United States v. Navrestad , 66 M.J. 262 ( 2008 )

UNITED STATES, Appellee
v.
Joshua P. NAVRESTAD, Specialist
U.S. Army, Appellant
No. 07-0199
Crim. App. No. 20030335
United States Court of Appeals for the Armed Forces
Argued December 4, 2007
Decided May 14, 2008
ERDMANN, J., delivered the opinion of the court, in which BAKER
and RYAN, JJ., joined. EFFRON, C.J., filed a dissent in which
STUCKY, J., joined.
Counsel
For Appellant: Captain Nathan J. Bankson (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Fansu Ku (on brief); Captain Eugene Ham.
For Appellee: Captain Jaired D. Stallard (argued); Colonel John
W. Miller II, Major Elizabeth G. Marotta, and Captain Michael
Friess (on brief).
Military Judge: Robin L. Hall
This opinion is subject to revision before final publication.
United States v. Navrestad, No. 07-0199/AR
Judge ERDMANN delivered the opinion of the court.
Specialist Joshua P. Navrestad was charged under Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2000), with distributing and possessing child pornography in
violation of the Child Pornography Prevention Act of 1996
(CPPA), 18 U.S.C. §§ 2251-2260 (2000). He entered pleas of not
guilty to both specifications but was convicted at trial by a
military judge.1 We granted this case to determine two issues:
whether sending a hyperlink to a Yahoo! Briefcase during an
Internet chat session, where that Briefcase contained child
pornography images, is legally sufficient to constitute
distribution of child pornography; and whether utilizing a
public computer to view images of child pornography in a Yahoo!
Briefcase is legally sufficient to constitute possession of
child pornography. We hold, under the facts of this case, that
Navrestad’s actions did not constitute either distribution or
possession of child pornography and therefore reverse the United
States Army Court of Criminal Appeals on those issues.
Procedural Background
Navrestad was initially charged with distribution
(Specification 4) and possession (Specification 5) of child
1
Consistent with his guilty pleas, Navrestad was also convicted
of the attempted transfer of obscene material to a minor and
attempted enticement of a minor to engage in illegal sexual
activity, under Article 134, UCMJ. Those specifications are not
pertinent to the issues appealed by Navrestad.
2
United States v. Navrestad, No. 07-0199/AR
pornography in violation of the CPPA, as “crime[s] or offense[s]
not capital” under clause 3 of Article 134, UCMJ. Before
arraignment, however, Article 134, UCMJ, clause 1 and 2 language
was added to both specifications.2 Navrestad was found guilty of
both specifications as amended and was sentenced to reduction to
the lowest enlisted grade, forfeiture of all pay and allowances,
two years of confinement, and a bad-conduct discharge. The
convening authority approved the sentence as adjudged.3
The Army Court of Criminal Appeals amended the possession
specification (Specification 5) to exclude reference to the CPPA
because the charged activity under that specification occurred
solely in Germany and, in United States v. Martinelli, 62 M.J.
52 (C.A.A.F. 2005), this court held that the CPPA does not have
extraterritorial application. United States v. Navrestad, No.
ARMY 20030335, slip op. at 1-2. (A. Ct. Crim. App. Oct. 31,
2006). The Army court then affirmed a finding of guilty to
2
Conduct is punishable under Article 134, UCMJ, if it prejudices
“good order and discipline in the armed forces” [clause 1], if
it is “of a nature to bring discredit upon the armed forces”
[clause 2], or if it is a crime or offense not capital [clause
3]. See Manual for Courts-Martial, United States pt. IV, para.
60.a.-c. (2005 ed.) (MCM).
3
We note an inconsistency in Specification 4, which charged
Navrestad with distribution of child pornography but cited 18
U.S.C. § 2252A(a)(1), which prohibits the mailing or
transportation of child pornography, rather than 18 U.S.C. §
2252A(a)(2), which prohibits distribution. The specification
was treated as a distribution offense by all parties at trial.
As we reverse Navrestad’s conviction under this specification,
any notice issues arising out of the charging language are moot.
3
United States v. Navrestad, No. 07-0199/AR
amended Specification 5 and the remaining findings of guilty.
Id. The lower court reassessed and affirmed the sentence. Id.
Specification 5 included Article 134, UCMJ, clause 1 and 2
language prior to arraignment and the theory of those provisions
was presented at trial by the prosecution. We recently held
that a member can be convicted under Article 134, UCMJ, clause 1
or 2 when a clause 3 offense is set aside, if the clause 1 or 2
language has been alternatively charged. United States v.
Medina, 66 M.J. 21, 28 (C.A.A.F. 2008). As the Article 134,
UCMJ, clause 1 and 2 language was alternatively charged in
Specification 5, the Army court properly set aside the CPPA
language and reviewed the specification in the context of those
provisions.
Factual Background
Navrestad had an account at an Internet café in a United
States Army morale, welfare and recreation center in Vilseck,
Germany. He would pay for a set amount of time and then use a
kiosk-style computer terminal to access the Internet. While at
the café, Navrestad had Internet chat sessions over the course
of several days with someone who identified himself as “Adam.”
Navrestad believed “Adam” was a fifteen-year-old boy from New
Hampshire while actually “Adam” was Detective James F.
McLaughlin, a New Hampshire police officer.
4
United States v. Navrestad, No. 07-0199/AR
During the course of several chat sessions, Navrestad made
requests for phone sex and encouraged “Adam” to engage in sex
acts with “Adam’s” younger brother and a friend of “Adam’s” who
was also a minor. During these sessions “Adam” made inquiries
about seeking pictures, often in response to Navrestad’s
requests for phone sex. Eventually, “Adam” made a specific
request for pictures of “guys 10-13.”
In response to “Adam’s” request, Navrestad sought out child
pornography on the Internet using the Internet café computer and
located links to several Yahoo! Briefcases4 that contained child
pornography. While at the Internet café, Navrestad opened and
viewed the Briefcases to confirm the contents and then sent a
hyperlink to one of the Briefcases that contained child
pornography to “Adam.”
The websites that are viewed on the Internet café computers
are automatically saved in a “temporary internet files” folder
on the computer’s hard drive.5 Navrestad and other Internet café
4
Yahoo! Briefcase is an online service that allows users to
store files on the Yahoo! servers. See http://briefcase.
yahoo.com (follow “Help” hyperlink; then follow “Briefcase
Basics” hyperlink; then follow “What is a Yahoo! Briefcase?”
hyperlink) (last visited May 7, 2008). Users may or may not
make the contents of their Briefcases public. See http:
//briefcase.yahoo.com (follow “Help” hyperlink; then follow
“Abuse” hyperlink; then follow “What is the difference between
private and public folders?” hyperlink) (last visited May 7,
2008).
5
A temporary Internet file “is created when any of the Windows
operating systems is installed with an Internet Browser. This
temporary cache is a ‘first in first out’ algorithm in which the
5
United States v. Navrestad, No. 07-0199/AR
users did not have access to that folder and there is nothing in
the record that indicates Navrestad was aware that the sites
were being saved on the hard drive. Individuals who use the
computers at the Internet café cannot download files or save
documents to portable storage devices6 although they could e-mail
the documents or print them on a central café printer. The
printer was located in a staff-only area and users must request
the printed documents from the Internet café staff. There is no
evidence that Navrestad e-mailed or printed any of the images.
Discussion
Distribution of Child Pornography
We first address whether the evidence is legally sufficient
to support a conviction for distribution of child pornography
under the CPPA. We review questions of legal sufficiency de
novo as questions of law. United States v. Young, 64 M.J. 404,
407 (C.A.A.F. 2007). Legal sufficiency is determined by asking
“whether, considering the evidence in the light most favorable
to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United
files most recently viewed on the Internet by the end user
remain in storage for quick recall.” United States v. Grimes,
244 F.3d 375, 379 (5th Cir. 2001).
6
By “portable storage devices” we refer to any portable computer
memory, which include flash drives (such as USB memory sticks),
CDs, DVDs and external hard drives. The Internet café computers
were configured in such a way that Navrestad and other users
could not download files and leave the café with the files.
6
United States v. Navrestad, No. 07-0199/AR
States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006) (citation
omitted). Utilizing this standard, the issue before the court
is whether, under the facts of this case, sending a hyperlink
that leads to a Yahoo! Briefcase which contains images of child
pornography constitutes distribution of child pornography under
the CPPA.
Because Specification 4 alleged a violation of the CPPA,
the definitions contained in that chapter control in this case.
18 U.S.C. § 2256(8) defines child pornography as “any visual
depiction, including any photograph, film, video, picture, or
computer or computer-generated image or picture . . . of
sexually explicit conduct, where . . . the production of such
visual depiction involves the use of a minor engaging in
sexually explicit conduct[.]” “Visual depiction” in turn,
“includes . . . data stored on computer disk or by electronic
means which is capable of conversion into a visual image[.]” 18
U.S.C. § 2256(5).
The issue in this case centers on what was actually
distributed when Navrestad sent the hyperlink to “Adam.”
Navrestad argues he did not distribute child pornography because
a hyperlink does not contain “data . . . capable of conversion
into a visual image” of child pornography. He argues that the
hyperlink only contained data that is convertible to an address
which, in this case, did not even take users directly to the
7
United States v. Navrestad, No. 07-0199/AR
prohibited images. The Government responds that this court
should uphold the lower court because a hyperlink meets the
definition of a “visual depiction” set forth in the 18 U.S.C. §
2256(5).
The initial inquiry is whether this hyperlink contains
“data stored . . . by electronic means which is capable of
conversion into a visual image[.]” Commencing our inquiry with
a basic dictionary definition, we find that “hyperlink” is
defined as “an electronic link providing direct access from one
distinctively marked place in a hypertext or hypermedia document
to another in the same or a different document.” Webster’s
Third New International Dictionary Unabridged (2002), available
at http://unabridged.merriam-webster.com. This definition
centers on a hyperlink as an electronic link which provides
access.7
David Hardinge, a senior systems administrator whose
responsibilities include providing technical support for the
Internet café at Vilseck, testified for the Government. During
cross-examination, he defined a hyperlink as an address or a
“way that you can display a web site,” which the recipient can
click on to go to the particular site. Hardinge agreed that a
7
A “link” has been defined as “something in a document like an
email, usually highlighted or underlined, that sends users who
click on it directly to a new location -– usually an internet
address or a program of some sort.” United States v. Hair, 178
F. App’x 879, 882 n.3 (11th Cir. 2006).
8
United States v. Navrestad, No. 07-0199/AR
hyperlink is a shortcut to typing in the website address
manually and that clicking on it does not move any documents on
the user’s computer.8 He also agreed that it was an accurate
analogy to say that sending a hyperlink is like sending someone
an address of a store or of a location of a building.
Hardinge further agreed that sending an individual file as
an attachment to an e-mail takes longer than sending a hyperlink
because, with an attachment, the user is sending a file that is
moving onto someone else’s computer. He admitted that a picture
is not sent to the recipient when a hyperlink is sent “[b]ecause
a hyperlink is nothing more than . . . just a shortcut to get
somewhere.” While trial counsel tried to mitigate Hardinge’s
statements on re-direct, Hardinge continued to state that a
hyperlink is a “direct shortcut to a location.” He did not
testify at any point that the hyperlink in this case contained
any images or data that were capable of conversion to images.
Unlike an e-mail attachment, the sending of a hyperlink in
a chat session does not move a file or document from one
location to another. As such, the data contained in the
hyperlink is an electronic address that allows the recipient to
direct his browser to the new location without having to type in
8
We note that while clicking on a hyperlink may create a file in
the recipient’s temporary Internet file folder, clicking this
hyperlink does not move images or documents from the sender’s
computer to the recipient’s computer.
9
United States v. Navrestad, No. 07-0199/AR
the website of that location. The data contained in the
hyperlink is not capable of conversion into any type of visual
image. Rather, the data provides the recipient with the path to
a website on a server distinct from Navrestad’s own computer.
It is this separate server that contained the visual images of
child pornography, not the hyperlink Navrestad sent. In
contrast, a file received as an e-mailed attachment is self-
contained and capable of conversion into an image independent of
other factors. The difference between a hyperlink and a file
that is sent as an e-mailed attachment is significant because
the attached picture or graphics file9 is a complete image that
is just not opened yet. When that complete image is received,
it is housed on the recipient’s computer.
Since the hyperlink sent by Navrestad was a path or address
to a website and not a file that contains data that is “capable
of being converted” into visual images, this case is
distinguishable from circuit court cases that involved GIF
files. See, e.g., United States v. Hockings, 129 F.3d 1069 (9th
Cir. 1997); United States v. Thomas, 74 F.3d 701 (6th Cir.
1996). In those cases, the defendants argued that GIF files
9
Picture or graphic file formats are used to place images on the
Internet. The different formats include JPEG/JPG (Joint
Photographic Experts Group), GIF (Graphics Interchange Format),
and PNG (Portable Network Graphics). Webopedia: JPG vs. GIF
vs. PNG, http://www.webopedia.com (follow “Did You Know?”
hyperlink; then follow the “JPG vs. GIF vs. PNG” hyperlink)
(last visited May 7, 2008).
10
United States v. Navrestad, No. 07-0199/AR
were not visual depictions because the file itself was binary
code and not images. Hockings, 129 F.3d at 1070; Thomas, 74
F.3d at 706. Both courts, however, concluded that GIF files are
included in the statutory definition of child pornography
because, as the Hockings court stated, “[t]he visual image
transported in binary form starts and ends pornographically.”
129 F.3d at 1072; see also Thomas, 74 F.3d at 707. In contrast,
the hyperlink here did not start or end as pornography, but was
simply a shortcut to a particular web address.10
The Government also argued that once the hyperlink was
sent, the recipient was “just a click away” from the child
pornography images. Here the Government confuses the manner of
the alleged distribution with what is allegedly being
distributed. Navrestad does not dispute that he sent the
10
We have no quarrel with the hyperlink discussion in Universal
City Studios v. Corley, which is consistent with the majority
opinion. 273 F.3d 429, 455-457 (2d Cir. 2001) (“[H]yperlinks .
. . facilitate instantaneous . . . access . . . .”); see United
States v. Navrestad, __ M.J. at __ (7-8) (C.A.A.F. 2008)
(Effron, C.J., joined by Stucky, J., dissenting). In relying on
Corley, however, the dissent completely ignores the language of
18 U.S.C. § 2256(5) and (8) which specifically prohibit the
distribution of data which is “capable of conversion into” child
pornography. The language in Corley upon which the dissent
relies stands for the limited proposition that a hyperlink
“facilitates” access to another Internet site. Corley, a civil
case, does not suggest, let alone hold, that a hyperlink sends
or distributes data that “is capable of conversion,” into child
pornography, as the criminal statute in this case requires for
the offense of distribution. While the language relied upon by
the dissent may be pertinent in a case in which an accused is
charged with aiding and abetting the distribution of child
pornography that is not the offense at issue in this case.
11
United States v. Navrestad, No. 07-0199/AR
hyperlink to “Adam.” His position is that the hyperlink did not
contain child pornography as that term is defined in the CPPA
and therefore cannot constitute the distribution of child
pornography. We agree. However, even if the number of clicks
were a factor in determining whether the hyperlink contained
child pornography, the hyperlink in this case did not take the
recipient directly to any child pornography images. When
McLaughlin clicked on the link, he was taken to a directory of
files and had to click on an individual file name in order to
view the image.
We note that the United States Court of Appeals for the
Eleventh Circuit has addressed a similar issue in an unpublished
case where the defendant sent a hyperlink to his own Briefcase
which contained child pornography. United States v. Hair, 178
F. App’x 879 (11th Cir. 2006). That court determined the
defendant was properly convicted of attempting to transport, and
transporting child pornography in violation of 18 U.S.C. §
2252A(1). Hair, 178 F. App’x at 885. Hair is distinguishable
from the instant case on several grounds: Hair was charged with
both attempted transportation and transportation of child
pornography, id. at 881; Navrestad was not charged with
attempted distribution but only distribution of child
pornography; the government in Hair also presented the
transportation charge under an aiding and abetting theory,
12
United States v. Navrestad, No. 07-0199/AR
arguing that by sending the hyperlink, Hair had assisted Yahoo!
in transporting child pornography, id. at 884; the Government
did not present an aiding and abetting theory on Navrestad’s
distribution charge;11 the hyperlink Hair sent was to his own
Briefcase over which he exercised dominion and control, id. at
883; the hyperlink Navrestad sent was to a public Briefcase over
which he exercised no dominion or control.12
We hold that under the facts of this case, the sending of a
hyperlink to a Yahoo! Briefcase does not constitute the
distribution of “child pornography” as that term is defined in
18 U.S.C. § 2256(5) and (8).
Possession of Child Pornography
We next address whether the evidence is legally sufficient
to support a conviction of possession of child pornography under
Article 134, UCMJ, clause 1 or 2. Both parties point to the
definition of “possess” contained in the Explanation to Article
112a, UCMJ, 10 U.S.C. § 912a (2000), which deals with the
possession of controlled substances:
11
An appellate court may not affirm a conviction on a theory not
presented to the trier of fact. Chiarella v. United States, 445
U.S. 222, 236-37 (1980); United States v. Riley, 50 M.J. 410,
415 (C.A.A.F. 1999); United States v. Standifer, 40 M.J. 440,
445 (C.M.A. 1994). “To do so ‘offends the most basic notions of
due process,’ because it violates an accused’s ‘right to be
heard on the specific charges of which he [or she] is accused.’”
United States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999)
(quoting Dunn v. United States, 442 U.S. 100, 106 (1979)).
13
United States v. Navrestad, No. 07-0199/AR
“Possess” means to exercise control of something.
Possession may be direct physical custody like holding
an item is [sic] one’s hand, or it may be
constructive, as in the case of a person who hides an
item in a locker or car to which that person may
return to retrieve it. Possession must be knowing and
conscious. Possession inherently includes the power
or authority to preclude control by others. It is
possible, however, for more than one person to possess
an item simultaneously, as when several people share
control of an item.
MCM pt. IV, para. 37.c.(2). This court has also evaluated
constructive possession in the drug context as having “dominion
or control” over the contraband. Young, 64 M.J. at 407. The
United States Court of Appeals for the Tenth Circuit has applied
that same definition to possession of child pornography, noting
the absence of a definition in the CPPA. United States v.
Tucker, 305 F.3d 1193, 1204 (10th Cir. 2002).
While Navrestad concedes that he viewed the images on the
public computer monitor, he argues that mere viewing does not
constitute sufficient control to constitute “possession.” In
support of this position he argues: he could not download the
images from the public computer to a portable storage device;
he did not have access to any of the files stored on the
computer’s hard drive; he had no control over the Yahoo!
Briefcase where the images were located; and while he could have
printed or e-mailed the images, there is no evidence that he did
12
The Army Criminal Investigation Command found no images of
child pornography in Navrestad’s own Yahoo! Briefcase over which
he did exercise control.
14
United States v. Navrestad, No. 07-0199/AR
so. The Government argues that Navrestad’s actions are
sufficient to constitute possession: he admittedly sought out
the images on the Internet; he viewed them on the computer
monitor; he had the ability to copy, print or e-mail the images
to others; and, he sent a hyperlink to the Yahoo! Briefcase that
contained the images to “Adam.”
The definition in MCM pt. IV, para. 37.c.(2), provides that
“[p]osses[sion] means to exercise control of something.”
Navrestad viewed the images in the Yahoo! Briefcase, but his
actions with the images went no further. He could not access
the computer’s hard drive where the Briefcase images were
automatically saved nor could he download the images to a
portable storage device. There is no evidence that he e-mailed,
printed or purchased copies of the images or that he was even
aware that he could take any of these actions. As to what
Navrestad might have been able to do with the images,
“possession” is not based upon unknown contingencies but “must
be knowing and conscious.” MCM pt. IV, para. 37.c.(2).
While MCM pt. IV, para. 37.c.(2), provides that
“[p]ossession inherently includes the power or authority to
preclude control by others[,]” Navrestad did not have the
ability to control who else would have access to the contents of
the Briefcases he was viewing. Finally, as we have held that
sending a hyperlink during a chat session to a Yahoo! Briefcase
15
United States v. Navrestad, No. 07-0199/AR
that contains child pornography does not constitute
“distribution” of child pornography, the fact that Navrestad
sent the hyperlink does not reflect “dominion” or “control” over
the child pornography images in the Briefcase. In this context,
viewing alone does not constitute “control” as that term is used
in MCM pt. IV, para. 37.c.(2).
The Government relies on several federal circuit court
decisions to support its argument that Navrestad’s actions in
this case constituted sufficient dominion and control over the
images to constitute possession. See United States v. Romm, 455
F.3d 990 (9th Cir. 2006); Tucker, 305 F.3d 1193. These cases
involve “possession” of child pornography under the CPPA. The
pivotal distinction between those cases and the instant case is
that both the circuit court cases involve images of child
pornography that had been saved to “temporary internet files” of
the defendant’s personal computers and the defendants in both
cases knew that the images were stored on their computers and
had ready access to the files. Romm, 455 F.3d at 1001; Tucker,
305 F.3d at 1205. In this case the Government has agreed that
while the Internet café computer saved the Yahoo! Briefcase
websites to a temporary Internet file, those files were not
accessible by Navrestad. In addition, there was no evidence at
trial that Navrestad had any knowledge that the images were even
being saved on the café computer.
16
United States v. Navrestad, No. 07-0199/AR
We hold that under the facts of this case, Navrestad
lacked the dominion and control necessary to constitute
“possession” of the child pornographic images.
Conclusion
As Navrestad’s actions are legally insufficient to support
a conviction for possession or distribution of child
pornography, the findings of the United States Army Court of
Criminal Appeals as to Specifications 4 and 5 are set aside.13
The remaining findings are affirmed. The record of trial is
returned to the Judge Advocate General of the Army for remand to
the United States Army Court of Criminal Appeals for sentence
reassessment.
13
There is no question that sexual crimes against minors
and the area of child pornography encompass a variety
of despicable crimes for which society has justifiably
proscribed serious penalties. We should not, however,
allow our disgust for [Navrestad’s] actions color our
judgment in evaluating the legal sufficiency of the
charges.
United States v. Hays, 62 M.J. 158, 170 (C.A.A.F. 2005)
(Erdmann, J., concurring in part and dissenting in part).
17
United States v. Navrestad, No. 07-0199/AR
EFFRON, Chief Judge, with whom STUCKY, Judge, joins
(dissenting):
Appellant accessed child pornography on the Internet,
personally selected specific sets of images for transmission to
a designated recipient, and used a hyperlink to transmit the
images to the recipient. The majority opinion concludes that
the record does not provide a legally sufficient basis for
sustaining Appellant’s convictions for distribution and
possession of child pornography. For the reasons set forth
below, I respectfully dissent.
I. APPELLANT’S POSSESSION AND DISTRIBUTION OF
CHILD PORNOGRAPHY ON THE INTERNET
Appellant’s experience with child pornography on the
Internet commenced more than two years prior to the events at
issue in the present appeal. He regularly accessed child
pornography on the Internet, usually about once a week.
Appellant, who did not own a computer, had an account at an
Internet cafe located on a military installation in Vilseck,
Germany. During one of his on-line sessions at the Internet
cafe, Appellant accessed a website known as a “Yahoo! chat room”
that specialized in conversations involving persons purporting
to be sexually active, underage males. The chat room provided
an opportunity for a person to engage in a one-on-one written
United States v. Navrestad, No. 07-0199/AR
communication with another individual that would not be visible
to others.
Appellant initiated a communication with an individual
whose profile indicated that he was a fifteen-year-old boy named
“Adam” who lived in New Hampshire. Appellant, who engaged in a
discussion of sexual matters with “Adam,” offered to send
pictures if “Adam” would engage in “phone sex.” Through the
chat room, Appellant transmitted a hyperlink to “Adam” for an
Internet site known as a “Yahoo! Briefcase.” “Adam,” who was a
New Hampshire police officer, clicked on the briefcase, which
contained eight sexually explicit pictures.
Appellant and “Adam” had added one another to their “buddy
lists,” which provided an on-screen indication as to whether
named persons were available for communicating in the chat room.
Several days later, Appellant returned to the Internet cafe,
logged onto a computer, accessed the chat room, and initiated
communication with “Adam.” In response to Appellant’s request
to engage in phone sex, “Adam” asked Appellant to send pictures.
After further chat room conversation of a sexual nature,
Appellant sent “Adam” two new hyperlinks for locations
containing sexually explicit pictures. He also transmitted the
hyperlink for the eight pictures he had shared during their
first online chat.
2
United States v. Navrestad, No. 07-0199/AR
The following week, Appellant initiated a third online chat
with “Adam.” Once again, the conversation focused on sexual
matters, including Appellant’s sexual interest in “Adam’s”
younger brother, a fictitious person whom Appellant believed to
be a real twelve-year-old boy. In response to “Adam’s” request
for pictures of “guys 10-14,” Appellant accessed a Yahoo!
Briefcase site that contained child pornography. After he
viewed the pictures to confirm that they contained child
pornography, he sent the hyperlink for those sites to “Adam” via
a chat room conversation. “Adam” promptly clicked on the
hyperlink, which revealed fifty-two pictures, the majority of
which depicted children under the age of eighteen engaged in
sexual acts and exhibition of genitalia.
The undercover detective, who posed as “Adam,” testified
that the pictures appeared on his computer as soon as he clicked
on the hyperlink and selected the individual photographs listed
as image files in the Yahoo! Briefcase. The detective explained
that the hyperlink provides a superior method of sending
pictures, as compared to sending files containing individual
pictures, noting that “you can send hundreds of pictures with a
single transmission, whereas if you actually send the individual
files, it’s going to take more time, and they have to be sent
one at a time.”
3
United States v. Navrestad, No. 07-0199/AR
II. LEGAL SUFFICIENCY OF THE EVIDENCE
The present appeal concerns Appellant’s convictions for
distributing and possessing child pornography, as modified and
affirmed by the Court of Criminal Appeals. The standard for
legal sufficiency involves a very low threshold to sustain a
conviction. See Jackson v. Virginia, 443 U.S. 307, 318 (1979).
As noted in the majority opinion, the standard is “‘whether,
considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.’” United States
v. Navrestad, __ M.J. __ (6) (C.A.A.F. 2008) (quoting United
States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006)).
A. Distribution
As affirmed by the Court of Criminal Appeals, Appellant was
convicted of distributing child pornography in violation of
Article 134, UCMJ, 10 U.S.C. § 934 (2000) (proscribing conduct
that is service discrediting or prejudicial to good order and
discipline). Assuming that the distribution charge incorporated
the terms of 18 U.S.C. § 2252A(a)(2) (2000), see Navrestad, __
M.J. at __ (3 n.3), Appellant must demonstrate on appeal that
the evidence was insufficient to convince a reasonable
factfinder that he knowingly distributed “child pornography” or
“material that contain[ed] child pornography,” and that he did
so “by any means, including by computer.” The term “child
4
United States v. Navrestad, No. 07-0199/AR
pornography,” which is not limited to images or pictures,
includes “data stored on computer disk or by electronic means
which is capable of conversion into a visual image.” 18 U.S.C.
§ 2256(5), (8) (2000).
In the present appeal, Appellant does not contest that he
was familiar with the procedures for accessing child pornography
on the Internet, that he knowingly accessed several sites on the
Internet in response to another person’s request to receive
child pornography, or that he knowingly selected specific images
for viewing by the recipient. Further, he does not contest that
he knowingly transmitted hyperlinks to the recipient in response
to the request for child pornography, or that he knew that his
action in transmitting the hyperlinks would provide the
recipient with near-instantaneous views of the specific child
pornography images selected by Appellant.
Appellant’s claim on appeal is that the evidence is
insufficient as a matter of law because transmission of a
hyperlink, a path to a website, does not meet the statutory
criteria for the offense of distribution. According to
Appellant, the hyperlink in the present case was not capable of
conversion into child pornography because the recipient could
not access the pornography through a one-step click on the
hyperlink. Appellant relies on the fact that the recipient of
the hyperlink had to take two steps to view the pornography:
5
United States v. Navrestad, No. 07-0199/AR
first, click on the briefcase to access the briefcase, and
second, click on a specific file in the briefcase to view the
child pornography.
The United States Court of Appeals for the Second Circuit,
in Universal City Studios, Inc. v. Corley, 273 F.3d 429, 456 (2d
Cir. 2001), encountered a similar objection when addressing the
issue of improper trafficking of copyrighted material under the
Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 1201-1332(Supp. V 1999). In Corley, the district court issued an
injunction prohibiting a company from posting software on its
website that facilitated improper access to copyrighted
materials through pirating software. Corley, 273 F. 3d at 434-
35. The company also posted hyperlinks to other websites where
the pirating software could be found. Id.In affirming the injunction against a variety of
challenges, including First Amendment considerations, the Second
Circuit offered the following description of the manner in which
a hyperlink permits distribution of restricted information:
A hyperlink is a cross-reference (in a distinctive
font or color) appearing on one web page that, when
activated by the point-and-click of a mouse, brings
onto the computer screen another web page. The
hyperlink can appear on a screen (window) as text,
such as the Internet address (“URL”) of the web page
being called up or a word or phrase that identifies
the web page to be called up, for example, “DeCSS web
site.” Or the hyperlink can appear as an image, for
example, an icon depicting a person sitting at a
computer watching a DVD movie and text stating “click
6
United States v. Navrestad, No. 07-0199/AR
here to access DeCSS and see DVD movies for free!”
The code for the web page containing the hyperlink
includes a computer instruction that associates the
link with the URL of the web page to be accessed, such
that clicking on the hyperlink instructs the computer
to enter the URL of the desired web page and thereby
access that page. With a hyperlink on a web page, the
linked web site is just one click away.
Id. at 455.
The Second Circuit agreed with the district court’s
conclusion that the DMCA, including statutory prohibitions
against trafficking, should apply to hyperlinks because of the
“functional capability” of the hyperlink even though the
hyperlink was merely a path rather than an actual version of the
pirating software. Id. at 456. Although the hyperlink did not
literally contain the pirating software, the Second Circuit
observed, “[a hyperlink] conveys information, the Internet
address of the linked web page, and has the functional capacity
to bring the content of the linked web page to the user’s
computer screen.” Id.As in the present case, the appellants in Corley contended
that a hyperlink should be treated as merely publication of an
address at which a third party might obtain prohibited material.
Id. The Second Circuit rejected the analogy, stating:
Appellants ignore the reality of the functional
capacity of . . . hyperlinks to facilitate
instantaneous unauthorized access to copyrighted
materials by anyone anywhere in the world. . . .
[T]he injunction’s linking prohibition validly
7
United States v. Navrestad, No. 07-0199/AR
regulates the Appellant’s opportunity instantly to
enable anyone anywhere to gain unauthorized access to
copyrighted movies on DVDs.
Id. at 457.
The Second Circuit emphasized that hyperlinks take one
“‘almost instantaneously to the desired destination.’” Id. at
456. Unlike a website address printed in the newspaper
describing where to find child pornography, a hyperlink provides
a means to transmit the content of the website to the user’s
computer. The recipient’s ability to access and use images
transmitted by hyperlink is functionally indistinguishable from
the ability to access and use images transmitted as individually
saved files.
In that context, the Second Circuit also rejected the
company’s suggestion that providing a hyperlink to a website
should be analogized to a newspaper publishing the address of a
bookstore that carries obscene materials. Id. at 456-57.
Focusing on the instantaneous distribution that occurs when a
website is accessed via a hyperlink:
Like many analogies posited to illuminate legal
issues, the bookstore analogy is helpful primarily in
identifying characteristics that distinguish it from
the context of the pending dispute. If a bookstore
proprietor is knowingly selling obscene materials, the
evil of distributing such materials can be prevented
by injunctive relief against the unlawful distribution
(and similar distribution by others can be deterred by
punishment of the distributor). And if others publish
the location of the bookstore, preventive relief
against a distributor can be effective before any
8
United States v. Navrestad, No. 07-0199/AR
significant distribution of the prohibited materials
has occurred. The digital world, however, creates a
very different problem. If obscene materials are
posted on one web site and other sites post hyperlinks
to the first site, the materials are available for
instantaneous worldwide distribution before any
preventive measures can be effectively taken.
Id. at 457.
The Second Circuit’s functional treatment of distribution
of information via hyperlinks in the context of the highly
sensitive First Amendment considerations applicable to copyright
litigation is consistent with the testimony developed during
Appellant’s trial. Witnesses for the Government established
that a hyperlink provided an efficient means of distributing
photographic images. One witness testified that although images
can be distributed numerous ways, use of a hyperlink is
“streamlined.” One click on the hyperlink brought the recipient
directly to the website, along with access to any files and
digital images located at that website. Through the hyperlink,
Appellant distributed child pornography by electronic means
capable of conversion into images within the meaning of the
statute, 10 U.S.C. §§ 2256(5), (8), and accomplished his
distribution in a manner far more expeditious and efficient than
if he had done so through traditional mail or by attaching
individual files to an e-mail.
There may well be situations in which the use of a
hyperlink falls outside of the proscriptions of the CPPA. The
9
United States v. Navrestad, No. 07-0199/AR
present case, however, does not involve unknowing or inadvertent
transmission, nor does it concern communications arguably
protected by the First Amendment or other applicable law.
Appellant used a hyperlink to send “Adam” fifty-two images of
child pornography -- images that the recipient could access with
a simple click on the hyperlink, followed by a click on the
individual images. Law enforcement officials testified that the
images included photographs of actual children who had been
sexually abused and photographed by adults. Accordingly, the
evidence was legally sufficient to sustain Appellant’s
conviction for distribution of child pornography.
B. Possession
Appellant contends that he did not possess child
pornography because possession entails more than viewing or
storage on a temporary Internet file. Assuming that mere
viewing through a medium in which images are stored on a
temporary file does not amount to possession, the present case
is not so limited. Appellant knowingly accessed a child
pornography website for purposes of transmitting images to
another person. After he accessed the website displaying the
images, he used hyperlinks to capture specific images, and
transmitted the images via the hyperlinks to another party. The
fact that others may have had the ability to access the website
as well does not diminish the fact that Appellant exercised
10
United States v. Navrestad, No. 07-0199/AR
sufficient dominion and control over the images to select
personally the pictures he wished to transmit, and to take the
necessary steps to distribute the pictures to a specific
recipient selected by Appellant without interference or control
by another person. In that context, the record contains ample
evidence under which a reasonable factfinder could conclude that
he possessed child pornography in a manner that was either
service discrediting or prejudicial to good order and discipline
under Article 134, UCMJ.
11