U.S. v. Martinelli, 62 M.J. 52

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. 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); 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
2. the Child Pornography Prevention Act does not have extraterritorial application and therefore does not extend to conduct engaged in outside the territorial boundaries of the United States when charged under clause 3 of Article 134, UCMJ
3. the Child Pornography Prevention Act does not fall within the category of criminal offenses involving frauds or obstructions against the government that are exempt from the 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; while few crimes are more serious or morally repugnant, child abuse does not involve fraud or obstruction against the government
4. servicemembers can be prosecuted under clauses 1 and 2 of Article 134 for child pornography offenses involving “virtual” children
5. because the Child Pornography Prevention Act does not have extraterritorial application, the accused’s guilty pleas to possessing, receiving, and reproducing child pornography charged as CPPA-based clause 3 offenses under Article 134 were improvident where the underlying conduct occurred in Germany
6. even though the Child Pornography Prevention Act does not have extraterritorial application, the accused’s guilty plea to using e-mail in Germany to send child pornography through the Internet charged as a CPPA-based clause 3 offense under Article 134 was not improvident because his e-mails were electronically routed through servers located in the United States and thus a domestic application of the CCPA was appropriate
7. the accused’s guilty plea to using e-mail in Germany to send child pornography through the Internet charged as a Child Pornography Prevention Act-based clause 3 offense under Article 134 was improvident where the military judge used an unconstitutional definition of child pornography and failed to inquire into the distinction between “actual” and “virtual” child pornography
8. conduct that may not constitute a violation of clause 3 of Article 134 in a foreign country may still be punishable under clauses 1 and 2
9. the accused’s improvident guilty pleas to possessing, receiving, reproducing, and sending child pornography in Germany charged as Child Pornograpny Prevention Act-based clause 3 offenses under Article 134 could not be deemed provident with respect to lesser-included offenses under clause 1 or 2 where there was no reference to or discussion during the providence inquiry of the accused’s conduct being either prejudicial to good order and discipline or service discrediting

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. for an appellate 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
2. interpretation of a statute and its legislative history are questions of law that an appellate court reviews de novo

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. in searching for the clear expression of congressional intent in a statute, an appellate court is not limited to the text of the statute, but can consider all available evidence about the meaning of the statute, including its text, structure, and legislative history

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. 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; rather, the question is whether Congress has in fact exercised that authority, which is a matter of statutory construction
2. legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States
3. unless the affirmative intention of Congress to give extraterritorial effect to a statute is clearly expressed, it is presumed that the statute is primarily concerned with domestic conditions
4. the only category of offenses exempt 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