United States v. Kuemmerle , 2009 CAAF LEXIS 4 ( 2009 )

UNITED STATES, Appellee
v.
Matthew C. KUEMMERLE, Aviation Boatswain’s Mate Third Class
U.S. Navy, Appellant
No. 08-0448
Crim. App. No. 200700899
United States Court of Appeals for the Armed Forces
Argued November 18, 2008
Decided January 8, 2009
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a
separate dissenting opinion.
Counsel
For Appellant: Lieutenant Gregory W. Manz, JAGC, USN (argued).
For Appellee: Lieutenant Duke J. Kim, JAGC, USN (argued); Brian
K. Keller, Esq. (on brief); Commander Paul C. LeBlanc, JAGC,
USN, Lieutenant Derek D. Butler, JAGC, USN, and Lieutenant
Timothy H. Delgado, JAGC, USN.
Military Judge: R. C. Klant
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Kuemmerle, No. 08-0448/NA
Judge BAKER delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted Appellant, pursuant to his pleas, of one specification
of carnal knowledge in violation of Article 120, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 920 (2000); one
specification of receiving child pornography in violation of
Article 134, UCMJ, 10 U.S.C. § 934 (2000); and one specification
of distributing child pornography in violation of 18 U.S.C. §
2252A(a)(2)(A) (2000), as incorporated into the UCMJ under
Article 134, clause 3, UCMJ. The adjudged and approved sentence
included a dishonorable discharge, confinement for seven years,
and reduction to E-1. The convening authority suspended
confinement in excess of forty-eight months for a period of six
years from the date of the convening authority’s action in
accordance with the pretrial agreement. The United States Navy-
Marine Corps Court of Criminal Appeals affirmed. United States
v. Kuemmerle, No. NMCCA 200700899 (N-M. Ct. Crim. App. Jan. 21,
2008). We granted review of the following issue:
WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER THE
OFFENSE OF DISTRIBUTING AN IMAGE OF CHILD PORNOGRAPHY
WHERE APPELLANT POSTED THE IMAGE ON THE INTERNET PRIOR
TO ENTERING ACTIVE DUTY AND HE TOOK NO FURTHER STEPS
TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED.
We hold that the court-martial had jurisdiction over the offense
charged and affirm.
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BACKGROUND
Appellant enlisted in the United States Navy on June 21,
2001, and entered active duty on the same date. He reenlisted
on June 20, 2005. On or before September 7, 2000, and prior to
joining the Navy, Appellant posted a sexually explicit image of
a child to his Yahoo! profile.1 Other Internet users could
access the image on Appellant’s profile. Indeed, one purpose of
the Yahoo! profile is to allow users to publicly post
information on their profile page. While on active duty,
Appellant accessed his Yahoo! e-mail account, but did not update
or make any modifications to his profile or the image posted on
his profile.
In October 2005, the United States Attorney’s Office for
the District of New Jersey, along with Immigration and Customs
Enforcement (ICE), conducted an investigation into a purported
child pornography website called “Illegal CP.” A warrant search
of the website’s server revealed that Appellant paid for a
membership and maintained a log-in name to access the website.
ICE collected Appellant’s Yahoo! e-mail address as a result of
this search. The Naval Criminal Investigative Service became
1
A Yahoo! “public profile is a page with information about [the
user] that other Yahoo! members can view. [The user’s] profile
allows [the user] to publicly post information about [himself]
that [he] want[s] to share with the world.” Yahoo! Member
Directory -- What is a public profile?,
http://help.yahoo.com/l/us/yahoo/members/basics/md-06.html (last
visited Dec. 3, 2008).
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United States v. Kuemmerle, No. 08-0448/NA
involved in the ICE investigation in July 2006. On August 10,
2006, ICE Special Agent Aaron Meeks, who knew Appellant
maintained a Yahoo! account, accessed Appellant’s Yahoo! profile
and viewed the image that Appellant had previously posted to
this profile. SA Meeks printed a hard copy of the image
indicating the date of access. The stipulation of fact
indicates that Appellant had accessed his Yahoo! e-mail account
a few days prior to SA Meeks’s discovery of the image.
Appellant did not attempt to remove the image from his profile
until June 28, 2007.
Appellant was subsequently charged with distributing child
pornography under the Child Pornography Prevention Act (CPPA),
18 U.S.C. § 2252A(a)(2)(A) (2000), as incorporated as a UCMJ
violation by clause 3 of Article 134, UCMJ. Specifically,
specification 3 charged Appellant with distribution on or about
August 10, 2006. After agreeing to a pretrial agreement,
Appellant filed a motion to dismiss for lack of jurisdiction,
claiming that any distribution offense that occurred was
complete prior to Appellant joining the Navy. After hearing
argument by the defense counsel, the military judge denied the
motion, “finding that the charged offense does not implicate any
act conducted by the accused before he entered onto active duty
. . .”
4
United States v. Kuemmerle, No. 08-0448/NA
During the plea colloquy with Appellant, the military judge
defined “distribute” as follows:
Distribute means to deliver to the possession of
another. Deliver means the actual, constructive or
attempted transfer of an item. While transfer of
child pornography may have been made or attempted in
exchange for money or other property or promise of
payment, proof of a commercial transaction is not
required.
While the military judge did not specifically identify from what
source he drew this definition, it mirrors the definition used
in the Manual for Courts-Martial for drug offenses. See Manual
for Courts-Martial, United States pt. IV, para. 37.c(3) (2005
ed.) (MCM). Neither party objected to the military judge’s
definition of distribute when given to Appellant.
On appeal, Appellant contends that the alleged offense of
distributing child pornography is not subject to court-martial
jurisdiction because the act of distribution was complete when
he posted the image on his Yahoo! profile in September 2000 and,
as both parties agree, the image was posted before he entered
military service. The Government argues that Appellant engaged
in a continuing act of distribution by maintaining the profile
while on active duty, and thus jurisdiction exists.
ANALYSIS
Article 2, UCMJ, delimits those persons subject to court-
martial jurisdiction, permitting jurisdiction over, inter alia,
“[m]embers of a regular component of the armed forces . . .”
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United States v. Kuemmerle, No. 08-0448/NA
Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1) (2000). The
Supreme Court has further delimited court-martial jurisdiction
based on the time of offense. Thus, courts-martial may only
exercise jurisdiction over a servicemember “who was a member of
the Armed Services at the time of the offense charged.” Solorio
v. United States, 483 U.S. 435, 451 (1987).
This Court reviews questions of jurisdiction de novo.
United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006).
Whether jurisdiction existed over the alleged offense depends on
when the offense of “distribution” occurs. The parties agree,
as do we, that this, in turn, depends on the meaning of
“distribute” for the purposes of the CPPA. However, we do not
agree with the manner in which the parties have cast the
question. The real question is whether Appellant committed an
offense of distribution on August 10, 2006, and if so, whether
the military had jurisdiction over the charged offense.
The CPPA punishes:
(a) Any person who --
. . . .
(2) knowingly receives or distributes --
(A) any child pornography that has been
mailed, or . . . shipped or transported in
or affecting interstate or foreign commerce
by any means, including by computer . . . .
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United States v. Kuemmerle, No. 08-0448/NA
18 U.S.C. § 2252A(a)(2)(A). However, the statute does not
define “distribute.” See id. In the absence of a statutory
definition, we consider three sources: (1) the plain meaning of
the term distribute; (2) the manner in which Article III courts
have interpreted the term; and (3) guidance, if any, the UCMJ
may provide through reference to parallel provisions of law.
See Lopez v. Gonzales, 127 S. Ct. 625, 630 (2006) (in the
absence of a statutory definition of a particular term, courts
look “to regular usage to see what Congress probably meant”);
Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“When interpreting a
statute, we must give words their ‘ordinary or natural’
meaning.”) (citation omitted); United States v. McCollum, 58
M.J. 323, 340 (C.A.A.F. 2003) (“[W]ords should be given their
common and approved usage.”) (citation and quotation marks
omitted). Toward this end, Appellant urges this Court to adopt
the definition of “distribute” found in the Federal Sentencing
Guidelines.2 The Government urges the Court to define
2
The Sentencing Guidelines for the offense of sexual
exploitation of a minor state that:
“Distribution” means any act, including possession
with intent to distribute, production, advertisement,
and transportation, related to the transfer of
material involving the sexual exploitation of a minor.
Accordingly, distribution includes posting material
involving the sexual exploitation of a minor on a
website for public viewing but does not include the
mere solicitation of such material by a defendant.
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distribution as a continuous action based on the continuing
nature of the Internet posting in this case. We begin instead
with observations regarding how the term is defined elsewhere.
Black’s Law Dictionary defines “distribute” as “1. To
apportion; to divide among several. 2. To arrange by class or
order. 3. To deliver. 4. To spread out; to disperse.”
Black’s Law Dictionary 508 (8th ed. 2004) (emphasis added).
Merriam-Webster provides the following definition: “to divide
among several or many: deal out . . . to give out or deliver
especially to the members of a group.” Webster’s Third New
International Dictionary Unabridged (2002), available at
http://unabridged.merriam-webster.com (last visited Dec. 4,
2008). As an example in common usage, distribute means “[to
distribute] magazines to subscribers.” Id. The definition used
by the military judge comports with these dictionary definitions
because the plain usage shows that delivery can complete a
distribution offense.
This usage of the term is consistent with the manner in
which Article III federal courts have interpreted “distribution”
in the context of the CPPA. In United States v. Shaffer, for
example, the United States Court of Appeals for the Tenth
Circuit concluded that the appellant distributed child
pornography because he “delivered, transferred, dispersed, or
U.S. Sentencing Guidelines Manual § 2G2.2 cmt. n.1 (2008).
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dispensed” the image to others using a file-sharing program.
472 F.3d 1219, 1223 (10th Cir. 2007) (quotation marks omitted).
Other courts, interpreting the term “distribute” as it applies
to sentence enhancements, have relied on Shaffer to define
distribute: United States v. Geiner, 498 F.3d 1104, 1109-10
(10th Cir. 2007) (finding that a transaction constitutes any act
of conducting business or any action involving two or more
persons, and “distribution” under the CPPA is a subset of such a
transaction); United States v. Carani, 492 F.3d 867, 875-76 (7th
Cir. 2007) (finding that the defendant distributed child
pornography when he posted videos on a file-sharing program and
knew that other users were downloading these videos from his
shared folder); United States v. Griffin, 482 F.3d 1008, 1012
(8th Cir. 2007) (finding that the defendant distributed child
pornography when he made files available for others to search
and download on a file-sharing program); United States v. McVey,
476 F. Supp. 2d 560, 563 (E.D. Va. 2007) (holding that the
defendant committed the offense of distribution because he “knew
that his file-sharing software allowed others to obtain child
pornography from his computer”). The parties have not
identified any contrary holdings.3
3
In his brief, Appellant cites three cases to suggest that
uploading and posting an image could complete the offense of
distributing child pornography. United States v. Gross, 437
F.3d 691 (7th Cir. 2006); United States v. Griffith, 344 F.3d
9United States v. Kuemmerle, No. 08-0448/NA
The plain meaning of “distribute” and decisions by federal
courts interpreting the term under the CPPA are also consistent
with the definition of distribute used in the MCM for drug
offenses. The explanation to the MCM defines distribute as “to
deliver to the possession of another[,]” albeit in the context
of the wrongful distribution of a controlled substance. MCM pt.
IV, para. 37.c(3). While this definition was not intended to be
used to inform interpretation of a civilian statute, and is not
authoritative in that regard, it is noteworthy that the
definition used by the military judge and by other federal
courts is consistent with the manner in which the term
“distribution” is used in the UCMJ to connote in effect both
“offer” and “delivery.”
Based on the foregoing, we conclude that distribution of
child pornography through the Internet under the CPPA, as
factually presented in this case, consisted of two acts -- (1)
the posting of the image, whereby the image left the possession
of the original user, and (2) delivery of the image, whereby
another user accessed and viewed the image.
Here, Appellant posted a pornographic image of a child to
his Yahoo! profile. A Yahoo! profile operates as a so-called
714 (7th Cir. 2003); United States v. Bassignani, No. CR 06-0657
SI, 2007 U.S. Dist. LEXIS 65648, 2007 WL 2406868 (N.D. Cal. Aug.
20, 2007). However, regardless of whether posting an image can
constitute “distribution,” we must only decide today whether
Appellant distributed child pornography on August 10, 2006.
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“public bulletin board” such that all Internet users can access
information posted by the profile’s owner. Appellant thus
posted the image for other users to view on his profile and did
so before entering on active duty. Significantly, however,
Appellant stipulated that he accessed his Yahoo! account while
on active duty. He also stipulated that he had the ability to
access the profile while on active duty, including the capacity
to remove the image of child pornography. Indeed, after he was
already charged, Appellant took steps to remove the image on
June 28, 2007, the same day on which he was convicted. By
implication, Appellant made an affirmative decision while on
active duty to keep the image posted on his profile. Thus,
whether or not a civilian criminal offense may have occurred
sometime in September 2000, when Appellant initially posted the
image, an offense occurred under the UCMJ on August 10, 2006.
On this date, at a time when Appellant maintained control over
the content on his profile, SA Meeks accessed and viewed the
sexually explicit image of a child that Appellant had posted
there for others to view. This access constituted delivery of
the image under the CPPA on August 10, 2006.
As a result, the court-martial had jurisdiction over the
offense of distribution on August 10, 2006, a date on which all
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parties agree Appellant was on active duty and subject to the
UCMJ.4
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
4
We do not and need not accept the Government’s invitation to
also decide whether Appellant could have or may have committed
other military or civilian offenses on a continuing basis or any
other specific date between September 7, 2000, and August 10,
2006.
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STUCKY, Judge (dissenting):
Believing that, under these facts, the court-martial did
not have jurisdiction, I respectfully dissent.
It is very important that the facts of this case, and its
legal posture, be set out before an analysis of the situation is
essayed. Appellant enlisted in the United States Navy on June
21, 2001, reenlisted without a break in service in June of 2005,
and was on active duty in the Navy in August of 2006. In 2000,
prior to enlisting in the Navy, he had posted a single image of
child pornography on his Yahoo! profile. He last updated that
profile on September 7, 2000, before entering the Navy.
Thereafter, although he received e-mail at his Yahoo! e-mail
account, he took no action with regard to the profile until June
28, 2007, immediately before his court-martial, when he took
steps to have the image removed.
The specification at issue set out a crime and offense not
capital under clause 3 of Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934 (2000), viz., distribution of
the image in question on or about August 10, 2006, in violation
of 18 U.S.C. § 2252A(a)(2)(A) (2000), part of the Child
Pornography Prevention Act of 1996 (CPPA). In the Care1
1
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
United States v. Kuemmerle, No. 08-0448/NA
inquiry, Appellant explicitly refused to admit that the conduct
in question was contrary to good order and discipline or
service discrediting. The military judge did not pursue the
matter. It is therefore solely as a clause 3 offense that it
must be analyzed.
To be subject to court-martial jurisdiction, an accused
must be a member of the armed forces or a civilian who falls
into one of the very narrow categories set out in the UCMJ.
Article 2(a), UCMJ, 10 U.S.C. § 802(a) (2000); William Winthrop,
Military Law and Precedents 105 (2d ed., Government Printing
Office 1920) (1895); United States v. King, 11 C.M.A. 19, 27, 28
C.M.R. 243, 251 (1959). Appellant was neither when he posted
the image to his profile. He pled guilty to a single
distribution of the image in question on August 10, 2006, a date
on which he was a member of the United States Navy on active
duty and therefore subject to court-martial jurisdiction.
The term “distribution” is not defined in the CPPA. In the
context of the statute, it has generally been interpreted in its
ordinary sense, i.e., “to dispense” or “to deliver.” United
States v. Probel, 214 F.3d 1285, 1288 (11th Cir. 2000); United
States v. Horn, 187 F.3d 781, 791 (8th Cir. 1999); United States
v. Hibbler, 159 F.3d 233, 237 (6th Cir. 1998) (citing United
2
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States v. Canada, 110 F.3d 260, 263 (5th Cir. 1997)).2 It would
seem that delivery of the image in question was effected when
Appellant placed it on his Yahoo! profile. Thereafter, it was
available to anyone who chose to look at the profile. Appellant
does not deny that this action constituted “distribution” within
the meaning of the statute.
The question is thus whether Appellant’s action prior to
entering on active duty somehow carried over to August 10, 2006,
the date on which the NCIS agent discovered the image. The
stipulation of fact entered into at trial stated that Appellant
had not updated the Yahoo! profile since September 7, 2000,
before entering on active duty. The only “action” that
Appellant took after becoming subject to court-martial was the
purely negative one of leaving the image undisturbed. I can
find no support in the case law -- and the Government cites none
-- for the proposition that simply posting an image and then
taking no other action constitutes “distribution” six years
later when someone happens upon the image. The numerous cases
dealing with peer-to-peer networks, e.g., United States v. Ober,
66 M.J. 393 (C.A.A.F. 2008), and United States v. Shaffer, 472
F.3d 1219 (10th Cir. 2007), are inapposite, because those
2
Technically, these cases deal with the definition of the term
as a sentence enhancer for CPPA offenses in the Federal
Sentencing Guidelines. However, for these purposes the two may
be considered identical.
3
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networks require continued positive actions (turning on one’s
computer and the file-sharing program) every time the person
wishes to engage in file-sharing. By contrast, posting a
picture on the Internet requires no continued action; the
picture is there, available to anyone who cares to look without
further action by the originator. On August 10, 2006, Appellant
did absolutely nothing relevant to the image; the action was
solely that of the NCIS agent.3
Nor does the concept of “continuing offense” save the
specification.4 A continuing offense is one in which the
offense is committed on a date certain but continues to be
committed each day that the original fact situation obtains.
See United States v. Cores, 356 U.S. 405, 408-09 (1958). The
continuing offense doctrine is to be applied only in limited
circumstances because of its obvious relationship to statutes of
limitation. Toussie v. United States, 397 U.S. 112, 115 (1970),
superseded by statute, Pub. L. No. 92-129, § 101(a)(31), 85
Stat. 352 (1971). Its application is purely a matter of
3
If the offense was completed in 2000, it was also barred by the
statute of limitations, since child pornography offenses are not
“child abuse offenses” extending the statute. Article 43(b),
UCMJ, 10 U.S.C. § 843(b) (2000). It is the military judge’s
duty to inform the accused of a potential statute of limitations
defense. See Rule for Courts-Martial 907(b)(2)(B); United
States v. Rodgers, 8 C.M.A. 226, 228, 24 C.M.R. 36, 38 (1957).
4
The Government argued the applicability of the continuing
offense doctrine in its brief, but abandoned the idea in oral
argument.
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statutory interpretation, and is limited to situations in which
Congress explicitly stated that the offense was a continuing
one, or the nature of the crime compels the conclusion that
Congress must have intended it. Id.; United States v. Lee, 32
M.J. 857, 859-60 (N-M. Ct. Crim. App. 1991). There is nothing
in the CPPA making distribution a continuing offense, and
nothing inherent in the nature of distribution that would compel
treating it as such. Under the standard enunciated in Toussie,
it is therefore not a continuing offense.
On these facts, I believe the court-martial lacked
jurisdiction over the offense of distribution of the image
because Appellant’s action of distribution was completed prior
to entry on active duty, and he thereafter took no action to
review the image or further effectuate distribution. I
emphasize that the issue of whether the same conduct might
violate clause 1 or 2 of Article 134, UCMJ, is not raised here,
and cannot be answered on these facts.
I respectfully dissent.
5