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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