UNITED STATES, Appellee
v.
Christopher P. MARTINELLI, Specialist
U.S. Army, Appellant
No. 02-0623
Crim. App. No. 20000311
United States Court of Appeals for the Armed Forces
Argued April 13, 2004 and March 1, 2005
Decided September 28, 2005
ERDMANN, J., delivered the opinion of the court, in which EFFRON
and BAKER, JJ., joined. GIERKE, C.J., filed a separate opinion
concurring in part and dissenting in part. CRAWFORD, J., filed
a dissenting opinion.
Counsel
For Appellant: Captain Charles A. Kuhfahl Jr. (argued); Colonel
Adele H. Odegard, Colonel Robert D. Teetsel, Lieutenant Colonel
Mark Tellitocci, Major Sean S. Park, Major Jeanette K. Stone,
and Captain Mary C. Vergona (on brief).
For Appellee: Captain Janine P. Felsman and Captain Mason S.
Weiss (argued); Colonel Lauren B. Leeker, Colonel Steven T.
Salata, Lieutenant Colonel Margaret B. Baines, Lieutenant
Colonel Theresa A. Gallagher, and Lieutenant Colonel Mark L.
Johnson (on brief).
Military Judge: Kenneth H. Clevenger
This opinion is subject to revision before final publication.
United States v. Martinelli, No. 02-0623/AR
Judge ERDMANN delivered the opinion of the court.
This case presents yet another issue arising from the
prosecution of servicemembers for violating federal criminal
statutes relating to child pornography in the wake of Ashcroft
v. Free Speech Coalition, 535 U.S. 234 (2002). Specialist
Christopher Martinelli’s convictions are based upon violations
of the Child Pornography Prevention Act of 1996 (CPPA), 18
U.S.C. § 2252A (2000), the same statute that we addressed in
United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), and in
United States v. Mason, 60 M.J. 15 (C.A.A.F 2004).
Unlike the circumstances in O’Connor and Mason, however,
the conduct underlying Martinelli’s conviction occurred outside
the United States -- specifically in Darmstadt, Germany. We
granted review of this case to examine the question of whether
the CPPA applies to conduct engaged in outside the territorial
boundaries of the United States when charged under clause 3 of
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934 (2000).
We hold that the CPPA does not have extraterritorial
application and therefore does not extend to Martinelli’s conduct
in Germany. We further hold that Martinelli’s conduct under
Specification 1 occurred in both Germany and the United States
and therefore falls within the domestic application of the CPPA.
We also hold that Martinelli’s plea to Specification 1 was not
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provident under O’Connor. Finally, although we have held that
servicemembers can be prosecuted under clauses 1 and 2 of
Article 134 for offenses involving “virtual” children,
Martinelli’s guilty pleas to the CPPA-based specifications
cannot be deemed provident to lesser included offenses under
clauses 1 and 2 under the principles discussed in Mason, 60 M.J.
at 18-20.
PROCEDURAL BACKGROUND
Martinelli entered guilty pleas and was convicted by
general court-martial in April 2000 on four CPPA-based
specifications under clause 3 of Article 134, UCMJ (sending,
receiving, reproducing and possessing child pornography) and one
specification of obstructing justice in violation of Article
134, UCMJ. He was sentenced by the military judge to a
dishonorable discharge, confinement for three years, forfeiture
of all pay and allowances and reduction to the lowest enlisted
grade. In accordance with the terms of a pretrial agreement,
the convening authority reduced the confinement to eighteen
months, but approved the balance of the sentence.
Before the Army Court of Criminal Appeals, Martinelli
argued that his child pornography conviction must be reversed
because the statute underlying it was unconstitutionally vague
and overbroad. Martinelli based this contention on a Ninth
Circuit decision that had been granted certiorari but not yet
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United States v. Martinelli, No. 02-0623/AR
decided by the United States Supreme Court. See Free Speech
Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted
sub nom. Ashcroft v. Free Speech Coalition, 531 U.S. 1124 (2001).
Prior to the Supreme Court issuing its decision, however, the
Court of Criminal Appeals reviewed Martinelli’s case and
summarily affirmed his conviction and sentence. United States v.
Martinelli, No. Army 20000311 (A. Ct. Crim. App. Feb. 7, 2002)
(unpublished).
Martinelli then petitioned this court for review of the
Court of Criminal Appeals decision. By that time, the Supreme
Court had upheld the Ninth Circuit ruling upon which Martinelli
had based the challenge to his conviction. See Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002). We granted review of
Martinelli’s Issue I in which he challenged his CPPA-based
convictions under clause 3 of Article 134 in light of Free Speech
Coalition and we specified an issue addressing whether the CPPA
had extraterritorial application.1 Following argument on these
1
On November 24, 2003 we granted review of the following issues:
I. WHETHER APPELLANT'S GUILTY PLEAS TO SPECIFICATIONS 1,
2, 3 AND 4 OF THE CHARGE WERE IMPROVIDENT BECAUSE THE
MILITARY JUDGE PROVIDED AN UNCONSTITUTIONALLY
OVERBROAD DEFINITION OF CHILD PORNOGRAPHY AND DID NOT
CONDUCT AN ADEQUATE PROVIDENCE INQUIRY, AS REQUIRED BY
UNITED STATES v. CARE, 18 U.S.C.M.A. 535, 40 C.M.R.
247 (1969), AND ITS PROGENY.
II. WHETHER 18 U.S.C. SECTIONS 2252A(a)(1)-(a)(3) AND
(a)(5)(A) APPLY TO CONDUCT ENGAGED IN OUTSIDE THE
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initial issues,2 the court ordered supplemental briefing on two
additional issues related to the extraterritorial application of
the CPPA.3 The case was reargued with inclusion of the two
additional issues.
FACTUAL BACKGROUND
Martinelli’s CPPA convictions are grounded in four discrete
actions that he took with respect to images of “child
pornography.” Beginning in January 1999 and continuing through
January 2000, Martinelli downloaded images of child pornography
from the Internet using computers located at the off-post
Netzwork Internet Café in Darmstadt, Germany. He would search
Internet websites and log into Internet chat rooms in order to
communicate with individuals willing to send him images. He
TERRITORIAL LIMITS OF THE UNITED STATES WHEN CHARGED
UNDER CLAUSE 3 OF ARTICLE 134, UCMJ.
2
We first heard oral argument in this case at the United States
Coast Guard Academy, New London, Connecticut, as part of this
court’s “Project Outreach.” This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military justice system.
3
On October 22, 2004 we granted the additional specified issues:
III. WHETHER 18 U.S.C. §§ 2252A(a)(1)–(a)(3) APPLY TO AN
INDIVIDUAL WHO SENDS, RECEIVES, AND REPRODUCES
ELECTRONIC FILES CONTAINING CHILD PORNOGRAPHY AT AN
INTERNET CAFÉ LOCATED OFF POST IN GERMANY.
IV. WHETHER 18 U.S.C. §§ 2252A(a)(1)–(a)(3) ARE BEING
APPLIED DOMESTICALLY OR EXTRATERRITORIALLY WHEN E-
MAILS CONTAINING CHILD PORNOGTRAPHY ARE SENT THROUGH
E-MAIL OR INTERNET SERVICE PROVIDER SERVERS LOCATED
IN THE UNITED STATES.
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would ultimately secure the images through one of two distinct
routes: (1) he would receive materials via electronic mail (e-
mail) sent by other individuals to e-mail accounts that he
maintained with either Yahoo! or Hotmail or (2) he would be
directed by individuals to their respective web pages, from
which Martinelli would secure the images directly. Under either
scenario, he would download the images from the e-mail
attachments or web page contents to the hard drive of a computer
at the Netzwork Café. Martinelli received at least sixty-four
images of child pornography in this fashion.
After receiving the images, Martinelli would copy them in
order to distribute them to other individuals in the form of
attachments to e-mail transmissions. He transmitted some of
these images to other individuals via his Yahoo! and Hotmail
accounts, sending approximately twenty such messages over the
relevant time period.
Martinelli also copied the images from the hard drives of
the computers at the Netzwork Café to a separate disk, which he
then took back to his barracks at the Cambrai Fritsch Kaserne, a
United States Army installation in Darmstadt, Germany. At the
barracks he would either keep the images on the disk or load
them onto the hard drive of his computer.
Martinelli was charged with the following violations of the
CPPA under clause 3 of Article 134:
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United States v. Martinelli, No. 02-0623/AR
Specification 1: knowingly mailing, transporting or
shipping child pornography in interstate or foreign
commerce (by computer) in violation of § 2252A(a)(1)
(specifically, sending images over the Internet from the
Netzwork Internet Café in Darmstadt, Germany);
Specification 2: knowingly receiving child pornography
that has been mailed, shipped or transported in interstate
or foreign commerce (by computer) in violation of
§ 2252A(a)(2)(A) (specifically, downloading images from the
Internet in the Netzwork Internet Café in Darmstadt,
Germany);
Specification 3: knowingly reproducing child pornography
for distribution through the mails, or in interstate or
foreign commerce (by computer) in violation of
§ 2252A(a)(3) (specifically, downloading images from the
Internet; copying them to hard drive and transmitting the
copied files to approximately twenty individuals over the
Internet in the Netzwork Internet Café in Darmstadt,
Germany);
Specification 4: knowingly possessing child pornography on
land and in a building used by and under the control of the
United States Government in violation of § 2252A(a)(5)(A)
(specifically, possessing approximately fifty diskettes
containing child pornography in buildings at the Cambrai
Fritsch Kaserne).
DISCUSSION
A. Standard of Review
This case involves a guilty plea. For this court to reject
a guilty plea on appellate review, the record of trial must show
a substantial basis in law and fact for questioning the plea.
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)(citing
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).
Whether Congress intended the CPPA to have extraterritorial
application is a question of statutory interpretation.
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United States v. Martinelli, No. 02-0623/AR
Interpretation of a statute and its legislative history are
questions of law that we review de novo. United States v. Falk,
50 M.J. 385, 390 (C.A.A.F. 1999).
B. The Nature of the Charge under Article 134
Martinelli’s conduct was charged as a violation of Article
134, UCMJ -- the “General Article.” Conduct is punishable under
Article 134 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). O’Connor, 58 M.J. at 452.
As was the case in both O’Connor and Mason, Martinelli’s conduct
was specifically charged as a “clause 3” offense, with the CPPA
serving as the “crime or offense not capital.”
The initial question that we specified for review is
ostensibly straightforward -- does the CPPA apply to
Martinelli’s conduct in Germany? The President, in the Manual
for Courts-Martial, has stated that:
A person subject to the [UCMJ] may not be punished under
clause 3 of Article 134 for an offense that occurred in a
place where the law in question did not apply. For
example, a person may not be punished under clause 3 of
Article 134 when the act occurred in a foreign country
merely because that act would have been an offense under
the United States Code had the act occurred in the United
States. Regardless where committed, such an act might be
punishable under clauses 1 or 2 of Article 134.
Manual for Courts-Martial, United States (2002 ed.) (MCM), pt.
IV, ¶ 60.c.(4)(c)(i) (emphasis added). As a uniformed
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servicemember stationed in Germany, Martinelli was
unquestionably subject to the jurisdiction of the UCMJ. See
Articles 2(a)(1) and 5, UCMJ, 10 U.S.C. §§ 802(a)(1), 805
(2000). There is also no question that the CPPA, if charged
under clause 3 of Article 134, would be applicable to
Martinelli’s conduct had he engaged in these acts in an Internet
cafe in Killeen, Texas and then carried the disks back to a
barracks room on Fort Hood. Similarly, his conduct might well
be punishable under clauses 1 and 2 of Article 134 regardless of
where it occurred.
The question we address today is not the jurisdiction of
the UCMJ itself, but rather whether the CPPA has
extraterritorial application under clause 3 of Article 134.4 If
we find that the CPPA, as a “crime or offense not capital,” is
not applicable to Martinelli’s conduct in Germany, we must then
consider whether, due to the nature of his usage of the
Internet, his conduct fell within the domestic application of
the CPPA. To the extent that we find that Martinelli’s conduct
fell within the domestic application of the CPPA, we must then
consider whether his guilty pleas were provident in light of
O’Connor. Finally, if we find that Martinelli’s pleas were
4
The question of the extraterritorial application of federal
statutes has nothing to do with the jurisdiction of the federal
courts. It is a question of substantive law, which turns on the
intent of Congress that a particular statute have
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improvident under clause 3 of Article 134 for either reason, we
must determine whether they would be provident to lesser
included offenses under clauses 1 or 2 of Article 134.
C. The Extraterritorial Application of the CPPA
(1) Presumption Against Extraterritoriality
The extraterritorial application of Federal statutes does
not involve any question as to Congress’ authority to enforce
its criminal laws beyond the territorial boundaries of the
United States -- Congress clearly has that authority. United
States v. Bowman, 260 U.S. 94, 98-103 (1922). Rather, the
question here is whether Congress has in fact exercised that
authority, which is a matter of statutory construction. Equal
Employment Opportunity Commission v. Arabian American Oil Co.
(Aramco), 499 U.S. 244, 248 (1991).
The Supreme Court has recognized as a longstanding
principle of American law “‘that legislation of Congress, unless
a contrary intent appears, is meant to apply only within the
territorial jurisdiction of the United States.’” Id. (quoting
Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)); see also
Small v. United States, 125 S. Ct. 1752, 1755 (2005). We must
assume that Congress legislates against the backdrop of the
presumption against extraterritoriality. Aramco, 499 U.S. at
248. Unless the “affirmative intention” of Congress to give
extraterritorial application. See Hartford Fire Ins. Co. v.
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United States v. Martinelli, No. 02-0623/AR
extraterritorial effect to a statute is “clearly expressed,” it
is presumed that the statute is “primarily concerned with
domestic conditions.” Id. (quoting Benz v. Compania Naviera
Hidalgo, S.A., 353 U.S. 138, 147 (1957) and Foley Bros., 336
U.S. at 285).
The presumption against extraterritoriality has been
recognized in the specific context of criminal statutes, with an
“exception” for a certain class of offenses:
Crimes against private individuals or their property, like
assaults, murder, burglary, larceny, robbery, arson,
embezzlement, and fraud of all kinds, which affect the
peace and good order of the community, must of course, be
committed within the territorial jurisdiction of the
government where it may properly exercise it. If
punishment of them is to be extended to include those
committed outside of the strict territorial jurisdiction,
it is natural for Congress to say so in the statute, and
failure to do so will negative the purpose of Congress in
this regard. . . .
But the same rule of interpretation should not be
applied to criminal statutes which are, as a class, not
logically dependent on their locality for the Government’s
jurisdiction, but are enacted because of the right of the
Government to defend itself against obstruction, or fraud
wherever perpetrated, especially if committed by its own
citizens, officer or agents. Some such offenses can only
be committed within the territorial jurisdiction of the
Government because of the local acts required to constitute
them. Others are such that to limit their locus to the
strictly territorial jurisdiction would be greatly to
curtail the scope and usefulness of the statute and leave
open a large immunity for frauds as easily committed by
citizens on the high seas and in foreign countries as at
home. In such cases, Congress has not thought it necessary
to make specific provision in the law that the locus shall
include the high seas and foreign countries, but allows it
to be inferred from the nature of the offense.
California, 509 U.S. 764, 813 (1993) (Scalia, J., dissenting).
11
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Bowman, 260 U.S. at 98. We have previously characterized Bowman
as drawing a distinction between:
(1) statutes punishing crimes against the peace and good
order of the community (which apply only to [acts]
committed within the territorial jurisdiction of the United
States unless Congress had specifically directed
otherwise); and (2) statutes punishing fraud or
obstructions against the United States Government (which
include by implication acts which were committed in foreign
countries).
United States v. Gladue, 4 M.J. 1, 5 (C.M.A. 1977).
The principles articulated by the Supreme Court in Aramco
and Bowman can be harmonized to provide the following analytical
framework for assessing whether the CPPA was intended to have
extraterritorial effect: Unless the CPPA can be viewed as
falling within the second category described in Bowman
(“criminal statutes which are, as a class, . . . enacted because
of the right of the government to defend itself against
obstruction, or fraud wherever perpetrated,” 260 U.S. at 98),
the statute is subject to the presumption against
extraterritoriality recognized in both Bowman and Aramco.
We do not believe that the CPPA can be viewed as a “second
category” offense under Bowman and thus exempt from application
of the presumption against extraterritoriality. The ultimate
objective behind the criminal proscription of activities
pertaining to child pornography is to protect children from
abuse. Free Speech Coalition, 535 U.S. at 245. While few
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United States v. Martinelli, No. 02-0623/AR
crimes are more serious or morally repugnant, child abuse does
not involve “fraud” or “obstruction” against the United States
Government. Rather, child abuse epitomizes that class of
“[c]rimes against private individuals [including children]” that
“affect the peace and good order of the community” described in
the first category of Bowman. 260 U.S. at 98.
We are aware of the body of law, primarily from the Ninth
Circuit, that does not read the second category in Bowman as
limited to crimes against the Government. See, e.g., United
States v. Vasquez-Velasco, 15 F.3d 833, 839 n.4 (9th Cir. 1993);
United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir. 1990).
Those cases all trace their roots, in one fashion or another,
back to United States v. Baker, 609 F.2d 134, 136 (5th Cir.
1980), where the Fifth Circuit read Bowman as allowing a court,
in the absence of any expression of congressional intent, to
“infer” Congress’ intent to provide for extraterritorial
application “from the nature of the offenses and Congress’ other
legislative efforts to eliminate the type of crime involved.”5
5
For a critical discussion of the roles of Congress, the
Executive and the judiciary regarding the extraterritorial
application of federal statutes, see Mark P. Gibney, The
Extraterritorial Application of U.S. Law: The Perversion of
Democratic Governance, The Reversal of Institutional Roles, and
the Imperative of Establishing Normative Principles, 19 B.C.
Int’l & Comp. L. Rev. 297, 308 (1996).
13
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The Baker court concluded that a federal statute prohibiting
drug possession with intent to distribute fell within “the
second category described in Bowman” and thus was intended to
apply extraterritorially. Id. at 137.
The holding in Baker has been subsequently used to support
the “inference” of a congressional intent for extraterritorial
application in several circumstances that do not involve crimes
against the Government, including child pornography-related
offenses. See, e.g., United States v. Harvey, 2 F.3d 1318, 1327
(3d Cir. 1993)(sentencing guidelines for child pornography
offenses); Thomas, 893 F.2d at 1068-69 (production of child
pornography under 18 U.S.C. § 2251). We disagree, however, with
Baker’s expanded view of the “second category” offenses in
Bowman. The phrase “inferred from the nature of the offense” in
Bowman was clearly cast in reference to the “class” of criminal
statutes involving fraud or obstruction against the Government
and is not a free standing principle of statutory construction:
But the same rule of interpretation should not be applied
to criminal statutes which are, as a class, not logically
dependent on their locality for the Government’s
jurisdiction, but are enacted because of the right of the
Government to defend itself against obstruction, or fraud
wherever perpetrated, especially if committed by its own
citizens, officers or agents. . . . In such cases,
Congress has not thought it necessary to make specific
provision in the law that the locus shall include the high
seas and foreign countries, but allows it to be inferred
from the nature of the offense.
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260 U.S. at 98.6
Accordingly, we adhere to the view we originally expressed
in Gladue. The only category of offenses exempt under the
language of Bowman from any presumption against
extraterritoriality and for which a congressional intent for
extraterritorial application can be “inferred from the nature of
the offense” are those involving “obstructions” and “frauds”
against the Government. See United States v. Gatlin, 216 F.3d
207, 211 n.5 (2d Cir. 1999).
(2) Indicia of Congressional Intent
Our conclusion that the CPPA is subject to a presumption
against extraterritoriality under Aramco and Bowman does not end
our inquiry into its applicability. We now “look to see whether
‘language in the [relevant statute] gives any indication of a
congressional purpose to extend its coverage beyond places over
which the United States has sovereignty or has some measure of
legislative control.’” Aramco, 499 U.S. at 248 (quoting Foley
Bros., 336 U.S. at 285). In searching for the clear expression
of congressional intent required by Aramco, we are not limited
to the text of the statute and can “consider ‘all available
evidence’ about the meaning of the statute, including its text,
6
We also note that the Baker concept of “inferring”
extraterritorial intent based on the nature of the offense and
Congress’ other efforts to eliminate the type of crime involved
could apply to almost any crime committed anywhere in the world.
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structure, and legislative history.” Gatlin, 216 F.3d at 212
(quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 177
(1993)).
(a) Text and Structure
Our reading of the CPPA does not find any indication in the
text and structure of the statute of a congressional purpose to
extend its coverage. See Bradley Scott Shannon, The
Jurisdictional Limits of Federal Criminal Child Pornography Law,
21 Hawaii L. Rev. 73, 106 (1999) (noting that the language of
the CPPA “do[es] not clearly express an intent” that the statute
is to apply extraterritorially). The text and structure of the
statute prohibits five categories of conduct:
• mailing, transporting or shipping child pornography in
interstate or foreign commerce by any means, including
by computer (18 U.S.C. § 2252A(a)(1));
• receipt or distribution of child pornography that has
been mailed, shipped or transported in interstate or
foreign commerce by any means, including by computer
(18 U.S.C. § 2252A(a)(2)(A), (B));
• reproduction of child pornography for distribution by
mail or interstate or foreign commerce, including by
computer (18 U.S.C. § 2252A(a)(3)(A));
• sale or possession with intent to sell of (1) child
pornography that has moved in interstate or foreign
commerce by any means, including by computer or was
produced using materials that have moved in commerce
or (2) any child pornography “in the special maritime
and territorial jurisdiction of the United States, or
on any land or building owned by, leased to, or
otherwise used by or under the control of the United
This would turn the presumption against extraterritorial
application on its head where criminal statutes are involved.
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States Government, or in the Indian country (as
defined in section 1151). . . . ” (18 U.S.C. §
2252A(a)(4)(A), (B)); and
• possession of (1) child pornography that has moved in
interstate or foreign commerce by any means, including
by computer or was produced using materials that have
moved in commerce or (2) any child pornography “in the
special maritime and territorial jurisdiction of the
United States, or on any land or building owned by,
leased to, or otherwise used by or under the control
of the United States Government, or in the Indian
country (as defined in section 1151). . . .” (18
U.S.C. § 2252A(a)(5)(A), (B)).
The criminal acts in the first three subsections all refer
to the movement of child pornography “in interstate or foreign
commerce,” whether it be the act of moving the material itself
(§ 2252A(a)(1)) or the acts of receiving, distributing or
reproducing for distribution materials that have moved in that
fashion (§ 2252A(a)(2)-(3)).
The criminal acts in the final two subsections are sale,
possession with intent to sell, and simple possession. Under
these subsections, criminal liability can attach under either of
two separate circumstances. The first involves the same
“interstate or foreign commerce” context attendant to the
offenses in § 2252A(a)(1)-(3). The second circumstance is
purely dependent on physical location or the “situs” of the
defendant -- if the requisite act occurs “in the special
maritime and territorial jurisdiction of the United States, or
on any land or building owned by, leased to or otherwise used by
or under the control of the United States Government,” it does
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not matter whether the child pornography ever moved in commerce.
See § 2252A(a)(4)(A), (5)(A).
There are two aspects of the statutory language in §
2252A(a)(1)–(a)(5) that could possibly be read as expressing
congressional intention as to extraterritorial effect -- (1) the
references to “interstate or foreign commerce” and (2) the situs
language in § 2252A(a)(4)(A), (a)(5)(A). In terms of the
former, they are not, in and of themselves, a “clear expression”
of any congressional intention that the acts proscribed by the
statute constitute a federal crime no matter where in the world
they occur. Rather, we view them as a straightforward reference
to the source authority of Congress for proscribing these acts
as criminal in the first instance, i.e., the Commerce Clause of
the United States Constitution:
Many Acts of Congress are based on the authority of that
body to regulate commerce among the several States, and the
parts of these Acts setting forth the basis for legislative
jurisdiction will obviously refer to such commerce in one
way or another. If we were to permit possible, or even
plausible, interpretations of language such as that
involved here to override the presumption against
extraterritorial application, there would be little left of
the presumption.
Aramco, 499 U.S. at 253. The use of the term “foreign commerce”
in addition to “interstate commerce” does not alter that
conclusion, as the Supreme Court “has repeatedly held” that even
statutes that expressly refer to “foreign commerce” do not apply
abroad. Id. at 251.
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That leaves the situs language in §§ 2252A(a)(4)(A) and
2252A(a)(5)(A) as a possible basis for overcoming the
presumption against extraterritoriality. There are three
alternative locations referenced in the statute:
• “the special maritime and territorial jurisdiction of
the United States”; or
• “any land or building owned by, leased to, or
otherwise used by or under the control of the United
States Government”; or
• “the Indian country” (as defined in 18 U.S.C. § 1151).
The reference to Indian country reflects a congressional
focus on complex jurisdictional issues that flow from the
unique, and inherently domestic, relationship between the United
States Government and American Indians. It certainly does not
reflect any clear legislative concern for matters arising
outside the territorial boundaries of the United States.
The term “special maritime and territorial jurisdiction of
the United States” is, like “Indian country,” a term of art that
carries its own distinct definition. See 18 U.S.C. § 7 (2000).
That term of art has been the subject of different
interpretations as to its extraterritorial reach, particularly
whether it extends to lands within the territory of a sovereign
foreign nation. See, e.g., United States v. Corey, 232 F.3d
1166, 1183 (9th Cir. 2000)(term includes property inside Yokota
19
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Air Base in Japan and private apartment building rented by
United States embassy in Philippines); Gatlin, 216 F.3d at 220
(term does not include housing complex on U.S. Army base in
Darmstadt, Germany).
We conclude that the depth and complexity of the debate
reflected in Corey and Gatlin inherently demonstrates something
less than a “clear expression” of congressional intention that
the term “special maritime and territorial jurisdiction of the
United States” extends to lands inside the boundaries of a
foreign nation. Further, Congress has since acted to resolve
the specific subject of the debate in Corey and Gatlin, which
was narrowly focused on the reach of certain federal criminal
statutes to conduct engaged in overseas by civilians employed by
or accompanying the armed forces. See Military Extraterritorial
Jurisdiction Act of 2000, Pub. L. No. 106-523, 114 Stat. 2488
(codified at 18 U.S.C. § 3261) (MEJA). Congress used MEJA to
create a new federal criminal offense involving conduct engaged
in “outside the United States” that would otherwise constitute a
felony if the conduct had been engaged in “within the special
maritime and territorial jurisdiction of the United States.” 18
U.S.C. § 3261 (a) (2000).7
7
See also Glen R. Schmitt, Closing the Gap in Criminal
Jurisdiction Over Civilians Accompanying the Armed Forces Abroad
-- A First Person Account of the Creation of the Military
Extraterritorial Jurisdiction Act of 2000, 51 Cath. U. L. Rev.
55, 78, 113-14 (2001).
20
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The remaining situs language refers to conduct occurring
“on any land or building owned by, leased to, or otherwise used
by or under the control of the United States Government.” That
language undoubtedly reflects a congressional intent to
criminally proscribe conduct in physical locations where the
United States Government enjoys some type of proprietary control
over the location. The language, however, does not provide
clear evidence of a congressional intent that the statute should
apply outside the boundaries of the United States. That
language could just as easily apply only to land and buildings
located within the territorial United States such as national
parks, federal office buildings and domestic military
installations.
We also note that the language concerning “land or
building” does not stand alone, but is instead bracketed by
language dealing with the “special maritime and territorial
jurisdiction of the United States” and “the Indian country (as
defined in section 1151).” Under the canon of statutory
construction noscitur a sociis (a word is known by the company
it keeps), it is reasonable to conclude that Congress intended
the “land or building” language to have the same domestic
application as evidenced in the surrounding language. See Amgen
Inc. v. Smith, 357 F.3d 103, 112-13 (D.C. Cir. 2004) (applying
the canon of noscitur a sociis to support consistent
21
United States v. Martinelli, No. 02-0623/AR
interpretation of separate phrases within a statutory section);
In re Application of the United States for an Order Authorizing
the Roving Interception of Oral Communications, 349 F.3d 1132,
1142-43 (9th Cir. 2003) (using the canon of noscitur a sociis to
interpret a section of the federal wiretapping statute); see
also United States v. Hicks, 6 C.M.A. 621, 623, 20 C.M.R. 337,
339 (1956).
We do not view the statutory phrases discussed above,
either individually or collectively, as the type of “clear
expression” of congressional intention required by Aramco. The
analysis dictated by Bowman and Aramco requires that the
statutory text reflect a clear expression of Congress’ intent
that the statute have extraterritorial reach. Aramco, 499 U.S.
at 248. The language must be clear enough to overcome a
presumption that it was intended to apply domestically, not
simply lend itself to a plausible argument that it applies
overseas. Mere plausibility is not sufficient to overcome the
presumption. Id. In the context of that presumption, we do not
view the “any land or building” language of §§ 2252A(a)(4)(A)
and 2252A(a)(5)(A) as a “clear expression” by Congress that it
have extraterritorial application.
(b) Legislative History
Having concluded that the text and structure of the CPPA do
not express any clear intent by Congress that the statute apply
22
United States v. Martinelli, No. 02-0623/AR
extraterritorially, we reach the same conclusion with respect to
its legislative history. The clear focus of that legislative
history is on the patent evils of child pornography and the new
dimension that computer technology adds to those evils. See
Congressional Findings, notes following 18 U.S.C.A. § 2251, 18
U.S.C.S. 2251. Although the history contains extensive
discussion of those issues, it is devoid of any reference to
issues of extraterritoriality, much less any clear expression of
congressional intent in that regard. See S. Rep. No. 104-358,
at 12-23 (1996).
(c) Examples of Clear Congressional Intent
Our conclusion regarding the absence of any clearly
expressed intent by Congress that the CPPA apply
extraterritorially is bolstered by the numerous instances where
such intent has been clearly expressed. Even in the specific
context of child pornography, Congress knows how to makes its
intention clear that a particular criminal statute extend to
conduct engaged in outside the United States. See, e.g., 18
U.S.C. § 2260(b)(“a person who, outside the United States,
knowingly receives, transports, . . . any visual depiction of a
minor engaging in sexually explicit conduct . . . intending that
the visual depiction will be imported into the United States”);
18 U.S.C. § 2251(c)(1)(“[a]ny person who . . . employs, uses, .
. . any minor to engage in, or who has a minor assist any other
23
United States v. Martinelli, No. 02-0623/AR
person to engage in, any sexually explicit conduct outside of
the United States”).
Congress has clearly expressed its intent in other criminal
statutes as well: the Biological Weapons Anti-Terrorism Act of
1989 provides, “There is extraterritorial federal jurisdiction
over an offense under this section committed by or against a
national of the United States,” 18 U.S.C. § 175(a) (2000); the
Maritime Drug Law Enforcement Act provides, “This section is
intended to reach acts of possession, manufacture, or
distribution committed outside the territorial jurisdiction of
the United States.” 46 U.S.C. app. § 1903(h) (2000).
Congress also amended 18 U.S.C. § 7 (2000), which defines
the “special maritime and territorial jurisdiction” of the
United States, as part of the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No.
107-56, 115 Stat. 272 (2001). The USA PATRIOT Act amendments
inserted a new provision that, with respect to “offenses
committed by or against a national of the United States,”
extends the special maritime and territorial jurisdiction of the
United States under 18 U.S.C. § 7 to the “premises of . . .
diplomatic, consular, military or other . . missions . . in
foreign States. . . .” USA PATRIOT Act § 804 (codified at 18
U.S.C. § 7(9)(A)). This is a clear expression of congressional
24
United States v. Martinelli, No. 02-0623/AR
intent that a crime committed in “the special maritime and
territorial jurisdiction” now includes conduct that may in some
instances have occurred inside the boundaries of a foreign
nation.
Finally, we note Congress’ ability to make its intentions
in this regard clear with respect to a broad range of criminal
acts rather than a single crime. In legislation proscribing
“[a]cts of terrorism transcending national boundaries,” Congress
has provided that the statute extends to “conduct occurring
outside of the United States in addition to conduct occurring
inside of the United States” and that “[t]here is
extraterritorial Federal jurisdiction” over the wide range of
offenses described in the statute. See 18 U.S.C. § 2332(e),
(g)(1) (2000). These examples of express congressional intent
constitute various indicia, none of which are present with
respect to the CPPA.
To reach the conclusion urged by the Government, that
Congress intended the CPPA to criminalize conduct inside the
boundaries of sovereign foreign countries,8 we would have to
8
Unless restricted by Congress, a statute with a clear
congressional intent of extraterritorial effect, applies to
foreign nationals as well as United States nationals. Such an
interpretation raises international law concerns. See United
States v. Delgado-Garcia, 374 F.3d 1337, 1344–45 (D.C. Cir.
2004); see also id. at 1351–62 (Rogers, J., dissenting);
Restatement (Third) of Foreign Relations Law of the United
States §§ 401-03 (1987).
25
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disregard the Bowman and Aramco presumption and the absence of
these indicia. The rules of statutory construction laid down by
the Supreme Court simply do not support that conclusion.
Accordingly, we cannot view the CPPA as overcoming the
presumption against extraterritorial application dictated by
Bowman and Aramco. The charges against Martinelli fall squarely
within the example the President described in the Manual for
Courts-Martial, i.e., “a person may not be punished under clause
3 of Article 134 when the act occurred in a foreign country
merely because that act would have been an offense under the
United States Code had the act occurred in the United States.”
MCM, pt. IV, ¶ 60.c.(4)(c)(i). As a result, there is a
substantial basis in law and fact for viewing Martinelli’s
guilty pleas to the CPPA-based clause 3 offenses under Article
134 for conduct occurring in Germany as improvident.
D. The Domestic Application of the CPPA
Martinelli stipulated that all of the e-mails that he sent
or received at his Yahoo! or Hotmail e-mail accounts were
electronically routed through the servers in the United States.9
This connection to the United States raises the possibility that
the CPPA could be applied domestically to the three
9
We address only those instances where e-mails were routed
through Martinelli’s U.S.-based e-mail accounts. Martinelli did
not stipulate, nor is there any evidence on the record, that he
utilized U.S.-based servers when he downloaded child pornography
26
United States v. Martinelli, No. 02-0623/AR
specifications that were based upon e-mail messages sent or
received through Martinelli’s e-mail accounts.10 Martinelli
argues that in each specification, the charge sheet alleges that
the conduct occurred only “at or near Darmstadt, Germany” and
therefore the Government put him on notice that the misconduct
occurred in Germany. He argues that the situs of the offenses
was in Germany and the fact that the material may have been
routed through an Internet server located in the United States
does not transform what was an extraterritorial act into a
domestic act.
The Government responds that there was more than one situs
for Martinelli’s misconduct and that the prosecution was proper
under either a domestic or extraterritorial application of the
CPPA. The Government contends that because the Internet server
was located in the United States and due to the continuing
nature of the offenses involved (sending, receiving, and
reproducing child pornography) a part of each offense was
committed in the United States. Therefore the Government argues
that a domestic application of the CPPA is proper. The
Government cites United States v. Moncini, 882 F.2d 401 (9th
Cir. 1989), in support of its position.
directly from websites and we therefore do not address that
issue.
10
Specification 4 is the situs based possession charge and the
specification did not allege movement through the Internet.
27
United States v. Martinelli, No. 02-0623/AR
In Moncini, a citizen and resident of Italy was arrested as
he entered the United States and was tried in the United States
District Court for the Central District of California for
mailing child pornography from Italy to an undercover officer in
California in violation of 18 U.S.C. § 2252. Moncini, 882 F.2d
at 403. Prior to his trial Moncini filed a motion to dismiss
the indictment for lack of personal jurisdiction. The trial
court denied his motion on the ground that the mailings were
“continuing offenses which continued to take place as Moncini’s
letters traveled from Italy to California, giving the court
territorial jurisdiction.” Id. The trial court found, in the
alternative, that extraterritorial jurisdiction would be proper.
Id.
Moncini was convicted and on appeal he again urged a lack
of jurisdiction. The Ninth Circuit affirmed the lower court’s
decision explaining that “[j]urisdiction is proper if the
offense, or part of the offense, occurred within the United
States.” Id. (citing Rocha v. United States, 288 F.2d 545, 547
(9th Cir. 1961)). The court went on to explain that “Moncini’s
mailing of child pornography was a continuing offense, so that
part of the offense was committed in the United States as his
letters traveled through the mail and were delivered to their
destination.” Id. The court “reject[ed] Moncini’s argument
that the crime was complete at the time the letter was deposited
28
United States v. Martinelli, No. 02-0623/AR
in the mail in Italy.” Id. The Ninth Circuit did not reach the
question of extraterritoriality.
The obvious distinction between Moncini and this case is
that in this case the child pornography flowed through the
Internet rather than through the mails. The statute, however,
is not limited to “mail” but includes “mail, transport or ship”
and as such includes material routed through the Internet. It
can not be disputed that for purposes of sending and receiving
communications, the Internet e-mail system is rapidly becoming
the 21st century equivalent of the 20th century postal system.
The domestic application of the CPPA is therefore possible under
the “continuing offense” theory for Specifications 1–3. As each
specification alleges different misconduct, each must be
examined individually.
Specification 1 (sending): This specification charged that
Martinelli used “electronic mail to send electronic files
containing child pornography through the Internet”. We agree
with the Ninth Circuit that “sending” child pornography is a
continuing offense that continues as the e-mail travels through
the Internet to its destination. In this case those travels
included a routing through servers located in the United States.
As a result, a domestic application of the CPPA to Specification
1 is appropriate. Moncini, 882 F.2d at 403.
29
United States v. Martinelli, No. 02-0623/AR
Specification 2 (receiving): This specification charged
that Martinelli received “child pornography that had been . . .
transported . . . by means of a computer to wit: downloading
electronic files containing child pornography from the
Internet.” Unlike the “sending” specification, Martinelli’s
acts of receiving the child pornography were not the start of
any conduct that continued into the United States. His conduct
in “receiving” the e-mails occurred in Germany only and there
can be no domestic application of the CPPA to this
specification.11
Specification 3 (reproducing): This specification charged
that Martinelli “reproduced by means of a computer child
pornography for distribution . . . by downloading from the
11
With respect to the question of whether all of the e-mail
messages in Martinelli’s Yahoo! and Hotmail accounts were
“resident” on Internet servers located in the United States,
both Yahoo! and Hotmail (which is operated by MSN, a division of
Microsoft Corp.) have significant international operations. See
Yahoo! 2004 Annual Report, available at
http://yhoo.client.shareholder.com/annual.cfm (follow “2004
Annual Report” hyperlink) (listing office locations in thirty-
three cities around the world and noting that: “Our principal
Web server equipment and operations are maintained in California
and several other domestic and international locations.”);
Microsoft Fiscal Year 2004 Form 10-K, available at
http://www.microsoft.com/msft/sec.mspx (follow “Fiscal Year 2004
Form 10-K” hyperlink) (listing a European Operations Center in
Dublin, Ireland and noting that: “Our facilities are fully used
for current operations of all segments. . . .”). Martinelli
stipulated only that his e-mail messages had been routed through
servers located in the United States. The record does not
include any information about the servers on which his opened
and unopened e-mail messages were stored.
30
United States v. Martinelli, No. 02-0623/AR
Internet electronic files . . . copying said files to computer
diskettes and sending the copied files . . . by electronic
mail.”12 Similar to the “receipt” specification, in reproducing
for distribution, Martinelli commenced no conduct that continued
into the United States and there can be no domestic application
of the CPPA.
In summary, we find that while Specification 1 involves
conduct that continued into the United States and therefore
provides for the domestic application of the CPPA,
Specifications 2 and 3 involve conduct that is not continuing in
nature and do not provide for the domestic application of the
CPPA.
E. The Providence of Martinelli’s Guilty Plea to
Specification 1
Having determined that the CPPA is domestically applicable
to Specification 1, and therefore finding no basis to question
Martinelli’s plea to Specification 1 on extraterritoriality
grounds, we must now determine whether Martinelli’s guilty plea
to that specification was provident under O’Connor, 58 M.J. at
453-40.
(1) The Providence Inquiry and Record of Trial
Under Specification 1, Martinelli was charged with
violation of the CPPA as a “crime or offense not capital” under
12
“Sending” is not an element of this offense, rather the
offense is “reproducing for distribution” and the “sending”
31
United States v. Martinelli, No. 02-0623/AR
clause 3 of Article 134. The military judge explained to
Martinelli that clause 3 of Article 134 prohibits the commission
of crimes and offenses not capital and that he had been charged
with violation of 18 U.S.C. § 2252A. The military judge went on
to explain the elements of knowingly and wrongfully mailing,
transporting or shipping child pornography by using electronic
mail to send electronic files containing child pornography
through the Internet, which Martinelli acknowledged he
understood. The military judge then read Martinelli the
definition of several terms that were used in 18 U.S.C. § 2252A,
including the definition of child pornography, which the
military judge noted was found in 18 U.S.C. § 2256. The
military judge defined “child pornography” as follows:
[A]ny visual depiction, including any photograph, film,
video, picture, or computer, or computer-generated image or
picture, whether made or produced by electronic,
mechanical, or other means of sexually explicit conduct,
where:
(A) the production of such visual depiction involves the
use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or
modified to appear that an identifiable minor is
engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner
that conveys the impression that the material is or
contains a visual depiction of a minor engaged in
sexually explicit conduct.
allegation was included to meet the “distribution” element.
32
United States v. Martinelli, No. 02-0623/AR
The military judge did not inquire as to whether Martinelli
believed that his conduct was either prejudicial to good order
and discipline or service discrediting. As in O’Connor, the
military judge’s use of the pre-Free Speech Coalition definition
of “child pornography” properly reflected the law at the time of
trial. His failure to inquire into the “actual” or “virtual”
distinction or discuss the possible “service discrediting” or
“prejudicial to good order and discipline” characteristics was
perfectly understandable. O’Connor, 58 M.J. at 453.
(2) The Providence of the Plea Under Clause 3
In O’Connor this court reviewed a guilty plea to a clause 3
Article 134 CPPA offense in light of the Supreme Court’s
decision in Free Speech Coalition:
In Free Speech Coalition, the Supreme Court determined that
certain portions of the § 2256(8) definition are
unconstitutional, specifically the “or appears to be”
language of § 2256(8)(B), and the entirety of § 2256(8)(D).
535 U.S. at 256, 258. In striking the former, the Court
specifically discussed the distinction between “virtual”
child pornography and “actual” pornography and concluded
that the rationales for restricting pornographic materials
involving actual children do not extend to computer-
generated simulations or images. Id. at 249-56.
The Supreme Court concluded that the First Amendment
prohibits any prosecution under the CPPA based on “virtual”
child pornography.
. . . .
Prior to Free Speech Coalition, knowing possession and
receipt of images of child pornography, virtual or actual,
was sufficient to establish one of the factual predicates
33
United States v. Martinelli, No. 02-0623/AR
for a plea of guilty under the CPPA. The “virtual” or
“actual” character of the images was not, in and of itself,
a factual predicate to a guilty plea -- criminal liability
could arise under either circumstance. . . . In the wake of
Free Speech Coalition, the relevant provisions of 18 U.S.C.
§ 2256(8) require that the visual depiction be of an actual
minor engaging in sexually explicit conduct. The “actual”
character of the visual depictions is now a factual
predicate to any plea of guilty under the CPPA.
58 M.J. at 452-53 (internal footnote omitted).
Similar to the situation in O’Connor, the definition used
by the military judge in this case included those portions of
the definition later struck down by the Supreme Court in Free
Speech Coalition. The military judge did not discuss those
aspects of the CPPA that were not affected by the Supreme
Court’s ruling, i.e., “actual” child pornography under 18 U.S.C.
§ 2256(8)(A), (B) or “computer morphed” images of an
identifiable minor under § 2256(8)(C). O’Connor, 58 M.J. at
452. As we noted in Mason:
Under our decision in O’Connor, a provident guilty plea to
a violation of the CPPA must reflect that the accused
violated those portions of the statute not affected by the
Supreme Court’s ruling in Free Speech Coalition. 58 M.J.
at 454. The absence of any focus on or discussion
concerning those aspects of the statute in the present
record coupled with the use of the unconstitutionally
overbroad definition during Mason’s plea colloquy render
this case indistinguishable from O’Connor.
60 M.J. at 18.
Similarly, and for the same reasons, the absence of any
focus on the “actual” versus “virtual” nature of the images, the
use of the unconstitutional definition of “child pornography,”
34
United States v. Martinelli, No. 02-0623/AR
and the absence of anything in the record that would demonstrate
that Martinelli pled guilty to a constitutionally defined
violation of federal law, we find Martinelli’s guilty plea to
Specification 1 improvident.
F. The Possibility of Lesser Included Offenses
The improvidence of Martinelli’s pleas under clause 3 does
not end our inquiry -- an improvident plea to a CPPA-based
clause 3 offense may, under certain circumstances, be upheld as
a provident plea to a lesser included offense under clauses 1 or
2 of Article 134. Mason, 60 M.J. at 18-19; O’Connor, 58 M.J. at
454. The only question is whether those circumstances are
present in Martinelli’s case.13
The nature of the defects in Martinelli’s clause 3 pleas in
regard to Specification 1 and in regard to Specifications 2, 3
and 4 are different. In Specification 1 the defect, similar to
O’Connor and Mason, involved the impact of the Supreme Court’s
13
This court ruled, in United States v. James, 55 M.J. 297
(C.A.A.F. 2001), that the CPPA was constitutional as applied to
images of “virtual” children. The Supreme Court, however, ruled
to the contrary in Free Speech Coalition and we are required to
follow that precedent. The Supreme Court decision in Free
Speech Coalition did not, however, address military-specific
prohibitions in clauses 1 and 2 of Article 134. Accordingly, we
have held that military personnel, unlike their civilian
counterparts, can be prosecuted under clauses 1 and 2 of Article
134 for child pornography offenses involving “virtual” children.
Mason, 60 M.J. at 16. Thus, the question we reach today is not
whether military personnel can be prosecuted and punished for
cases involving “virtual” children but whether the providence
inquiry was sufficient to sustain a conviction on a lesser
included offense under clauses 1 or 2 of Article 134.
35
United States v. Martinelli, No. 02-0623/AR
decision in Free Speech Coalition on the CPPA offense. The
defect with respect to Specifications 2, 3 and 4 involves the
threshold question of whether the CPPA applies to Martinelli’s
conduct in the first instance.
We conclude, however, that any qualitative difference in
the nature of the plea defect does not preclude the potential
availability of a lesser included offense under these
circumstances. As noted in the Manual for Courts-Martial,
conduct that may not constitute a violation of clause 3 in a
foreign country may still be punishable under clauses 1 and 2.
See MCM, pt. IV. ¶ 60.c.(4)(c)(i).
In O’Connor we recognized that after Free Speech Coalition
the possession and receipt of “virtual” child pornography is
protected speech under the First Amendment:
The Supreme Court has now extended a cloak of First
Amendment protection to certain depictions of minors
engaging in sexually explicit conduct. Accordingly,
the question of whether or not the possession of such
visual depictions can be viewed as service
discrediting now has a constitutional dimension that
was not at issue in Sapp or Augustine.14
58 M.J. at 454. We then explained that where the constitutional
rights of a servicemember could come into play, we will closely
14
United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), and United
States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000), pre-dated Free
Speech Coalition and dealt with the possibility of a lesser
included offense under clause 2 of Article 134 where a guilty
plea to a CPPA-based clause 3 Article 134 charge was found
improvident. In those cases, where no constitutional
36
United States v. Martinelli, No. 02-0623/AR
scrutinize the providence inquiry. If there are constitutional
implications, we will require a more definite showing that the
servicemember clearly understood which of his acts were
prohibited and why those acts were service-discrediting or
prejudicial to good order and discipline before we will find
that an improvident plea to a CPPA-based clause 3 offense is a
provident plea to a lesser included offense under clause 1 or 2.
Id. at 455.
The difference between our review of a providence inquiry
under the O’Connor standard and our review under the less strict
Augustine/Sapp standard is a qualitative difference. Although
the understanding required of the servicemember remains the
same, we require a clearer more precise articulation of the
servicemember’s understanding under O’Connor than we require in
the cases where the accused’s First Amendment rights are not
implicated.
Applying this stricter scrutiny, we examined the providence
inquiry in O’Connor and determined that O’Connor’s plea was not
provident to a lesser included offense under clause 2 of Article
134 because “[T]here was no specific discussion with Appellant
concerning the service-discrediting character of his conduct,
much less any constitutional implications his conduct may or may
not have had.” O’Connor, 59 M.J. at 455.
considerations were involved, we found the pleas provident to a
37
United States v. Martinelli, No. 02-0623/AR
The next year we used the same analysis in Mason, but
reached a different conclusion about the providence of the
pleas. 60 M.J. at 18-20. In Mason the military judge used the
unconstitutional language but did not focus on or discuss the
distinction between “virtual” or “actual” children. Id. at 18.
The military judge did, however, discuss the character of the
underlying conduct and Mason agreed that his conduct was both
service-discrediting and prejudicial to good order and
discipline. Id. at 19.
We held that the providence inquiry sufficiently
established the nature of Mason’s conduct as service-
discrediting or prejudicial to good order and discipline even in
the absence of a discussion about the “virtual” or “actual”
character of the images. Id. at 19-20. The difference between
Mason and O’Connor was that the military judge in Mason
specifically discussed the character of the underlying conduct
and Mason agreed that his conduct was both service-discrediting
and prejudicial to good order and discipline.
Given the constitutional implications, the critical inquiry
here is whether the record reflects an appropriate discussion of
and focus on the character of the conduct at issue as service-
discrediting and/or prejudicial to good order and discipline.
Id. at 19. In other words, the record must conspicuously
clause 2 Article 134 offense.
38
United States v. Martinelli, No. 02-0623/AR
reflect that the accused “clearly understood the nature of the
prohibited conduct” as being a violation of clause 1 and clause
2, Article 134, apart from how it may or may not have met the
elements of the separate criminal statute underlying the clause
3 charge. Id. (internal quotation marks omitted)(citing
O’Connor, 58 M.J. at 455).
The present record does not support that type of
determination. Martinelli’s plea inquiry and underlying
stipulation of fact were directed solely at demonstrating how
his conduct with respect to the child pornography met the
elements of the CPPA. For example, during the plea inquiry the
military judge set out the elements of each offense (e.g., (1)
that the accused knowingly mailed, transported or shipped child
pornography in interstate or foreign commerce, (2) that such
action was wrongful, and (3) that the accused knew the nature of
the images to be child pornography at the time of the offense).
He then defined the term “child pornography” using the complete
definition set out in 18 U.S.C. § 2556. After walking through
the elements of the offense one at a time, the military judge
then asked:
MJ: Trial Counsel, . . . [d]o you have any concerns about
whether or not the Court has correctly described the
offense as to elements? Do you wish me to inquire
about any further elements?
[Trial Counsel]: No, Your Honor.
39
United States v. Martinelli, No. 02-0623/AR
MJ: Major Weir, do you believe there are any further
elements that are not properly described in this
offense, that the Court ought to inquire about?
[Defense Counsel]: No, sir.
There was no reference to or discussion during the providence
inquiry of Martinelli’s conduct as service-discrediting or
prejudicial to good order and discipline. The absence of this
type of inquiry is even clearer when viewed in contrast with the
inquiry concerning the separate obstruction of justice
specification, where both the stipulation and discussion with
the military judge make clear reference to the character of
Martinelli’s conduct as service-discrediting and/or prejudicial
to good order. Under these circumstances, we cannot view
Martinelli’s guilty plea to the child pornography-related
conduct as provident to a lesser included offense under clause 1
or clause 2 of Article 134.
DECISION
The decision of the United States Army Court of Criminal
Appeals as to Specifications 1 through 4 of the Charge and the
sentence is reversed, but is affirmed in all other respects.
The findings of guilty of Specifications 1 through 4 of the
Charge and the sentence are set aside and the record of trial is
returned to the Judge Advocate General of the Army for a
40
United States v. Martinelli, No. 02-0623/AR
rehearing on Specifications 1 through 4 and the sentence.15 If a
rehearing on Specifications 1 through 4 is deemed impracticable,
Specifications 1 through 4 may be dismissed and a rehearing held
on the sentence alone. Thereafter, the provisions of Articles
66(b) and 67(a), UCMJ, 10 U.S.C. §§ 866(b), 867(a) (2000), shall
apply.
15
Because of our decision in this case, Specifications 1 through
4 will necessarily have to be amended prior to any rehearing to
allege lesser included offenses of conduct prejudicial to good
order and discipline in the armed forces, or of a nature to
bring discredit upon the armed forces in violation of clauses 1
and/or 2 of Article 134.
41
United States v. Martinelli, No. 02-0623/AR
GIERKE, Chief Judge (concurring in part and dissenting in
part):
I agree with the majority that Appellant’s plea to
specification 1 was improvident under United States v. O’Connor,1
and I agree that his guilty pleas to the other specifications
based on the Child Pornography Prevention Act of 1996 (CPPA)2
cannot be deemed provident to the lesser included offenses under
clauses 1 and 2 of Article 1343 based the principles discussed in
United States v. Mason.4 Because the majority remands each of
the CPPA-based specifications due to the improvidency of
Appellant’s pleas, I believe the question of whether the CPPA has
extraterritorial application does not need to be reached in this
case. But because the majority chooses to decide the
extraterritoriality issue, I must respectfully dissent in part.
I cannot agree that the CPPA does not have extraterritorial
application.
The most important step in determining if the CPPA applies
extraterritorially in this case is to discern whether Congress
intended the CPPA to prohibit the acts of a servicemember
stationed overseas who sends, receives, reproduces, and possesses
child pornography.5 To complete this task, we must engage in
what Judge Learned Hand called “[by] far the greatest part” of
1
58 M.J. 450 (C.A.A.F. 2003).
2
18 U.S.C. § 2251A (2000).
3
60 M.J. 15 (C.A.A.F. 2004).
4
Uniform Code of Military Justice, UCMJ, 10 U.S.C. § 934 (2000).
5
See United States v. Bowman, 260 U.S. 94, 97 (1922).
United States v. Martinelli, No. 02-0623/AR
the law: “the interpretation of words.”6 As we do so, we must
remember that the words we interpret “cover many diverse
instances,” including instances that their authors did not fully
foresee.7 Interpretation is “necessarily an act of creative
imagination” that requires judges to put themselves in the place
of the author of those words and determine “how he would have
dealt with the instance that has arisen.”8
Putting myself in the place of the Congress that adopted the
CPPA and determining “how [it] would have dealt with the instance
that has arisen,”9 I disagree with the majority’s conclusion that
Congress did not intend to prohibit a servicemember from
possessing child pornography on a United States military
installation or from receiving or reproducing that same
pornography that was routed through Internet servers located in
the United States.10 Because Appellant was in Germany when he
6
The Honorable Learned Hand, In Commemoration of Fifty Years of
Federal Judicial Service, 264 F.2d 6, 28 (2d Cir.
1959)(proceedings of a special session of the United States Court
of Appeals for the Second Circuit, Apr. 10, 1959).
7
Id.
8
Id.
9
Id.
10
The most perplexing part of today’s result is that it allows a
servicemember accused of violating the CPPA to be prosecuted
domestically for sending the child pornography over the Internet,
but not for his other offenses directly related to the same
pornography. The result of the majority’s holding is that the
servicemember can be prosecuted “domestically” for sending
pornography from an off-base Internet cafe in Germany. But he
cannot be prosecuted for possessing that same pornography in his
barracks on a United States military installation, or for
receiving or reproducing the child pornography over the same
U.S.-based Internet servers that establish the jurisdictional
basis for the sending charge.
2
United States v. Martinelli, No. 02-0623/AR
sent the pornography over the Internet, I also disagree with the
majority that applying the CPPA to Appellant’s offense of sending
the child pornography is a domestic application of the Act.11 I
believe Congress intended the CPPA to apply extraterritorially
and that the Act reaches Appellant’s conduct in this case.12
I. The presumption against extraterritoriality
The Supreme Court explained the presumption against
extraterritoriality in Equal Employment Opportunity Commission v.
Arabian American Oil Company (Aramco).13 Aramco was a civil case
that involved racial discrimination in employment practices by
11
See, e.g., United States v. Noriega, 746 F. Supp. 1506, 1512-
13 (S.D. Fla. 1990)(the United States would be exercising
extraterritorial jurisdiction to prosecute “a person standing in
Canada who fires a bullet across the border which strikes a
second person standing in the United States”); United States v.
Baker, 609 F.2d 134, 136 (5th Cir. 1980)(the United States
exercises extraterritorial jurisdiction to reach offenses
committed in the “marginal sea” which is located just past the
“territorial sea” and between three and twelve miles off the
coast).
12
See Walter C. Dauterman Jr., Internet Regulation: Foreign
Actors and Local Harms -– at the Crossroads of Pornography, Hate
Speech, and Freedom of Expression, 28 N.C.J. Int’l L. & Com. Reg.
177, 183 (2002)(“[The] view that the Internet is somehow beyond
national regulation ignores the realities of cyberspace. While
it is true that the transnational nature of the Internet may make
jurisdictional issues more complicated . . . [g]iven that the
Internet is populated by real people causing real harm, there is
no reason to believe that [it] is beyond the jurisdictional scope
of national regulation.”).
13
499 U.S. 244, 248 (1991)(noting the “longstanding principle of
American law that legislation of Congress, unless a contrary
intent appears, is meant to apply only within the territorial
jurisdiction of the United States . . . serves to protect against
unintended clashes between our laws and those of other nations
which could result in international discord” (internal quotations
omitted)(quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285
(1949); McCulloch v. Sociedad Nacional de Marineros de Honduras,
372 U.S. 10, 20-22 (1963))).
3
United States v. Martinelli, No. 02-0623/AR
United States companies who employ United States citizens
abroad.14 The Supreme Court thus applied the presumption against
extraterritoriality to employment practices abroad –- which is
exactly the kind of domestic concern to which the presumption
should apply. In doing so, the Supreme Court made clear that the
presumption applies unless the “language in the [relevant
statute] gives any indication of a congressional purpose to
extend its coverage beyond places over which the United States
has sovereignty or some measure of legislative control.”15
In United States v. Bowman, the Supreme Court was confronted
with a jurisdictional issue in a case involving three American
citizens and one British citizen who planned to defraud a
corporation in which the United States was a stockholder.16 The
statute under which the defendants were to be prosecuted
contained no explicit grant of extraterritorial jurisdiction to
try the offenders on the high seas, where the crime took place.17
In response to the absence of an explicit statement of
extraterritorial application in that particular criminal statute,
the Supreme Court applied and clarified the exception to the
presumption against extraterritoriality.18
The Supreme Court delineated two types of criminal offenses
in Bowman. The nature of some criminal offenses, such as those
14
Id. at 246.
15
Id. (internal quotation marks omitted)(quoting Foley Bros.,
336 U.S. at 285).
16
260 U.S. at 95-96.
17
Id. at 97.
18
Id. at 98-103.
4
United States v. Martinelli, No. 02-0623/AR
crimes against private individuals or their property which
“affect the peace and good order of the community,” is such that
the acts that constitute the offenses occur locally.19 But other
criminal offenses “are such that to limit their locus to the
strictly territorial jurisdiction would be greatly to curtail the
scope and usefulness of the statute . . . .”20 Thus, when
Congress does not explicitly state in the plain language of a
particular criminal statute that it intends for that statute to
apply extraterritorially, courts can infer such intent “from the
nature of the offenses and Congress’ other legislative efforts to
eliminate the type of crime involved.”21
I interpret the Bowman language as drawing a dividing line
between those criminal offenses that are “domestic” in nature and
those whose nature “warrant[s] a broad sweep of power.”22 For
example, a U.S. citizen’s assault on his next-door neighbor would
affect the “peace and good order of the community” in his
19
Id. at 98.
20
Id.
21
United States v. Vasquez-Valasco, 15 F.3d 833, 839 (9th Cir.
1994) (quoting United States v. Felix-Gutierrez, 940 F.2d 1200,
1204 (9th Cir. 1991)(internal quotation marks and citations
omitted)); see also Baker, 609 F.2d at 136; United States v.
Wright-Barker, 784 F.2d 161, 166-67 (3d Cir. 1986). See
generally Christopher L. Blakesley & Dan Stigall, Wings for
Talons: The Case for the Extraterritorial Jurisdiction Over
Sexual Exploitation of Children through Cyberspace, 50 Wayne L.
Rev. 109, 124 (2004)(asserting that, in certain situations, the
United States will ignore the general rule against
extraterritorial application, and assert jurisdiction “over
nationals who commit crimes abroad even though the appropriate
statute did not explicitly declare that it applied
extraterritorially”).
22
Baker, 609 F.2d at 137.
5
United States v. Martinelli, No. 02-0623/AR
neighborhood and is a domestic crime. The nature of this offense
does not warrant a sweep of power any broader than that provided
to the local police force to arrest him. However, if a U.S.
citizen commits a criminal offense whose effects are not confined
to one particular situs –- for example, smuggling illegal drugs
between countries or trafficking in child pornography over the
Internet –- then, the nature of that offense warrants a broader
sweep of power.
The majority reads the language in Aramco and Bowman to
allow an exception to the presumption only for certain types of
criminal statutes –- those enacted so that the Government can
defend itself against obstruction or fraud.23 However, I do not
read this language as narrowly as the majority. Notably, Bowman
was a case about fraud against the Government and, thus, the
limiting language on which the majority relies directly applies
to the circumstances of that case.24
Moreover, I believe that a narrow interpretation of Bowman
is inconsistent with the purpose of the criminal offense
exception the Supreme Court recognized. Like Judge Sand, I think
the underlying purpose of the criminal offense exception in
23
See Martinelli, 61 M.J. __, __ (12)(C.A.A.F. 2005).
24
See 260 U.S. at 96.
6
United States v. Martinelli, No. 02-0623/AR
Bowman is two-fold.25 On the one hand, the United States has the
right “to protect itself from harmful conduct -- irrespective of
the locus of this conduct.”26 On the other hand, a presumption
exists that Congress would not both “enact a statute designed to
serve this protective function, and -- where the statute
proscribes acts that could just as readily be performed outside
the United States as within it . . . undermine this protective
intention by limiting the statute’s application to United States
territory.”27 By reading the Bowman language to limit the
criminal offense exception to crimes of fraud or obstruction
against the Government, I believe the majority ignores the
underlying rationale of the exception to the presumption against
extraterritoriality.
Child pornography, particularly over the Internet, is just
the type of offense that falls squarely within the Bowman
criminal statute exception to the presumption against
25
See United States v. Bin Laden, 92 F. Supp. 2d 189, 194
(S.D.N.Y. 2000)(holding the Bowman exception to the presumption
against extraterritoriality applies to various criminal statutes,
such as statutes prohibiting the malicious destruction of
property owned or possessed by the United States or the killing
in the course of an attack on a federal facility involving a
dangerous weapon, but also holding that the exception does not
apply to the statute penalizing murder within the “special
maritime and territorial jurisdiction of the United States”).
26
Id.; see also Blakesley & Stigall, supra note 21, at 141-42
(“The Constitution interposes no bar as such to the
extraterritorial application of criminal law,” and thus, if
Congress proscribes extraterritorial conduct, “United States law
is satisfied.”).
27
Bin Laden, 92 F. Supp. 2d at 194.
7
United States v. Martinelli, No. 02-0623/AR
extraterritoriality.28 Child pornography is not an “inherently
domestic” crime because it can be received from and sent to the
United States by a few simple key strokes on the computer.
Images of minors engaging in sexually explicit conduct proscribed
by the CPPA can travel through the Internet easily, providing
ready access to pedophiles.29
Therefore, the first underlying reason for the presumption
against extraterritoriality -- that Congress legislates with
domestic concerns in mind -- is inapplicable to offenses related
to trafficking child pornography. Concluding that the Congress
did not intend to reach those individuals who can simply download
pornographic images to a website from another country and e-mail
them through servers that are located in the United States is
inconsistent with Congress’ goal of eradicating child
28
See Blakesley & Stigall, supra note 21, at 152 (“Cyberspace is
a wonderful tool for education, communication, and entertainment,
giving users access to massive volumes of information and
connecting people around the world. Unfortunately, this has also
generated new opportunities for predators and pornographers to
victimize children.”); Dauterman, supra note 12, at 177-78 (“The
Internet, like the telephone and the printing press, has
revolutionized the way people communicate, providing a global
audience with instant access to a wealth of political, cultural,
and scientific data. . . . Unfortunately, though, there is a much
darker and sinister side to the Internet, one full of hate speech
and pornography. . . . Sexual deviants have used the Internet to
exchange pictures of children being forcibly raped and
sodomized.”).
29
See Blakesley & Stigall, supra note 21, at 153-54 (“With the
recent technological advances in communication, child
exploitation has become an international problem. There can be
no doubt that the Internet makes children targets for pedophiles
around the globe. As an international system, the Internet . . .
is considered the absolute best hunting ground (for a) pedophile,
and the most efficient pornography distribution engine even
conceived.” (internal quotations and citations omitted)).
8
United States v. Martinelli, No. 02-0623/AR
pornography. The majority’s holding “greatly . . . curtail[s]
the scope and usefulness”30 of the CPPA by concluding that §
2252A does not apply extraterritorially.
Furthermore, the other underlying reason given for the
presumption against extraterritoriality -- to avoid unintended
clashes with the governments of foreign countries –- is also
inapplicable to offenses targeted by the CPPA. It is well
settled that the United States can assert jurisdiction over
offenses that occur outside the territorial jurisdiction of the
United States, but that affect the United States.31 And the
United States Government is not invading some right or taking
away some interest of a foreign government by prosecuting those
individuals who send child pornography into the United States
from that foreign country or who receive child pornography that
has been sent through the United States. For example, in United
States v. Corey,32 the defendant was a United States citizen who
lived in the Philippines and in Japan during his employment with
the Air Force as a civilian postmaster. When he was accused of
the aggravated sexual abuse of his stepdaughter, neither the
Philippines nor Japan protested the United States’ assertion of
jurisdiction over the defendant, even though he was physically
located in those countries when he committed the offenses.33
“Quite the contrary, both countries have abjured any interest in
30
Bowman, 260 U.S. at 98.
31
Id.
32
232 F.3d 1166, 1169 (9th Cir. 2000).
33
Id. at 1171.
9
United States v. Martinelli, No. 02-0623/AR
prosecuting [the defendant], no doubt recognizing that the case
involves internal U.S. matters.”34
Of course the question in this case is whether Germany would
protest U.S. jurisdiction over Appellant. And the answer is
certainly no. Because of the Status of Forces Agreement that
exists between the United States and Germany, Germany agreed that
the United States would have the right to exercise jurisdiction
over all military servicemembers that the U.S. sends to
Germany.35
The actions of other countries support the United States’
assertion of jurisdiction over a U.S. citizen who violates a
statute proscribing child pornography. “Every nation has
criminalized the sexual abuse of children, and the vast majority
of states have enacted legislation against child pornography.”36
Additionally, “[i]nternational conventions on the rights of
children favor the strict enforcement of such laws and lend
support to the assertion of extraterritorial jurisdiction of
34
Id.
35
See Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Their Forces art. VII, § 1(a), June 19,
1951, 4 U.S.T. 1792; see also Martinelli, 61 M.J. at __ (10-
11)(Crawford, J., dissenting); James B. Roan & Cynthia Buxton,
The American Military Justice System in the New Millennium, 52
A.F. L. Rev. 185, 191 n.32 (2002)(noting that the “German
government has agreed to a general waiver of their jurisdiction
due to the United States military’s proven ability to handle
disciplinary problems through the [Uniform Code of Military
Justice]”).
36
Dauterman, supra note 12, at 203.
10
United States v. Martinelli, No. 02-0623/AR
these types of cases.”37 Therefore, asserting federal U.S.
jurisdiction is particularly appropriate in light of the nature
of Appellant’s offenses.38
II. Plain meaning of the CPPA
The question of whether the presumption against
extraterritorial application is rebutted for a particular statute
“is a matter of statutory construction” that turns on whether
Congress intended that a particular statute have extraterritorial
application.39 Therefore, the tools of statutory construction
should apply. As articulated by Judge Learned Hand, the most
important aspect of statutory construction is to look to the
meaning of the words of the statute and discern the legislature’s
intent in adopting those words.40 Furthermore, “[w]herever
possible, statutes should be construed in a commonsense manner
. . . honoring plain meaning . . . and avoiding absurd or
37
Id. at 204 (discussing that the Convention on the Rights of
the Child, created by the United Nations in 1989, provides basic
international guidelines for the protection of children from
sexual exploitation via child pornography); see also Allison M.
Scott, Note, From a State-Centered Approach to Transnational
Openness: Adapting the Hague Convention with Contemporary Human
Rights Standards as Codified in the Convention on the Rights of
the Child, 11 Ind. J. Global Legal Stud. 233, 235 n.18 (2004)
(noting that the Convention on the Rights of the Child has been
ratified by 192 countries, and that only the United States and
Somalia have not ratified it, but the United States has formally
signed the Convention).
38
See Dauterman, supra note 12, at 219 (noting that the
“universally recognized consensus that child pornography is an
evil that should be eliminated enables states to prosecute
offenders outside of its borders”).
39
Martinelli, 61 M.J. at __ (9-10 n.4)(citing Hartford Fire Ins.
Co. v. California, 509 U.S. 764, 813 (1993)(Scalia, J.,
dissenting)).
40
Judge Learned Hand, supra note 6, at 28.
11
United States v. Martinelli, No. 02-0623/AR
counterintuitive results.”41 I believe that denying the CPPA
extraterritorial effect is counterintuitive in light of the plain
meaning of § 2252A and Congress’ intent to eradicate all forms of
child pornography in passing the CPPA.42
Section 2252A can be divided into four types of child
pornography offenses: (1) knowingly mailing or transporting; (2)
knowingly receiving and distributing; (3) knowingly reproducing;
and (4) knowingly selling or possessing. The proscription on
mailing, shipping, or transporting in “foreign commerce” applies
to all four types of offenses.43
The Supreme Court has defined “foreign commerce” as commerce
between the United States and a foreign nation.44 I believe the
CPPA’s use of the “foreign commerce” language defines the scope
of materials Congress intended to reach –- those child
pornography materials that have traveled in foreign or interstate
commerce -- and is more than just a jurisdictional hook. In
other words, the inclusion of the “foreign commerce” language was
not “a straightforward reference to the source of authority of
Congress for proscribing these acts as criminal in the first
41
United States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997)
(internal citations omitted).
42
See Blakesley & Stigall, supra note 21, at 150-58 (discussing
how federal laws proscribing child exploitation offenses must
apply extraterritorially based on the international nature of the
offense due to recent technological advances in communication,
the comprehensiveness of the legislative scheme that has already
been judicially determined to apply extraterritorially, and
American jurisprudence).
43
See 18 U.S.C. § 2252A(a)(1)-(3),(5).
44
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193 (1824).
12
United States v. Martinelli, No. 02-0623/AR
instance, i.e., the Commerce Clause,”45 but rather, a description
of the material prohibited under the statute. “By proscribing
the distribution of child pornography in ‘foreign commerce,’
Congress intended the criminal sanctions to apply even where some
part of the criminal conduct occurred outside the territorial
limits of the United States.”46 Therefore, just as the statute
applies to an individual who sends child pornography from a city
in one state to another state, commonsense and logic would
dictate that “Congress would be equally interested in preventing
that same citizen from making the same distribution to a [U.S.
city] from a foreign country.”47
Appellant used his Hotmail and Yahoo! e-mail accounts,
which are located on a server in the United States, to send and
receive e-mail messages with embedded or attached images.
Because Appellant was in Germany and outside of the military base
when he sent and received the images, the CPPA would reach his
acts only if it has extraterritorial application. In considering
the extraterritorial application of the CPPA, I find persuasive
the reasoning of Judge Hoeveler of the United States District
Court for the Southern District of Florida. He stated that the
United States would “unquestionably have authority to prosecute a
person standing in Canada who fires a bullet across the border
45
Martinelli, 61 M.J. at __ (18).
46
United States v. Martens, 59 M.J. 501, 504 (A.F. Ct. Crim.
App. 2003).
47
Id.
13
United States v. Martinelli, No. 02-0623/AR
which strikes a second person standing in the United States.”48
So U.S. law applies extraterritorially because the actor is
located outside of the territorial borders of the United States.
Because of the unique facts of this case, it is particularly
appropriate that the CPPA have extraterritorial application.
“Given the fact that cyberspace has no borders and distance is
[sic] in that realm is irrelevant, there is no reason why U.S.
courts should not eschew reliance on traditional notions of
territoriality and directly rule that such statutes have
extraterritorial application.”49
“All nations of the world recognize ‘the principle that a
man who outside of a country willfully puts in motion a force to
take effect in it is answerable at the place where the evil is
done . . . .’”50 Similar to a bullet shot from another country,
an image of child pornography can be “shot” across borders with
the touch of a computer key. And like the individual standing in
Canada who fires a bullet into the United States, the U.S.
servicemember in Germany who sends or receives the child
pornography is subject to U.S. federal jurisdiction.
The plain language of the statute reaches Appellant’s acts
of possessing, sending, receiving, and reproducing child
48
Noriega, 746 F. Supp. at 1512-13; see also Church v. Hubbart,
6 U.S. (2 Cranch) 187, 234 (1804)(“[A nation’s] power to secure
itself from injury, may certainly be exercised beyond the limits
of its territory.”).
49
Blakesley & Stigall, supra note 21, at 147.
50
Noriega, 746 F. Supp. at 1513 (citing Rivard v. United States,
375 F.2d 882, 887 (5th Cir. 1967)).
14
United States v. Martinelli, No. 02-0623/AR
pornography that has been “mailed, shipped or transported in
interstate or foreign commerce.”51 The “foreign commerce”
language of the statute is satisfied by Appellant’s admission
that he used Hotmail and Yahoo! accounts to send, receive, and
store the pornographic images. Moreover, this link to the United
States, by sending the images through and storing the images in
Internet servers located in the United States, makes it even more
implausible that Congress did not intend the CPPA to reach
conduct like Appellant’s.
Based on the plain meaning of the statute, it appears that
Congress wanted to explicitly extend jurisdiction over those
individuals who possess child pornography not only within the
territorial boundaries of the United States, but also on any land
or building under the control of the United States.52 In other
words, Congress’ addition of the “on any land or building owned
by, leased to, or otherwise used by or under the control of the
United States Government” language clearly establishes
jurisdiction over an individual who admits to being on property
“under the control of the United States” when he possessed the
obscene material.53 Because Appellant admitted to being on
51
See 18 U.S.C. § 2252A(a)(1)-(3).
52
See 18 U.S.C. § 2252A(a)(5)(A),(B). Section 2252A(a)(5)(A)
proscribes knowingly possessing child pornography in the “special
maritime and territorial jurisdiction of the United States, or on
any land or building owned by, leased to, or otherwise used by or
under the control of the United States Government.” Section
2252A(a)(5)(B) proscribes knowingly possessing child pornography
that has been “mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer.”
53
See 18 U.S.C. § 2252A(a)(5)(A).
15
United States v. Martinelli, No. 02-0623/AR
property “under the control of the United States” -- his barracks
at the Cambrai Fritsch Kaserne, a United States Army installation
in Darmstadt, Germany -- his offense of possessing child
pornography on a United States military installation is
proscribed by the CPPA.
The majority argues that this language would “just as easily
apply only to . . . domestic military installations.”54 We have
explicitly rejected such a reading of “territory under the
control or jurisdiction” of the United States. In United States
v. Wilmot,55 we held that this language included in the Narcotics
Control Act of 195656 made the statute applicable to drug
offenses committed at Yokota Air Force Base in Japan.
I agree with the majority that neither the “foreign
commerce” language nor the “special maritime and territorial
jurisdiction of the United States” language alone evidences a
clear congressional intent for a statute to apply
extraterritorially.57 But the question is not whether particular
words within the statute can be defined to establish
extraterritorial jurisdiction, but whether Congress intended the
54
Martinelli, 61 M.J. at __ (21).
55
11 C.M.A. 698, 702, 29 C.M.R. 514, 518 (1960).
56
Pub. L. No. 84-728, 70 Stat. 567 (repealed 1970).
57
See Martinelli, 61 M.J. at __ (17-22).
16
United States v. Martinelli, No. 02-0623/AR
statute itself to apply to Appellant’s offenses.58 As discussed
in further detail below, the CPPA was enacted as part of a
comprehensive congressional scheme aimed at eradicating child
pornography. I believe that interpreting the plain language of
the CPPA, its structure and the comprehensive scheme of the
entire statute, leads to the conclusion that Congress clearly
meant for the CPPA to apply extraterritorially to reach
Appellant’s acts in this case. The key question is whether the
Congress that passed the CPPA intended to prohibit or allow the
possession of child pornography on a U.S. military base overseas.
The answer is obvious.
Relying on only two criminal cases -- this Court’s 1977
58
Because the issue in this case is whether Congress intended
the CPPA to apply extraterritorially to reach Appellant’s
offenses, and because I believe that it does, there is no need to
decide whether 18 U.S.C. § 7(3) (2000), which defines “special
maritime and territorial jurisdiction of the United States,” has
extraterritorial application in this case. Compare United States
v. Gatlin, 216 F.3d 207, 220 (2d Cir. 2000)(holding that 18
U.S.C. § 7(3) does not apply extraterritorially to reach
appellant’s offense of sexual abuse of a minor on a United States
military installation in the Federal Republic of Germany), with
Corey, 232 F.3d at 1183 (holding that 18 U.S.C. § 7(3) applies
extraterritorially to appellant’s offense of sexual abuse of a
minor on an Air Force base in Japan and in an off-base private
apartment building in the Philippines). See also Blakesley &
Stigall, supra note 21, at 147 (asserting that the holding of
Gatlin, 216 F.3d 220, is based on the same flawed reasoning as
the holdings in Corey, 232 F.3d 1183, and United States v. Cream,
58 M.J. 750, 755 (N-M. Ct. Crim. App. 2003), because “[t]here is
no need to look to 18 U.S.C. § 7(3) or traditional notions of
territoriality to find jurisdiction over the acts of pedophiles
abroad. Given the fact that cyberspace has no borders and
distance in that realm is irrelevant, there is no reason why U.S.
courts should not eschew reliance on traditional notions of
territoriality and directly rule that such statutes have
extraterritorial application.”).
17
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opinion in United States v. Gladue59 and Gatlin,60 a Second Circuit
case -- the majority dismisses the multiple opinions of other
federal courts that interpret the Bowman exception to apply more
broadly than solely to offenses that involve fraud or obstruction
against the Government.61 The majority opinion is also
59
4 M.J. 1, 5 (C.M.A. 1977). I believe our Court in Gladue
misread the Bowman exception to the presumption against
extraterritoriality and defined it too narrowly. A statute may
not indicate, on its face, a congressional intent to be given
extraterritorial application. But such intent can be “readily
implied” from the nature of the offense targeted by the statute
and if to deny extraterritorial application “would be greatly to
curtail the scope and usefulness of the statute[].” Wright-
Barker, 784 F.2d at 167 (citations and internal quotation marks
omitted); see also Vasquez-Valasco, 15 F.3d at 839 (citing Felix-
Gutierrez, 940 F.2d at 1204); Baker, 609 F.2d at 136.
60
216 F.3d at 211 n.5. Interestingly, although the majority
relies on footnote five in the Gatlin opinion to support its
narrow reading of the Bowman language, the Second Circuit itself
rejected such a narrow reading in an earlier opinion. Citing
Baker, 609 F.2d at 139, the Second Circuit held that the “intent
to cause effects within the United States . . . makes it
reasonable to apply to persons outside United States territory a
statute which is not expressly extraterritorial in scope.”
United States v. Orozco-Prada, 732 F.2d 1076, 1087-88 (2d Cir.
1984)(internal quotation marks omitted).
61
See Vasquez-Velasco, 15 F.3d at 843 (concluding that the
statute applies extraterritorially to defendant’s act of
murdering both a U.S. citizen and a legal resident alien of the
U.S. in Mexico to further a drug trafficking enterprise); United
States v. Thomas, 893 F.2d 1066, 1068-70 (9th Cir. 1990)(holding
that 18 U.S.C. § 2251(a) applied extraterritorially to
defendant’s acts in Mexico of engaging a minor in sexually
explicit conduct for the purpose of creating a visual depiction
of that conduct, mailing visual depictions of the conduct, and
receiving the material); Baker, 609 F.2d at 136-39 (concluding
that the statute proscribing the possession of narcotics with the
intent to distribute applies extraterritorially to possession
beyond the three-mile limit of the “territorial sea”); United
States v. Harvey, 2 F.3d 1318, 1327-30 (3d Cir. 1993)(holding
that sentencing guideline addressing the offense of causing a
minor to engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct applies when the
offense occurs in the Philippines). See also United States v.
Bredimus, 234 F. Supp. 2d 639, 650 (N.D. Tex. 2002)(deciding that
18
United States v. Martinelli, No. 02-0623/AR
inconsistent with precedent from our intermediate level appellate
courts which, although not binding on this Court, have construed
the CPPA and decided that it applies extraterritorially.62
III. Comprehensive scheme of the CPPA
When determining whether a statute applies
extraterritorially, courts are not “limited to the text of the
statute itself. To the contrary, [courts] are permitted to
consider ‘all available evidence’ about the meaning of the
statute, including its text, structure, and legislative
history.”63 In 1996, Congress added § 2252A to Chapter 110 of
Title 18 of the United States Code, which defines the offenses
related to the Sexual Exploitation and Other Abuse of Children.64
18 U.S.C. § 2251A applies extraterritorially to traveling in
foreign commerce with the intent to use minors to produce visual
depictions of sexually explicit conduct); Felix-Gutierrez, 940
F.2d at 1204 (holding that the Bowman criminal offense exception
applies to the murder of a Drug Enforcement Administration agent
in Mexico).
62
See, e.g., United States v. Kolly, 48 M.J. 795, 797 (N-M. Ct.
Crim. App. 1998)(holding that 18 U.S.C. § 2252(a)(2) applies
extraterritorially to the receipt of child pornography the
appellant ordered while stationed in Hawaii, and had sent from a
supplier in Florida to Japan, where the appellant was later
stationed); Martens, 59 M.J. at 505 (concluding that Congress
intended 18 U.S.C. § 2252(a)(2)(A) to apply extraterritorially to
the receipt of child pornography at Ramstein Air Base in
Germany); United States v. Pullen, 41 M.J. 886, 888 (A.F. Ct.
Crim. App. 1995) (holding that the language of 18 U.S.C. §
2252(a)(4)(A) is broader than that in the statute at issue in
Wilmot, 11 C.M.A at 700, 29 C.M.R. at 516, and is therefore a
clear expression of Congress’ intent to apply it
extraterritorially to the possession of child pornography on
Clark Air Base in the Philippines).
63
Gatlin, 216 F.3d at 212 (quoting Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155, 177 (1993)).
64
Child Pornography Prevention Act of 1996, Pub. L. No. 104-208,
div. A, tit. I, § 121(3)(a), 110 Stat. 3009 (codified as amended
at 18 U.S.C. § 2252A (2000)).
19
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The history of the CPPA can be traced to 1977 when Congress
passed the Protection of Children Against Sexual Exploitation
Act.65
In the time period between the initial enactment of the 1977
Act and today, Congress has repeatedly emphasized its intent to
eradicate the exploitation of children and has acted on this
intent by continuously expanding federal jurisdiction over
offenses involving child pornography wherever they occur. For
example, regarding a 1996 hearing on the CPPA, Senator Joseph
Biden noted that Congress has “kept a sharp eye on the problem of
child pornography, and where [it] has found gaps in the coverage
of the criminal law, [it] ha[s] moved quickly to fill them.”66
Thus, when the “computer was [first] becoming an increasingly
important tool of the child pornographer,” Congress reacted by
“making it a federal crime to transport child pornography using a
computer in addition to the mails.”67 In 1998, Congress passed
the Protection of Children from Sexual Predators Act, modifying
and adding additional statutes to 18 U.S.C. §§ 2251-2257.68 As
Senator Leahy observed:
The goal of [the act] is to provide stronger protections for
children from those who would prey upon them. Concerns over
protecting our children have only intensified in recent
years with the growing popularity of the Internet and World
Wide Web. Cyberspace gives users access to a wealth of
65
Pub. L. No. 95-225, 92 Stat. 7 (codified as amended at 18
U.S.C. § 2251 (2000)).
66
Statement of Sen. Joseph R. Biden (regarding hearing on Child
Pornography Prevention Act)(June 4, 1990), available at 1996 WL
292976 (F.D.C.H.).
67
Id. at 1-2.
68
Pub. L. No. 105-314, 112 Stat. 2974 (1998).
20
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information; it connects people from around the world. But
it also creates new opportunities for sexual predators and
child pornographers to ply their trade.69
Numerous courts agree that Congress has created a
“comprehensive scheme” to combat and eradicate child
pornography.70 These courts typically quote the language from
Bowman to conclude that the section applies extraterritorially
because to hold otherwise would “greatly . . . curtail the scope
and usefulness of the statute.”71 For example, inferring the
exercise of extraterritorial power of 18 U.S.C. §§ 2251(a) and
2252(a) from the nature of the offenses defined in each statute,
69
144 Cong. Rec. S12263 (daily ed. Oct. 9, 1998) (statement of
Sen. Patrick Leahy).
70
See Harvey, 2 F.3d at 1327-29 (holding that 18 U.S.C. § 2251
was enacted as part of Congress’ continuing effort to contain
evils caused on American soil by foreign as well as domestic
suppliers of child pornography, and to deny extraterritorial
application of the Act would “greatly curtail the scope and
usefulness” of the statute); Martens, 59 M.J. at 504 (concluding
that, because the CPPA includes several provisions that clearly
reach conduct occurring outside the United States, “the statutory
framework compels the conclusion that Congress intended it to
apply broadly to counter the sexual exploitation of children”);
Bredimus, 234 F. Supp. 2d at 649-50 (holding that 18 U.S.C. §
2251A should apply extraterritorially because, given the location
of the statute in the criminal portion of the U.S. Code and the
nature of the offense, the section was enacted to expand
Congress’ statutory scheme to combat sexual exploitation of
children, both domestic and abroad, and because it “only makes
sense” that the statute would apply to the conduct of United
States citizens on foreign soil; otherwise, the comprehensive
scheme to combat international trafficking of child pornography
and sexual exploitation of children could not be effectively
implemented as contemplated by Congress); Kolly, 48 M.J. at 797
(holding that 18 U.S.C. § 2252(a)(2) of the CPPA applied
extraterritorially because “to allow a U.S. citizen in the United
States who ordered child pornography through the United States
postal service to escape prosecution simply because he is
overseas when he finally receives it would greatly . . . curtail
the scope and usefulness” of the CPPA).
71
Bowman, 260 U.S. at 98.
21
United States v. Martinelli, No. 02-0623/AR
as well as Congress’ other legislative efforts to eliminate child
pornography, the Ninth Circuit in Thomas determined that Congress
created a comprehensive statutory scheme to eradicate sexual
exploitation of children.72 Because “[p]unishing the creation of
child pornography outside the United States that is actually, is
intended to be, or may reasonably be expected to be transported
in interstate or foreign commerce is an important enforcement
tool . . . . [I]t [is] likely that under section 2251(a) Congress
intended to reach extraterritorial acts that otherwise satisfy
statutory elements.”73 The same principle applies to Congress’
intent in enacting 18 U.S.C. § 2252A.
IV. Conclusion
I agree with the majority’s decision that Appellant’s guilty
plea to specification 1 is improvident under O’Connor and that
his guilty pleas to the other CPPA-based specifications are
improvident to the lesser included offenses under clauses 1 and 2
of Article 134 under Mason. Therefore, I concur in part.
I disagree, however, with the majority’s determination that
the CPPA does not apply extraterritorially to reach Appellant’s
offenses. I believe the Bowman exception to the presumption
against extraterritoriality applies in this case based on the
nature of the offenses which the CPPA targets and because to deny
application of the exception would greatly curtail the scope and
usefulness of the CPPA. Congressional intent for a statute to
72
Thomas, 893 F.2d at 1068-69.
73
Id. at 1069 (internal footnotes omitted).
22
United States v. Martinelli, No. 02-0623/AR
apply extraterritorially can be inferred in criminal statutes,
even in the absence of an explicit statement, based on the text
of the entire statute, its legislative history and structure. A
reading of the CPPA, together with the comprehensive scheme of
the Act and repeated efforts by Congress to eradicate child
exploitation and expand federal jurisdiction over these types of
offenses, shows a clear congressional intent for the CPPA to
apply extraterritorially to Appellant’s acts in this case.
Therefore, I must respectfully dissent in part.
Finally, I note that today’s opinion construes a generally
applicable federal criminal statute rather than a Uniform Code of
Military Justice provision. While federal circuit precedent
exists on both sides of this issue, the majority’s holding is
against the weight of authority. This issue cries out for our
superior court to settle this dispute among the federal courts of
appeals.
23
United States v. Martinelli, No. 02-0623/AR
CRAWFORD, Judge (dissenting):
This case presents three issues of immediate importance and
worldwide impact: (1) the domestic aspect of Internet
transactions initiated outside the United States that result in
the receipt, reproduction, or transmission of electronic images
within or from discrete, electronic “space” on Internet servers
located within the United States; (2) the extraterritorial
application of the Child Pornography Prevention Act of 1996
(CPPA), 18 U.S.C. § 2252A (2000), to members of the armed forces
stationed overseas; and (3) the providence of a guilty plea to
violations of the CPPA when the record clearly demonstrates
Appellant’s knowledge of the “actual” nature of the victims, but
the military judge explains the offenses to Appellant using
language found to be overbroad in Ashcroft v. Free Speech
Coalition.1
I must respectfully dissent from the lead opinion’s holding
that § 2252A does not apply to Appellant’s conduct in Germany,
that Appellant’s receipt, reproduction, and distribution of
electronic, pornographic images did not occur in the United
States, and from the majority’s holding that Appellant’s plea to
specification 1 was improvident based on United States v.
O’Connor, 58 M.J. 450 (C.A.A.F. 2003). In specifications 1, 2,
and 3 Appellant was charged under Article 134, Uniform Code of
1
535 U.S. 234 (2002).
United States v. Martinelli, No. 02-0623/AR
Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with knowingly
and wrongfully, by means of a computer, mailing, transporting,
shipping, receiving, and reproducing child pornography in
“interstate or foreign commerce” at an Internet café in
Darmstadt, Germany, in violation of § 2252A. He was also
charged under Article 134 with receiving child pornography and
with possessing child pornography on a United States Army
installation, in violation of § 2252A, in specification 4. The
mailing, transporting, shipping, receiving, and reproducing
occurred at Hotmail and Yahoo! computer servers located in the
United States, with each such action having been effected by
Appellant’s physical contact with a computer terminal located in
Darmstadt, Germany.
The lead opinion takes the position that a citizen-soldier
who is knowingly sending, receiving, and reproducing computer
images of actual children engaged in graphic sexual conduct in
“interstate or foreign commerce,” who is possessing those images
on a United States military installation, and –- because of the
nature of Hotmail and Yahoo! e-mail accounts –- whose sending,
receipt, reproduction, and possession is simultaneously
occurring on e-mail servers located in the United States, cannot
be prosecuted under § 2252A. Not only is that position
unsettling, but it constitutes a dramatic shift in this Court’s
view of military criminal jurisdiction.
2
United States v. Martinelli, No. 02-0623/AR
I. Domestic Application of § 2252A
When Appellant sat in the Netzwerk Internet Café in
Darmstadt, Germany, he didn’t open envelopes, remove
photographs, copy photographs, place photographs in envelopes,
or place those envelopes in a mail drop, at least not in the
physical sense. Appellant rented a web browser, which he used
to visit Internet websites and to gain access to his Hotmail or
Yahoo! e-mail accounts. These particular e-mail accounts are
“web-based,” as distinct from e-mail operated through a local
client such as Microsoft Outlook (a program that can be locally
installed and which creates a local storage facility for e-mail
files and attachments). Because “web-based” accounts operate
without a local server and consist of discrete pools of
information electronically assembled and stored under a user’s
filename on a client server owned by the host, all of
Appellant’s e-mails -– and their attachments –- were “resident”
on the Internet servers of Hotmail and Yahoo!, located in the
United States.
While this is not the technology many of us grew up with,
it is the technology that prevails today. It is the technology
that appellants and counsel not infrequently must explain to
judges and, more to the point, it is the technology Appellant
3
United States v. Martinelli, No. 02-0623/AR
stipulated to and explained to the military judge during the
Care2 inquiry in this case.
The majority misconstrues the “routed through” language in
the stipulation to conclude that all the images –- including
those attached to e-mail -– were located outside the United
States when Appellant sent or received them or when he
reproduced them, and that when Appellant sent or received them
they all merely went “through” the United States in electronic
form.
What actually occurred, at least on those occasions that
Appellant sent or received images by e-mail, is that Appellant,
by typing on the keyboard of a computer in Darmstadt, used his
electronic address on a server located in the United States, to
send and receive e-mail messages with embedded or attached
images, to and from his address on that server. Appellant also
used his “space” on the Hotmail and Yahoo! servers in the United
States to store pornographic images of children, which was made
crystal clear by the language of specification 5,3 the testimony
2
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
3
“Specification 5 states that Appellant wrongfully endeavor[ed]
to impede an investigation into his own misconduct by asking SPC
Morgan A. Oviatt to destroy evidence that the said SPC
Christopher P. Martinelli had received and possessed child
pornography in violation of 18 U.S. Code § 2252A, to wit: by
deleting all files with attachments from his two electronic mail
accounts.” Emphasis added.
4
United States v. Martinelli, No. 02-0623/AR
of Specialist (SPC) Oviatt and Appellant’s admissions during the
providency inquiry.
Appellant also admitted to downloading images directly onto
the hard drive of a computer at the Netzwerk Internet Café and
onto portable disks that Appellant took back to the barracks.
But Appellant also admitted that each day, after he had left the
Netzwerk Internet Café, many if not all of the images Appellant
had collected, reproduced, or sent to others remained stored,
under his name, in his user account, on the servers of Hotmail
and Yahoo! within the territorial borders of the United States.
Because much of the storage of images, all of the sending,
and all of the receiving, actually occurred in the electronic
space controlled by Appellant on Hotmail and Yahoo! servers in
the United States, the crimes of sending and receiving were
committed there.4 Further, although some of the products of
Appellant’s reproduction (e.g., the portable computer disks
Appellant took back to his barracks) were located in Germany,
much of the actual reproduction occurred on the servers where
those images were located, in electronic form, in the United
States.
In light of these facts of record, there was a domestic
application of § 2252A to specifications 1 through 3.
4
As reflected in the specifications, they were simultaneously
committed in Germany, a proposition discussed below.
5
United States v. Martinelli, No. 02-0623/AR
II. Extraterritoriality
If required to examine § 2252A and Article 134, in an
extraterritorial setting, I would follow this Court’s precedents
and the great bulk of federal case law, while considering the
worldwide deployment of our forces, and the melding of federal
statutes in Article 134.
FACTS
As detailed above, Appellant possessed over sixty images of
child pornography on a U.S. military installation in Germany.
He also used a computer in a German community to effect the
repeated reproduction, transmission, and receipt of child
pornography in interstate and foreign commerce. Appellant’s
electronic transactions were, at a minimum, routed through
Internet servers in the United States:
In Prosecution Exhibit 1, Appellant stipulated that
[a]ll e-mail sent to or received from the accused’s
Yahoo or Hotmail e-mail accounts is electronically
routed through the respective service’s computers in
the United States. As a result, all of the child
pornography that the accused had either sent or
received using these two accounts was transported
through interstate or foreign commerce.
As a matter of practice, over the course of the
year, after copying the child pornography onto floppy
diskettes, the accused would then take the diskettes
to his barracks room in building 4002 on the Cambrai
Fritsch Kaserne, Darmstadt, Germany. The Cambrai
6
United States v. Martinelli, No. 02-0623/AR
Fritsch Kaserne is a U.S. Army installation used by
and under the control of the United States Government.5
Emphasis added.
DISCUSSION
Outside the military context, modern law recognizes five
theories in support of extraterritorial application of a
sovereign’s jurisdiction: (1) regulating conduct of its
citizens; (2) regulating activities which have a substantial
territorial effect; (3) regulating extraterritorial conduct when
there is a connection between the act and national security; (4)
asserting jurisdiction as to crimes against humanity; and (5)
asserting jurisdiction where the victim of the act is a citizen
of the state asserting jurisdiction.6
In the context of United States servicemembers, Congress’
authority to “make Rules for the Government and Regulation of
the land and naval forces,”7 creates additional sources of
jurisdiction under Article 134.
5
Before this Court, the Government noted “the child pornography
at issue moved in ‘foreign commerce’ because it was filtered
through internet service providers operating from the United
States.”
6
See Restatement (Third) Foreign Relations Law §§ 401-402
(1986).
7
U.S. Const. art. I, § 8, cl. 13.
7
United States v. Martinelli, No. 02-0623/AR
Citizenship
Notwithstanding the common law presumption against
extraterritorial application of a sovereign’s law,8 there remains
little question as to the power of Congress to extend
application of U.S. criminal statutes to the acts of U.S.
citizens undertaken beyond our territorial borders. The
extraterritorial reach of federal statutes, at least as to
citizens, arose as far back as 1824, when the United States
Supreme Court recognized the nationality principle. In The
Apollon,9 the Court stated: “The laws of no nation can justly
extend beyond its own territories, except so far as regards its
own citizens.” Again in 1960, the Court hinted that
nationality-based jurisdiction over civilian dependents of
military personnel overseas was possible but venue would lie in
the United States.10 Clearly, Appellant is a citizen.
Effects
In addition to the nationality justification for
jurisdiction, the effects doctrine also applies to conduct from
outside the border that has a consequence or effect within the
8
United States v. Foley Bros., Inc. v. Filardo, 336 U.S. 281,
285 (1949).
9
22 U.S. 362, 370 (1824).
10
Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246
(1960); see also United States ex rel. Toth v. Quarles, 350 U.S.
11, 21 (1955).
8
United States v. Martinelli, No. 02-0623/AR
border, provided Congress has the authority in that area. Just
as the Federal Government can defend itself “against
obstruction[] or fraud wherever perpetrated,”11 it also can cast
a wide net for drug trafficking, or in this case, trafficking in
child pornography. In United States v. Felix-Gutierrez,12 the
Ninth Circuit applied a criminal accessory statute -– silent as
to extraterritorial application –- to the murder of a Drug
Enforcement Agency (DEA) agent in Mexico. Finding
extraterritorial application of the laws of the United States
constitutionally permissible, the court emphasized the need to
look at both the express and implied congressional intent in
deciding whether the law should be given extraterritorial
application. Agreeing with the Fifth Circuit’s analysis in
United States v. Baker,13 the Felix-Gutierrez court noted that
the effectiveness of the statute would be compromised if the
citizens of the United States could commit these offenses abroad
without the intercession of the United States Government.14
Permitting the Government to exercise extraterritorial
jurisdiction comports with the international principle of
protective jurisdiction because the underlying crime affected
11
United States v. Bowman, 260 U.S. 94, 98 (1922).
12
940 F.2d 1200, 1204 (9th Cir. 1991).
13
609 F.2d 134, 136 (5th Cir. 1980).
14
Felix-Gutierrez, 940 F.2d at 1204.
9
United States v. Martinelli, No. 02-0623/AR
the nation itself.15 As Judge Hand recognized in United States
v. Aluminum Co. of America,16 concluding that the Sherman Act
applied to conduct that took place entirely outside the United
States but had a territorial effect on exports and imports: “It
is settled law . . . that any state may impose liabilities, even
upon persons not within its allegiance, for conduct outside its
borders that has consequences within its borders which the state
reprehends. . . .”
Further, construing the statute against extraterritorial
application to members of the armed forces stationed abroad has
practical effects that would thwart the plainly stated intent of
Congress to eradicate child pornography. If this had been a
contested case, the material that Appellant transmitted and
received could have been obtained pursuant to a search warrant
from a United States Internet site.17 The search would not have
required the consent of German officials. This is not an
instance where United States law enforcement officials need the
assistance, or even indulgence, of another territory to enforce
15
See id. at 1206.
16
148 F.2d 416, 443 (2d Cir. 1945) (citations omitted).
17
See generally United States v. Maxwell, 45 M.J. 406 (C.A.A.F.
1996)(warrant executed at site of interstate Internet service
provider).
10
United States v. Martinelli, No. 02-0623/AR
its law.18 Nor is this an instance of the searching state having
a stronger interest in the data than the state in which the data
is stored. Both are the same. The searching state knows where
the data is and there would be no interference with another
state as a byproduct of the search. Just as clearly, this is
not an instance of extraterritorial criminal enforcement that
would “potentially frustrate one of the central purposes of the
presumption against extraterritoriality -– namely, the
prevention of ‘unintended clashes between our laws and those of
19
other nations which could result in international discord.’”
As with nearly all other members of our armed forces, Appellant
was subject to a Status of Forces Agreement. Such agreements
have provided, since before United States v. Gatlin,20 that “the
military authorities of the sending State shall have the right
to exercise within the receiving State all criminal and
disciplinary jurisdiction conferred on them by the law of the
sending State over all persons subject to the military law of
18
See generally Yahoo!, Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitesme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001)(court
declined to enforce a French order, but did not rule that the
French were without proper jurisdiction to prevent the
distribution of anti-Semitism on the Internet in France).
19
United States v. Gatlin, 216 F.3d 207, 216 n.11 (2d Cir.
2000)(quoting Equal Employment Opportunity Commission v. Arabian
American Oil Co. (Aramco), 499 U.S. 244, 248 (1991).
20
Id. at 207.
11
United States v. Martinelli, No. 02-0623/AR
that State.”21 Appellant’s prosecution for these crimes was not
merely tolerated by German authorities, it was officially
condoned pursuant to an international treaty.
Plain Meaning of § 2252A
While citizenship and impact on “interstate and foreign
commerce” provide sufficient bases for jurisdiction, there is an
additional basis for applying the statute extraterritorially --
the plain meaning and purpose of the statute itself. “While the
legislation of the Congress, unless the contrary intent appears,
is construed to apply only within the territorial jurisdiction
of the United States, the question of its application,
[extraterritorially] is one of construction, not of legislative
power.”22 “Congress has the authority to enforce its laws beyond
the territorial boundaries of the United States. Whether
Congress has in fact exercised that authority . . . is a matter
of statutory construction.”23
This case deals with a specific federal statute, i.e.,
§ 2252A, which provides:
21
Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Their Forces, art. VII § 1(a),. June 19,
1951, 4 U.S.T. 1792.
22
Blackmer v. United States, 284 U.S. 421, 437 (1932) (citations
omitted).
23
Aramco, 499 U.S. at 248.
12
United States v. Martinelli, No. 02-0623/AR
(a) Any person who —-
(1) knowingly mails, or transports or ships in
interstate or foreign commerce by any means, including
by computer, any child pornography;
(2) knowingly receives or distributes --
(A) any child pornography that has been mailed,
or shipped or transported in interstate or foreign
commerce by any means, including by computer; or
(B) any material that contains child pornography
that has been mailed, or shipped or transported in
interstate or foreign commerce by any means, including
by computer . . .
. . . .
(5)(B) knowingly possesses any . . . computer disk,
or any other material that contains an image of child
pornography that has been mailed, or shipped or
transported in interstate or foreign commerce by any
means, including by computer . . .
. . . .
shall be punished as provided in subsection (b).
Emphasis added.
When interpreting this statute, it is appropriate to look
at the plain meaning of the statute,24 its history, and the
purpose of the statute.25
The Commerce Clause grants Congress the power “to regulate
commerce with foreign Nations . . . .”26 Section 2252A was an
exercise by Congress of its authority over interstate and
24
Hartford Underwriters Ins. Co. v. Union Planters Bank, 530
U.S. 1, 6 (2000)(“[W]hen the statute’s language is plain, the
sole function of the courts –- at least where the disposition
required by the text is not absurd –- is to enforce it according
to its terms.”)(internal quotation marks and citations omitted).
25
The purpose of the statute might be an important aspect of
statutory interpretation. Geier v. American Honda Motors Co.,
529 U.S. 861, 888 (2000).
26
U.S. Const. art. I, § 8, cl. 3.
13
United States v. Martinelli, No. 02-0623/AR
foreign commerce. This power to regulate foreign commerce has
been broadly construed to encompass all “transactions which
either immediately, or at some stage of their progress, must be
extraterritorial.”27
Certainly, Congress is interested in controlling commerce
in cyberspace as evidenced by the statute. This statute is a
broad, comprehensive scheme to eradicate, or at least control,
sexual exploitation of children. It was part of the CPPA. In
expanding the congressional statute, Congress specifically found
that “elimination of child pornography and the protection of
children from sexual exploitation provide a compelling
governmental interest for prohibiting the production,
distribution, possession, sale, or viewing of visual depictions
of children engaging in sexually explicit conduct. . . .”28
I cannot join the majority’s conclusion that because the
CPPA was enacted to “protect children from abuse,” United States
v. Martinelli, 61 M.J. __, __ (12) (C.A.A.F. 2005), it therefore
focuses on individual victims and cannot fall within the “second
category” of criminal statutes described in Bowman. Similar
language has been applied by numerous federal circuits in
recognizing that many criminal prohibitions enacted by Congress
27
Veazie v. Moor, 55 U.S. 568, 573 (1852).
28
Child Pornography Prevention Act, Pub. L. No. 104-208, div.
A., tit. I, § 121 (1)(13), 110 Stat. 3009.
14
United States v. Martinelli, No. 02-0623/AR
were intended primarily to protect the national interest, as
opposed to the property or persons of individuals.29
Not only on the weight of decisional law in the federal
circuits and our own precedents, but based on the compelling
similarities between this Nation’s struggle against the
production, importation, distribution, and possession of illegal
drugs and the much more recent efforts to combat the creation,
distribution, and possession of child pornography, I conclude
that, even if applied extraterritorially, Appellant’s plea and
29
E.g., United States v. Harvey, 2 F.3d 1318 (3d Cir. 1993)
(possession of child pornography under 18 U.S.C. § 2252(a)(4)(B)
(subject to aggravated punishment even though aggravating factor
occurred in Philippines); United States v. Wright-Barker, 784
F.2d 161 (3d Cir. 1986) (drug offenses on the high seas); United
States v. Thomas, 893 F.2d 1066 (9th Cir. 1990)(using a minor in
Mexico to produce child pornography violating 18 U.S.C. §
2251(a)); Chandler v. United States, 171 F.2d 921 (1st Cir.
1948)(treason by U.S. citizen in Germany); United States v.
Yousef, 327 F.3d 56 (2d Cir. 2003)(attempting to damage U.S.
aircraft in flight outside U.S.); United States v. Brown, 549
F.2d 954 (4th Cir. 1977)(conspiracy to import heroin to U.S.
from Germany involving an Army sergeant stationed in Germany);
United States v. Erdos, 474 F.2d 157 (4th Cir. 1973)(murder of
U.S. citizen by U.S. citizen at U.S. embassy in Guinea); United
States v. Perez-Herrera, 610 F.2d 289 (5th Cir. 1980)(conspiracy
and attempted importation of marijuana into U.S. from high
seas); United States v. Baker, 609 F.2d 134 (5th Cir.
1980)(possession with intent to distribute marijuana nine miles
off Florida coast); United States v. Dawn, 129 F.3d 878 (7th
Cir. 1997)(possession of child pornography under 18 U.S.C. §
2252(a) subject to aggravated punishment even though aggravating
factor occurred in Honduras); United States v. Schmucker-Bula,
609 F.2d 399 (7th Cir. 1980)(conspiracy to import cocaine in
Colombia); United States v. Plummer, 221 F.3d 1298 (11th Cir.
2000)(attempted smuggling forty miles off Florida coast); Feliz-
Gutierrez, 940 F.2d 1200 (kidnapping and murder of DEA agent in
Mexico).
15
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conviction by application of § 2252A was jurisdictionally
proper.
Appellant’s Military Status
A final rationale for jurisdiction to prosecute Appellant
arises under the UCMJ. Pursuant to this authority, Congress has
provided that under Article 134 “all disorders and neglects to
the prejudice of good order and discipline in the armed forces”
or conduct which would bring “discredit upon the armed forces”
may be tried under the UCMJ. The UCMJ specifically provides for
extraterritorial jurisdiction.30 In light of Article 36, UCMJ,31
it is clear that clause 3 of Article 134 contemplates
prosecution of crimes such as those enumerated in § 2252A.
Congress delegated authority to the President to prescribe
“[p]retrial, trial, and post-trial procedures, including modes
of proof, for cases” triable under the UCMJ.32 In the Manual for
Courts-Martial, United States (MCM) (2002 ed.), pt. IV, ¶
60.c(4)(c)(i) notes that under clause 3 of Article 134, “[t]here
are two types of congressional enactments of local application:
specific federal statutes (defining particular crimes), and a
30
Article 5, UCMJ, 10 U.S.C. § 805 (2000).
31
10 U.S.C. § 836 (2000).
32
Id. at § 836(a).
16
United States v. Martinelli, No. 02-0623/AR
general federal statute, the Federal Assimilative Crimes Act
(which adopts certain state criminal laws).”
This approach was recognized in United States v. Scholten.33
In Scholten, this Court held that there are four jurisdictional
bases to try an individual for kidnapping overseas, including
“interstate or foreign commerce, maritime or territorial
jurisdiction, special aircraft jurisdiction and foreign guests
of the government.”34 Even though 18 U.S.C. § 1201(a), the
statute at issue in Scholten, does not apply under clause 3, it
may be charged under clauses 1 and 2 where the conduct is
prejudicial to good order and discipline or of a nature to bring
discredit upon the armed forces.35 Thus, assuming Appellant was
not engaged in “interstate or foreign commerce,” those clauses
would also permit the prosecution of Appellant under the UCMJ.
For all of the above reasons, I respectfully dissent from
the majority’s holding that § 2252A does not have
extraterritorial application. The impact of this holding is
far-reaching because it overlooks our prior case law36 and
33
17 M.J. 171 (C.M.A. 1984).
34
Id. at 173 (citation and internal quotation marks omitted).
35
Id. at 173-74.
36
See, e.g., United States v. Collins, 7 M.J. 188 (C.M.A. 1979);
United States v. Jackson, 17 C.M.A. 580, 38 C.M.R. 378 (1968);
United States v. Wilmot, 11 C.M.A. 698, 29 C.M.R. 514 (1960);
United States v. Blevens, 5 C.M.A. 480, 18 C.M.R. 104 (1955).
17
United States v. Martinelli, No. 02-0623/AR
forecloses application by military authorities of numerous
federal statutes overseas.37
III. Providence of the Plea
I also dissent from the majority’s conclusion that
Appellant’s pleas were improvident in light of Ashcroft v. Free
Speech Coalition.38 In my dissent from a similarly erroneous
conclusion by this Court in O’Connor, 58 M.J. at 456-457
(Crawford, C.J., dissenting), I emphasized that O’Connor’s pleas
were factually provident to offenses involving actual children
and therefore unaffected by Free Speech Coalition.
Notwithstanding nearly unanimous support for this position in
the federal circuits that have addressed that very question of
law, the majority steadfastly moves this Court, without
justification, on a path that threatens, rather than protects,
the military community by providing extra “rights” for
servicemembers who possess, traffic in, and even create child
pornography, even when those acts occur on a military
installation.
Actual Children
In explaining the elements of each of the four child
pornography specifications, the military judge defined “child
37
See, e.g., Espionage Act of 1900, 18 U.S.C. § 792-99 (2000).
38
535 U.S. 234 (2002).
18
United States v. Martinelli, No. 02-0623/AR
pornography” by reading § 2256(8) to Appellant, including the
impermissibly overbroad language “appears to be” and “conveys
the impression.” The stipulation of fact, however,
explicitly recognizes that the children in all sixty-four
images appended to the stipulation are actual children:
“Rather than focusing on a technical listing of the elements
of an offense, this Court looks at the context of the entire
record to determine whether an accused is aware of the
elements, either explicitly or inferentially.”39
Appellant assured the military judge that he understood the
stipulation and that everything in it was true. After the
defense waived objection, the military judge admitted the
document, which provided, in part: “[t]he identity of these
children, as well as any lasting damage that may have occurred
because of their abuse in these photographs, is not known”; and
“[t]he accused never attempted to discover the identities or
well-being of these children.”
Virtual children do not have “identities,” they do not
suffer “damage” when abused, nor may their “well-being” be
restored. Appellant knowingly and voluntarily stipulated as
fact that the children in the sixty-four images were real,
potentially identifiable, female children, some of whom were
39
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F.
2003)(citation omitted).
19
United States v. Martinelli, No. 02-0623/AR
prepubescent, and all of whom were abused. Appellant’s
understanding of the animate, corporeal nature of the children
depicted in the sixty-four images attached to the record of
trial is clear. Moreover, the sixty-four images attached to the
record in this case graphically support Appellant’s belief that
the images are of actual minors.40 There is no substantial basis
in law and fact to question the providence of Appellant’s plea.
Appellant was aware of the elements and the facts objectively
support his plea.
The “Specialized Society” Revisited
By departing from the bulk of federal precedent, without
articulating any military necessity or distinction, this Court
continues to suggest that servicemembers accused of child
pornography offenses have First Amendment and trial rights
paramount to those extended by the federal circuits to similarly
situated civilian defendants prosecuted under the same statute.
Further, without even articulating a balance, the majority
implicitly promotes the newly elevated rights for accused
military child pornographers over those of the military
community as a whole.
40
See, e.g., images 58, 59, 60, and 63 (attached to the
stipulation of fact). These images unquestionably depict actual
female children of kindergarten age in graphic sexual poses.
20
United States v. Martinelli, No. 02-0623/AR
A. Application of Free Speech Coalition in the Federal
Courts
Since Free Speech Coalition, most of the federal courts
that have considered cases in which the constitutionally
overbroad language of § 2256(8) was employed have looked to the
entire record to determine the legal impact of constitutionally
impermissible instructions or explanations. Even in contested
cases, these courts have found sufficient evidence that images
depicted actual children in cases where a pediatric expert
testified as to the age of the child depicted and “the
photographs appeared to portray real children.” See, e.g.,
United States v. Bender, 290 F.3d 1279, 1282 (11th Cir.
2002)(denying defendants’ free speech claim and noting that
“there [was] sufficient evidence that the images portray[ed]
real children”). Courts have upheld convictions when the
appellate judges’ own viewings left no doubt that “the images
shown to the jury . . . depicted . . . real” children. United
States v. Richardson, 304 F.3d 1061, 1064 (11th Cir. 2002). The
Richardson court “reached [that] conclusion because the evidence
clearly established that the children depicted in the images or
pictures were actual children.” Id. at 1064-65. In that case,
a special agent testified that, based on his training and
experience, the images depicted actual children and not what
simply appeared to be children.
21
United States v. Martinelli, No. 02-0623/AR
Other federal courts addressing this issue have upheld
convictions where the factfinder concluded that the images
depicted actual children or where the appellate court deemed
that it must have been so. Padgett v. United States, 302 F.
Supp. 2d 593, 598-600 (D.S.C. 2004)(finding that language of
providence inquiry established actual nature of children and
that, by appellate court’s own review, photos were of actual
children); United States v. Slanina, 359 F.3d 356, 357 (5th
Cir. 2004) (stating that the “Government was not required to
present any additional evidence or expert testimony . . . to
show that the images downloaded . . . depicted real children,
and not virtual children”); United States v. Farrelly, 389
F.3d. 649, 655 (6th Cir. 2004)(affirming conviction where the
Government presented “sufficient evidence of actual children”
and the trier of fact ‘was capable of reviewing the evidence to
determine whether the Government met its burden to show that the
images depicted real children’”) (quoting Slanina, 359 F.3d at
357);41 United States v. Kelly, 314 F.3d 908, 912 (7th Cir.
2003)(upholding a guilty plea “[b]ecause regulation of real
child pornography remains constitutional . . . and Mr. Kelly
41
See, e.g., 3 Leonard B. Sand et al., Modern Federal Jury
Instructions -- Criminal, Inst. 62-22 (2005) (“You may consider
all of the evidence, including your viewing of the depiction, in
determining whether the depiction portrayed an actual person
under the age of eighteen engaging in sexually explicit
conduct.”).
22
United States v. Martinelli, No. 02-0623/AR
possessed real child pornography”); United States v. Deaton,
328 F.3d 454, 455 (8th Cir. 2003)(reaffirming the reasonableness
of a “jury’s conclusion that real children were depicted, even
where the images themselves were the only evidence the
government presented on the subject.”); United States v. Vig,
167 F.3d 443, 449 (8th Cir. 1999)(holding that the “images were
viewed by the jury which was in a position to draw its own
independent conclusion as to whether real children were
depicted.”); United States v. Reardon, 349 F.3d 608, 612-14 (9th
Cir. 2003)(evidence at trial sufficient to prove real children);
United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.
2003)(stating that factfinders are “still capable of
distinguishing between real and virtual images”); United States
v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002)(affirming a Free
Speech Coalition conviction because “no reasonable jury could
have found that the images were virtual children”). But see
United States v. Hilton, 386 F.3d 13, 18-19 (1st Cir.
2004)(because the jury was not required to find that the images
were of actual children, even if a commonsense determination
would compel such a finding, the conviction could not stand).42
42
See also United States v. Maxwell 49 F.App’x 410, 411 (4th
Cir. 2002)(affirming pre-Free Speech Coalition guilty plea on
the basis that pornography was of actual children); United
States v. Roberts, 84 F.App’x 440, 441 (5th Cir. 2004)(denying
attack on pre-Free Speech Coalition conviction on ground that
detailed testimonial description of pictures established their
23
United States v. Martinelli, No. 02-0623/AR
Thus, it is clear that the great weight of federal authority
supports the analysis and conclusions of the Army Court of
Criminal Appeals.
B. Treatment of Free Speech Coalition in this Court
This case revisits a familiar question: how is this Court
to ensure compliance with Free Speech Coalition when, during the
course of court-martial proceedings, the military judge employed
the statutory language found by Free Speech Coalition to be
overbroad –- language that could ostensibly permit conviction
based on visual depictions of virtual children? In this case,
that question is narrowed to the context of a Care inquiry.
The answer, of course, begins with our duty to follow the
decisions of our superior court. But when we impose upon the
Government a greater burden than the Supreme Court requires, we
must first articulate a balance between the First Amendment and
trial rights of a military accused, on the one hand, and the
military community’s interest in good order and discipline on
the other. Both the servicemember and the military community
share an interest in a lawful, rational application of the CPPA.
Unfortunately, while maintaining a position that affords
military child pornographers a level of sanctuary unrecognized
actual nature).
24
United States v. Martinelli, No. 02-0623/AR
by other jurisdictions, the majority provides no balancing and
serves only one interest.
As noted above, a growing majority of federal courts have
declined an overly restrictive application of Free Speech
Coalition, in favor of a measured approach, e.g., consideration
of waiver, United States v. Hay, 231 F.3d 630, 639 (9th Cir.
2000), plain error, Hall, 312 F.3d at 1259, and other legal
theories, in conjunction with an examination of the facts of
each case, including the nature and characteristics of the
prohibited images themselves. Richardson, 304 F.3d at 1064.
The majority has rejected that approach and has essentially
established a per se reversal rule to be applied to any case in
which the unconstitutionally overbroad language is used, unless
the conviction can be upheld under clauses 1 and 2 of Article
134. The application of that rule in this case operates to
exonerate an accused who clearly admitted to trafficking in
pornographic images of actual early teen, preteen, and
kindergarten girls.
C. Balancing –- Now and in Future Cases
The approach this Court should take in Appellant’s case
need not be inconsistent with the Court’s holding in O’Connor:
For present purposes, however, a provident guilty plea
to a violation of the CPPA provision at issue here
must reflect that an accused has violated those
portions of the statute upheld by the Supreme Court.
In light of that, and in the absence of any discussion
25
United States v. Martinelli, No. 02-0623/AR
or focus in the record before us regarding the
“actual” character of the images, we cannot view
Appellant’s plea of guilty to violations of the CPPA
as provident.
. . . .
We have long recognized that the First Amendment
rights of civilians and members of the armed forces
are not necessarily coextensive. At the same time,
however, we must ensure that the connection between
any conduct protected by the First Amendment and its
effect on the military environment be closely
examined.
58 M.J. at 454-455 (citations omitted).
This Court’s disposition of Appellant’s case should, at a
minimum, treat those very same considerations addressed by
O’Connor: evaluating any “discussion or focus in the record
before us regarding the ‘actual’ character of the images,” and
ensuring “that the connection between any conduct protected by
the First Amendment and its effect in the military environment
[is] closely examined.” Id. Instead, without explanation or
elaboration, the majority purports to rely on O’Connor, while
conducting no balancing and implicitly declining to adopt the
reasoning of the clear majority of Article III courts.
As a matter of general practice, when we choose to depart
from Supreme Court precedent, or from the reasoning of the
majority of the federal circuit courts that have followed
Supreme Court precedent in construing and applying a
constitutional or statutory provision, and when that departure
26
United States v. Martinelli, No. 02-0623/AR
is not required by legislative or executive mandate, this Court
should articulate the military necessity or distinction that
compels our reasoning. See, e.g., United States v. Roberts, 59
M.J. 323, 327 (C.A.A.F. 2004) (rejecting Supreme Court standard
for evaluating discovery violation and applying a more stringent
standard based on “military practice”); United States v. Unrue,
22 C.M.A. 466, 469, 47 C.M.R. 556, 559 (C.M.A. 1973)(recognizing
“military necessity” in evaluating reasonableness of search and
seizure); United States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F.
2002)(declining to view court member challenge “through the
prism of the Sixth Amendment”); United States v. Moore, 58 M.J.
466, 469 (C.A.A.F. 2003)(applying “good order and discipline”
rationale in validating Government’s abrogation of First
Amendment free speech rights); United States v. Brown, 45 M.J.
389, 395 (C.A.A.F. 1996)(applying “clear danger to loyalty,
discipline, mission, or morale” standard to First Amendment
claim).
“This Court has long recognized that the military is, by
necessity, a specialized society. We have also recognized that
the military has, again by necessity, developed laws and
traditions of its own during its long history.” Parker v. Levy,
417 U.S. 733, 743 (1974). Balancing this recognition of the
military’s specialized need for enhanced discipline and
regulation, our Court has long maintained vigilance in
27
United States v. Martinelli, No. 02-0623/AR
preserving the rights of servicemembers in the court-martial
process. See generally United States v. Jacoby, 11 C.M.A. 428,
29 C.M.R. 244 (1960). When we perform this balancing, however,
we must not fail to consider the fabric of the “specialized
society” in which servicemembers and their families exist. The
Department of Defense and the military departments have
emphasized that this “specialized society” consists not only of
servicemembers, but of their families as well.43
When this Court applies a U.S. Code provision and our
superior court’s interpretation thereof in a manner inconsistent
with the bulk of Article III courts -- presumably for the
purpose of providing an elevated level of protection for the
trial rights of a military accused -- we must weigh the reasons
for our divergent application of that statute against the
concomitant reduction in the level of protection that statute
would otherwise provide to the “specialized society” we also
serve. As noted, that society is populated not only by the
uniformed men and women who bravely serve our Nation, but by
their spouses and children, all of whom have every right to
43
See, e.g., Department of Defense (DoD) Directive, Family
Policy, at E3.1.1 (Dec. 30, 1988) (“DoD personnel and their
families are the most valuable resource in support of the
national defense. DoD Families serve as a force multiplier,
contributing to the readiness and retention of quality
personnel. The goal is a combat-ready force supported by
families whose quality of life reflects the high standards and
pride of the Nation they defend.”).
28
United States v. Martinelli, No. 02-0623/AR
expect a measured and rational application of law by trial and
appellate courts. More particularly, in light of this Court’s
historical balance between individual First Amendment rights and
the needs of the “specialized society,” the members of that
society could hardly anticipate that this Court would, despite
the weight of federal decisions to the contrary, construe a
Supreme Court decision so as to elevate the right of an
individual servicemember to traffic in child pornography above
the need of that “specialized society” for good order and
discipline.
How then, without being compelled to do so by our superior
court, by Congress, or by the President, does this Court elevate
the First Amendment and fair trial rights of servicemembers over
the military’s need for good order and discipline? Are good
order and discipline, as well as the safety and security of the
community not threatened by the creation and proliferation of
child pornography within that community? This Court’s
application of Free Speech Coalition not only places us in the
minority of federal fora, but, for reasons that remain a
mystery, confers on servicemembers accused of owning,
distributing, and trafficking in child pornography a status that
exalts their constitutional rights above those of civilians
accused of identical crimes, while unnecessarily and
unintentionally denigrating the legitimate interests of the
29
United States v. Martinelli, No. 02-0623/AR
thousands of other servicemembers and their families who
comprise the “specialized society” recognized by the Supreme
Court for over thirty years.
IV. Conclusion
Both on the question of extraterritorial application of §
2252A and on implementation of Free Speech Coalition, the
majority moves this Court still further from the mainstream of
federal practice. In doing so, the lead opinion departs from
our own precedent by failing to conduct a balancing of competing
rights and interests. For these reasons alone, I must
respectfully dissent. Because Appellant’s stipulation of fact
provides no “substantial basis in law and fact to question the
providence of,” United States v. Prater, 32 M.J. 433 (C.M.A.
1991), Appellant’s pleas to possession and trafficking in child
pornography, because the images in question clearly depict
actual minors, and because Appellant waived the issue,44 I must
also respectfully dissent. Finally, I respectfully dissent from
the majority’s declination to find both that specifications 1,
2, and 3 were not committed within the territory of the United
States and that Appellant’s pleas provident to the lesser
44
O’Connor, 58 M.J. at 455-57 (Crawford, C.J., dissenting).
30
United States v. Martinelli, No. 02-0623/AR
included offense of conduct prejudicial to good order and
discipline or to bring discredit upon the armed forces.45
45
Id. at 457-59.
31