United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009) is a case about child pornography. The accused in the case posted a sexually explicit image of a child to his Yahoo! profile, which other users could access. This took place on or before 7 September 2000. He later enlisted in the Navy and he entered active duty on 21 June 2001. He re-enlisted on 20 June 2005. When active duty, the accused accessed his Yahoo! e-mail account, but did not alter his profile or alter the image on his profile. During an Immigration and Customs Enforcement (ICE) investigation into a child pornography website to which the accused had access through a paid membership, ICE collected the appellant’s Yahoo! e-mail address. On 10 August 2006, an ICE agent accessed the account, viewed his profile and the image described above, and printed a hardcopy of the image. The accused removed the image from his profile on 28 June 2007. The accused was found guilty, in relevant part, of one specification of distributing child pornography under 18 U.S.C. § 2252A(a)(2)(A), charged using Clause 3 of Art. 134. The CAAF had to decide two issues: Did the court-martial have jurisdiction over the offense of distributing an image of child pornography? More particularly, when did the alleged offense of “distribution of child pornography” take place in this case? The CAAF ruled that the court-martial had jurisdiction over the offense. Because the CPPA does not expressly define “distribute,” the Court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions. Considering these sources, under the CPPA, distribution of child pornography through the Internet has two acts: (1) the uploading of the image, where the image left the possession of the original user, and (2) the delivery of the image, where another user accessed and viewed the image. Here, the accused posted the image to his Yahoo! profile prior to his entry on active duty. The CAAF observed that the profile acts as a “’public bulletin board’ such that all Internet users can access information posted by the profile’s owner.” Although this was done before entering active duty, he accessed the account during active duty and could have removed the image. The offense of distribution happened when he was on active duty when the ICE agent accessed and viewed the image that he had posted for others to view.
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