U.S. v. Ober, 66 M.J. 393

First Principles: Constitutional Matters: Due Process

1. an appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge has an independent duty to determine and deliver appropriate instructions; the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law

Military Justice Personnel: Military Judge: Instructions

1. the military judge has an independent duty to determine and deliver appropriate instructions; the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law
2. appellant failed to demonstrate that the omission of the charged words “cause to be” from the military judge’s instructions on the charge of transporting child pornography in interstate commerce constituted plain error, where appellant’s speculation that omission of the words might have caused the court-martial members to ignore that language or to convict him under another theory of liability for which they were not instructed did not carry his burden to show an unfair prejudicial impact on the members’ deliberations or material prejudice to his substantial rights; as a threshold matter, appellant failed to demonstrate how omission of the words “cause to be” -- which were not part of the underlying statute -- changed the nature of the offense or left the members with a misunderstanding of the transporting charge and its specification; furthermore, the defense did not object to the military judge’s proposed instructions on the transporting charge, nor did the defense request any additional instructions to clarify the elements of the offense
3. appellant failed to demonstrate that the military judge committed plain error in his instructions on the charge of transporting child pornography in interstate commerce by failing to instruct on a theory of aiding and abetting, where appellant was charged and prosecuted with transporting child pornography as a primary actor, and the government focused its case on proving that he was guilty of transporting child pornography based on his own act of obtaining files via KaZaA, a peer-to-peer file sharing program; irrespective of whether the government could have relied on an aider and abettor theory in this case, appellant was not prejudiced by the decision of the military judge to focus his instructions on the primary theory presented by the prosecution
4. appellant failed to demonstrate that the military judge committed plain error in his instructions on the charge of transporting child pornography in interstate commerce by failing to provide a definition of “uploading,” where the computer forensics experts who testified for the government and the defense offered comprehensive explanations of the KaZaA file sharing process, including uploading; the absence of a further description of uploading did not constitute a material prejudice to the substantial rights of appellant where the testimony at trial did not produce a material difference between the parties or their experts regarding the operation of KaZaA or how KaZaA could be used to obtain files, where the defense did not challenge the government expert’s testimony that downloading files through KaZaA caused an upload to occur on the host computer, but instead embraced the evidence of how KaZaA worked in an effort to convince the panel members that someone other than appellant was responsible for downloading child pornography on his computer, and where the defense did not object to the military judge’s proposed instructions, nor did the defense request additional instructions on uploading

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

1. evidence that appellant used KaZaA, a peer-to-peer file sharing network, to download child pornography to his computer from other participants in a file sharing network, thereby causing an upload on the host user’s computer, was legally sufficient to support a finding that appellant was guilty of transporting child pornography in interstate commerce in violation of 18 USC 2252A(a)(1), considering appellant’s pretrial confession to CID agents, the expert testimony regarding the files found on appellant’s computer, and the testimony regarding the underlying investigation of appellant

Trial Stages: Merits: Instructions › Generally

1. the military judge has an independent duty to determine and deliver appropriate instructions; the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law

Trial Stages: Appeals: Generally

1. an appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in this case, the court of criminal appeals did not affirm a conviction for transporting child pornography in interstate commerce based on a theory of liability not presented to the trier of fact, where the theory relied on by the court that transportation occurred when appellant downloaded child pornography using the file sharing program, KaZaA, thereby causing an upload on the host user’s computer, was one of the alternative theories presented by the government at trial, not a different one

Trial Stages: Appeals: Preservation of Error / Plain Error

1. appellant failed to demonstrate that the omission of the charged words “cause to be” from the military judge’s instructions on the charge of transporting child pornography in interstate commerce constituted plain error, where appellant’s speculation that omission of the words might have caused the court-martial members to ignore that language or to convict him under another theory of liability for which they were not instructed did not carry his burden to show an unfair prejudicial impact on the members’ deliberations or material prejudice to his substantial rights; as a threshold matter, appellant failed to demonstrate how omission of the words “cause to be” -- which were not part of the underlying statute -- changed the nature of the offense or left the members with a misunderstanding of the transporting charge and its specification; furthermore, the defense did not object to the military judge’s proposed instructions on the transporting charge, nor did the defense request any additional instructions to clarify the elements of the offense
2. appellant failed to demonstrate that the military judge committed plain error in his instructions on the charge of transporting child pornography in interstate commerce by failing to instruct on a theory of aiding and abetting, where appellant was charged and prosecuted with transporting child pornography as a primary actor, and the government focused its case on proving that he was guilty of transporting child pornography based on his own act of obtaining files via KaZaA, a peer-to-peer file sharing program; irrespective of whether the government could have relied on an aider and abettor theory in this case, appellant was not prejudiced by the decision of the military judge to focus his instructions on the primary theory presented by the prosecution
3. appellant failed to demonstrate that the military judge committed plain error in his instructions on the charge of transporting child pornography in interstate commerce by failing to provide a definition of “uploading,” where the computer forensics experts who testified for the government and the defense offered comprehensive explanations of the KaZaA file sharing process, including uploading; the absence of a further description of uploading did not constitute a material prejudice to the substantial rights of appellant where the testimony at trial did not produce a material difference between the parties or their experts regarding the operation of KaZaA or how KaZaA could be used to obtain files, where the defense did not challenge the government expert’s testimony that downloading files through KaZaA caused an upload to occur on the host computer, but instead embraced the evidence of how KaZaA worked in an effort to convince the panel members that someone other than appellant was responsible for downloading child pornography on his computer, and where the defense did not object to the military judge’s proposed instructions, nor did the defense request additional instructions on uploading

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

1. an appellate court reviews de novo the question whether the evidence is legally sufficient to support a finding of guilty for transporting child pornography in interstate commerce; the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt
2. whether a court-martial panel was properly instructed is a question of law that an appellate court reviews de novo