the a minor to presumption extraterritoriality and de purpose producing conduct for the visual de- narrowly. may fined it too cate, A statute not indi pictions applies of such conduct when the of- face, congressional on a its intent to be Philippines). fense occurs in the See also United given application. extraterritorial But such Bredimus, 639, in F.Supp.2d States v. 650 "readily implied" tent can from the nature of (N.D.Tex.2002)(deciding § that 18 U.S.C. 2251A targeted by deny the offense the statute and if to applies extraterritorially traveling to greatly extraterritorial "would be to pro- commerce with the intent to use minors to scope curtail the and usefulness of the statute!].” depictions sexually explicit duce visual duct); con- (citations Wright-Barker, 784 F.2d at 167 Felix-Gutierrez, (holding 940 F.2d at 1204 omitted); quotation internal marks see also Vas exception ap- that the Bowman criminal offense quez-Velasco, rez, (citing 15 F.3d at 839 Felix-Gutier plies Drug to the murder of a Enforcement Ad- 1204); Baker, 940 F.2d at 609 F.2d at 136. Mexico). agent ministration Interestingly, although 60. 216 at F.3d 211 n. 5. See, 795, e.g., Kolly, United States v. 48 M.J. majority relies on footnote five in the Gatlin (N.M.Ct.Crim.App.1998)(holding that 18 opinion support reading to its narrow 2252(a)(2) applies extraterritorially § U.S.C. to language, Bowman the Second Circuit itself re receipt pornography appellant of child jected reading opin such a narrow in an earlier Hawaii, ordered while stationed in and had sent Baker, 139, Citing ion. 609 F.2d at the Second supplier Japan, from in Florida to where the Circuit held that the “intent to cause effects Martens, stationed); appellant was later 59 M.J. within the United States ... makes it reasonable (concluding Congress at 505 that intended 18 apply persons to to outside United States territo 2252(a)(2)(A) apply extraterritorially § ry expressly a statute which receipt pornography to the of child at Ramstein Orozco-Prada, scope.” United States v. Pullen, Germany); Air Base in 1076, (2d Cir.1984)(internal quota F.2d 1087-88 (A.F.Ct.Crim.App.1995) (holding M.J. omitted). tion marks 2252(a)(4)(A) language § that the of 18 U.S.C. broader than that in the statute at issue in Wil mot, (conclud Vasquez-Velasco, 61. See 15 F.3d at 843 11 C.M.A at 29 C.M.R. at and is ing applies extraterritorially that the statute expression Congress’ therefore a clear intent murdering defendant’s act of both a U.S. citizen apply extraterritorially possession legal and a resident alien of the U.S. in Mexico to on Clark Air Base in the Phil drug trafficking enterprise); further a ippines). Thomas, (9th States v. 893 F.2d 1068-70 2251(a) 1990)(holding ap § Cir. that 18 U.S.C. Gatlin, (quoting 216 F.3d Sale v. Hai plied extraterritorially to acts defendant's Council, Inc., 155, 177, tian Ctrs. engaging sexually explicit Mexico of a minor in (1993)). 125 L.Ed.2d 128 purpose creating conduct for the a visual conduct, depiction mailing of that visual de Pornography 64. Child Prevention Act of conduct, pictions receiving the materi 104-208, A, I, 121(3)(a), Pub.L. No. div. tit. Baker, al); (concluding 609 F.2d at 136-39 (codified 110 Stat. 3009 as amended at 18 U.S.C. proscribing possession statute of narcot (2000)). § 2252k applies ics with the intent to distribute extraterri torially possession beyond the three-mile limit sea”); 95-225, (codified Harvey, of the "territorial United States v. 65. Pub.L. No. 92 Stat. (3d Cir.1993)(holding (2000)). 1327-30 amended at 18 U.S.C. 2251 opportunities predators and repeatedly emphasized has its intent to erad- new for sexual exploitation icate the of children and has pornographers ply their trade.69 by continuously expand- acted on this intent agree Congress Numerous courts has ing involv- federal over offenses “comprehensive created a scheme” to combat they wherever occur. pornography.70 and eradicate child These example, regarding hearing For typically quote language courts from CPPA, Joseph Senator Biden noted Bowman to conclude that the section applies “kept sharp eye prob- has on the extraterritorially because hold otherwise pornography, lem of child and where has [it] “greatly scope would ... curtail gaps coverage found of the criminal example, usefulness of the For statute.”71 law, quickly moved to fill them.”66 [it] ha[s] inferring pow- the exercise extraterritorial Thus, “computer when the becom- [first] 2251(a) 2252(a) §§ er of and from 18 U.S.C. ing increasingly important an tool of the the nature of the offenses in each defined pornographer,” Congress child reacted statute, Congress’ legislative as well as other “making transport it a federal crime to pornography, efforts to eliminate child the pornography using computer in addition to Thomas determined that Ninth Circuit 1998, Congress passed the mails.”67 In Congress comprehensive statutory created a Protection of Children from Sexual Preda- Act, modifying exploitation scheme to eradicate sexual adding tors and additional §§ “[p]unishing statutes to 18 U.S.C. 2251-2257.68 As children.72 Because the cre- Leahy Senator observed: ation of child outside Unit- be, actually, ed States that is is intended to goal provide stronger act] is to [the may reasonably expected to be trans- protections for children from those who ported interstate or commerce prey upon would them. Concerns over important .... enforcement tool [I]t [is] protecting our children have intensi- 2251(a) likely Congress that under section years growing popu- fied in recent with the intended to reach acts that larity of the Internet and World Wide satisfy statutory otherwise elements.”73 Cyberspace gives Web. users access to information; principle applies Congress’ same intent in people wealth of it connects enacting § from around the world. But also it creates 18 U.S.C. 2252A. Joseph (regarding portion 66. Statement of Sen. R. Biden the statute in the criminal offense, hearing Pornography on Child 4, Prevention U.S.Code and the nature of the the sec- Act)(June 1990), at WL Congress’ statutory available expand tion was enacted to (F.D.C.H.). exploitation scheme to combat sexual of chil- dren, abroad, both domestic and and because 67. Id. at 1-2. "only apply makes sense” that the statute would to the conduct of United States citizens on for- 105-314, 68. Pub.L. No. 112 Stat. 2974 soil; otherwise, eign comprehensive scheme trafficking por- combat international Cong. (daily

69. 144 Rec. S12263 ed. Oct. 1998) nography exploitation (statement and sexual of children Leahy). of Sen. Patrick effectively implemented could not be as contem- Harvey, (holding 70. See 2 F.3d at 1327-29 that (hold- plated by Congress); Kolly, 48 M.J. at 797 part § 18 U.S.C. 2251 was enacted as of Con 2252(a)(2) that 18 U.S.C. of the CPPA gress' continuing effort to contain evils caused applied extraterritorially because “to allow a by foreign on American soil as well as domestic U.S. citizen in the United States who ordered suppliers pornography, deny of child and to ex through the United States application “great Act would traterritorial of the simply postal escape prosecution service to be- ly scope curtail and usefulness” of stat finally cause he is overseas when he receives it that, ute); Martens, (concluding at 59 M.J. greatly scope ... curtail and useful- would provisions because CPPA includes several CPPA). ness” of clearly occurring reach conduct outside States, statutory compels "the framework Bowman, 71. 260 U.S. at 43 S.Ct. 39. apply the conclusion that intended it to children”); broadly exploitation to counter the sexual Thomas, 893 F.2d at 1068-69. dimus, F.Supp.2d at 649-50 Bre (holding apply § 2251A that 18 U.S.C. should because, (internal omitted). extraterritorially given footnotes the location of Pornography application of the Child ritorial IV. Conclusion (CPPA), 18 U.S.C. Act of 1996 Prevention majority’s decision agree I with the (2000), of the armed § 2252A to members plea specification Appellant’s guilty overseas; provi- forces stationed that his under improvident O’Connor plea to violations of the guilty of a dence specifi- guilty pleas to the other CPPA-based clearly demonstrates when the record CPPA included improvident to the lesser cations are knowledge of the “actual” nature Appellant’s 2 of Article 134 offenses under clauses victims, military judge explains but Therefore, part. I Mason. concur language Appellant using the offenses to however, majority’s disagree, I v. Free found to be overbroad Ashcroft apply that the does not determination CPPA Speech Coalition.1 extraterritorially Appellant’s to reach of- exception to I believe the Bowman fenses. respectfully dissent from the lead I must extraterritoriality presumption against ap- holding that 2252A does not opinion’s applies in this case on the nature of based Germany, ply Appellant’s targets and the offenses which the CPPA receipt, reproduction, and distri- Appellant’s deny exception because electronic, images pornographic did bution scope useful- greatly would curtail the from the not occur in the United Congressional intent for ness of the CPPA. majority’s holding Appellant’s plea extraterritorially apply can be statute to on specification improvident 1 was based statutes, in inferred in criminal even O’Connor, 58 M.J. United States statement, explicit on absence of an based (C.A.A.F.2003). 1, 2, specifications and 3 statute, legislative its the text of the entire Appellant charged under Article history reading A and structure. (UCMJ), Military Justice Uniform Code CPPA, together comprehensive with the (2000), knowingly § 934 and repeated scheme of the Act and efforts mailing, wrongfully, computer, means of a exploitation to eradicate child and receiving, repro- transporting, shipping, expand types over these federal in ducing “interstate or offenses, congressional a clear in- shows in foreign commerce” at an Internet café extraterritorially apply tent for the CPPA Darmstadt, Germany, § in 2252A. violation of Therefore, Appellant’s in I acts this case. charged He was also under Article 134 with respectfully part. must dissent in pos- receiving pornography and with Finally, today’s opinion I note that con- sessing pornography on a United States generally applicable criminal strues a federal 2252A, installation, § in in Army violation statute rather than a Uniform Code of Mili- mailing, transporting, specification 4. The tary provision. While federal circuit Justice shipping, receiving, reproducing oc- issue, precedent on exists both sides this computer at Hotmail and Yahoo! ser- curred majority’s holding weight States, in with each vers located the United authority. This issue cries out for our by Appel- having action been effected such superior dispute among court to settle this ter- physical computer lant’s contact with a appeals. courts of federal Darmstadt, Germany. in minal located CRAWFORD, Judge (dissenting): position opinion The lead takes the that a knowingly sending, who is re- citizen-soldier presents This case three issues of immedi- ceiving, reproducing computer images of (1) importance impact: and worldwide ate in engaged graphic actual children sexual aspect the domestic of Internet transactions commerce,” in “interstate or that result initiated outside United States possessing images those on a United who is receipt, reproduction, or transmission installation, discrete, military and —because of images of electronic within or from Hotmail and Yahoo! e-mail the nature of “space” on Internet servers locat- electronic States; receipt, reproduc- sending, the extrater- accounts —whose ed within the United 152 L.Ed.2d 403 1. 535 U.S.

tion, possession simultaneously them, reproduced occur- ceived them or when he ring on e-mail servers located the United Appellant and that when sent or received States, prosecuted cannot be 2252A. they merely them “through” all went position unsettling, Not is that but it electronic form. constitutes a dramatic shift in this Court’s occurred, actually What at least on those jurisdiction. view of criminal Appellant occasions that sent or received im- e-mail, ages by Appellant, by typing is that Application I. Domestic of 2252A Darmstadt, keyboard computer on the of a Appellant When sat in the Netzwerk Inter- used his electronic address on a server locat- Darmstadt, Germany, net Café he didn’t ed in the United to send and receive open envelopes, photographs, copy remove messages e-mail with embedded or attached photographs, place photographs envelopes, images, to and from his on that address place envelopes drop, those in a mail Appellant server. “space” also used his physical Appellant least not sense. the Hotmail and Yahoo! servers the Unit- browser, rented a web which he used visit pornographic images ed States to store gain Internet websites and to access to his children, crystal which was made clear Hotmail or Yahoo! e-mail accounts. These 5,3 language specification testimony “web-based,” particular e-mail accounts are (SPC) Specialist Appellant’s Oviatt and ad- operated as distinct from through e-mail during providency inquiry. missions (a local client such as pro- Microsoft Outlook gram locally that can be installed and which Appellant downloading also admitted to storage facility creates local for e-mail files images directly onto the hard drive of a attachments). Because “web-based” ac- computer at the Netzwerk Internet Café and operate counts without a local server and portable Appellant onto disks that took back pools consist of discrete of information elec- Appellant to the But barracks. also admit- tronically assembled and stored under day, ted that each after he had left user’s filename on a client server owned Café, many Netzwerk if all Internet host, all Appellant’s e-mails—-and their collected, images Appellant repro- had attachments —were “resident” on the Inter- duced, stored, or sent to others remained Yahoo!, net servers of Hotmail and located name, account, under his in his user on the the United States. servers of Hotmail and Yahoo! within the technology many While this is not the of us territorial borders United States. with, grew up technology pre- it is the storage images, Because much of the all today. technology appel- vails It is the sending, receiving, infrequently lants and and all of the actu- counsel not must ex- and, plain judges point, ally space more occurred the electronic con- technology Appellant stipulated to and by Appellant trolled on Hotmail and Yahoo! explained military judge during to the in the servers the crimes Care2 inquiry in this case. sending receiving were committed Further, although prod- there.4 some of the majority misconstrues the “routed Appellant’s reproduction (e.g., ucts of through” language stipulation to con- portable computer Appellant took back disks images including clude that all the those — barracks) Germany, to his were located attached to e-mail—were located outside the Appellant reproduction United States when sent or re- much the actual occurred on Care, 2. United States v. 18 C.M.A. 40 C.M.R. sessed child in violation of 18 2252A, deleting U.S.Code to wit: all files with attachments his two electronic mail from Emphasis added. accounts." "Specification Appellant wrongful- 5 states that ly impede investigation endeavor[ed] to into by asking specifications, they Morgan were his own misconduct SPC A. 4. As reflected in the destroy simultaneously Germany, propo- Oviatt to evidence that the said SPC committed in Christopher pos- P. Martinelli had received and sition discussed below. by and under located, Army used installation images U.S. those were the servers where form, in the United States. of the United States Govern- in electronic the control ment.5 record, there was facts of light of these added, specifi- § 2252A to application of a domestic Emphasis through cations 1 DISCUSSION Extraterritoriality II. context, law military modern Outside the Arti- required to 2252A and If examine support of extra- recognizes five theories setting, I would in an extraterritorial cle sovereign’s juris- of a application territorial precedents great and the

follow this Court’s (1) citizens; regulating of its diction: law, considering ease while bulk of federal (2) have a sub- regulating activities which forces, deployment of our the worldwide (3) effect; regulating ex- territorial stantial in Article 134. melding of federal statutes a connec- conduct when there is traterritorial security; act and national tion between the FACTS (4) asserting jurisdiction as to crimes jurisdiction asserting humanity; above, Appellant possessed As detailed sixty images pornography on a is a citizen of the over of child the victim of the act where Germany. He U.S. installation jurisdiction.6 asserting state computer also in a German communi- used service- In the context ty repeated reproduction, trans- to effect the members, Congress’ authority to “make mission, receipt of child Regulation of for the Government and Rules Appel- commerce. interstate forces,”7 the land and naval creates addition- were, mini- lant’s electronic transactions at a Article 134. al sources of mum, through routed Internet servers States: Citizenship 1, Appellant stipu- In Prosecution Exhibit Notwithstanding pre- law common lated that sumption against e-mail sent to or received from the [a]ll law,8 sovereign’s of a there remains little accused’s Yahoo or Hotmail e-mail ac- power electronically through counts is routed application extend of U.S. criminal statutes respective computers service’s in the Unit- undertaken be- to the acts of U.S. citizens result, a all of ed States. As the child yond our territorial borders. The extraterri- pornography that the accused had either statutes, torial at least as to reach federal using sent or two accounts received these citizens, far when the arose as back as transported through interstate or for- Supreme recognized the United States eign commerce. Apollon>9 nationality principle. In The practice, a matter of the course As over of no nation can Court stated: “The laws year, copying pornog- of the after the child territories, justly beyond extend its own ex- diskettes, raphy floppy onto the accused regards cept so far as its own citizens.” would then take the diskettes to his bar- Again that national- the Court hinted building room in 4002 on the Cam- racks ity-based jurisdiction depen- civilian over Kaserne, Darmstadt, brai Fritsch Germa- military personnel pos- overseas was ny. The Fritsch Kaserne is a dents Cambrai Const, I, Court, cl. 13. 5. this the Government noted “the 7. U.S. art. Before ‘foreign at issue moved in through commerce’ because it was filtered inter- Filardo, 281, 285, Foley v. 336 U.S. Bros. providers operating net service from the (1949). 93 L.Ed. 680 States.” 362, 370, (Third) 6 L.Ed. 111 Foreign 9. 9 Wheat. 6. See Restatement Relations Law (1824). §§ 401-402 applied but venue would the United Act took sible lie Sherman conduct that Clearly, Appellant entirely a citizen. place States.10 outside the but United States exports had a territorial effect on and im- Effects ports: “It settled law ... state justification In nationality addition to the liabilities, may impose upon persons even jurisdiction, ap for the effects also doctrine allegiance, for within its conduct outside its plies to conduct from outside border that consequences has its borders that within bor- ” consequence a has or within the effect bor reprehends.... ders which state der, provided Congress authority in has the Further, construing against the statute ex- that area. Just as the Federal Government application traterritorial of the members “against can defend itself ] obstruction practical armed forces stationed abroad has fraud perpetrated,”11 wherever it also can plainly that would thwart stated effects trafficking, a net drug cast wide this pornog- intent of eradicate child case, trafficking pornography. case, raphy. If this had been a contested Felix-Gutierrez,12 States v. the Ninth Appellant material transmitted re- applied accessory Circuit criminal statute— pursuant have been ceived could obtained application as to silent extraterritorial —to a search warrant from a Inter- United States Drug Agency the murder of a Enforcement The search re- net site.17 would not have (DEA) agent Finding in Mexico. extraterri quired consent of German officials. This torial of the of the United laws is not an instance where United law States constitutionally permissible, the court assistance, enforcement officials need the emphasized the need to look both the indulgence, territory even of another en- express implied congressional intent in force law.18 Nor is this an of the its instance deciding given whether the law should having searching stronger state interest application. Agreeing' with than the data the state in which data is in analysis Fifth Circuit’s searching stored. Both are the same. The v. Baker13 the Felix-Gutierrez court noted state where the there knows data is and that the effectiveness of the statute would be no would be interference with another state compromised if the of the United citizens byproduct clear- search. Just as States could commit these abroad offenses ly, not an this is instance of extraterritorial without the intercession of the United States “potentially criminal enforcement that would Permitting Government.14 the Government one of purposes frustrate the central jurisdiction to exercise extraterritorial com extraterritoriality— presumption ports principle pro the international namely, prevention of underlying tective ‘unintended clashes because Judge crime affected the As between our laws and those of other nations nation itself.15 United States Alumi recognized Hand which result dis- could international ”19 num Co. America16 concluding nearly As with all members cord.’ other Maxwell, Singleton, generally Kinsella v. 45 M .J. United States ex rel. 17. See United States v. 234, 246, 297, (C.A.A.F.1996)(warrant U.S. 4 80 S.Ct. L.Ed.2d 268 site of 406 executed at (1960); see also United ex rel. Toth v. provider). States Internet service interstate Quarles, 11, 1, 21, 350 U.S. 76 100 L.Ed. 8 S.Ct. (1955). Yahoo!, generally Ligue 18. See Inc. v. La Contre L’Antisemitisme, F.Supp.2d Le et Racisme 169 Bowman, 94, 98, 11. United States v. U.S. 43 (N.D.Cal.2001)(court declined to enforce 39, 67 L.Ed. 149 order, but did not rule that the French French proper jurisdiction prevent were without to 1200, Cir.1991). (9th 12. F.2d distribution of anti-Semitism on the Internet 134, (5th Cir.1980). France). 13. 609 F.2d Felix-Gutierrez, 940 14. F.2d at 1204. Gatlin, States v. 216 n. 19. United (2d Op- Cir.2000)(quoting Equal Employment See id. at 15. 1206. portunity v. Oil Commission Arabian American Cir.1945) (citations (Aramco), (2d Co. 111 S.Ct. 16. 148 F.2d (1991)). omitted). 113 L.Ed.2d (A) has been subject any pornography that forces, child was to Appellant of our armed mailed, shipped transported or in inter- or Agreement. agree- Forces Such a Status of means, by any foreign or commerce state provided, since before United ments have Gatlin,20 by computer; or military including authori- “the right sending shall have ties of the State (B) por- any material contains receiving all to within the State exercise mailed, shipped nography has been or disciplinary jurisdiction con- criminal and foreign transported in interstate or or by sending law of the on them ferred means, by any including by commerce subject persons all to State over computer ... prosecution Appellant’s law of that State.”21 merely by was tolerated for these crimes (5)(B) ... possesses any knowingly authorities, officially it condoned German disk, any computer other material or treaty. pursuant an international image of contains an § Meaning Plain of 2252A mailed, trans- shipped or or that has been citizenship impact on “interstate While ported foreign commerce in interstate foreign provide means, sufficient ... any including by computer commerce” by jurisdiction, there is an additional bases applying the statute extraterritori-

basis for punished provided be as in subsection shall ally plain meaning purpose of the —the (b). legislation ‘While the statute itself. Emphasis added. Congress, contrary ap- intent unless pears, apply within the is construed statute, appro- interpreting this it is When the United territorial plain meaning of the priate to look at the application, of its [extraterritori- statute,24 history, purpose its construction, ally] legislative not of is one statute.25 “Congress authority power.”22 has the grants The Commerce Clause beyond enforce its laws the territorial bound- for- power regulate “to commerce with aries of the United States. Whether Con- Nations____”26 was an eign Section 2252A authority gress ... has fact exercised that authority by Congress of over exercise its statutory is a matter construction.”23 pow- foreign This interstate and commerce. specific deals with a federal stat- This case regulate foreign has been er to commerce ute, 2252A, i.e., provides: which broadly “transac- encompass all construed immediately, or at some tions which either (a) Any person who— stage progress, be extraterrito- their must (1) mails, knowingly transports rial.”27 ships interstate or commerce means, computer, any including by in con- Certainly, Congress is interested pornography; evi- trolling cyberspace commerce statute. statute knowingly or distributes— denced This receives (2000)("[W]hen language 20. L.Ed.2d 1 the statute’s Id. at 207. plain, courts —at least the sole function required disposition is not where the text Agreement Between the Parties North according its enforce absurd —is Treaty Regarding Status of Their Atlantic terms.’’)(intemal quotation and citations marks Forces, 1(a), VII art. June U.S.T. omitted). might impor- purpose 25. The of the statute 437, States, 421, 22. United 284 U.S. Blackmer v. statutory aspect interpretation. Geier tant v. of 252, (1932) (citations 52 76 L.Ed. omit- 375 888, Co., 861, Motor 529 U.S. American Honda ted). 1913, (2000). L.Ed.2d 120 S.Ct. 146 914 Aramco, 248, at 23. 499 U.S. 111 S.Ct. 1227. Const, I, 8,§ U.S. art. cl. 26. 3. Moor, 568, 573, v. Union 27. 14 How.

24. Underwriters Ins. Co. Plant v. Veazie Hartford (1852). Bank, U.S. 14 L.Ed. 545 ers 530 120 S.Ct. 147 82

broad, bution, comprehensive eradicate, scheme possession to and pornography, control, that, exploitation least I conclude even if applied sexual extraterritori- ally, Appellant’s plea It part by appli- children. In and conviction CPPA. ex- § statute, jurisdictionally cation of 2252Awas panding congressional Congress proper. specifically found that “elimination of child Appellant’s Military Status pornography protection and the of children A final rationale for prose- to exploitation provide compel- from sexual Appellant cute arises under the Pur- UCMJ. ling governmental interest for prohibiting authority, suant to provid- this has distribution, production, sale, possession, ed under Article 134 “all disorders depictions viewing visual of children neglects prejudice good to the order and conduct____”28 explicit engaging sexually discipline in the armed forces” or conduct join I majority’s cannot conclusion that bring upon which would “discredit the armed “protect the CPPA because was enacted to may forces” tried under the UCMJ. The abuse,” from children v. Mar United States specifically provides UCMJ for extraterrito- (C.A.A.F.2005), 62 M.J. 57-58 tinelli jurisdiction.30 light rial of Article therefore focuses on individual victims and UCMJ,31 it clear that clause 3 of Article cannot fall within category” the “second contemplates prosecution 134 of crimes such criminal statutes described Bowman. § as those enumerated 2252A. language applied Similar has been numer Congress delegated authority to the Presi- ous recognizing many federal circuits in trial, prescribe “[pjretrial, to post- dent prohibitions by Congress criminal enacted procedures, trial including proof, modes of primarily were protect intended the na for cases” triable under the UCMJ.32 In the interest, tional opposed property Courts-Martial, Manual United States persons of individuals.29 (MCM) (2002 ed.), IV, 60.c(4)(c)(i) pt. 1Í

83 community by providing extra military recognized in approach This Scholten, possess, who for “rights” In this Court servicemembers v. Scholten.33 in, jurisdictional pornography, that are four bases and even create held there traffic overseas, kidnapping on a try an occur individual even when those acts commerce, including foreign or “interstate installation. jurisdiction, special

maritime territorial Actual Children guests foreign of the aircraft of each explaining In the elements though 18 government.”34 Even specifications, the 1201(a), Scholten, four the statute at issue pornography” 3, military judge “child may defined not under clause apply does 2256(8) including reading Appellant, charged 1 and clauses where under good language “ap- order prejudicial impermissibly conduct is and disci- overbroad bring upon pline “conveys impression.” or of nature to discredit pears to be” and Thus, however, assuming Appel- fact, armed explicitly forces.35 stipulation engaged in “interstate or sixty-four lant was not in all recognizes children that the commerce,” permit those clauses would also images appended stipulation are actual prosecution Appellant focusing on a techni- children: “Rather than UCMJ. offense, listing of of an this cal the elements entire looks at the context of the rec- reasons, I respectfully For all above ord to determine whether accused majority’s holding dissent that from elements, explicitly aware of the either appli- § 2252A does not have extraterritorial inferentially.”39 impact holding cation. The of this is far-

reaching prior our it overlooks case because military judge Appellant assured the by military law36 and forecloses every- stipulation he understood federal authorities of numerous statutes thing in it After the was true. defense overseas.37 objection, military judge waived admitted document, provided, part: “[t]he which III. of the Plea Providence children, identity as well as these majority’s I also dissent from the conclu lasting damage may have occurred be- improvident Appellant’s pleas sion that were photographs, of their cause abuse these Speech light v. Free Coalit Ashcroft known”; accused never at- and “[t]he similarly my ion.38 dissent from erro tempted to the identities well- discover O’Connor, by this Court neous conclusion being of these children.” (Crawford, C.J., at 58 M.J. 456-457 dissent “identities,” they children not have Virtual do ing), pleas I emphasized O’Connor’s abused, “damage” when nor do not suffer factually provident involving were to offenses may “well-being” Appel- their be restored. actual children and therefore unaffected voluntarily stipulated knowingly lant Speech Notwithstanding Free Coalition. sixty-four images fact that the children nearly support position for this unanimous identifiable, real, potentially were female the federal circuits that have addressed that law, children, very majority prepubescent, steadfastly some of whom were Court, Appellant’s justification, and all of were abused. moves this without whom animate, threatens, understanding corporeal protects, than na- path that rather Blevens, (C.M.A.1984). 33. 17 United States v. 5 C.M.A. C.M.R. M.J. 171 (1955). (citation quotation at and internal 34. Id. See, omitted). e.g., Espionage 37. Act of 18 U.S.C. marks (2000). § 792-99 35. 173-74. U.S. 152 L.Ed.2d 38. 535 See, Collins, 7 e.g., v. M.J. 188 United States Jackson, (C.M.A.1979); v. United States Redlinski, (1968); 58 M.J. C.M.A. C.M.R. 378 States v. omitted). Wilmot, (1960); (C.A.A.F.2003) (citation 29 C.M.R. 11 C.M.A.

84 depicted sixty-four portray[ed] ture of children that images the the evidence the real children”). images upheld attached to the record of trial is clear. Courts have convictions Moreover, sixty-four images to appellate attached judges’ viewings when the own left graphically support the record this case images jury no doubt that “the shown to the Appellant’s images belief that the are of actu- depicted ... ... real” children. United al minors.40 There is no Richardson, substantial basis 1061, States v. F.3d providence law (11th Cir.2002). and fact to The Richardson court Appellant’s plea. Appellant was aware of the [that] “reached conclusion because evi- objectively support elements and the facts clearly dence established that the children plea. his depicted images pictures were actu- case,

al children.” at 1064-65. that a that, special agent testified based his “Specialized Society” Revisited training experience, images depicted By departing from the bulk of federal simply actual appeared children and not what precedent, articulating any military without to be children. distinction, necessity or this Court continues addressing Other federal courts this issue suggest to that servicemembers accused of upheld have convictions where factfinder offenses have First depicted that the images concluded actual rights paramount and trial Amendment appellate children or where the court deemed those extended the federal circuits Padgett that it have must been so. v. United similarly prose- situated civilian defendants F.Supp.2d 598-600 Further, cuted under same statute. (D.S.C.2004)(finding language provi- balance, without articulating even the ma- inquiry dence actual established nature jority implicitly promotes newly elevated that, by appellate children and court’s own rights pornogra- for accused review, children); photos actual were of phers military community over those of the Slanina, United States v. 359 F.3d as a whole. (5th Cir.2004) (stating that the “Government required present was not additional Application Speech A. of Free Coalition expert testimony evidence or ... to show in the Federal Courts images depicted downloaded ... children, children”); real and not virtual Coalition, Speech Since Free most of the v. Farrelly, 389 F.3d federal courts that have considered eases (6th Cir.2004)(affirming conviction where the which constitutionally overbroad lan- presented Government “sufficient 2256(8) evidence guage employed have actual children” and the trier of fact “was looked to the entire record determine the capable reviewing evidence to deter- legal constitutionally impact impermissible mine whether the Government met its bur- explanations. instructions Even in con- cases, images depicted den to show real tested these courts have found suffi- children”) Slanina, (quoting 359 F.3d depicted cient images evidence that actual 357);41 Kelly, United States v. 314 F.3d pediatric in cases expert children where a (7th Cir.2003)(upholding guilty plea age depicted testified as of the child regulation photographs pornogra- “[b]ecause of real child appeared portray “the See, Kelly phy remains ... e.g., real children.” constitutional and Mr. (11th Bender, possessed pornography”); 290 F.3d real child Deaton, (8th Cir.2002)(denying speech defendants’ free States v. noting claim Cir.2003)(reaffirming that “there [was] sufficient the reasonableness of See, evidence, 58, 59, (attached (“You e.g., images may all consider fact). stipulation images unques- These depiction, including your viewing of the in deter- tionably depict actual children female of kinder- mining depiction portrayed whether actu- garten age graphic poses. sexual eighteen person age engaging al conduct.”). sexually explicit See, al., e.g., 3 Leonard B. Sand et Modem Criminal, Jury Federal Inst. 62-22 Instructions — the First Amendment balance between “jury’s children were conclusion real accused, military the one rights of on images trial a the themselves depicted, even where hand, military community’s interest pre the government and the were the evidence on other. good discipline the subject.”); v. in order and the United States sented on (8th military and the 443, Cir.1999)(holding Both the servicemember Vig, 449 167 F.3d lawful, in a jury community share an interest “images the were viewed that the of Unfortu- its own the CPPA. in to draw rational position which was a that af- nately, maintaining position a real while independent conclusion as to whether pornographers a level of v. depicted.”); United States fords children were (9th 608, jurisdic- Rearden, sanctuary unrecognized by other 612-14 349 F.3d Cir.2003)(evidence tions, balancing and prove majority provides trial to no sufficient the Kimler, children); only one States v. 335 serves interest. real United (10th 1132, Cir.2003)(stating 1142 that F.3d above, majority growing of As noted capable distinguishing are of “still factfinders overly an have declined re- federal courts images”); real virtual United between and Coalition, Speech application of Free strictive (11th Hall, 1250, 1260 States v. approach, e.g., consid- in of a measured favor Speech Cir.2002)(affirming a Free Coalition waiver, Hay, v. 231 eration jury “no reasonable could conviction because (9th Cir.2000), error, 630, plain F.3d images that were virtual chil have found the Hall, legal other theo- F.3d at dren”). Hilton, v. But see States United ries, conjunction examination of in with an (1st Cir.2004)(because F.3d 18-19 case, including of each the nature the facts images that jury required find images prohibited and characteristics children, if were actual even a common Richardson, 304 F.3d at 1064. themselves. compel such a sense determination would stand).42 rejected majority approach has that The finding, the conviction could not essentially per se Thus, and has established re- weight great is clear any applied versal rule to case which supports analysis authority federal unconstitutionally language overbroad Army conclusions Court Criminal used, upheld conviction can be unless the Appeals. under clauses 1 and of Article 134. The operates application of that rule this case Free Speech B. Treatment of Coalition clearly to exonerate an accused who admitted this Court trafficking of actu- pornographic images question: This a familiar case revisits how teen, kindergarten early preteen, al compliance is this ensure with Free Court girls. when, Speech during the course of Coalition proceedings, military judge court-martial Balancing C. Future Cases —Now statutory employed language found Free Speech Coalition be overbroad —lan- take in approach this Court should guage ostensibly permit conviction could Appellant’s need not be inconsistent case depictions based on visual of virtual children? holding with the in O’Connor: Court’s case, In this is narrowed however, provi- present purposes, For inquiry. context of a Care guilty plea to a violation of the CPPA dent answer, course, begins provision with our at issue here must reflect portions of duty superior of our has violated those to follow the decisions accused upheld by Supreme impose upon But the Gov- statute Court. court. when we that, light the absence of greater Supreme than ernment a burden or focus the record before us requires, first articulate a discussion we must Maxwell, Cir.2004)(denying pre-Free Speech attack Co- 49 Fed. 42. See also United States v. (4th Cir.2002)(affirming pre-Free Appx. ground that detailed testi- alition conviction on guilty plea Speech on the basis that Coalition description pictures their monial established children); was of actual nature). actual (5th Roberts, Fed.Appx. v. States Wiesen, (C.A.A.F.2002)(declin- regarding the “actual” character of the 57 M.J. images, Appellant’s we cannot plea view challenge “through to view court member guilty provi- to violations of the CPPA Amendment”); prism of the Sixth dent. Moore, 58 M.J.

(C.A.A.F.2003)(applying “good order and dis- cipline” validating rationale in Government’s long recognized We have that the First abrogation speech of First Amendment free rights Amendment of civilians and mem- Brown, rights); United States v. 45 M.J. bers of the armed are not forces necessari- time, (C.A.A.F.1996)(applying danger ly At “clear coextensive. the same howev- er, mission, loyalty, discipline, we must ensure that the connection morale” stan- claim). any protected by between conduct dard the to First Amendment First Amendment and its effect on the long “This recognized Court has the military closely environment be examined. is, military by necessity, specialized society. a (citations omitted). 58 M.J. at 454r-455 recognized military We have also the disposition This Court’s of Appellant’s case has, again by necessity, developed laws and should, minimum, at a very treat those same long traditions of its during history.” own its by considerations addressed eval- O’Connor: Levy, Parker v. 94 S.Ct. uating any “discussion or focus in the record (1974). 2547, 41 Balancing L.Ed.2d 439 this regarding before us the ‘actual’ of character recognition military’s specialized need images,” ensuring the and “that the connec- for discipline regulation, enhanced our protected tion by between the long vigilance Court has in pre- maintained First Amendment and in mili- its effect the serving rights the of servicemembers tary closely environment [is] examined.” Id. process. generally court-martial See Instead, explanation elaboration, without Jacoby, v. C.M.A. C.M.R. O’Connor, majority purports rely the on perform balancing, When we this conducting balancing implicitly while no however, we must not fail to consider the declining adopt reasoning the of clear the “specialized society” fabric of the which majority of III Article courts. servicemembers and their families exist. practice, As a matter of general we when Department military of Defense and the depart choose to from Supreme prece- Court departments emphasized “spe- have that this dent, reasoning or from majority the society” only cialized consists not of service- of the federal circuit courts that have fol- members, but of families their as well.43 Supreme precedent lowed Court constru- applies a provi- When this Court U.S.Code ing applying statutory a constitutional superior interpretation sion and our court’s provision, departure and when not thereof manner inconsistent mandate, required by legislative or executive bulk presumably of Article III for military this should Court articulate the ne- courts — purpose providing of an elevated level of cessity compels or distinction that our rea- protection rights for the trial of a See, Roberts, soning. e.g., v. United States weigh accused —we must our the reasons for (C.A.A.F.2004) (rejecting 59 M.J. divergent application of that statute Supreme evaluating Court standard for dis- the concomitant reduction the level covery applying violation and a more strin- protection pro- that statute would gent otherwise “military practice”); standard on based Unrue, “specialized society” vide to we also United States 22 C.M.A. noted, society populated serve. As (C.M.A.1973)(recognizing C.M.R. “military necessity” evaluating reasonable- the uniformed men and women seizure); Nation, bravely ness of search and v. who serve our but their See, (DoD) e.g., Department contributing of Defense Di- to the readiness and retention of rective, 30, 1988) (Dec. Family Policy, quality personnel. combat-ready goal at E3.1.1 is a ("DoD personnel supported by quality and their are the most force whose life families families support high pride valuable de- Na- resource in the national reflects standards and defend.”). they multiplier, fense. DoD Families serve as force tion children, every thousands of other service- have terests spouses and all whom ap- right expect comprise a measured and rational who and their families members appellate law trial courts. plication of society” recognized by the Su- “specialized light this particularly, Court’s More years. preme thirty Court for over individual First historical balance between rights “spe- needs Amendment IV. Conclusion society society,” of that cialized the members would, hardly anticipate could that this Court on of extraterritorial Both despite weight federal decisions to the implementa- 2252A and application of contrary, Supreme decision construe Court Coalition, majority Speech tion of Free right so as to elevate the of an individual from the main- this still further moves pornogra- traffic servicemember so, doing practice. stream of federal phy “specialized of that soci- above need departs precedent our opinion from own lead ety” discipline. order and good compet- by failing balancing to conduct a then, being compelled How without to do rights For these reasons and interests. court, by Congress, superior so our alone, respectfully I dissent. Because must President, does this Court elevate stipulation provides of fact no Appellant’s rights First and fair trial Amendment basis law and fact to “substantial military’s over the need for servicemembers Prater, of,” providence United States v. discipline? good good order and Are order (C.M.A.1991), pleas Appellant’s 32 M.J. 433 discipline, safety well as and trafficking pornog- possession and security community not threatened question clearly raphy, images because proliferation por- creation minors, Appellant depict actual and because nography community? within that This issue,44 respectfully I must also waived Speech Court’s of Free Coalition Finally, respectfully I from dissent. dissent minority places us federal majority’s declination to find both fora, but, mystery, reasons remain 1, 2, specifications and were not committed confers on servicemembers accused own- territory within ing, distributing, trafficking por- pleas Appellant’s provident lesser nography a their constitu- status exalts prejudicial included offense of conduct rights tional those of above civilians accused good discipline bring crimes, order and discred- unnecessarily of identical while unintentionally denigrating legitimate in- upon armed forces.45 O’Connor, C.J., (Crawford, 58 M.J. at 455-57 457-59. dissenting). notes U.S.C.A. statutory Under the canon of construction Although history contains U.S.C.S. (a noscitur a sociis word is known issues, it is of those de- extensive discussion company keeps), it is to con reasonable of any of to issues extraterri- void reference the “land or clude that intended any toriality, expression much less clear of building” language to domes have same congressional regard. See intent tic the surround as evidenced (1996). 104-358, S.Rep. at 12-23 No. Smith, Amgen ing language. See Inc. v. (D.C.Cir.2004) 103, 112-13 (c) (applying F.3d Examples Congressional Intent Clear support canon noscitur a sociis to consis regarding the absence of Our conclusion separate phrases within interpretation tent by Congress any clearly expressed intent section); statutory Application a In re extraterritorially apply is bol- that the CPPA Authorizing an Order United States for by the numerous instances where stered Interception Roving Oral Communica clearly expressed. been such intent has (9th Cir.2003) tions, F.3d 1142-43 specific pornog- of child Even in the context (using canon to inter of noscitur sociis raphy, Congress knows how to makes its wiretapping pret section of federal particular clear criminal stat- intention Hicks, statute); see also United States engaged outside the ute extend (1956). 623, 20 C.M.R. C.M.A. See, e.g., 18 U.S.C. United States. 2260(b)(“a who, phrases person outside the United statutory dis- We do not view receives, above, ... individually knowingly transports, either or collec- cussed expression” depiction engaging of a minor tively, type visual “clear intending ... sexually explicit conduct congressional required Aramco. intention depiction imported Aram- will be into analysis dictated Bowman and visual Schmitt, Military Closing Gap Extraterritori- count the Creation 7. See also Glen R. Accompany- 51 Cath. U.L.Rev. Over al Jurisdiction Act Criminal Jurisdiction Civilians Ac- the Armed Abroad —A First Person 113-14 Forces

Notes

notes Not weight law in decisional “[tjhere that under clause 3 of Article the federal circuits our precedents, own types two congressional are enactments but on the compelling based similarities be- application: specific local federal statutes struggle tween pro- this Nation’s crimes), (defining particular general and a duction, importation, distribution, pos- statute, federal the Federal Assimilative illegal (which drugs session of and the much more adopts Act Crimes certain state crimi- creation, laws).” recent efforts to combat distri- nal Act, Perez-Herrera, Pornography sy Guinea); 28. Child Prevention Pub.L. No. United States v. 610 104-208, A., I, 121(1)(13), (5th § Cir.1980)(conspiracy attempt div. tit. 110 Stat. F.2d 289 importation marijuana high 3009. ed U.S. into from seas); Baker, (5th United States v. 609 F.2d 134 Cir.1980)(possession with intent to distribute (3d E.g., Harvey, 29. United 2 States v. F.3d 1318 marijuana coast); miles nine off Florida United Cir.1993) (possession pornography un Dawn, (7th Cir.1997)(pos v. 129 States F.3d 878 2252(a)(4)(B) § (subject aggra der 18 U.S.C. session of child under 18 U.S.C. punishment though aggravating vated even fac 2252(a) punishment subject aggravated § even Philippines)); tor occurred in United States v. though aggravating factor occurred in Hondu (3d Cir.1986) Wright-Barker, (drug 784 F.2d 161 ras); Schmucker-Bula, United v. 609 States F.2d seas); high offenses on the v. (7th Cir.1980)(conspiracy import 399 cocaine Thomas, (9th Cir.l990)(using F.2d Plummer, Colombia); United States v. produce minor in Mexico to (11th Cir.2000)(attempted smuggling F.3d 2251(a)); violating § 18 U.S.C. v. Unit Chandler Felix-Gutierrez, coast); forty miles off Florida (1st Cir.1948)(treason ed 171 F.2d 921 (kidnapping 940 F.2d and murder of DEA Germany); Yousef, U.S. citizen in United States v. Mexico). agent in (2d Cir.2003)(attempting damage 327 F.3d 56 U.S.); flight U.S. aircraft outside 5, UCMJ, (2000). § 30. Article 10 U.S.C. Brown, (4th Cir.l977)(conspiracy F.2d import Germany involving heroin to U.S. from sergeant Army Germany); stationed Erdos, (4th Cir.1973)(mur States v. 474 F.2d 157 836(a). der of U.S. citizen U.S. citizen at U.S. embas- Id. at

Case Details

Case Name: United States v. Martinelli

Court Name: Court of Appeals for the Armed Forces

Date Published: Sep 28, 2005

Citation: 2005 CAAF LEXIS 1095

Docket Number: 02-0623/AR

Court Abbreviation: C.A.A.F.