Wednesday, June 19, 2013

Frost Wire, Child Pornography and Abandonment

After Airman Christopher B. Reed was “convicted at a general court-martial comprised of officer members” of “knowingly and wrongfully attempting to receive visual depictions of minors engaging in sexually explicit conduct” and “knowingly and wrongfully possessing visual depictions of minors engaging in sexually explicit conduct” in violations of Articles 80 and 134 of the Uniform Code of Military Justice, which are codified as 10 U.S. Code §§ 880 & 934, he appealed.  U.S. v. Reed, 2013 WL 2443152 (U.S. Air Force Court of Criminal Appeals 2013).  He was sentenced to “a bad-conduct discharge, 12 months of confinement, and reduction to E–1.”  U.S. v. Reed, supra.

Reed raised six issues on appeal, only one of which concerns us: whether the “military judge [who presided over the court-martial] erred by providing incomplete instructions on the . . .  defense of voluntary abandonment”.  U.S. v. Reed, supra.

According to the opinion, when the case began Reed was sharing an

on-base residence with Senior Airman (SrA) WTH, one of his co-workers. During the summer of 2008, [Reed] purchased a new computer which SrA WTH was free to use. [Reed] used a peer-to-peer file sharing program called Frost Wire to download music and videos onto this computer. This software allows a user to connect to other users' computers and share their files by typing a search term into the program, receiving a list of responsive files and then selecting files for downloading to his own computer.

On 2 December 2008, SrA WTH logged on to [Reed’s] computer to download a music file. When he was unable to find that file using his typical program, he opened [Reed’s]  Frost Wire program to see if [it] had the music. While the program was executing his search for the music, SrA WTH clicked through [Reed’s] Frost Wire library and folders and saw about seven files in the `incomplete file’ folder whose titles led him to believe they contained child pornography (most had the word `pedo’ or `pedophile’ in the file name, as well as sexual terms and ages of children).

He opened one of the files entitled `7 yo b’” and it briefly showed a young girl in bed with covers pulled up to her chin while an adult male walked towards her. Because he was suspicious it was child pornography, SrA WTH exited the video file and went to his work station to confront [Reed] about his discovery. When he could not find [Reed], SrA WTH told his supervisor who referred him to the Air Force Office of Special Investigations (OSI). Later that evening, he was interviewed by agents from the OSI.

U.S. v. Reed, supra.

After they interviewed SrA WTH, the OSA agents called Reed in for an interview.  U.S. v. Reed, supra. He “denied ever viewing child pornography on his computer and consented to a search of his residence.” U.S. v. Reed, supra.  After the OSI agents seized his computer and a computer disc, they interviewed Reed again,

sternly telling him he needed to be honest and provide them with any information he had failed to tell them earlier. Looking `defeated’ and with his eyes watering, [Reed] admitted he had viewed child pornography on his computer and had been looking at both adult and child pornography since he was 13 years old (he was 22 at the time). . . . He told the agents he looked at child pornography about `a dozen or so’ times. He [also said] that, at various times, he searched for and viewed adult pornography on a near daily basis.

[Reed] said he would periodically have urges to look at child pornography and would use Frost Wire to download it. To do this, [he] said he would type specific search words into the program on his computer. After he downloaded the files onto his computer, he would view them over an unspecified period, admitting to the agents that he saw images of 3- to 17-year-old girls engaging in sexual acts with older males, including sodomy and sexual intercourse.

After he was done viewing them, he would delete the files from his computer. He claimed the last time he viewed child pornography on his computer was in July or August 2008. In his second written statement, he admitted knowing it was wrong, that he could not help himself at times, and that he needed some help with this problem.

U.S. v. Reed, supra.

Reed’s computer was examined at the Defense Computer Forensics Laboratory (DEFL) and, after

[r]unning a search using digital fingerprints (hash values) of `known victims’ found in NCMEC's database, a forensic analyst found two `hits.’ One was a thumbnail (small) picture file in three different locations within the unallocated space of the computer, meaning it was probably removed, by either the operating system or the computer's user, through a deletion and subsequent emptying of the recycle bin.

The DCFL analyst was unable to determine how or when the picture file ended up on the computer or where it originated. The image was blurry but showed a young girl wearing underwear and reclining on a bed near the bottom half of another young child wearing underwear.

The other `hit’ was a brief (a fraction of a second) part of a video file that could not be viewed using any program found on [Reed’s] computer. The analyst used another program to create a screen shot of that video excerpt and it showed a young, naked girl holding the erect penis of an adult male. For the partial video file, its location in the `incomplete file’ for the Frost Wire program indicated it was an incomplete download from Frost Wire that was placed on the computer on 21 November 2008.

The DCFL analyst also conducted key word searches of [Reed’s] computer's hard drive, using terms commonly associated with child pornography. This search found seven files whose names were indicative of child pornography. All the files were found in the Frost Wire `incomplete’ folder.

The words in the file names were consistent with the types of terms [Reed] admitted using during his Frost Wire searches. One of the suggestive file names was `Education–Daphne (9 yo) Demon[s]trating Child Pedo Outercourse.’ This file contained the partial video file of the naked girl. Through questioning by the defense [at the court martial], the expert also testified about a General Accounting Office study that found that 56% of images having file names consistent with child pornography in fact contained only adult pornography.

U.S. v. Reed, supra.

At the court martial, Reed also called a defense forensic expert to testify about his analysis of

[Reed’s] computer. This expert looked at all the photographic images found within the `allocated space’ of the computer (meaning an area a computer user could see). . . . [H]e found 386 photographs and 35 video recordings that contained some form of nudity but, in his opinion, the people in each image were obviously adult.

Like the Government expert, the defense expert was unable to open the partial video file using any programs loaded on [Reed’s] computer and thus it was not one of the 35 videos he initially categorized, nor was the video seen by SrA WTH as neither the child nor adult male was nude. The expert also searched for information on which search terms [Reed] used to find pornography on Frost Wire, but he was unable to find any record of those searches.
The defense expert demonstrated for the [court martial] panel how a Frost Wire user could type innocuous terms into the program and receive a list of file names that are indicative of child pornography. Noting that Frost Wire does not automatically cancel the downloading of a file, the defense expert demonstrated how the computer user could cancel the downloading of a file through several methods and how the partial download would remain in the `incomplete’ folder until the user deleted it.

He also testified that the forensic evidence on [Reed’s] computer indicated the downloading of the files in the `incomplete’ folder had been cancelled.

U.S. v. Reed, supra.

When he was cross-examined, the defense expert agreed that a file would not show

up in the `incomplete’ folder unless the user affirmatively took an action to select and download it (or a group of files) by clicking on the file name(s) or right clicking on the file name(s) and selecting `download.’ If the file does not completely download but remains in the `incomplete’ folder, the user can view the part of the file that did actually download. He also agreed that the presence of certain terms in the file names (i.e.pedo, underage) may indicate that the file is child pornography.

U.S. v. Reed, supra.  As to the charge against Reed, the prosecution argued that he “attempted to receive child pornography by searching Frost Wire using terms indicative of child pornography and then selecting for download 6–7 files whose titles contained terms that were suggestive of child pornography.” U.S. v. Reed, supra. 

As noted above, at the court martial Reed’s lawyer argued that Reed “voluntarily abandoned any effort he had undertaken to receive the child pornography by cancelling the downloads of the image.” U.S. v. Reed, supra.  On appeal, Reed argued that the military judge “erred by providing incomplete instructions on this affirmative defense and by refusing to provide curative instructions when the trial counsel misstated the law on that defense.” U.S. v. Reed, supra.  If you check out Rules 913 and 920 in the Manual for Courts-Martial United States (2012), you will see that the judge gives preliminary instructions to the panel before the court martial actually begins, and then provides “instructions on findings” before the members deliberate on a verdict.

As Wikipedia explains, in U.S. criminal law, including U.S. military law, abandonment is a defense to charges that the defendant attempted to commit a crime.  There are basically two rationales for recognizing it as a defense:  One is that, unlike a completed crime, like murder, attempt is an incomplete crime; here, the first charge against Reed was that he attempted to receive images of child pornography, which, of course, means that he did not actually receive such images.  If he did not receive them because he changed his mind and abandoned the effort that can be a defense.  Obviously, no such defense is available when the crime has been completed, e.g., when John Doe kills Robert Roe.  The other rational for recognizing attempt as a defense is that we want to encourage people who have started down the path of committing a crime to stop, to abandon that effort. For more on defenses to attempts, check out this site.

In this opinion, the court explained that, in military law, voluntary abandonment is an

affirmative defense to a completed attempt offense. U.S. v. Schoof, 37 M.J. 96 (U.S. Court of Appeals for the Armed Forces 1993). . . .  `It is a defense to an attempt offense that the person voluntarily and completely abandoned the intended crime, solely because of the person's own sense that it was wrong, prior to the completion of the crime.’ Manual for Courts–Martial, United States, Part IV, ¶ 4.c.(4) (2008 ed.).

The defense is raised when the accused abandons his effort to commit a crime `under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.’ U.S. v. Schoof, supra. The existence of abandonment as a defense `necessarily implies that a punishable attempt precedes it. United States v. Collier, 36 M.J. 501, 510 (U.S. Air Force Court of Military Review 1992).

`A person who has performed an act which is beyond the stage of preparation and within the zone of attempt may nevertheless avoid liability for the attempt by voluntarily abandoning the criminal effort.’ U.S. v. Byrd, 24 M.J.286 (U.S. Court of Military Appeals 1987).   Given that it is an affirmative defense, the burden rests on the prosecution, once it is put into controversy, to rebut the defense beyond a reasonable doubt. . . .

U.S. v. Reed, supra. (The Air Force Court of Military Review was the predecessor to the Air force Court of Criminal Appeals).

The appellate court then noted that the judge who presides over a court martial is responsible “for ensuring the jury is properly instructed on the elements of the offense as well as potential defenses," so his duty is "to provide an accurate, complete, and intelligible statement of the law.” U.S. v. Reed, supra.  Here, the judge instructed members of the court martial that “even if” they found each of the

elements for attempted receipt of child pornography beyond a reasonable doubt, they could not find [Reed] guilty of that offense if `prior to the completion of receipt of’ these images, [he] `abandoned his effort to commit that offense under circumstances manifesting a complete and voluntary renunciation of [his] criminal purpose.’

U.S. v. Reed, supra. 

The judge did not include an instruction he was supposed to give, explaining to the members of the court martial that the prosecution had the burden of proving Reed guilty beyond a reasonable doubt, which meant that unless they were “`satisfied beyond a reasonable doubt that [Reed] did not completely and voluntarily abandon [his] criminal purpose, you may not find [him] guilty of attempted [receipt of visual depictions of minors engaging in sexually explicit conduct].” U.S. v. Reed, supra.  This was a problem because Reed’s lawyer argued that his “intentional cancellation" of the downloads meant he abandoned his attempt and should not be convicted.  U.S. v. Reed, supra. 

At that point, the prosecutor “argued that any voluntary abandonment by [Reed] had to occur before he clicked on the suggestive file names, as that act completed the crime of `attempting to receive’ the material”, which was an incorrect statement of the law.  U.S. v. Reed, supra.  As part of his appeal, Reed submitted statements from five of the seven members of the court martial, all of whom said they believed this statement correctly described the applicable law.  U.S. v. Reed, supra. 

The Court of Appeals concluded that it could not find that this error did not “contribute” to Reed’s conviction because the prosecutor’s argument “could easily have led the panel to incorrectly believe that voluntary abandonment was not applicable once the crime of attempted receipt had been completed.”  U.S. v. Reed, supra.  It explained that the military judge’s original instructions on the law provided the members of the court martial

with the correct state of the law -- that they could find all elements of attempt were met beyond a reasonable doubt and yet still acquit [Reed] of that offense if they found he voluntarily abandoned his criminal purpose before he received the visual depictions -- but the military judge's overruling of the defense objection and refusal to belatedly provide a curative or clarifying instruction further confused the situation, as revealed by the members' [statements].

U.S. v. Reed, supra.  The court found this problem “was confounded by the failure to inform” the members of the court martial that the prosecution had the burden to rebut the defense of abandonment once Reed introduced evidence to support it. U.S. v. Reed, supra. 

There is a reasonable possibility that this led the members to incorrectly believe they did not need to apply the same high level of proof to voluntary abandonment as . . . the elements of the offense. Neither findings argument referenced the burden of proof for the defense of voluntary abandonment and, in fact, the defense counsel's argument implied that the defense carried the burden (`We have shown you that these were cancelled downloads’).

U.S. v. Reed, supra. 

It therefore “set aside” the attempted receipt charge.  U.S. v. Reed, supra.  That left Reed convicted only of the other charge, the possession charge. U.S. v. Reed, supra.  It explained that setting aside the attempt charge reduced Reed’s maximum possible sentence “from 20 years to 10 years confinement”, but in “reassessing” the sentence imposed on him, the court found that the court martial panel “would have imposed the same sentence even if [Reed] was not convicted of the attempt offense.” U.S. v. Reed, supra.  It found the sentence was “appropriate” given Reed’s “character, the nature and seriousness of the offenses, and the entire record”.  U.S. v. Reed, supra. 

So Reed won . . . but did not gain much.

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