U.S. v. Reeves, 62 M.J. 88

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)
2. the Child Pornography Prevention Act is subject to a presumption against extraterritoriality and there is nothing in the language of the statute or the legislative history to overcome that presumption
3. because the Child Pornography Prevention Act does not have extraterritorial application, it was inapplicable to an accused’s receipt and possession of child pornography in Germany charged under clause 3 of Article 134 as a violation of that Act
4. the section of the Child Pornography Prevention Act prohibiting the production of a visual depiction of sexually explicit conduct by a minor (18 U.S.C. § 2251(a)) does not apply extraterritorially
5. there was no basis for finding a domestic application of the Child Pornography Prevention Act where the specification charged the accused under clause 3 for violating the Act in Germany by possessing child pornography on land used by and under the control of the United States Government; the specification was a “situs” based possession charge and did not allege movement of child pornography through the Internet into the United States; thus, the principle of “continuing jurisdiction” was inapplicable to the specification
6. there was no basis for finding a domestic application of the Child Pornography Prevention Act where the specification charged the accused under clause 3 for violating the Act in Germany by receiving child pornography that had been transported through the Internet; although the accused admitted during his providence inquiry that the images were sent from the U.S. through the Internet to him, he did not knowingly receive the images until he accessed the pictures in Germany and the act of opening the images did not trigger a chain of events that continued into the United States
7. there was no basis for finding a domestic application of the Child Pornography Prevention Act where the specification charged the accused under clause 3 for violating the Act in Germany by using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct; although the accused admitted that the camcorder he used to videotape the German girls had been manufactured in Japan, purchased in the United States, and transported by him to Germany, in videotaping the girls, he did not begin any conduct that continued into the United States
8. an improvident plea to a Child Pornography Prevention Act-based clause 3 offense may, under certain circumstances, be upheld as a provident plea to a lesser-included offense under clause 2 of Article 134
9. the accused’s improvident guilty pleas to possessing, receiving, and producing child pornography in Germany charged as Child Pornography 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 an absence of any inquiry or discussion of service discrediting conduct or conduct that is prejudicial to good order and discipline; the military judge did not list service discrediting conduct or conduct that is prejudicial to good order and discipline as an element of any of the child pornography offenses; and the plea inquiry focused entirely on the elements of the clause 3 offenses

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.: United States Code

1. legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States
2. offenses created by the Child Pornography Prevention Act do not fall within the obstruction and fraud against the government exception to the presumption against extraterritoriality