                       UNITED STATES, Appellee

                                    v.

               Christopher P. MARTINELLI, Specialist
                        U.S. Army, Appellant

                              No. 02-0623

                       Crim. App. No. 20000311

       United States Court of Appeals for the Armed Forces

              Argued April 13, 2004 and March 1, 2005

                     Decided September 28, 2005

ERDMANN, J., delivered the opinion of the court, in which EFFRON
and BAKER, JJ., joined. GIERKE, C.J., filed a separate opinion
concurring in part and dissenting in part. CRAWFORD, J., filed
a dissenting opinion.

                                 Counsel

For Appellant: Captain Charles A. Kuhfahl Jr. (argued); Colonel
Adele H. Odegard, Colonel Robert D. Teetsel, Lieutenant Colonel
Mark Tellitocci, Major Sean S. Park, Major Jeanette K. Stone,
and Captain Mary C. Vergona (on brief).

For Appellee: Captain Janine P. Felsman and Captain Mason S.
Weiss (argued); Colonel Lauren B. Leeker, Colonel Steven T.
Salata, Lieutenant Colonel Margaret B. Baines, Lieutenant
Colonel Theresa A. Gallagher, and Lieutenant Colonel Mark L.
Johnson (on brief).

Military Judge:   Kenneth H. Clevenger

       This opinion is subject to revision before final publication.
United States v. Martinelli, No. 02-0623/AR

     Judge ERDMANN delivered the opinion of the court.

     This case presents yet another issue arising from the

prosecution of servicemembers for violating federal criminal

statutes relating to child pornography in the wake of Ashcroft

v. Free Speech Coalition, 535 U.S. 234 (2002).   Specialist

Christopher Martinelli’s convictions are based upon violations

of the Child Pornography Prevention Act of 1996 (CPPA), 18

U.S.C. § 2252A (2000), the same statute that we addressed in

United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), and in

United States v. Mason, 60 M.J. 15 (C.A.A.F 2004).

     Unlike the circumstances in O’Connor and Mason, however,

the conduct underlying Martinelli’s conviction occurred outside

the United States -- specifically in Darmstadt, Germany.    We

granted review of this case to examine the question of whether

the CPPA applies to conduct engaged in outside the territorial

boundaries of the United States when charged under clause 3 of

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 934 (2000).

     We hold that the CPPA does not have extraterritorial

application and therefore does not extend to Martinelli’s conduct

in Germany.   We further hold that Martinelli’s conduct under

Specification 1 occurred in both Germany and the United States

and therefore falls within the domestic application of the CPPA.

We also hold that Martinelli’s plea to Specification 1 was not



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United States v. Martinelli, No. 02-0623/AR

provident under O’Connor.   Finally, although we have held that

servicemembers can be prosecuted under clauses 1 and 2 of

Article 134 for offenses involving “virtual” children,

Martinelli’s guilty pleas to the CPPA-based specifications

cannot be deemed provident to lesser included offenses under

clauses 1 and 2 under the principles discussed in Mason, 60 M.J.

at 18-20.

                       PROCEDURAL BACKGROUND

     Martinelli entered guilty pleas and was convicted by

general court-martial in April 2000 on four CPPA-based

specifications under clause 3 of Article 134, UCMJ (sending,

receiving, reproducing and possessing child pornography) and one

specification of obstructing justice in violation of Article

134, UCMJ.   He was sentenced by the military judge to a

dishonorable discharge, confinement for three years, forfeiture

of all pay and allowances and reduction to the lowest enlisted

grade.   In accordance with the terms of a pretrial agreement,

the convening authority reduced the confinement to eighteen

months, but approved the balance of the sentence.

     Before the Army Court of Criminal Appeals, Martinelli

argued that his child pornography conviction must be reversed

because the statute underlying it was unconstitutionally vague

and overbroad.   Martinelli based this contention on a Ninth

Circuit decision that had been granted certiorari but not yet



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United States v. Martinelli, No. 02-0623/AR

decided by the United States Supreme Court.     See Free Speech

Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted

sub nom. Ashcroft v. Free Speech Coalition, 531 U.S. 1124 (2001).

Prior to the Supreme Court issuing its decision, however, the

Court of Criminal Appeals reviewed Martinelli’s case and

summarily affirmed his conviction and sentence.     United States v.

Martinelli, No. Army 20000311 (A. Ct. Crim. App. Feb. 7, 2002)

(unpublished).

       Martinelli then petitioned this court for review of the

Court of Criminal Appeals decision.     By that time, the Supreme

Court had upheld the Ninth Circuit ruling upon which Martinelli

had based the challenge to his conviction.     See Ashcroft v. Free

Speech Coalition, 535 U.S. 234 (2002).     We granted review of

Martinelli’s Issue I in which he challenged his CPPA-based

convictions under clause 3 of Article 134 in light of Free Speech

Coalition and we specified an issue addressing whether the CPPA

had extraterritorial application.1     Following argument on these



1
    On November 24, 2003 we granted review of the following issues:

       I.    WHETHER APPELLANT'S GUILTY PLEAS TO SPECIFICATIONS 1,
             2, 3 AND 4 OF THE CHARGE WERE IMPROVIDENT BECAUSE THE
             MILITARY JUDGE PROVIDED AN UNCONSTITUTIONALLY
             OVERBROAD DEFINITION OF CHILD PORNOGRAPHY AND DID NOT
             CONDUCT AN ADEQUATE PROVIDENCE INQUIRY, AS REQUIRED BY
             UNITED STATES v. CARE, 18 U.S.C.M.A. 535, 40 C.M.R.
             247 (1969), AND ITS PROGENY.

       II.   WHETHER 18 U.S.C. SECTIONS 2252A(a)(1)-(a)(3) AND
             (a)(5)(A) APPLY TO CONDUCT ENGAGED IN OUTSIDE THE

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United States v. Martinelli, No. 02-0623/AR

initial issues,2 the court ordered supplemental briefing on two

additional issues related to the extraterritorial application of

the CPPA.3     The case was reargued with inclusion of the two

additional issues.

                           FACTUAL BACKGROUND

       Martinelli’s CPPA convictions are grounded in four discrete

actions that he took with respect to images of “child

pornography.”     Beginning in January 1999 and continuing through

January 2000, Martinelli downloaded images of child pornography

from the Internet using computers located at the off-post

Netzwork Internet Café in Darmstadt, Germany.     He would search

Internet websites and log into Internet chat rooms in order to

communicate with individuals willing to send him images.     He



              TERRITORIAL LIMITS OF THE UNITED STATES WHEN CHARGED
              UNDER CLAUSE 3 OF ARTICLE 134, UCMJ.
2
  We first heard oral argument in this case at the United States
Coast Guard Academy, New London, Connecticut, as part of this
court’s “Project Outreach.” This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military justice system.
3
    On October 22, 2004 we granted the additional specified issues:

       III.    WHETHER 18 U.S.C. §§ 2252A(a)(1)–(a)(3) APPLY TO AN
               INDIVIDUAL WHO SENDS, RECEIVES, AND REPRODUCES
               ELECTRONIC FILES CONTAINING CHILD PORNOGRAPHY AT AN
               INTERNET CAFÉ LOCATED OFF POST IN GERMANY.

       IV.     WHETHER 18 U.S.C. §§ 2252A(a)(1)–(a)(3) ARE BEING
               APPLIED DOMESTICALLY OR EXTRATERRITORIALLY WHEN E-
               MAILS CONTAINING CHILD PORNOGTRAPHY ARE SENT THROUGH
               E-MAIL OR INTERNET SERVICE PROVIDER SERVERS LOCATED
               IN THE UNITED STATES.

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United States v. Martinelli, No. 02-0623/AR

would ultimately secure the images through one of two distinct

routes:   (1) he would receive materials via electronic mail (e-

mail) sent by other individuals to e-mail accounts that he

maintained with either Yahoo! or Hotmail or (2) he would be

directed by individuals to their respective web pages, from

which Martinelli would secure the images directly.   Under either

scenario, he would download the images from the e-mail

attachments or web page contents to the hard drive of a computer

at the Netzwork Café.   Martinelli received at least sixty-four

images of child pornography in this fashion.

     After receiving the images, Martinelli would copy them in

order to distribute them to other individuals in the form of

attachments to e-mail transmissions.   He transmitted some of

these images to other individuals via his Yahoo! and Hotmail

accounts, sending approximately twenty such messages over the

relevant time period.

     Martinelli also copied the images from the hard drives of

the computers at the Netzwork Café to a separate disk, which he

then took back to his barracks at the Cambrai Fritsch Kaserne, a

United States Army installation in Darmstadt, Germany.   At the

barracks he would either keep the images on the disk or load

them onto the hard drive of his computer.

     Martinelli was charged with the following violations of the

CPPA under clause 3 of Article 134:



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United States v. Martinelli, No. 02-0623/AR

     Specification 1: knowingly mailing, transporting or
     shipping child pornography in interstate or foreign
     commerce (by computer) in violation of § 2252A(a)(1)
     (specifically, sending images over the Internet from the
     Netzwork Internet Café in Darmstadt, Germany);

     Specification 2: knowingly receiving child pornography
     that has been mailed, shipped or transported in interstate
     or foreign commerce (by computer) in violation of
     § 2252A(a)(2)(A) (specifically, downloading images from the
     Internet in the Netzwork Internet Café in Darmstadt,
     Germany);

     Specification 3: knowingly reproducing child pornography
     for distribution through the mails, or in interstate or
     foreign commerce (by computer) in violation of
     § 2252A(a)(3) (specifically, downloading images from the
     Internet; copying them to hard drive and transmitting the
     copied files to approximately twenty individuals over the
     Internet in the Netzwork Internet Café in Darmstadt,
     Germany);

     Specification 4: knowingly possessing child pornography on
     land and in a building used by and under the control of the
     United States Government in violation of § 2252A(a)(5)(A)
     (specifically, possessing approximately fifty diskettes
     containing child pornography in buildings at the Cambrai
     Fritsch Kaserne).


                           DISCUSSION

     A.   Standard of Review

     This case involves a guilty plea.   For this 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.

United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)(citing

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).

Whether Congress intended the CPPA to have extraterritorial

application is a question of statutory interpretation.



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United States v. Martinelli, No. 02-0623/AR

Interpretation of a statute and its legislative history are

questions of law that we review de novo.      United States v. Falk,

50 M.J. 385, 390 (C.A.A.F. 1999).

     B.   The Nature of the Charge under Article 134

     Martinelli’s conduct was charged as a violation of Article

134, UCMJ -- the “General Article.”      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).      O’Connor, 58 M.J. at 452.

As was the case in both O’Connor and Mason, Martinelli’s conduct

was specifically charged as a “clause 3” offense, with the CPPA

serving as the “crime or offense not capital.”

     The initial question that we specified for review is

ostensibly straightforward -- does the CPPA apply to

Martinelli’s conduct in Germany?       The President, in the Manual

for Courts-Martial, has stated that:

     A person subject to the [UCMJ] may not be punished under
     clause 3 of Article 134 for an offense that occurred in a
     place where the law in question did not apply. For
     example, 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. Regardless where committed, such an act might be
     punishable under clauses 1 or 2 of Article 134.

Manual for Courts-Martial, United States (2002 ed.) (MCM), pt.

IV, ¶ 60.c.(4)(c)(i) (emphasis added).      As a uniformed



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United States v. Martinelli, No. 02-0623/AR

servicemember stationed in Germany, Martinelli was

unquestionably subject to the jurisdiction of the UCMJ.   See

Articles 2(a)(1) and 5, UCMJ, 10 U.S.C. §§ 802(a)(1), 805

(2000).   There is also no question that the CPPA, if charged

under clause 3 of Article 134, would be applicable to

Martinelli’s conduct had he engaged in these acts in an Internet

cafe in Killeen, Texas and then carried the disks back to a

barracks room on Fort Hood.   Similarly, his conduct might well

be punishable under clauses 1 and 2 of Article 134 regardless of

where it occurred.

     The question we address today is not the jurisdiction of

the UCMJ itself, but rather whether the CPPA has

extraterritorial application under clause 3 of Article 134.4      If

we find that the CPPA, as a “crime or offense not capital,” is

not applicable to Martinelli’s conduct in Germany, we must then

consider whether, due to the nature of his usage of the

Internet, his conduct fell within the domestic application of

the CPPA.   To the extent that we find that Martinelli’s conduct

fell within the domestic application of the CPPA, we must then

consider whether his guilty pleas were provident in light of

O’Connor.   Finally, if we find that Martinelli’s pleas were

4
  The question of the extraterritorial application of federal
statutes has nothing to do with the jurisdiction of the federal
courts. It is a question of substantive law, which turns on the
intent of Congress that a particular statute have



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United States v. Martinelli, No. 02-0623/AR

improvident under clause 3 of Article 134 for either reason, we

must determine whether they would be provident to lesser

included offenses under clauses 1 or 2 of Article 134.

       C.    The Extraterritorial Application of the CPPA

       (1)   Presumption Against Extraterritoriality

       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.       United

States v. Bowman, 260 U.S. 94, 98-103 (1922).     Rather, the

question here is whether Congress has in fact exercised that

authority, which is a matter of statutory construction.      Equal

Employment Opportunity Commission v. Arabian American Oil Co.

(Aramco), 499 U.S. 244, 248 (1991).

       The Supreme Court has recognized as a longstanding

principle of American law “‘that legislation of Congress, unless

a contrary intent appears, is meant to apply only within the

territorial jurisdiction of the United States.’”       Id. (quoting

Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)); see also

Small v. United States, 125 S. Ct. 1752, 1755 (2005).       We must

assume that Congress legislates against the backdrop of the

presumption against extraterritoriality.    Aramco, 499 U.S. at

248.   Unless the “affirmative intention” of Congress to give


extraterritorial application.    See Hartford Fire Ins. Co. v.


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United States v. Martinelli, No. 02-0623/AR

extraterritorial effect to a statute is “clearly expressed,” it

is presumed that the statute is “primarily concerned with

domestic conditions.”   Id. (quoting Benz v. Compania Naviera

Hidalgo, S.A., 353 U.S. 138, 147 (1957) and Foley Bros., 336

U.S. at 285).

     The presumption against extraterritoriality has been

recognized in the specific context of criminal statutes, with an

“exception” for a certain class of offenses:

     Crimes against private individuals or their property, like
     assaults, murder, burglary, larceny, robbery, arson,
     embezzlement, and fraud of all kinds, which affect the
     peace and good order of the community, must of course, be
     committed within the territorial jurisdiction of the
     government where it may properly exercise it. If
     punishment of them is to be extended to include those
     committed outside of the strict territorial jurisdiction,
     it is natural for Congress to say so in the statute, and
     failure to do so will negative the purpose of Congress in
     this regard. . . .

          But the same rule of interpretation should not be
     applied to criminal statutes which are, as a class, not
     logically dependent on their locality for the Government’s
     jurisdiction, but are enacted because of the right of the
     Government to defend itself against obstruction, or fraud
     wherever perpetrated, especially if committed by its own
     citizens, officer or agents. Some such offenses can only
     be committed within the territorial jurisdiction of the
     Government because of the local acts required to constitute
     them. Others are such that to limit their locus to the
     strictly territorial jurisdiction would be greatly to
     curtail the scope and usefulness of the statute and leave
     open a large immunity for frauds as easily committed by
     citizens on the high seas and in foreign countries as at
     home. In such cases, Congress has not thought it necessary
     to make specific provision in the law that the locus shall
     include the high seas and foreign countries, but allows it
     to be inferred from the nature of the offense.

California, 509 U.S. 764, 813 (1993) (Scalia, J., dissenting).


                                11
United States v. Martinelli, No. 02-0623/AR


Bowman, 260 U.S. at 98.    We have previously characterized Bowman

as drawing a distinction between:

     (1) statutes punishing crimes against the peace and good
     order of the community (which apply only to [acts]
     committed within the territorial jurisdiction of the United
     States unless Congress had specifically directed
     otherwise); and (2) statutes punishing fraud or
     obstructions against the United States Government (which
     include by implication acts which were committed in foreign
     countries).

United States v. Gladue, 4 M.J. 1, 5 (C.M.A. 1977).

     The principles articulated by the Supreme Court in Aramco

and Bowman can be harmonized to provide the following analytical

framework for assessing whether the CPPA was intended to have

extraterritorial effect:   Unless the CPPA can be viewed as

falling within the second category described in Bowman

(“criminal statutes which are, as a class, . . . enacted because

of the right of the government to defend itself against

obstruction, or fraud wherever perpetrated,” 260 U.S. at 98),

the statute is subject to the presumption against

extraterritoriality recognized in both Bowman and Aramco.

     We do not believe that the CPPA can be viewed as a “second

category” offense under Bowman and thus exempt from 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.   Free Speech Coalition, 535 U.S. at 245.    While few



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United States v. Martinelli, No. 02-0623/AR

crimes are more serious or morally repugnant, child abuse does

not involve “fraud” or “obstruction” against the United States

Government.   Rather, child abuse epitomizes that class of

“[c]rimes against private individuals [including children]” that

“affect the peace and good order of the community” described in

the first category of Bowman.   260 U.S. at 98.

     We are aware of the body of law, primarily from the Ninth

Circuit, that does not read the second category in Bowman as

limited to crimes against the Government.   See, e.g., United

States v. Vasquez-Velasco, 15 F.3d 833, 839 n.4 (9th Cir. 1993);

United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir. 1990).

Those cases all trace their roots, in one fashion or another,

back to United States v. Baker, 609 F.2d 134, 136 (5th Cir.

1980), where the Fifth Circuit read Bowman as allowing a court,

in the absence of any expression of congressional intent, to

“infer” Congress’ intent to provide for extraterritorial

application “from the nature of the offenses and Congress’ other

legislative efforts to eliminate the type of crime involved.”5



5
  For a critical discussion of the roles of Congress, the
Executive and the judiciary regarding the extraterritorial
application of federal statutes, see Mark P. Gibney, The
Extraterritorial Application of U.S. Law: The Perversion of
Democratic Governance, The Reversal of Institutional Roles, and
the Imperative of Establishing Normative Principles, 19 B.C.
Int’l & Comp. L. Rev. 297, 308 (1996).




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United States v. Martinelli, No. 02-0623/AR

The Baker court concluded that a federal statute prohibiting

drug possession with intent to distribute fell within “the

second category described in Bowman” and thus was intended to

apply extraterritorially.    Id. at 137.

     The holding in Baker has been subsequently used to support

the “inference” of a congressional intent for extraterritorial

application in several circumstances that do not involve crimes

against the Government, including child pornography-related

offenses.    See, e.g., United States v. Harvey, 2 F.3d 1318, 1327

(3d Cir. 1993)(sentencing guidelines for child pornography

offenses); Thomas, 893 F.2d at 1068-69 (production of child

pornography under 18 U.S.C. § 2251).    We disagree, however, with

Baker’s expanded view of the “second category” offenses in

Bowman.     The phrase “inferred from the nature of the offense” in

Bowman was clearly cast in reference to the “class” of criminal

statutes involving fraud or obstruction against the Government

and is not a free standing principle of statutory construction:

     But the same rule of interpretation should not be applied
     to criminal statutes which are, as a class, not logically
     dependent on their locality for the Government’s
     jurisdiction, but are enacted because of the right of the
     Government to defend itself against obstruction, or fraud
     wherever perpetrated, especially if committed by its own
     citizens, officers or agents. . . . In such cases,
     Congress has not thought it necessary to make specific
     provision in the law that the locus shall include the high
     seas and foreign countries, but allows it to be inferred
     from the nature of the offense.




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United States v. Martinelli, No. 02-0623/AR

260 U.S. at 98.6

     Accordingly, we adhere to the view we originally expressed

in Gladue.   The only category of offenses exempt under the

language of Bowman 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.    See United States v. Gatlin, 216 F.3d

207, 211 n.5 (2d Cir. 1999).

     (2)   Indicia of Congressional Intent

     Our conclusion that the CPPA is subject to a presumption

against extraterritoriality under Aramco and Bowman does not end

our inquiry into its applicability.   We now “look to see whether

‘language in the [relevant statute] gives any indication of a

congressional purpose to extend its coverage beyond places over

which the United States has sovereignty or has some measure of

legislative control.’”    Aramco, 499 U.S. at 248 (quoting Foley

Bros., 336 U.S. at 285).    In searching for the clear expression

of congressional intent required by Aramco, we are not limited

to the text of the statute and can “consider ‘all available

evidence’ about the meaning of the statute, including its text,

6
  We also note that the Baker concept of “inferring”
extraterritorial intent based on the nature of the offense and
Congress’ other efforts to eliminate the type of crime involved
could apply to almost any crime committed anywhere in the world.



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United States v. Martinelli, No. 02-0623/AR

structure, and legislative history.”    Gatlin, 216 F.3d at 212

(quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 177

(1993)).

            (a) Text and Structure

     Our reading of the CPPA does not find any indication in the

text and structure of the statute of a congressional purpose to

extend its coverage.   See Bradley Scott Shannon, The

Jurisdictional Limits of Federal Criminal Child Pornography Law,

21 Hawaii L. Rev. 73, 106 (1999) (noting that the language of

the CPPA “do[es] not clearly express an intent” that the statute

is to apply extraterritorially).     The text and structure of the

statute prohibits five categories of conduct:

     •     mailing, transporting or shipping child pornography in
           interstate or foreign commerce by any means, including
           by computer (18 U.S.C. § 2252A(a)(1));

     •     receipt or distribution of child pornography that has
           been mailed, shipped or transported in interstate or
           foreign commerce by any means, including by computer
           (18 U.S.C. § 2252A(a)(2)(A), (B));

     •     reproduction of child pornography for distribution by
           mail or interstate or foreign commerce, including by
           computer (18 U.S.C. § 2252A(a)(3)(A));

     •     sale or possession with intent to sell of (1) child
           pornography that has moved in interstate or foreign
           commerce by any means, including by computer or was
           produced using materials that have moved in commerce
           or (2) any child pornography “in the special maritime
           and territorial jurisdiction of the United States, or
           on any land or building owned by, leased to, or
           otherwise used by or under the control of the United


This would turn the presumption against extraterritorial
application on its head where criminal statutes are involved.

                                16
United States v. Martinelli, No. 02-0623/AR

          States Government, or in the Indian country (as
          defined in section 1151). . . . ” (18 U.S.C. §
          2252A(a)(4)(A), (B)); and

     •    possession of (1) child pornography that has moved in
          interstate or foreign commerce by any means, including
          by computer or was produced using materials that have
          moved in commerce or (2) any child pornography “in the
          special maritime and territorial jurisdiction of the
          United States, or on any land or building owned by,
          leased to, or otherwise used by or under the control
          of the United States Government, or in the Indian
          country (as defined in section 1151). . . .” (18
          U.S.C. § 2252A(a)(5)(A), (B)).

     The criminal acts in the first three subsections all refer

to the movement of child pornography “in interstate or foreign

commerce,” whether it be the act of moving the material itself

(§ 2252A(a)(1)) or the acts of receiving, distributing or

reproducing for distribution materials that have moved in that

fashion (§ 2252A(a)(2)-(3)).

     The criminal acts in the final two subsections are sale,

possession with intent to sell, and simple possession.   Under

these subsections, criminal liability can attach under either of

two separate circumstances.    The first involves the same

“interstate or foreign commerce” context attendant to the

offenses in § 2252A(a)(1)-(3).   The second circumstance is

purely dependent on physical location or the “situs” of the

defendant -- if the requisite act occurs “in the special

maritime and territorial jurisdiction of the United States, or

on any land or building owned by, leased to or otherwise used by

or under the control of the United States Government,” it does


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United States v. Martinelli, No. 02-0623/AR

not matter whether the child pornography ever moved in commerce.

See § 2252A(a)(4)(A), (5)(A).

     There are two aspects of the statutory language in §

2252A(a)(1)–(a)(5) that could possibly be read as expressing

congressional intention as to extraterritorial effect -- (1) the

references to “interstate or foreign commerce” and (2) the situs

language in § 2252A(a)(4)(A), (a)(5)(A).   In terms of the

former, they are not, in and of themselves, a “clear expression”

of any congressional intention that the acts proscribed by the

statute constitute a federal crime no matter where in the world

they occur.   Rather, we view them as a straightforward reference

to the source authority of Congress for proscribing these acts

as criminal in the first instance, i.e., the Commerce Clause of

the United States Constitution:

     Many Acts of Congress are based on the authority of that
     body to regulate commerce among the several States, and the
     parts of these Acts setting forth the basis for legislative
     jurisdiction will obviously refer to such commerce in one
     way or another. If we were to permit possible, or even
     plausible, interpretations of language such as that
     involved here to override the presumption against
     extraterritorial application, there would be little left of
     the presumption.

Aramco, 499 U.S. at 253.   The use of the term “foreign commerce”

in addition to “interstate commerce” does not alter that

conclusion, as the Supreme Court “has repeatedly held” that even

statutes that expressly refer to “foreign commerce” do not apply

abroad.   Id. at 251.



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United States v. Martinelli, No. 02-0623/AR

     That leaves the situs language in §§ 2252A(a)(4)(A) and

2252A(a)(5)(A) as a possible basis for overcoming the

presumption against extraterritoriality.   There are three

alternative locations referenced in the statute:

     •    “the special maritime and territorial jurisdiction of

          the United States”; or

     •    “any land or building owned by, leased to, or

          otherwise used by or under the control of the United

          States Government”; or

     •    “the Indian country” (as defined in 18 U.S.C. § 1151).

     The reference to Indian country reflects a congressional

focus on complex jurisdictional issues that flow from the

unique, and inherently domestic, relationship between the United

States Government and American Indians.    It certainly does not

reflect any clear legislative concern for matters arising

outside the territorial boundaries of the United States.

     The term “special maritime and territorial jurisdiction of

the United States” is, like “Indian country,” a term of art that

carries its own distinct definition.   See 18 U.S.C. § 7 (2000).

That term of art has been the subject of different

interpretations as to its extraterritorial reach, particularly

whether it extends to lands within the territory of a sovereign

foreign nation.   See, e.g., United States v. Corey, 232 F.3d

1166, 1183 (9th Cir. 2000)(term includes property inside Yokota



                                19
United States v. Martinelli, No. 02-0623/AR

Air Base in Japan and private apartment building rented by

United States embassy in Philippines); Gatlin, 216 F.3d at 220

(term does not include housing complex on U.S. Army base in

Darmstadt, Germany).

     We conclude that the depth and complexity of the debate

reflected in Corey and Gatlin inherently demonstrates something

less than a “clear expression” of congressional intention that

the term “special maritime and territorial jurisdiction of the

United States” extends to lands inside the boundaries of a

foreign nation.   Further, Congress has since acted to resolve

the specific subject of the debate in Corey and Gatlin, which

was narrowly focused on the reach of certain federal criminal

statutes to conduct engaged in overseas by civilians employed by

or accompanying the armed forces.    See Military Extraterritorial

Jurisdiction Act of 2000, Pub. L. No. 106-523, 114 Stat. 2488

(codified at 18 U.S.C. § 3261) (MEJA).   Congress used MEJA to

create a new federal criminal offense involving conduct engaged

in “outside the United States” that would otherwise constitute a

felony if the conduct had been engaged in “within the special

maritime and territorial jurisdiction of the United States.”     18

U.S.C. § 3261 (a) (2000).7


7
  See also Glen R. Schmitt, Closing the Gap in Criminal
Jurisdiction Over Civilians Accompanying the Armed Forces Abroad
-- A First Person Account of the Creation of the Military
Extraterritorial Jurisdiction Act of 2000, 51 Cath. U. L. Rev.
55, 78, 113-14 (2001).

                                20
United States v. Martinelli, No. 02-0623/AR

     The remaining situs language refers to conduct occurring

“on any land or building owned by, leased to, or otherwise used

by or under the control of the United States Government.”   That

language undoubtedly reflects a congressional intent to

criminally proscribe conduct in physical locations where the

United States Government enjoys some type of proprietary control

over the location.   The language, however, does not provide

clear evidence of a congressional intent that the statute should

apply outside the boundaries of the United States.   That

language could just as easily apply only to land and buildings

located within the territorial United States such as national

parks, federal office buildings and domestic military

installations.

     We also note that the language concerning “land or

building” does not stand alone, but is instead bracketed by

language dealing with the “special maritime and territorial

jurisdiction of the United States” and “the Indian country (as

defined in section 1151).”   Under the canon of statutory

construction noscitur a sociis (a word is known by the company

it keeps), it is reasonable to conclude that Congress intended

the “land or building” language to have the same domestic

application as evidenced in the surrounding language.   See Amgen

Inc. v. Smith, 357 F.3d 103, 112-13 (D.C. Cir. 2004) (applying

the canon of noscitur a sociis to support consistent



                                21
United States v. Martinelli, No. 02-0623/AR

interpretation of separate phrases within a statutory section);

In re Application of the United States for an Order Authorizing

the Roving Interception of Oral Communications, 349 F.3d 1132,

1142-43 (9th Cir. 2003) (using the canon of noscitur a sociis to

interpret a section of the federal wiretapping statute); see

also United States v. Hicks, 6 C.M.A. 621, 623, 20 C.M.R. 337,

339 (1956).

     We do not view the statutory phrases discussed above,

either individually or collectively, as the type of “clear

expression” of congressional intention required by Aramco.     The

analysis dictated by Bowman and Aramco requires that the

statutory text reflect a clear expression of Congress’ intent

that the statute have extraterritorial reach.    Aramco, 499 U.S.

at 248.   The language must be clear enough to overcome a

presumption that it was intended to apply domestically, not

simply lend itself to a plausible argument that it applies

overseas.   Mere plausibility is not sufficient to overcome the

presumption.    Id.   In the context of that presumption, we do not

view the “any land or building” language of §§ 2252A(a)(4)(A)

and 2252A(a)(5)(A) as a “clear expression” by Congress that it

have extraterritorial application.

              (b) Legislative History

     Having concluded that the text and structure of the CPPA do

not express any clear intent by Congress that the statute apply



                                  22
United States v. Martinelli, No. 02-0623/AR

extraterritorially, we reach the same conclusion with respect to

its legislative history.   The clear focus of that legislative

history is on the patent evils of child pornography and the new

dimension that computer technology adds to those evils.    See

Congressional Findings, notes following 18 U.S.C.A. § 2251, 18

U.S.C.S. 2251.   Although the history contains extensive

discussion of those issues, it is devoid of any reference to

issues of extraterritoriality, much less any clear expression of

congressional intent in that regard.   See S. Rep. No. 104-358,

at 12-23 (1996).

          (c)    Examples of Clear Congressional Intent

     Our conclusion regarding the absence of any clearly

expressed intent by Congress that the CPPA apply

extraterritorially is bolstered by the numerous instances where

such intent has been clearly expressed.   Even in the specific

context of child pornography, Congress knows how to makes its

intention clear that a particular criminal statute extend to

conduct engaged in outside the United States.   See, e.g., 18

U.S.C. § 2260(b)(“a person who, outside the United States,

knowingly receives, transports, . . . any visual depiction of a

minor engaging in sexually explicit conduct . . . intending that

the visual depiction will be imported into the United States”);

18 U.S.C. § 2251(c)(1)(“[a]ny person who . . . employs, uses, .

. . any minor to engage in, or who has a minor assist any other



                                 23
United States v. Martinelli, No. 02-0623/AR

person to engage in, any sexually explicit conduct outside of

the United States”).

     Congress has clearly expressed its intent in other criminal

statutes as well:    the Biological Weapons Anti-Terrorism Act of

1989 provides, “There is extraterritorial federal jurisdiction

over an offense under this section committed by or against a

national of the United States,” 18 U.S.C. § 175(a) (2000); the

Maritime Drug Law Enforcement Act provides, “This section is

intended to reach acts of possession, manufacture, or

distribution committed outside the territorial jurisdiction of

the United States.”    46 U.S.C. app. § 1903(h) (2000).

     Congress also amended 18 U.S.C. § 7 (2000), which defines

the “special maritime and territorial jurisdiction” of the

United States, as part of the Uniting and Strengthening America

by Providing Appropriate Tools Required to Intercept and

Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No.

107-56, 115 Stat. 272 (2001).   The USA PATRIOT Act amendments

inserted a new provision that, with respect to “offenses

committed by or against a national of the United States,”

extends the special maritime and territorial jurisdiction of the

United States under 18 U.S.C. § 7 to the “premises of . . .

diplomatic, consular, military or other . . missions . . in

foreign States. . . .”   USA PATRIOT Act § 804 (codified at 18

U.S.C. § 7(9)(A)).    This is a clear expression of congressional



                                 24
United States v. Martinelli, No. 02-0623/AR

intent that a crime committed in “the special maritime and

territorial jurisdiction” now includes conduct that may in some

instances have occurred inside the boundaries of a foreign

nation.

     Finally, we note Congress’ ability to make its intentions

in this regard clear with respect to a broad range of criminal

acts rather than a single crime.     In legislation proscribing

“[a]cts of terrorism transcending national boundaries,” Congress

has provided that the statute extends to “conduct occurring

outside of the United States in addition to conduct occurring

inside of the United States” and that “[t]here is

extraterritorial Federal jurisdiction” over the wide range of

offenses described in the statute.    See 18 U.S.C. § 2332(e),

(g)(1) (2000).   These examples of express congressional intent

constitute various indicia, none of which are present with

respect to the CPPA.

     To reach the conclusion urged by the Government, that

Congress intended the CPPA to criminalize conduct inside the

boundaries of sovereign foreign countries,8 we would have to


8
  Unless restricted by Congress, a statute with a clear
congressional intent of extraterritorial effect, applies to
foreign nationals as well as United States nationals. Such an
interpretation raises international law concerns. See United
States v. Delgado-Garcia, 374 F.3d 1337, 1344–45 (D.C. Cir.
2004); see also id. at 1351–62 (Rogers, J., dissenting);
Restatement (Third) of Foreign Relations Law of the United
States §§ 401-03 (1987).


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United States v. Martinelli, No. 02-0623/AR

disregard the Bowman and Aramco presumption and the absence of

these indicia.   The rules of statutory construction laid down by

the Supreme Court simply do not support that conclusion.

     Accordingly, we cannot view the CPPA as overcoming the

presumption against extraterritorial application dictated by

Bowman and Aramco.   The charges against Martinelli fall squarely

within the example the President described in the Manual for

Courts-Martial, i.e., “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.”

MCM, pt. IV, ¶ 60.c.(4)(c)(i).   As a result, there is a

substantial basis in law and fact for viewing Martinelli’s

guilty pleas to the CPPA-based clause 3 offenses under Article

134 for conduct occurring in Germany as improvident.

     D.   The Domestic Application of the CPPA

     Martinelli stipulated that all of the e-mails that he sent

or received at his Yahoo! or Hotmail e-mail accounts were

electronically routed through the servers in the United States.9

This connection to the United States raises the possibility that

the CPPA could be applied domestically to the three

9
  We address only those instances where e-mails were routed
through Martinelli’s U.S.-based e-mail accounts. Martinelli did
not stipulate, nor is there any evidence on the record, that he
utilized U.S.-based servers when he downloaded child pornography



                                 26
United States v. Martinelli, No. 02-0623/AR

specifications that were based upon e-mail messages sent or

received through Martinelli’s e-mail accounts.10    Martinelli

argues that in each specification, the charge sheet alleges that

the conduct occurred only “at or near Darmstadt, Germany” and

therefore the Government put him on notice that the misconduct

occurred in Germany.    He argues that the situs of the offenses

was in Germany and the fact that the material may have been

routed through an Internet server located in the United States

does not transform what was an extraterritorial act into a

domestic act.

        The Government responds that there was more than one situs

for Martinelli’s misconduct and that the prosecution was proper

under either a domestic or extraterritorial application of the

CPPA.    The Government contends that because the Internet server

was located in the United States and due to the continuing

nature of the offenses involved (sending, receiving, and

reproducing child pornography) a part of each offense was

committed in the United States.    Therefore the Government argues

that a domestic application of the CPPA is proper.    The

Government cites United States v. Moncini, 882 F.2d 401 (9th

Cir. 1989), in support of its position.



directly from websites and we therefore do not address that
issue.
10
  Specification 4 is the situs based possession charge and the
specification did not allege movement through the Internet.

                                  27
United States v. Martinelli, No. 02-0623/AR

      In Moncini, a citizen and resident of Italy was arrested as

he entered the United States and was tried in the United States

District Court for the Central District of California for

mailing child pornography from Italy to an undercover officer in

California in violation of 18 U.S.C. § 2252.     Moncini, 882 F.2d

at 403.    Prior to his trial Moncini filed a motion to dismiss

the indictment for lack of personal jurisdiction.     The trial

court denied his motion on the ground that the mailings were

“continuing offenses which continued to take place as Moncini’s

letters traveled from Italy to California, giving the court

territorial jurisdiction.”    Id.    The trial court found, in the

alternative, that extraterritorial jurisdiction would be proper.

Id.

      Moncini was convicted and on appeal he again urged a lack

of jurisdiction.    The Ninth Circuit affirmed the lower court’s

decision explaining that “[j]urisdiction is proper if the

offense, or part of the offense, occurred within the United

States.”   Id. (citing Rocha v. United States, 288 F.2d 545, 547

(9th Cir. 1961)).     The court went on to explain that “Moncini’s

mailing of child pornography was a continuing offense, so that

part of the offense was committed in the United States as his

letters traveled through the mail and were delivered to their

destination.”   Id.    The court “reject[ed] Moncini’s argument

that the crime was complete at the time the letter was deposited



                                    28
United States v. Martinelli, No. 02-0623/AR

in the mail in Italy.”   Id.   The Ninth Circuit did not reach the

question of extraterritoriality.

     The obvious distinction between Moncini and this case is

that in this case the child pornography flowed through the

Internet rather than through the mails.      The statute, however,

is not limited to “mail” but includes “mail, transport or ship”

and as such includes material routed through the Internet.      It

can not be disputed that for purposes of sending and receiving

communications, the Internet e-mail system is rapidly becoming

the 21st century equivalent of the 20th century postal system.

The domestic application of the CPPA is therefore possible under

the “continuing offense” theory for Specifications 1–3.      As each

specification alleges different misconduct, each must be

examined individually.

     Specification 1 (sending):    This specification charged that

Martinelli used “electronic mail to send electronic files

containing child pornography through the Internet”.      We agree

with the Ninth Circuit that “sending” child pornography is a

continuing offense that continues as the e-mail travels through

the Internet to its destination.       In this case those travels

included a routing through servers located in the United States.

As a result, a domestic application of the CPPA to Specification

1 is appropriate.   Moncini, 882 F.2d at 403.




                                  29
United States v. Martinelli, No. 02-0623/AR

     Specification 2 (receiving):    This specification charged

that Martinelli received “child pornography that had been . . .

transported . . . by means of a computer to wit:   downloading

electronic files containing child pornography from the

Internet.”   Unlike the “sending” specification, Martinelli’s

acts of receiving the child pornography were not the start of

any conduct that continued into the United States.   His conduct

in “receiving” the e-mails occurred in Germany only and there

can be no domestic application of the CPPA to this

specification.11

     Specification 3 (reproducing):    This specification charged

that Martinelli “reproduced by means of a computer child

pornography for distribution . . . by downloading from the


11
  With respect to the question of whether all of the e-mail
messages in Martinelli’s Yahoo! and Hotmail accounts were
“resident” on Internet servers located in the United States,
both Yahoo! and Hotmail (which is operated by MSN, a division of
Microsoft Corp.) have significant international operations. See
Yahoo! 2004 Annual Report, available at
http://yhoo.client.shareholder.com/annual.cfm (follow “2004
Annual Report” hyperlink) (listing office locations in thirty-
three cities around the world and noting that: “Our principal
Web server equipment and operations are maintained in California
and several other domestic and international locations.”);
Microsoft Fiscal Year 2004 Form 10-K, available at
http://www.microsoft.com/msft/sec.mspx (follow “Fiscal Year 2004
Form 10-K” hyperlink) (listing a European Operations Center in
Dublin, Ireland and noting that: “Our facilities are fully used
for current operations of all segments. . . .”). Martinelli
stipulated only that his e-mail messages had been routed through
servers located in the United States. The record does not
include any information about the servers on which his opened
and unopened e-mail messages were stored.



                                30
United States v. Martinelli, No. 02-0623/AR

Internet electronic files . . . copying said files to computer

diskettes and sending the copied files . . . by electronic

mail.”12      Similar to the “receipt” specification, in reproducing

for distribution, Martinelli commenced no conduct that continued

into the United States and there can be no domestic application

of the CPPA.

        In summary, we find that while Specification 1 involves

conduct that continued into the United States and therefore

provides for the domestic application of the CPPA,

Specifications 2 and 3 involve conduct that is not continuing in

nature and do not provide for the domestic application of the

CPPA.

        E.    The Providence of Martinelli’s Guilty Plea to
              Specification 1

        Having determined that the CPPA is domestically applicable

to Specification 1, and therefore finding no basis to question

Martinelli’s plea to Specification 1 on extraterritoriality

grounds, we must now determine whether Martinelli’s guilty plea

to that specification was provident under O’Connor, 58 M.J. at

453-40.

        (1)   The Providence Inquiry and Record of Trial

        Under Specification 1, Martinelli was charged with

violation of the CPPA as a “crime or offense not capital” under

12
  “Sending” is not an element of this offense, rather the
offense is “reproducing for distribution” and the “sending”


                                    31
United States v. Martinelli, No. 02-0623/AR

clause 3 of Article 134.   The military judge explained to

Martinelli that clause 3 of Article 134 prohibits the commission

of crimes and offenses not capital and that he had been charged

with violation of 18 U.S.C. § 2252A.   The military judge went on

to explain the elements of knowingly and wrongfully mailing,

transporting or shipping child pornography by using electronic

mail to send electronic files containing child pornography

through the Internet, which Martinelli acknowledged he

understood.   The military judge then read Martinelli the

definition of several terms that were used in 18 U.S.C. § 2252A,

including the definition of child pornography, which the

military judge noted was found in 18 U.S.C. § 2256.   The

military judge defined “child pornography” as follows:

     [A]ny visual depiction, including any photograph, film,
     video, picture, or computer, or computer-generated image or
     picture, whether made or produced by electronic,
     mechanical, or other means of sexually explicit conduct,
     where:

     (A)   the production of such visual depiction involves the
           use of a minor engaging in sexually explicit conduct;

     (B)   such visual depiction is, or appears to be, of a minor
           engaging in sexually explicit conduct;

     (C)   such visual depiction has been created, adapted, or
           modified to appear that an identifiable minor is
           engaging in sexually explicit conduct; or

     (D)   such visual depiction is advertised, promoted,
           presented, described, or distributed in such a manner
           that conveys the impression that the material is or
           contains a visual depiction of a minor engaged in
           sexually explicit conduct.

allegation was included to meet the “distribution” element.

                                32
United States v. Martinelli, No. 02-0623/AR


     The military judge did not inquire as to whether Martinelli

believed that his conduct was either prejudicial to good order

and discipline or service discrediting.   As in O’Connor, the

military judge’s use of the pre-Free Speech Coalition definition

of “child pornography” properly reflected the law at the time of

trial.   His failure to inquire into the “actual” or “virtual”

distinction or discuss the possible “service discrediting” or

“prejudicial to good order and discipline” characteristics was

perfectly understandable.   O’Connor, 58 M.J. at 453.

     (2)   The Providence of the Plea Under Clause 3

     In O’Connor this court reviewed a guilty plea to a clause 3

Article 134 CPPA offense in light of the Supreme Court’s

decision in Free Speech Coalition:

     In Free Speech Coalition, the Supreme Court determined that
     certain portions of the § 2256(8) definition are
     unconstitutional, specifically the “or appears to be”
     language of § 2256(8)(B), and the entirety of § 2256(8)(D).
     535 U.S. at 256, 258. In striking the former, the Court
     specifically discussed the distinction between “virtual”
     child pornography and “actual” pornography and concluded
     that the rationales for restricting pornographic materials
     involving actual children do not extend to computer-
     generated simulations or images. Id. at 249-56.

     The Supreme Court concluded that the First Amendment
     prohibits any prosecution under the CPPA based on “virtual”
     child pornography.

     . . . .

     Prior to Free Speech Coalition, knowing possession and
     receipt of images of child pornography, virtual or actual,
     was sufficient to establish one of the factual predicates


                                33
United States v. Martinelli, No. 02-0623/AR

       for a plea of guilty under the CPPA. The “virtual” or
       “actual” character of the images was not, in and of itself,
       a factual predicate to a guilty plea -- criminal liability
       could arise under either circumstance. . . . In the wake of
       Free Speech Coalition, the relevant provisions of 18 U.S.C.
       § 2256(8) require that the visual depiction be of an actual
       minor engaging in sexually explicit conduct. The “actual”
       character of the visual depictions is now a factual
       predicate to any plea of guilty under the CPPA.

58 M.J. at 452-53 (internal footnote omitted).

       Similar to the situation in O’Connor, the definition used

by the military judge in this case included those portions of

the definition later struck down by the Supreme Court in Free

Speech Coalition.    The military judge did not discuss those

aspects of the CPPA that were not affected by the Supreme

Court’s ruling, i.e., “actual” child pornography under 18 U.S.C.

§ 2256(8)(A), (B) or “computer morphed” images of an

identifiable minor under § 2256(8)(C).   O’Connor, 58 M.J. at

452.   As we noted in Mason:

       Under our decision in O’Connor, a provident guilty plea to
       a violation of the CPPA must reflect that the accused
       violated those portions of the statute not affected by the
       Supreme Court’s ruling in Free Speech Coalition. 58 M.J.
       at 454. The absence of any focus on or discussion
       concerning those aspects of the statute in the present
       record coupled with the use of the unconstitutionally
       overbroad definition during Mason’s plea colloquy render
       this case indistinguishable from O’Connor.
60 M.J. at 18.

       Similarly, and for the same reasons, the absence of any

focus on the “actual” versus “virtual” nature of the images, the

use of the unconstitutional definition of “child pornography,”



                                 34
United States v. Martinelli, No. 02-0623/AR

and the absence of anything in the record that would demonstrate

that Martinelli pled guilty to a constitutionally defined

violation of federal law, we find Martinelli’s guilty plea to

Specification 1 improvident.

       F.   The Possibility of Lesser Included Offenses

       The improvidence of Martinelli’s pleas under clause 3 does

not end our inquiry -- an improvident plea to a CPPA-based

clause 3 offense may, under certain circumstances, be upheld as

a provident plea to a lesser included offense under clauses 1 or

2 of Article 134.   Mason, 60 M.J. at 18-19; O’Connor, 58 M.J. at

454.   The only question is whether those circumstances are

present in Martinelli’s case.13

       The nature of the defects in Martinelli’s clause 3 pleas in

regard to Specification 1 and in regard to Specifications 2, 3

and 4 are different.   In Specification 1 the defect, similar to

O’Connor and Mason, involved the impact of the Supreme Court’s

13
  This court ruled, in United States v. James, 55 M.J. 297
(C.A.A.F. 2001), that the CPPA was constitutional as applied to
images of “virtual” children. The Supreme Court, however, ruled
to the contrary in Free Speech Coalition and we are required to
follow that precedent. The Supreme Court decision in Free
Speech Coalition did not, however, address military-specific
prohibitions in clauses 1 and 2 of Article 134. Accordingly, we
have held that military personnel, unlike their civilian
counterparts, can be prosecuted under clauses 1 and 2 of Article
134 for child pornography offenses involving “virtual” children.
Mason, 60 M.J. at 16. Thus, the question we reach today is not
whether military personnel can be prosecuted and punished for
cases involving “virtual” children but whether the providence
inquiry was sufficient to sustain a conviction on a lesser
included offense under clauses 1 or 2 of Article 134.


                                  35
United States v. Martinelli, No. 02-0623/AR

decision in Free Speech Coalition on the CPPA offense.   The

defect with respect to Specifications 2, 3 and 4 involves the

threshold question of whether the CPPA applies to Martinelli’s

conduct in the first instance.

     We conclude, however, that any qualitative difference in

the nature of the plea defect does not preclude the potential

availability of a lesser included offense under these

circumstances.    As noted in the Manual for Courts-Martial,

conduct that may not constitute a violation of clause 3 in a

foreign country may still be punishable under clauses 1 and 2.

See MCM, pt. IV. ¶ 60.c.(4)(c)(i).

     In O’Connor we recognized that after Free Speech Coalition

the possession and receipt of “virtual” child pornography is

protected speech under the First Amendment:

     The Supreme Court has now extended a cloak of First
     Amendment protection to certain depictions of minors
     engaging in sexually explicit conduct. Accordingly,
     the question of whether or not the possession of such
     visual depictions can be viewed as service
     discrediting now has a constitutional dimension that
     was not at issue in Sapp or Augustine.14

58 M.J. at 454.   We then explained that where the constitutional

rights of a servicemember could come into play, we will closely

14
  United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), and United
States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000), pre-dated Free
Speech Coalition and dealt with the possibility of a lesser
included offense under clause 2 of Article 134 where a guilty
plea to a CPPA-based clause 3 Article 134 charge was found
improvident. In those cases, where no constitutional



                                 36
United States v. Martinelli, No. 02-0623/AR

scrutinize the providence inquiry.   If there are constitutional

implications, we will require a more definite showing that the

servicemember clearly understood which of his acts were

prohibited and why those acts were service-discrediting or

prejudicial to good order and discipline before we will find

that an improvident plea to a CPPA-based clause 3 offense is a

provident plea to a lesser included offense under clause 1 or 2.

Id. at 455.

     The difference between our review of a providence inquiry

under the O’Connor standard and our review under the less strict

Augustine/Sapp standard is a qualitative difference.   Although

the understanding required of the servicemember remains the

same, we require a clearer more precise articulation of the

servicemember’s understanding under O’Connor than we require in

the cases where the accused’s First Amendment rights are not

implicated.

     Applying this stricter scrutiny, we examined the providence

inquiry in O’Connor and determined that O’Connor’s plea was not

provident to a lesser included offense under clause 2 of Article

134 because “[T]here was no specific discussion with Appellant

concerning the service-discrediting character of his conduct,

much less any constitutional implications his conduct may or may

not have had.”   O’Connor, 59 M.J. at 455.


considerations were involved, we found the pleas provident to a


                                37
United States v. Martinelli, No. 02-0623/AR

     The next year we used the same analysis in Mason, but

reached a different conclusion about the providence of the

pleas.   60 M.J. at 18-20.   In Mason the military judge used the

unconstitutional language but did not focus on or discuss the

distinction between “virtual” or “actual” children.     Id. at 18.

The military judge did, however, discuss the character of the

underlying conduct and Mason agreed that his conduct was both

service-discrediting and prejudicial to good order and

discipline.   Id. at 19.

     We held that the providence inquiry sufficiently

established the nature of Mason’s conduct as service-

discrediting or prejudicial to good order and discipline even in

the absence of a discussion about the “virtual” or “actual”

character of the images.     Id. at 19-20.   The difference between

Mason and O’Connor was that the military judge in Mason

specifically discussed the character of the underlying conduct

and Mason agreed that his conduct was both service-discrediting

and prejudicial to good order and discipline.

     Given the constitutional implications, the critical inquiry

here is whether the record reflects an appropriate discussion of

and focus on the character of the conduct at issue as service-

discrediting and/or prejudicial to good order and discipline.

Id. at 19.    In other words, the record must conspicuously



clause 2 Article 134 offense.

                                  38
United States v. Martinelli, No. 02-0623/AR

reflect that the accused “clearly understood the nature of the

prohibited conduct” as being a violation of clause 1 and clause

2, Article 134, apart from how it may or may not have met the

elements of the separate criminal statute underlying the clause

3 charge.   Id.   (internal quotation marks omitted)(citing

O’Connor, 58 M.J. at 455).

     The present record does not support that type of

determination.    Martinelli’s plea inquiry and underlying

stipulation of fact were directed solely at demonstrating how

his conduct with respect to the child pornography met the

elements of the CPPA.   For example, during the plea inquiry the

military judge set out the elements of each offense (e.g., (1)

that the accused knowingly mailed, transported or shipped child

pornography in interstate or foreign commerce, (2) that such

action was wrongful, and (3) that the accused knew the nature of

the images to be child pornography at the time of the offense).

He then defined the term “child pornography” using the complete

definition set out in 18 U.S.C. § 2556.      After walking through

the elements of the offense one at a time, the military judge

then asked:

     MJ:    Trial Counsel, . . . [d]o you have any concerns about
            whether or not the Court has correctly described the
            offense as to elements? Do you wish me to inquire
            about any further elements?

     [Trial Counsel]:      No, Your Honor.




                                 39
United States v. Martinelli, No. 02-0623/AR

     MJ:   Major Weir, do you believe there are any further
           elements that are not properly described in this
           offense, that the Court ought to inquire about?

     [Defense Counsel]:   No, sir.

There was no reference to or discussion during the providence

inquiry of Martinelli’s conduct as service-discrediting or

prejudicial to good order and discipline.   The absence of this

type of inquiry is even clearer when viewed in contrast with the

inquiry concerning the separate obstruction of justice

specification, where both the stipulation and discussion with

the military judge make clear reference to the character of

Martinelli’s conduct as service-discrediting and/or prejudicial

to good order.   Under these circumstances, we cannot view

Martinelli’s guilty plea to the child pornography-related

conduct as provident to a lesser included offense under clause 1

or clause 2 of Article 134.

                              DECISION

     The decision of the United States Army Court of Criminal

Appeals as to Specifications 1 through 4 of the Charge and the

sentence is reversed, but is affirmed in all other respects.

The findings of guilty of Specifications 1 through 4 of the

Charge and the sentence are set aside and the record of trial is

returned to the Judge Advocate General of the Army for a




                                 40
United States v. Martinelli, No. 02-0623/AR

rehearing on Specifications 1 through 4 and the sentence.15   If a

rehearing on Specifications 1 through 4 is deemed impracticable,

Specifications 1 through 4 may be dismissed and a rehearing held

on the sentence alone.   Thereafter, the provisions of Articles

66(b) and 67(a), UCMJ, 10 U.S.C. §§ 866(b), 867(a) (2000), shall

apply.




15
  Because of our decision in this case, Specifications 1 through
4 will necessarily have to be amended prior to any rehearing to
allege lesser included offenses of conduct prejudicial to good
order and discipline in the armed forces, or of a nature to
bring discredit upon the armed forces in violation of clauses 1
and/or 2 of Article 134.



                                41
United States v. Martinelli, No. 02-0623/AR


        GIERKE, Chief Judge (concurring in part and dissenting in

part):

        I agree with the majority that Appellant’s plea to

specification 1 was improvident under United States v. O’Connor,1

and I agree that his guilty pleas to the other specifications

based on the Child Pornography Prevention Act of 1996 (CPPA)2

cannot be deemed provident to the lesser included offenses under

clauses 1 and 2 of Article 1343 based the principles discussed in

United States v. Mason.4      Because the majority remands each of

the CPPA-based specifications due to the improvidency of

Appellant’s pleas, I believe the question of whether the CPPA has

extraterritorial application does not need to be reached in this

case.    But because the majority chooses to decide the

extraterritoriality issue, I must respectfully dissent in part.

I cannot agree that the CPPA does not have extraterritorial

application.

      The most important step in determining if the CPPA applies

extraterritorially in this case is to discern whether Congress

intended the CPPA to prohibit the acts of a servicemember

stationed overseas who sends, receives, reproduces, and possesses

child pornography.5     To complete this task, we must engage in

what Judge Learned Hand called “[by] far the greatest part” of



1
    58 M.J. 450 (C.A.A.F. 2003).
2
    18 U.S.C. § 2251A (2000).
3
    60 M.J. 15 (C.A.A.F. 2004).
4
    Uniform Code of Military Justice, UCMJ, 10 U.S.C. § 934 (2000).
5
    See United States v. Bowman, 260 U.S. 94, 97 (1922).
United States v. Martinelli, No. 02-0623/AR


the law:    “the interpretation of words.”6   As we do so, we must

remember that the words we interpret “cover many diverse

instances,” including instances that their authors did not fully

foresee.7   Interpretation is “necessarily an act of creative

imagination” that requires judges to put themselves in the place

of the author of those words and determine “how he would have

dealt with the instance that has arisen.”8

      Putting myself in the place of the Congress that adopted the

CPPA and determining “how [it] would have dealt with the instance

that has arisen,”9 I disagree with the majority’s conclusion that

Congress did not intend to prohibit a servicemember from

possessing child pornography on a United States military

installation or from receiving or reproducing that same

pornography that was routed through Internet servers located in

the United States.10     Because Appellant was in Germany when he


6
   The Honorable Learned Hand, In Commemoration of Fifty Years of
Federal Judicial Service, 264 F.2d 6, 28 (2d Cir.
1959)(proceedings of a special session of the United States Court
of Appeals for the Second Circuit, Apr. 10, 1959).
7
   Id.
8
   Id.
9
   Id.
10
    The most perplexing part of today’s result is that it allows a
servicemember accused of violating the CPPA to be prosecuted
domestically for sending the child pornography over the Internet,
but not for his other offenses directly related to the same
pornography. The result of the majority’s holding is that the
servicemember can be prosecuted “domestically” for sending
pornography from an off-base Internet cafe in Germany. But he
cannot be prosecuted for possessing that same pornography in his
barracks on a United States military installation, or for
receiving or reproducing the child pornography over the same
U.S.-based Internet servers that establish the jurisdictional
basis for the sending charge.



                                      2
United States v. Martinelli, No. 02-0623/AR


sent the pornography over the Internet, I also disagree with the

majority that applying the CPPA to Appellant’s offense of sending

the child pornography is a domestic application of the Act.11      I

believe Congress intended the CPPA to apply extraterritorially

and that the Act reaches Appellant’s conduct in this case.12

      I.   The presumption against extraterritoriality

      The Supreme Court explained the presumption against

extraterritoriality in Equal Employment Opportunity Commission v.

Arabian American Oil Company (Aramco).13      Aramco was a civil case

that involved racial discrimination in employment practices by


11
   See, e.g., United States v. Noriega, 746 F. Supp. 1506, 1512-
13 (S.D. Fla. 1990)(the United States would be exercising
extraterritorial jurisdiction to prosecute “a person standing in
Canada who fires a bullet across the border which strikes a
second person standing in the United States”); United States v.
Baker, 609 F.2d 134, 136 (5th Cir. 1980)(the United States
exercises extraterritorial jurisdiction to reach offenses
committed in the “marginal sea” which is located just past the
“territorial sea” and between three and twelve miles off the
coast).
12
   See Walter C. Dauterman Jr., Internet Regulation: Foreign
Actors and Local Harms -– at the Crossroads of Pornography, Hate
Speech, and Freedom of Expression, 28 N.C.J. Int’l L. & Com. Reg.
177, 183 (2002)(“[The] view that the Internet is somehow beyond
national regulation ignores the realities of cyberspace. While
it is true that the transnational nature of the Internet may make
jurisdictional issues more complicated . . . [g]iven that the
Internet is populated by real people causing real harm, there is
no reason to believe that [it] is beyond the jurisdictional scope
of national regulation.”).
13
   499 U.S. 244, 248 (1991)(noting the “longstanding principle of
American law that legislation of Congress, unless a contrary
intent appears, is meant to apply only within the territorial
jurisdiction of the United States . . . serves to protect against
unintended clashes between our laws and those of other nations
which could result in international discord” (internal quotations
omitted)(quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285
(1949); McCulloch v. Sociedad Nacional de Marineros de Honduras,
372 U.S. 10, 20-22 (1963))).



                                      3
United States v. Martinelli, No. 02-0623/AR


United States companies who employ United States citizens

abroad.14    The Supreme Court thus applied the presumption against

extraterritoriality to employment practices abroad –- which is

exactly the kind of domestic concern to which the presumption

should apply.    In doing so, the Supreme Court made clear that the

presumption applies unless the “language in the [relevant

statute] gives any indication of a congressional purpose to

extend its coverage beyond places over which the United States

has sovereignty or some measure of legislative control.”15

      In United States v. Bowman, the Supreme Court was confronted

with a jurisdictional issue in a case involving three American

citizens and one British citizen who planned to defraud a

corporation in which the United States was a stockholder.16    The

statute under which the defendants were to be prosecuted

contained no explicit grant of extraterritorial jurisdiction to

try the offenders on the high seas, where the crime took place.17

In response to the absence of an explicit statement of

extraterritorial application in that particular criminal statute,

the Supreme Court applied and clarified the exception to the

presumption against extraterritoriality.18

      The Supreme Court delineated two types of criminal offenses

in Bowman.    The nature of some criminal offenses, such as those


14
   Id. at 246.
15
   Id. (internal quotation marks omitted)(quoting Foley Bros.,
336 U.S. at 285).
16
   260 U.S. at 95-96.
17
   Id. at 97.
18
   Id. at 98-103.


                                      4
United States v. Martinelli, No. 02-0623/AR


crimes against private individuals or their property which

“affect the peace and good order of the community,” is such that

the acts that constitute the offenses occur locally.19   But other

criminal offenses “are such that to limit their locus to the

strictly territorial jurisdiction would be greatly to curtail the

scope and usefulness of the statute . . . .”20   Thus, when

Congress does not explicitly state in the plain language of a

particular criminal statute that it intends for that statute to

apply extraterritorially, courts can infer such intent “from the

nature of the offenses and Congress’ other legislative efforts to

eliminate the type of crime involved.”21

      I interpret the Bowman language as drawing a dividing line

between those criminal offenses that are “domestic” in nature and

those whose nature “warrant[s] a broad sweep of power.”22     For

example, a U.S. citizen’s assault on his next-door neighbor would

affect the “peace and good order of the community” in his


19
   Id. at 98.
20
   Id.
21
   United States v. Vasquez-Valasco, 15 F.3d 833, 839 (9th Cir.
1994) (quoting United States v. Felix-Gutierrez, 940 F.2d 1200,
1204 (9th Cir. 1991)(internal quotation marks and citations
omitted)); see also Baker, 609 F.2d at 136; United States v.
Wright-Barker, 784 F.2d 161, 166-67 (3d Cir. 1986). See
generally Christopher L. Blakesley & Dan Stigall, Wings for
Talons: The Case for the Extraterritorial Jurisdiction Over
Sexual Exploitation of Children through Cyberspace, 50 Wayne L.
Rev. 109, 124 (2004)(asserting that, in certain situations, the
United States will ignore the general rule against
extraterritorial application, and assert jurisdiction “over
nationals who commit crimes abroad even though the appropriate
statute did not explicitly declare that it applied
extraterritorially”).
22
   Baker, 609 F.2d at 137.



                                      5
United States v. Martinelli, No. 02-0623/AR


neighborhood and is a domestic crime.         The nature of this offense

does not warrant a sweep of power any broader than that provided

to the local police force to arrest him.        However, if a U.S.

citizen commits a criminal offense whose effects are not confined

to one particular situs –- for example, smuggling illegal drugs

between countries or trafficking in child pornography over the

Internet –- then, the nature of that offense warrants a broader

sweep of power.

       The majority reads the language in Aramco and Bowman to

allow an exception to the presumption only for certain types of

criminal statutes –- those enacted so that the Government can

defend itself against obstruction or fraud.23        However, I do not

read this language as narrowly as the majority.        Notably, Bowman

was a case about fraud against the Government and, thus, the

limiting language on which the majority relies directly applies

to the circumstances of that case.24

       Moreover, I believe that a narrow interpretation of Bowman

is inconsistent with the purpose of the criminal offense

exception the Supreme Court recognized.        Like Judge Sand, I think

the underlying purpose of the criminal offense exception in




23
     See Martinelli, 61 M.J. __, __ (12)(C.A.A.F. 2005).
24
     See 260 U.S. at 96.




                                      6
United States v. Martinelli, No. 02-0623/AR


Bowman is two-fold.25     On the one hand, the United States has the

right “to protect itself from harmful conduct -- irrespective of

the locus of this conduct.”26       On the other hand, a presumption

exists that Congress would not both “enact a statute designed to

serve this protective function, and -- where the statute

proscribes acts that could just as readily be performed outside

the United States as within it . . . undermine this protective

intention by limiting the statute’s application to United States

territory.”27    By reading the Bowman language to limit the

criminal offense exception to crimes of fraud or obstruction

against the Government, I believe the majority ignores the

underlying rationale of the exception to the presumption against

extraterritoriality.

      Child pornography, particularly over the Internet, is just

the type of offense that falls squarely within the Bowman

criminal statute exception to the presumption against




25
   See United States v. Bin Laden, 92 F. Supp. 2d 189, 194
(S.D.N.Y. 2000)(holding the Bowman exception to the presumption
against extraterritoriality applies to various criminal statutes,
such as statutes prohibiting the malicious destruction of
property owned or possessed by the United States or the killing
in the course of an attack on a federal facility involving a
dangerous weapon, but also holding that the exception does not
apply to the statute penalizing murder within the “special
maritime and territorial jurisdiction of the United States”).
26
   Id.; see also Blakesley & Stigall, supra note 21, at 141-42
(“The Constitution interposes no bar as such to the
extraterritorial application of criminal law,” and thus, if
Congress proscribes extraterritorial conduct, “United States law
is satisfied.”).
27
   Bin Laden, 92 F. Supp. 2d at 194.


                                      7
United States v. Martinelli, No. 02-0623/AR


extraterritoriality.28     Child pornography is not an “inherently

domestic” crime because it can be received from and sent to the

United States by a few simple key strokes on the computer.

Images of minors engaging in sexually explicit conduct proscribed

by the CPPA can travel through the Internet easily, providing

ready access to pedophiles.29

      Therefore, the first underlying reason for the presumption

against extraterritoriality -- that Congress legislates with

domestic concerns in mind -- is inapplicable to offenses related

to trafficking child pornography.         Concluding that the Congress

did not intend to reach those individuals who can simply download

pornographic images to a website from another country and e-mail

them through servers that are located in the United States is

inconsistent with Congress’ goal of eradicating child


28
   See Blakesley & Stigall, supra note 21, at 152 (“Cyberspace is
a wonderful tool for education, communication, and entertainment,
giving users access to massive volumes of information and
connecting people around the world. Unfortunately, this has also
generated new opportunities for predators and pornographers to
victimize children.”); Dauterman, supra note 12, at 177-78 (“The
Internet, like the telephone and the printing press, has
revolutionized the way people communicate, providing a global
audience with instant access to a wealth of political, cultural,
and scientific data. . . . Unfortunately, though, there is a much
darker and sinister side to the Internet, one full of hate speech
and pornography. . . . Sexual deviants have used the Internet to
exchange pictures of children being forcibly raped and
sodomized.”).
29
   See Blakesley & Stigall, supra note 21, at 153-54 (“With the
recent technological advances in communication, child
exploitation has become an international problem. There can be
no doubt that the Internet makes children targets for pedophiles
around the globe. As an international system, the Internet . . .
is considered the absolute best hunting ground (for a) pedophile,
and the most efficient pornography distribution engine even
conceived.” (internal quotations and citations omitted)).


                                      8
United States v. Martinelli, No. 02-0623/AR


pornography.    The majority’s holding “greatly . . . curtail[s]

the scope and usefulness”30 of the CPPA by concluding that §

2252A does not apply extraterritorially.

       Furthermore, the other underlying reason given for the

presumption against extraterritoriality -- to avoid unintended

clashes with the governments of foreign countries –- is also

inapplicable to offenses targeted by the CPPA.      It is well

settled that the United States can assert jurisdiction over

offenses that occur outside the territorial jurisdiction of the

United States, but that affect the United States.31      And the

United States Government is not invading some right or taking

away some interest of a foreign government by prosecuting those

individuals who send child pornography into the United States

from that foreign country or who receive child pornography that

has been sent through the United States.      For example, in United

States v. Corey,32 the defendant was a United States citizen who

lived in the Philippines and in Japan during his employment with

the Air Force as a civilian postmaster.       When he was accused of

the aggravated sexual abuse of his stepdaughter, neither the

Philippines nor Japan protested the United States’ assertion of

jurisdiction over the defendant, even though he was physically

located in those countries when he committed the offenses.33

“Quite the contrary, both countries have abjured any interest in


30
     Bowman, 260 U.S. at 98.
31
     Id.
32
     232 F.3d 1166, 1169 (9th Cir. 2000).
33
     Id. at 1171.


                                      9
United States v. Martinelli, No. 02-0623/AR


prosecuting [the defendant], no doubt recognizing that the case

involves internal U.S. matters.”34

      Of course the question in this case is whether Germany would

protest U.S. jurisdiction over Appellant.       And the answer is

certainly no.    Because of the Status of Forces Agreement that

exists between the United States and Germany, Germany agreed that

the United States would have the right to exercise jurisdiction

over all military servicemembers that the U.S. sends to

Germany.35

      The actions of other countries support the United States’

assertion of jurisdiction over a U.S. citizen who violates a

statute proscribing child pornography.        “Every nation has

criminalized the sexual abuse of children, and the vast majority

of states have enacted legislation against child pornography.”36

Additionally, “[i]nternational conventions on the rights of

children favor the strict enforcement of such laws and lend

support to the assertion of extraterritorial jurisdiction of




34
   Id.
35
   See Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Their Forces art. VII, § 1(a), June 19,
1951, 4 U.S.T. 1792; see also Martinelli, 61 M.J. at __ (10-
11)(Crawford, J., dissenting); James B. Roan & Cynthia Buxton,
The American Military Justice System in the New Millennium, 52
A.F. L. Rev. 185, 191 n.32 (2002)(noting that the “German
government has agreed to a general waiver of their jurisdiction
due to the United States military’s proven ability to handle
disciplinary problems through the [Uniform Code of Military
Justice]”).
36
   Dauterman, supra note 12, at 203.


                                     10
United States v. Martinelli, No. 02-0623/AR


these types of cases.”37      Therefore, asserting federal U.S.

jurisdiction is particularly appropriate in light of the nature

of Appellant’s offenses.38

      II.   Plain meaning of the CPPA

      The question of whether the presumption against

extraterritorial application is rebutted for a particular statute

“is a matter of statutory construction” that turns on whether

Congress intended that a particular statute have extraterritorial

application.39    Therefore, the tools of statutory construction

should apply.    As articulated by Judge Learned Hand, the most

important aspect of statutory construction is to look to the

meaning of the words of the statute and discern the legislature’s

intent in adopting those words.40         Furthermore, “[w]herever

possible, statutes should be construed in a commonsense manner

. . . honoring plain meaning . . . and avoiding absurd or


37
   Id. at 204 (discussing that the Convention on the Rights of
the Child, created by the United Nations in 1989, provides basic
international guidelines for the protection of children from
sexual exploitation via child pornography); see also Allison M.
Scott, Note, From a State-Centered Approach to Transnational
Openness: Adapting the Hague Convention with Contemporary Human
Rights Standards as Codified in the Convention on the Rights of
the Child, 11 Ind. J. Global Legal Stud. 233, 235 n.18 (2004)
(noting that the Convention on the Rights of the Child has been
ratified by 192 countries, and that only the United States and
Somalia have not ratified it, but the United States has formally
signed the Convention).
38
   See Dauterman, supra note 12, at 219 (noting that the
“universally recognized consensus that child pornography is an
evil that should be eliminated enables states to prosecute
offenders outside of its borders”).
39
   Martinelli, 61 M.J. at __ (9-10 n.4)(citing Hartford Fire Ins.
Co. v. California, 509 U.S. 764, 813 (1993)(Scalia, J.,
dissenting)).
40
   Judge Learned Hand, supra note 6, at 28.


                                     11
United States v. Martinelli, No. 02-0623/AR


counterintuitive results.”41       I believe that denying the CPPA

extraterritorial effect is counterintuitive in light of the plain

meaning of § 2252A and Congress’ intent to eradicate all forms of

child pornography in passing the CPPA.42

      Section 2252A can be divided into four types of child

pornography offenses: (1) knowingly mailing or transporting; (2)

knowingly receiving and distributing; (3) knowingly reproducing;

and (4) knowingly selling or possessing.       The proscription on

mailing, shipping, or transporting in “foreign commerce” applies

to all four types of offenses.43

      The Supreme Court has defined “foreign commerce” as commerce

between the United States and a foreign nation.44       I believe the

CPPA’s use of the “foreign commerce” language defines the scope

of materials Congress intended to reach –- those child

pornography materials that have traveled in foreign or interstate

commerce -- and is more than just a jurisdictional hook.       In

other words, the inclusion of the “foreign commerce” language was

not “a straightforward reference to the source of authority of

Congress for proscribing these acts as criminal in the first



41
   United States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997)
(internal citations omitted).
42
   See Blakesley & Stigall, supra note 21, at 150-58 (discussing
how federal laws proscribing child exploitation offenses must
apply extraterritorially based on the international nature of the
offense due to recent technological advances in communication,
the comprehensiveness of the legislative scheme that has already
been judicially determined to apply extraterritorially, and
American jurisprudence).
43
   See 18 U.S.C. § 2252A(a)(1)-(3),(5).
44
   Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193 (1824).


                                     12
United States v. Martinelli, No. 02-0623/AR


instance, i.e., the Commerce Clause,”45 but rather, a description

of the material prohibited under the statute.       “By proscribing

the distribution of child pornography in ‘foreign commerce,’

Congress intended the criminal sanctions to apply even where some

part of the criminal conduct occurred outside the territorial

limits of the United States.”46       Therefore, just as the statute

applies to an individual who sends child pornography from a city

in one state to another state, commonsense and logic would

dictate that “Congress would be equally interested in preventing

that same citizen from making the same distribution to a [U.S.

city] from a foreign country.”47

       Appellant used his Hotmail and Yahoo! e-mail accounts,

which are located on a server in the United States, to send and

receive e-mail messages with embedded or attached images.

Because Appellant was in Germany and outside of the military base

when he sent and received the images, the CPPA would reach his

acts only if it has extraterritorial application.       In considering

the extraterritorial application of the CPPA, I find persuasive

the reasoning of Judge Hoeveler of the United States District

Court for the Southern District of Florida.       He stated that the

United States would “unquestionably have authority to prosecute a

person standing in Canada who fires a bullet across the border




45
   Martinelli, 61 M.J. at __ (18).
46
   United States v. Martens, 59 M.J. 501, 504 (A.F. Ct. Crim.
App. 2003).
47
   Id.


                                     13
United States v. Martinelli, No. 02-0623/AR


which strikes a second person standing in the United States.”48

So U.S. law applies extraterritorially because the actor is

located outside of the territorial borders of the United States.

      Because of the unique facts of this case, it is particularly

appropriate that the CPPA have extraterritorial application.

“Given the fact that cyberspace has no borders and distance is

[sic] in that realm is irrelevant, there is no reason why U.S.

courts should not eschew reliance on traditional notions of

territoriality and directly rule that such statutes have

extraterritorial application.”49

      “All nations of the world recognize ‘the principle that a

man who outside of a country willfully puts in motion a force to

take effect in it is answerable at the place where the evil is

done . . . .’”50    Similar to a bullet shot from another country,

an image of child pornography can be “shot” across borders with

the touch of a computer key.       And like the individual standing in

Canada who fires a bullet into the United States, the U.S.

servicemember in Germany who sends or receives the child

pornography is subject to U.S. federal jurisdiction.

      The plain language of the statute reaches Appellant’s acts

of possessing, sending, receiving, and reproducing child


48
   Noriega, 746 F. Supp. at 1512-13; see also Church v. Hubbart,
6 U.S. (2 Cranch) 187, 234 (1804)(“[A nation’s] power to secure
itself from injury, may certainly be exercised beyond the limits
of its territory.”).
49
   Blakesley & Stigall, supra note 21, at 147.
50
   Noriega, 746 F. Supp. at 1513 (citing Rivard v. United States,
375 F.2d 882, 887 (5th Cir. 1967)).



                                     14
United States v. Martinelli, No. 02-0623/AR


pornography that has been “mailed, shipped or transported in

interstate or foreign commerce.”51        The “foreign commerce”

language of the statute is satisfied by Appellant’s admission

that he used Hotmail and Yahoo! accounts to send, receive, and

store the pornographic images.        Moreover, this link to the United

States, by sending the images through and storing the images in

Internet servers located in the United States, makes it even more

implausible that Congress did not intend the CPPA to reach

conduct like Appellant’s.

      Based on the plain meaning of the statute, it appears that

Congress wanted to explicitly extend jurisdiction over those

individuals who possess child pornography not only within the

territorial boundaries of the United States, but also on any land

or building under the control of the United States.52        In other

words, Congress’ addition of the “on any land or building owned

by, leased to, or otherwise used by or under the control of the

United States Government” language clearly establishes

jurisdiction over an individual who admits to being on property

“under the control of the United States” when he possessed the

obscene material.53     Because Appellant admitted to being on


51
   See 18 U.S.C. § 2252A(a)(1)-(3).
52
   See 18 U.S.C. § 2252A(a)(5)(A),(B). Section 2252A(a)(5)(A)
proscribes knowingly possessing child pornography in the “special
maritime and territorial jurisdiction of the United States, or on
any land or building owned by, leased to, or otherwise used by or
under the control of the United States Government.” Section
2252A(a)(5)(B) proscribes knowingly possessing child pornography
that has been “mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer.”
53
   See 18 U.S.C. § 2252A(a)(5)(A).


                                     15
United States v. Martinelli, No. 02-0623/AR


property “under the control of the United States” -- his barracks

at the Cambrai Fritsch Kaserne, a United States Army installation

in Darmstadt, Germany -- his offense of possessing child

pornography on a United States military installation is

proscribed by the CPPA.

       The majority argues that this language would “just as easily

apply only to . . . domestic military installations.”54      We have

explicitly rejected such a reading of “territory under the

control or jurisdiction” of the United States.     In United States

v. Wilmot,55 we held that this language included in the Narcotics

Control Act of 195656 made the statute applicable to drug

offenses committed at Yokota Air Force Base in Japan.

       I agree with the majority that neither the “foreign

commerce” language nor the “special maritime and territorial

jurisdiction of the United States” language alone evidences a

clear congressional intent for a statute to apply

extraterritorially.57     But the question is not whether particular

words within the statute can be defined to establish

extraterritorial jurisdiction, but whether Congress intended the




54
     Martinelli, 61 M.J. at __ (21).
55
     11 C.M.A. 698, 702, 29 C.M.R. 514, 518 (1960).
56
     Pub. L. No. 84-728, 70 Stat. 567 (repealed 1970).
57
     See Martinelli, 61 M.J. at __ (17-22).




                                     16
United States v. Martinelli, No. 02-0623/AR


statute itself to apply to Appellant’s offenses.58       As discussed

in further detail below, the CPPA was enacted as part of a

comprehensive congressional scheme aimed at eradicating child

pornography.    I believe that interpreting the plain language of

the CPPA, its structure and the comprehensive scheme of the

entire statute, leads to the conclusion that Congress clearly

meant for the CPPA to apply extraterritorially to reach

Appellant’s acts in this case.        The key question is whether the

Congress that passed the CPPA intended to prohibit or allow the

possession of child pornography on a U.S. military base overseas.

The answer is obvious.

      Relying on only two criminal cases -- this Court’s 1977



58
  Because the issue in this case is whether Congress intended
the CPPA to apply extraterritorially to reach Appellant’s
offenses, and because I believe that it does, there is no need to
decide whether 18 U.S.C. § 7(3) (2000), which defines “special
maritime and territorial jurisdiction of the United States,” has
extraterritorial application in this case. Compare United States
v. Gatlin, 216 F.3d 207, 220 (2d Cir. 2000)(holding that 18
U.S.C. § 7(3) does not apply extraterritorially to reach
appellant’s offense of sexual abuse of a minor on a United States
military installation in the Federal Republic of Germany), with
Corey, 232 F.3d at 1183 (holding that 18 U.S.C. § 7(3) applies
extraterritorially to appellant’s offense of sexual abuse of a
minor on an Air Force base in Japan and in an off-base private
apartment building in the Philippines). See also Blakesley &
Stigall, supra note 21, at 147 (asserting that the holding of
Gatlin, 216 F.3d 220, is based on the same flawed reasoning as
the holdings in Corey, 232 F.3d 1183, and United States v. Cream,
58 M.J. 750, 755 (N-M. Ct. Crim. App. 2003), because “[t]here is
no need to look to 18 U.S.C. § 7(3) or traditional notions of
territoriality to find jurisdiction over the acts of pedophiles
abroad. Given the fact that cyberspace has no borders and
distance in that realm is irrelevant, there is no reason why U.S.
courts should not eschew reliance on traditional notions of
territoriality and directly rule that such statutes have
extraterritorial application.”).


                                     17
United States v. Martinelli, No. 02-0623/AR


opinion in United States v. Gladue59 and Gatlin,60 a Second Circuit

case -- the majority dismisses the multiple opinions of other

federal courts that interpret the Bowman exception to apply more

broadly than solely to offenses that involve fraud or obstruction

against the Government.61      The majority opinion is also


59
   4 M.J. 1, 5 (C.M.A. 1977). I believe our Court in Gladue
misread the Bowman exception to the presumption against
extraterritoriality and defined it too narrowly. A statute may
not indicate, on its face, a congressional intent to be given
extraterritorial application. But such intent can be “readily
implied” from the nature of the offense targeted by the statute
and if to deny extraterritorial application “would be greatly to
curtail the scope and usefulness of the statute[].” Wright-
Barker, 784 F.2d at 167 (citations and internal quotation marks
omitted); see also Vasquez-Valasco, 15 F.3d at 839 (citing Felix-
Gutierrez, 940 F.2d at 1204); Baker, 609 F.2d at 136.
60
   216 F.3d at 211 n.5. Interestingly, although the majority
relies on footnote five in the Gatlin opinion to support its
narrow reading of the Bowman language, the Second Circuit itself
rejected such a narrow reading in an earlier opinion. Citing
Baker, 609 F.2d at 139, the Second Circuit held that the “intent
to cause effects within the United States . . . makes it
reasonable to apply to persons outside United States territory a
statute which is not expressly extraterritorial in scope.”
United States v. Orozco-Prada, 732 F.2d 1076, 1087-88 (2d Cir.
1984)(internal quotation marks omitted).
61
   See Vasquez-Velasco, 15 F.3d at 843 (concluding that the
statute applies extraterritorially to defendant’s act of
murdering both a U.S. citizen and a legal resident alien of the
U.S. in Mexico to further a drug trafficking enterprise); United
States v. Thomas, 893 F.2d 1066, 1068-70 (9th Cir. 1990)(holding
that 18 U.S.C. § 2251(a) applied extraterritorially to
defendant’s acts in Mexico of engaging a minor in sexually
explicit conduct for the purpose of creating a visual depiction
of that conduct, mailing visual depictions of the conduct, and
receiving the material); Baker, 609 F.2d at 136-39 (concluding
that the statute proscribing the possession of narcotics with the
intent to distribute applies extraterritorially to possession
beyond the three-mile limit of the “territorial sea”); United
States v. Harvey, 2 F.3d 1318, 1327-30 (3d Cir. 1993)(holding
that sentencing guideline addressing the offense of causing a
minor to engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct applies when the
offense occurs in the Philippines). See also United States v.
Bredimus, 234 F. Supp. 2d 639, 650 (N.D. Tex. 2002)(deciding that


                                     18
United States v. Martinelli, No. 02-0623/AR


inconsistent with precedent from our intermediate level appellate

courts which, although not binding on this Court, have construed

the CPPA and decided that it applies extraterritorially.62

      III.    Comprehensive scheme of the CPPA

      When determining whether a statute applies

extraterritorially, courts are not “limited to the text of the

statute itself.     To the contrary, [courts] are permitted to

consider ‘all available evidence’ about the meaning of the

statute, including its text, structure, and legislative

history.”63    In 1996, Congress added § 2252A to Chapter 110 of

Title 18 of the United States Code, which defines the offenses

related to the Sexual Exploitation and Other Abuse of Children.64


18 U.S.C. § 2251A applies extraterritorially to traveling in
foreign commerce with the intent to use minors to produce visual
depictions of sexually explicit conduct); Felix-Gutierrez, 940
F.2d at 1204 (holding that the Bowman criminal offense exception
applies to the murder of a Drug Enforcement Administration agent
in Mexico).
62
   See, e.g., United States v. Kolly, 48 M.J. 795, 797 (N-M. Ct.
Crim. App. 1998)(holding that 18 U.S.C. § 2252(a)(2) applies
extraterritorially to the receipt of child pornography the
appellant ordered while stationed in Hawaii, and had sent from a
supplier in Florida to Japan, where the appellant was later
stationed); Martens, 59 M.J. at 505 (concluding that Congress
intended 18 U.S.C. § 2252(a)(2)(A) to apply extraterritorially to
the receipt of child pornography at Ramstein Air Base in
Germany); United States v. Pullen, 41 M.J. 886, 888 (A.F. Ct.
Crim. App. 1995) (holding that the language of 18 U.S.C. §
2252(a)(4)(A) is broader than that in the statute at issue in
Wilmot, 11 C.M.A at 700, 29 C.M.R. at 516, and is therefore a
clear expression of Congress’ intent to apply it
extraterritorially to the possession of child pornography on
Clark Air Base in the Philippines).
63
   Gatlin, 216 F.3d at 212 (quoting Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155, 177 (1993)).
64
   Child Pornography Prevention Act of 1996, Pub. L. No. 104-208,
div. A, tit. I, § 121(3)(a), 110 Stat. 3009 (codified as amended
at 18 U.S.C. § 2252A (2000)).


                                     19
United States v. Martinelli, No. 02-0623/AR


The history of the CPPA can be traced to 1977 when Congress

passed the Protection of Children Against Sexual Exploitation

Act.65

      In the time period between the initial enactment of the 1977

Act and today, Congress has repeatedly emphasized its intent to

eradicate the exploitation of children and has acted on this

intent by continuously expanding federal jurisdiction over

offenses involving child pornography wherever they occur.         For

example, regarding a 1996 hearing on the CPPA, Senator Joseph

Biden noted that Congress has “kept a sharp eye on the problem of

child pornography, and where [it] has found gaps in the coverage

of the criminal law, [it] ha[s] moved quickly to fill them.”66

Thus, when the “computer was [first] becoming an increasingly

important tool of the child pornographer,” Congress reacted by

“making it a federal crime to transport child pornography using a

computer in addition to the mails.”67         In 1998, Congress passed

the Protection of Children from Sexual Predators Act, modifying

and adding additional statutes to 18 U.S.C. §§ 2251-2257.68         As

Senator Leahy observed:

      The goal of [the act] is to provide stronger protections for
      children from those who would prey upon them. Concerns over
      protecting our children have only intensified in recent
      years with the growing popularity of the Internet and World
      Wide Web. Cyberspace gives users access to a wealth of

65
   Pub. L. No. 95-225, 92 Stat. 7 (codified as amended at 18
U.S.C. § 2251 (2000)).
66
   Statement of Sen. Joseph R. Biden (regarding hearing on Child
Pornography Prevention Act)(June 4, 1990), available at 1996 WL
292976 (F.D.C.H.).
67
   Id. at 1-2.
68
   Pub. L. No. 105-314, 112 Stat. 2974 (1998).


                                     20
United States v. Martinelli, No. 02-0623/AR


      information; it connects people from around the world. But
      it also creates new opportunities for sexual predators and
      child pornographers to ply their trade.69

      Numerous courts agree that Congress has created a

“comprehensive scheme” to combat and eradicate child

pornography.70    These courts typically quote the language from

Bowman to conclude that the section applies extraterritorially

because to hold otherwise would “greatly . . . curtail the scope

and usefulness of the statute.”71         For example, inferring the

exercise of extraterritorial power of 18 U.S.C. §§ 2251(a) and

2252(a) from the nature of the offenses defined in each statute,


69
   144 Cong. Rec. S12263 (daily ed. Oct. 9, 1998) (statement of
Sen. Patrick Leahy).
70
   See Harvey, 2 F.3d at 1327-29 (holding that 18 U.S.C. § 2251
was enacted as part of Congress’ continuing effort to contain
evils caused on American soil by foreign as well as domestic
suppliers of child pornography, and to deny extraterritorial
application of the Act would “greatly curtail the scope and
usefulness” of the statute); Martens, 59 M.J. at 504 (concluding
that, because the CPPA includes several provisions that clearly
reach conduct occurring outside the United States, “the statutory
framework compels the conclusion that Congress intended it to
apply broadly to counter the sexual exploitation of children”);
Bredimus, 234 F. Supp. 2d at 649-50 (holding that 18 U.S.C. §
2251A should apply extraterritorially because, given the location
of the statute in the criminal portion of the U.S. Code and the
nature of the offense, the section was enacted to expand
Congress’ statutory scheme to combat sexual exploitation of
children, both domestic and abroad, and because it “only makes
sense” that the statute would apply to the conduct of United
States citizens on foreign soil; otherwise, the comprehensive
scheme to combat international trafficking of child pornography
and sexual exploitation of children could not be effectively
implemented as contemplated by Congress); Kolly, 48 M.J. at 797
(holding that 18 U.S.C. § 2252(a)(2) of the CPPA applied
extraterritorially because “to allow a U.S. citizen in the United
States who ordered child pornography through the United States
postal service to escape prosecution simply because he is
overseas when he finally receives it would greatly . . . curtail
the scope and usefulness” of the CPPA).
71
   Bowman, 260 U.S. at 98.


                                     21
United States v. Martinelli, No. 02-0623/AR


as well as Congress’ other legislative efforts to eliminate child

pornography, the Ninth Circuit in Thomas determined that Congress

created a comprehensive statutory scheme to eradicate sexual

exploitation of children.72       Because “[p]unishing the creation of

child pornography outside the United States that is actually, is

intended to be, or may reasonably be expected to be transported

in interstate or foreign commerce is an important enforcement

tool . . . . [I]t [is] likely that under section 2251(a) Congress

intended to reach extraterritorial acts that otherwise satisfy

statutory elements.”73     The same principle applies to Congress’

intent in enacting 18 U.S.C. § 2252A.

       IV.   Conclusion

       I agree with the majority’s decision that Appellant’s guilty

plea to specification 1 is improvident under O’Connor and that

his guilty pleas to the other CPPA-based specifications are

improvident to the lesser included offenses under clauses 1 and 2

of Article 134 under Mason.       Therefore, I concur in part.

       I disagree, however, with the majority’s determination that

the CPPA does not apply extraterritorially to reach Appellant’s

offenses.    I believe the Bowman exception to the presumption

against extraterritoriality applies in this case based on the

nature of the offenses which the CPPA targets and because to deny

application of the exception would greatly curtail the scope and

usefulness of the CPPA.      Congressional intent for a statute to


72
     Thomas, 893 F.2d at 1068-69.
73
     Id. at 1069 (internal footnotes omitted).


                                     22
United States v. Martinelli, No. 02-0623/AR


apply extraterritorially can be inferred in criminal statutes,

even in the absence of an explicit statement, based on the text

of the entire statute, its legislative history and structure.            A

reading of the CPPA, together with the comprehensive scheme of

the Act and repeated efforts by Congress to eradicate child

exploitation and expand federal jurisdiction over these types of

offenses, shows a clear congressional intent for the CPPA to

apply extraterritorially to Appellant’s acts in this case.

Therefore, I must respectfully dissent in part.

      Finally, I note that today’s opinion construes a generally

applicable federal criminal statute rather than a Uniform Code of

Military Justice provision.       While federal circuit precedent

exists on both sides of this issue, the majority’s holding is

against the weight of authority.          This issue cries out for our

superior court to settle this dispute among the federal courts of

appeals.




                                     23
United States v. Martinelli, No. 02-0623/AR


       CRAWFORD, Judge (dissenting):

       This case presents three issues of immediate importance and

worldwide impact:    (1) the domestic aspect of Internet

transactions initiated outside the United States that result in

the receipt, reproduction, or transmission of electronic images

within or from discrete, electronic “space” on Internet servers

located within the United States; (2) the extraterritorial

application of the Child Pornography Prevention Act of 1996

(CPPA), 18 U.S.C. § 2252A (2000), to members of the armed forces

stationed overseas; and (3) the providence of a guilty plea to

violations of the CPPA when the record clearly demonstrates

Appellant’s knowledge of the “actual” nature of the victims, but

the military judge explains the offenses to Appellant using

language found to be overbroad in Ashcroft v. Free Speech

Coalition.1

       I must respectfully dissent from the lead opinion’s holding

that § 2252A does not apply to Appellant’s conduct in Germany,

that Appellant’s receipt, reproduction, and distribution of

electronic, pornographic images did not occur in the United

States, and from the majority’s holding that Appellant’s plea to

specification 1 was improvident based on United States v.

O’Connor, 58 M.J. 450 (C.A.A.F. 2003).    In specifications 1, 2,

and 3 Appellant was charged under Article 134, Uniform Code of

1
    535 U.S. 234 (2002).
United States v. Martinelli, No. 02-0623/AR


Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with knowingly

and wrongfully, by means of a computer, mailing, transporting,

shipping, receiving, and reproducing child pornography in

“interstate or foreign commerce” at an Internet café in

Darmstadt, Germany, in violation of § 2252A.   He was also

charged under Article 134 with receiving child pornography and

with possessing child pornography on a United States Army

installation, in violation of § 2252A, in specification 4.    The

mailing, transporting, shipping, receiving, and reproducing

occurred at Hotmail and Yahoo! computer servers located in the

United States, with each such action having been effected by

Appellant’s physical contact with a computer terminal located in

Darmstadt, Germany.

     The lead opinion takes the position that a citizen-soldier

who is knowingly sending, receiving, and reproducing computer

images of actual children engaged in graphic sexual conduct in

“interstate or foreign commerce,” who is possessing those images

on a United States military installation, and –- because of the

nature of Hotmail and Yahoo! e-mail accounts –- whose sending,

receipt, reproduction, and possession is simultaneously

occurring on e-mail servers located in the United States, cannot

be prosecuted under § 2252A.   Not only is that position

unsettling, but it constitutes a dramatic shift in this Court’s

view of military criminal jurisdiction.


                                 2
United States v. Martinelli, No. 02-0623/AR


     I.   Domestic Application of § 2252A

     When Appellant sat in the Netzwerk Internet Café in

Darmstadt, Germany, he didn’t open envelopes, remove

photographs, copy photographs, place photographs in envelopes,

or place those envelopes in a mail drop, at least not in the

physical sense.   Appellant rented a web browser, which he used

to visit Internet websites and to gain access to his Hotmail or

Yahoo! e-mail accounts.   These particular e-mail accounts are

“web-based,” as distinct from e-mail operated through a local

client such as Microsoft Outlook (a program that can be locally

installed and which creates a local storage facility for e-mail

files and attachments).   Because “web-based” accounts operate

without a local server and consist of discrete pools of

information electronically assembled and stored under a user’s

filename on a client server owned by the host, all of

Appellant’s e-mails -– and their attachments –- were “resident”

on the Internet servers of Hotmail and Yahoo!, located in the

United States.

     While this is not the technology many of us grew up with,

it is the technology that prevails today.   It is the technology

that appellants and counsel not infrequently must explain to

judges and, more to the point, it is the technology Appellant




                                 3
United States v. Martinelli, No. 02-0623/AR


stipulated to and explained to the military judge during the

Care2 inquiry in this case.

        The majority misconstrues the “routed through” language in

the stipulation to conclude that all the images –- including

those attached to e-mail -– were located outside the United

States when Appellant sent or received them or when he

reproduced them, and that when Appellant sent or received them

they all merely went “through” the United States in electronic

form.

        What actually occurred, at least on those occasions that

Appellant sent or received images by e-mail, is that Appellant,

by typing on the keyboard of a computer in Darmstadt, used his

electronic address on a server located in the United States, to

send and receive e-mail messages with embedded or attached

images, to and from his address on that server.    Appellant also

used his “space” on the Hotmail and Yahoo! servers in the United

States to store pornographic images of children, which was made

crystal clear by the language of specification 5,3 the testimony


2
    United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
3
  “Specification 5 states that Appellant wrongfully endeavor[ed]
to impede an investigation into his own misconduct by asking SPC
Morgan A. Oviatt to destroy evidence that the said SPC
Christopher P. Martinelli had received and possessed child
pornography in violation of 18 U.S. Code § 2252A, to wit: by
deleting all files with attachments from his two electronic mail
accounts.” Emphasis added.



                                   4
United States v. Martinelli, No. 02-0623/AR


of Specialist (SPC) Oviatt and Appellant’s admissions during the

providency inquiry.

     Appellant also admitted to downloading images directly onto

the hard drive of a computer at the Netzwerk Internet Café and

onto portable disks that Appellant took back to the barracks.

But Appellant also admitted that each day, after he had left the

Netzwerk Internet Café, many if not all of the images Appellant

had collected, reproduced, or sent to others remained stored,

under his name, in his user account, on the servers of Hotmail

and Yahoo! within the territorial borders of the United States.

      Because much of the storage of images, all of the sending,

and all of the receiving, actually occurred in the electronic

space controlled by Appellant on Hotmail and Yahoo! servers in

the United States, the crimes of sending and receiving were

committed there.4   Further, although some of the products of

Appellant’s reproduction (e.g., the portable computer disks

Appellant took back to his barracks) were located in Germany,

much of the actual reproduction occurred on the servers where

those images were located, in electronic form, in the United

States.

     In light of these facts of record, there was a domestic

application of § 2252A to specifications 1 through 3.


4
  As reflected in the specifications, they were simultaneously
committed in Germany, a proposition discussed below.

                                 5
United States v. Martinelli, No. 02-0623/AR


     II.   Extraterritoriality

     If required to examine § 2252A and Article 134, in an

extraterritorial setting, I would follow this Court’s precedents

and the great bulk of federal case law, while considering the

worldwide deployment of our forces, and the melding of federal

statutes in Article 134.

                                 FACTS

     As detailed above, Appellant possessed over sixty images of

child pornography on a U.S. military installation in Germany.

He also used a computer in a German community to effect the

repeated reproduction, transmission, and receipt of child

pornography in interstate and foreign commerce.   Appellant’s

electronic transactions were, at a minimum, routed through

Internet servers in the United States:

     In Prosecution Exhibit 1, Appellant stipulated that

     [a]ll e-mail sent to or received from the accused’s
     Yahoo or Hotmail e-mail accounts is electronically
     routed through the respective service’s computers in
     the United States. As a result, all of the child
     pornography that the accused had either sent or
     received using these two accounts was transported
     through interstate or foreign commerce.

          As a matter of practice, over the course of the
     year, after copying the child pornography onto floppy
     diskettes, the accused would then take the diskettes
     to his barracks room in building 4002 on the Cambrai
     Fritsch Kaserne, Darmstadt, Germany. The Cambrai




                                   6
United States v. Martinelli, No. 02-0623/AR


       Fritsch Kaserne is a U.S. Army installation used by
       and under the control of the United States Government.5

Emphasis added.

                             DISCUSSION

       Outside the military context, modern law recognizes five

theories in support of extraterritorial application of a

sovereign’s jurisdiction: (1) regulating conduct of its

citizens; (2) regulating activities which have a substantial

territorial effect; (3) regulating extraterritorial conduct when

there is a connection between the act and national security; (4)

asserting jurisdiction as to crimes against humanity; and (5)

asserting jurisdiction where the victim of the act is a citizen

of the state asserting jurisdiction.6

       In the context of United States servicemembers, Congress’

authority to “make Rules for the Government and Regulation of

the land and naval forces,”7 creates additional sources of

jurisdiction under Article 134.




5
  Before this Court, the Government noted “the child pornography
at issue moved in ‘foreign commerce’ because it was filtered
through internet service providers operating from the United
States.”
6
  See Restatement (Third) Foreign Relations Law §§ 401-402
(1986).
7
    U.S. Const. art. I, § 8, cl. 13.

                                  7
United States v. Martinelli, No. 02-0623/AR


                                Citizenship

        Notwithstanding the common law presumption against

extraterritorial application of a sovereign’s law,8 there remains

little question as to the power of Congress to extend

application of U.S. criminal statutes to the acts of U.S.

citizens undertaken beyond our territorial borders.       The

extraterritorial reach of federal statutes, at least as to

citizens, arose as far back as 1824, when the United States

Supreme Court recognized the nationality principle.       In The

Apollon,9 the Court stated:      “The laws of no nation can justly

extend beyond its own territories, except so far as regards its

own citizens.”     Again in 1960, the Court hinted that

nationality-based jurisdiction over civilian dependents of

military personnel overseas was possible but venue would lie in

the United States.10    Clearly, Appellant is a citizen.

                                  Effects

        In addition to the nationality justification for

jurisdiction, the effects doctrine also applies to conduct from

outside the border that has a consequence or effect within the

8
  United States v. Foley Bros., Inc. v. Filardo, 336 U.S. 281,
285 (1949).
9
     22 U.S. 362, 370 (1824).
10
  Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246
(1960); see also United States ex rel. Toth v. Quarles, 350 U.S.
11, 21 (1955).



                                     8
United States v. Martinelli, No. 02-0623/AR


border, provided Congress has the authority in that area.     Just

as the Federal Government can defend itself “against

obstruction[] or fraud wherever perpetrated,”11 it also can cast

a wide net for drug trafficking, or in this case, trafficking in

child pornography.    In United States v. Felix-Gutierrez,12 the

Ninth Circuit applied a criminal accessory statute -– silent as

to extraterritorial application –- to the murder of a Drug

Enforcement Agency (DEA) agent in Mexico.    Finding

extraterritorial application of the laws of the United States

constitutionally permissible, the court emphasized the need to

look at both the express and implied congressional intent in

deciding whether the law should be given extraterritorial

application.    Agreeing with the Fifth Circuit’s analysis in

United States v. Baker,13 the Felix-Gutierrez court noted that

the effectiveness of the statute would be compromised if the

citizens of the United States could commit these offenses abroad

without the intercession of the United States Government.14

Permitting the Government to exercise extraterritorial

jurisdiction comports with the international principle of

protective jurisdiction because the underlying crime affected

11
     United States v. Bowman, 260 U.S. 94, 98 (1922).
12
     940 F.2d 1200, 1204 (9th Cir. 1991).
13
     609 F.2d 134, 136 (5th Cir. 1980).
14
     Felix-Gutierrez, 940 F.2d at 1204.

                                  9
United States v. Martinelli, No. 02-0623/AR


the nation itself.15    As Judge Hand recognized in United States

v. Aluminum Co. of America,16 concluding that the Sherman Act

applied to conduct that took place entirely outside the United

States but had a territorial effect on exports and imports:      “It

is settled law . . . that any state may impose liabilities, even

upon persons not within its allegiance, for conduct outside its

borders that has consequences within its borders which the state

reprehends. . . .”

       Further, construing the statute against extraterritorial

application to members of the armed forces stationed abroad has

practical effects that would thwart the plainly stated intent of

Congress to eradicate child pornography.    If this had been a

contested case, the material that Appellant transmitted and

received could have been obtained pursuant to a search warrant

from a United States Internet site.17    The search would not have

required the consent of German officials.    This is not an

instance where United States law enforcement officials need the

assistance, or even indulgence, of another territory to enforce




15
     See id. at 1206.
16
     148 F.2d 416, 443 (2d Cir. 1945) (citations omitted).
17
  See generally United States v. Maxwell, 45 M.J. 406 (C.A.A.F.
1996)(warrant executed at site of interstate Internet service
provider).



                                  10
United States v. Martinelli, No. 02-0623/AR


its law.18    Nor is this an instance of the searching state having

a stronger interest in the data than the state in which the data

is stored.    Both are the same.   The searching state knows where

the data is and there would be no interference with another

state as a byproduct of the search.     Just as clearly, this is

not an instance of extraterritorial criminal enforcement that

would “potentially frustrate one of the central purposes of the

presumption against extraterritoriality -– namely, the

prevention of ‘unintended clashes between our laws and those of
                                                               19
other nations which could result in international discord.’”

As with nearly all other members of our armed forces, Appellant

was subject to a Status of Forces Agreement.    Such agreements

have provided, since before United States v. Gatlin,20 that “the

military authorities of the sending State shall have the right

to exercise within the receiving State all criminal and

disciplinary jurisdiction conferred on them by the law of the

sending State over all persons subject to the military law of


18
  See generally Yahoo!, Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitesme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001)(court
declined to enforce a French order, but did not rule that the
French were without proper jurisdiction to prevent the
distribution of anti-Semitism on the Internet in France).
19
  United States v. Gatlin, 216 F.3d 207, 216 n.11 (2d Cir.
2000)(quoting Equal Employment Opportunity Commission v. Arabian
American Oil Co. (Aramco), 499 U.S. 244, 248 (1991).
20
     Id. at 207.



                                   11
United States v. Martinelli, No. 02-0623/AR


that State.”21    Appellant’s prosecution for these crimes was not

merely tolerated by German authorities, it was officially

condoned pursuant to an international treaty.

                     Plain Meaning of § 2252A

       While citizenship and impact on “interstate and foreign

commerce” provide sufficient bases for jurisdiction, there is an

additional basis for applying the statute extraterritorially --

the plain meaning and purpose of the statute itself.    “While the

legislation of the Congress, unless the contrary intent appears,

is construed to apply only within the territorial jurisdiction

of the United States, the question of its application,

[extraterritorially] is one of construction, not of legislative

power.”22    “Congress has the authority to enforce its laws beyond

the territorial boundaries of the United States.    Whether

Congress has in fact exercised that authority . . . is a matter

of statutory construction.”23

       This case deals with a specific federal statute, i.e.,

§ 2252A, which provides:



21
  Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Their Forces, art. VII § 1(a),. June 19,
1951, 4 U.S.T. 1792.
22
  Blackmer v. United States, 284 U.S. 421, 437 (1932) (citations
omitted).
23
     Aramco, 499 U.S. at 248.



                                  12
United States v. Martinelli, No. 02-0623/AR


(a) Any person who —-
        (1) knowingly mails, or transports or ships in
     interstate or foreign commerce by any means, including
     by computer, any child pornography;
        (2) knowingly receives or distributes --
            (A) any child pornography that has been mailed,
     or shipped or transported in interstate or foreign
     commerce by any means, including by computer; or
            (B) any material that contains child pornography
     that has been mailed, or shipped or transported in
     interstate or foreign commerce by any means, including
     by computer . . .
     . . . .
         (5)(B) knowingly possesses any . . . computer disk,
     or any other material that contains an image of child
     pornography that has been mailed, or shipped or
     transported in interstate or foreign commerce by any
     means, including by computer . . .
     . . . .
     shall be punished as provided in subsection (b).

       Emphasis added.

       When interpreting this statute, it is appropriate to look

at the plain meaning of the statute,24 its history, and the

purpose of the statute.25

       The Commerce Clause grants Congress the power “to regulate

commerce with foreign Nations . . . .”26   Section 2252A was an

exercise by Congress of its authority over interstate and

24
  Hartford Underwriters Ins. Co. v. Union Planters Bank, 530
U.S. 1, 6 (2000)(“[W]hen the statute’s language is plain, the
sole function of the courts –- at least where the disposition
required by the text is not absurd –- is to enforce it according
to its terms.”)(internal quotation marks and citations omitted).
25
  The purpose of the statute might be an important aspect of
statutory interpretation. Geier v. American Honda Motors Co.,
529 U.S. 861, 888 (2000).
26
     U.S. Const. art. I, § 8, cl. 3.



                                  13
United States v. Martinelli, No. 02-0623/AR


foreign commerce.    This power to regulate foreign commerce has

been broadly construed to encompass all “transactions which

either immediately, or at some stage of their progress, must be

extraterritorial.”27

       Certainly, Congress is interested in controlling commerce

in cyberspace as evidenced by the statute.      This statute is a

broad, comprehensive scheme to eradicate, or at least control,

sexual exploitation of children.       It was part of the CPPA.   In

expanding the congressional statute, Congress specifically found

that “elimination of child pornography and the protection of

children from sexual exploitation provide a compelling

governmental interest for prohibiting the production,

distribution, possession, sale, or viewing of visual depictions

of children engaging in sexually explicit conduct. . . .”28

       I cannot join the majority’s conclusion that because the

CPPA was enacted to “protect children from abuse,” United States

v. Martinelli, 61 M.J. __, __ (12) (C.A.A.F. 2005), it therefore

focuses on individual victims and cannot fall within the “second

category” of criminal statutes described in Bowman.       Similar

language has been applied by numerous federal circuits in

recognizing that many criminal prohibitions enacted by Congress

27
     Veazie v. Moor, 55 U.S. 568, 573 (1852).
28
  Child Pornography Prevention Act, Pub. L. No. 104-208, div.
A., tit. I, § 121 (1)(13), 110 Stat. 3009.



                                  14
United States v. Martinelli, No. 02-0623/AR


were intended primarily to protect the national interest, as

opposed to the property or persons of individuals.29

     Not only on the weight of decisional law in the federal

circuits and our own precedents, but based on the compelling

similarities between this Nation’s struggle against the

production, importation, distribution, and possession of illegal

drugs and the much more recent efforts to combat the creation,

distribution, and possession of child pornography, I conclude

that, even if applied extraterritorially, Appellant’s plea and


29
  E.g., United States v. Harvey, 2 F.3d 1318 (3d Cir. 1993)
(possession of child pornography under 18 U.S.C. § 2252(a)(4)(B)
(subject to aggravated punishment even though aggravating factor
occurred in Philippines); United States v. Wright-Barker, 784
F.2d 161 (3d Cir. 1986) (drug offenses on the high seas); United
States v. Thomas, 893 F.2d 1066 (9th Cir. 1990)(using a minor in
Mexico to produce child pornography violating 18 U.S.C. §
2251(a)); Chandler v. United States, 171 F.2d 921 (1st Cir.
1948)(treason by U.S. citizen in Germany); United States v.
Yousef, 327 F.3d 56 (2d Cir. 2003)(attempting to damage U.S.
aircraft in flight outside U.S.); United States v. Brown, 549
F.2d 954 (4th Cir. 1977)(conspiracy to import heroin to U.S.
from Germany involving an Army sergeant stationed in Germany);
United States v. Erdos, 474 F.2d 157 (4th Cir. 1973)(murder of
U.S. citizen by U.S. citizen at U.S. embassy in Guinea); United
States v. Perez-Herrera, 610 F.2d 289 (5th Cir. 1980)(conspiracy
and attempted importation of marijuana into U.S. from high
seas); United States v. Baker, 609 F.2d 134 (5th Cir.
1980)(possession with intent to distribute marijuana nine miles
off Florida coast); United States v. Dawn, 129 F.3d 878 (7th
Cir. 1997)(possession of child pornography under 18 U.S.C. §
2252(a) subject to aggravated punishment even though aggravating
factor occurred in Honduras); United States v. Schmucker-Bula,
609 F.2d 399 (7th Cir. 1980)(conspiracy to import cocaine in
Colombia); United States v. Plummer, 221 F.3d 1298 (11th Cir.
2000)(attempted smuggling forty miles off Florida coast); Feliz-
Gutierrez, 940 F.2d 1200 (kidnapping and murder of DEA agent in
Mexico).

                               15
United States v. Martinelli, No. 02-0623/AR


conviction by application of § 2252A was jurisdictionally

proper.

                        Appellant’s Military Status

       A final rationale for jurisdiction to prosecute Appellant

arises under the UCMJ.      Pursuant to this authority, Congress has

provided that under Article 134 “all disorders and neglects to

the prejudice of good order and discipline in the armed forces”

or conduct which would bring “discredit upon the armed forces”

may be tried under the UCMJ.      The UCMJ specifically provides for

extraterritorial jurisdiction.30      In light of Article 36, UCMJ,31

it is clear that clause 3 of Article 134 contemplates

prosecution of crimes such as those enumerated in § 2252A.

       Congress delegated authority to the President to prescribe

“[p]retrial, trial, and post-trial procedures, including modes

of proof, for cases” triable under the UCMJ.32        In the Manual for

Courts-Martial, United States (MCM) (2002 ed.), pt. IV, ¶

60.c(4)(c)(i) notes that under clause 3 of Article 134, “[t]here

are two types of congressional enactments of local application:

specific federal statutes (defining particular crimes), and a




30
     Article 5, UCMJ, 10 U.S.C. § 805 (2000).
31
     10 U.S.C. § 836 (2000).
32
     Id. at § 836(a).



                                    16
United States v. Martinelli, No. 02-0623/AR


general federal statute, the Federal Assimilative Crimes Act

(which adopts certain state criminal laws).”

       This approach was recognized in United States v. Scholten.33

In Scholten, this Court held that there are four jurisdictional

bases to try an individual for kidnapping overseas, including

“interstate or foreign commerce, maritime or territorial

jurisdiction, special aircraft jurisdiction and foreign guests

of the government.”34    Even though 18 U.S.C. § 1201(a), the

statute at issue in Scholten, does not apply under clause 3, it

may be charged under clauses 1 and 2 where the conduct is

prejudicial to good order and discipline or of a nature to bring

discredit upon the armed forces.35     Thus, assuming Appellant was

not engaged in “interstate or foreign commerce,” those clauses

would also permit the prosecution of Appellant under the UCMJ.

       For all of the above reasons, I respectfully dissent from

the majority’s holding that § 2252A does not have

extraterritorial application.     The impact of this holding is

far-reaching because it overlooks our prior case law36 and


33
     17 M.J. 171 (C.M.A. 1984).
34
     Id. at 173 (citation and internal quotation marks omitted).
35
     Id. at 173-74.
36
  See,   e.g., United States v. Collins, 7 M.J. 188 (C.M.A. 1979);
United   States v. Jackson, 17 C.M.A. 580, 38 C.M.R. 378 (1968);
United   States v. Wilmot, 11 C.M.A. 698, 29 C.M.R. 514 (1960);
United   States v. Blevens, 5 C.M.A. 480, 18 C.M.R. 104 (1955).

                                  17
United States v. Martinelli, No. 02-0623/AR


forecloses application by military authorities of numerous

federal statutes overseas.37

       III.   Providence of the Plea

       I also dissent from the majority’s conclusion that

Appellant’s pleas were improvident in light of Ashcroft v. Free

Speech Coalition.38    In my dissent from a similarly erroneous

conclusion by this Court in O’Connor, 58 M.J. at 456-457

(Crawford, C.J., dissenting), I emphasized that O’Connor’s pleas

were factually provident to offenses involving actual children

and therefore unaffected by Free Speech Coalition.

Notwithstanding nearly unanimous support for this position in

the federal circuits that have addressed that very question of

law, the majority steadfastly moves this Court, without

justification, on a path that threatens, rather than protects,

the military community by providing extra “rights” for

servicemembers who possess, traffic in, and even create child

pornography, even when those acts occur on a military

installation.

                            Actual Children

       In explaining the elements of each of the four child

pornography specifications, the military judge defined “child


37
     See, e.g., Espionage Act of 1900, 18 U.S.C. § 792-99 (2000).
38
     535 U.S. 234 (2002).



                                  18
United States v. Martinelli, No. 02-0623/AR


pornography” by reading § 2256(8) to Appellant, including the

impermissibly overbroad language “appears to be” and “conveys

the impression.”   The stipulation of fact, however,

explicitly recognizes that the children in all sixty-four

images appended to the stipulation are actual children:

“Rather than focusing on a technical listing of the elements

of an offense, this Court looks at the context of the entire

record to determine whether an accused is aware of the

elements, either explicitly or inferentially.”39

      Appellant assured the military judge that he understood the

stipulation and that everything in it was true.    After the

defense waived objection, the military judge admitted the

document, which provided, in part:    “[t]he identity of these

children, as well as any lasting damage that may have occurred

because of their abuse in these photographs, is not known”; and

“[t]he accused never attempted to discover the identities or

well-being of these children.”

     Virtual children do not have “identities,” they do not

suffer “damage” when abused, nor may their “well-being” be

restored.   Appellant knowingly and voluntarily stipulated as

fact that the children in the sixty-four images were real,

potentially identifiable, female children, some of whom were


39
  United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F.
2003)(citation omitted).

                                 19
United States v. Martinelli, No. 02-0623/AR


prepubescent, and all of whom were abused.     Appellant’s

understanding of the animate, corporeal nature of the children

depicted in the sixty-four images attached to the record of

trial is clear.    Moreover, the sixty-four images attached to the

record in this case graphically support Appellant’s belief that

the images are of actual minors.40     There is no substantial basis

in law and fact to question the providence of Appellant’s plea.

Appellant was aware of the elements and the facts objectively

support his plea.

                  The “Specialized Society” Revisited

     By departing from the bulk of federal precedent, without

articulating any military necessity or distinction, this Court

continues to suggest that servicemembers accused of child

pornography offenses have First Amendment and trial rights

paramount to those extended by the federal circuits to similarly

situated civilian defendants prosecuted under the same statute.

Further, without even articulating a balance, the majority

implicitly promotes the newly elevated rights for accused

military child pornographers over those of the military

community as a whole.




40
  See, e.g., images 58, 59, 60, and 63 (attached to the
stipulation of fact). These images unquestionably depict actual
female children of kindergarten age in graphic sexual poses.



                                  20
United States v. Martinelli, No. 02-0623/AR


     A.   Application of Free Speech Coalition in the Federal

Courts

     Since Free Speech Coalition, most of the federal courts

that have considered cases in which the constitutionally

overbroad language of § 2256(8) was employed have looked to the

entire record to determine the legal impact of constitutionally

impermissible instructions or explanations.   Even in contested

cases, these courts have found sufficient evidence that images

depicted actual children in cases where a pediatric expert

testified as to the age of the child depicted and “the

photographs appeared to portray real children.”      See, e.g.,

United States v. Bender, 290 F.3d 1279, 1282 (11th Cir.

2002)(denying defendants’ free speech claim and noting that

“there [was] sufficient evidence that the images portray[ed]

real children”).   Courts have upheld convictions when the

appellate judges’ own viewings left no doubt that “the images

shown to the jury . . . depicted . . . real” children.     United

States v. Richardson, 304 F.3d 1061, 1064 (11th Cir. 2002).       The

Richardson court “reached [that] conclusion because the evidence

clearly established that the children depicted in the images or

pictures were actual children.”    Id. at 1064-65.    In that case,

a special agent testified that, based on his training and

experience, the images depicted actual children and not what

simply appeared to be children.



                                  21
United States v. Martinelli, No. 02-0623/AR


     Other federal courts addressing this issue have upheld

convictions where the factfinder concluded that the images

depicted actual children or where the appellate court deemed

that it must have been so.    Padgett v. United States, 302 F.

Supp. 2d 593, 598-600 (D.S.C. 2004)(finding that language of

providence inquiry established actual nature of children and

that, by appellate court’s own review, photos were of actual

children);   United States v. Slanina, 359 F.3d 356, 357 (5th

Cir. 2004) (stating that the “Government was not required to

present any additional evidence or expert testimony . . . to

show that the images downloaded . . . depicted real children,

and not virtual children”);   United States v. Farrelly, 389

F.3d. 649, 655 (6th Cir. 2004)(affirming conviction where the

Government presented “sufficient evidence of actual children”

and the trier of fact ‘was capable of reviewing the evidence to

determine whether the Government met its burden to show that the

images depicted real children’”) (quoting Slanina, 359 F.3d at

357);41   United States v. Kelly, 314 F.3d 908, 912 (7th Cir.

2003)(upholding a guilty plea “[b]ecause regulation of real

child pornography remains constitutional . . . and Mr. Kelly

41
  See, e.g., 3 Leonard B. Sand et al., Modern Federal Jury
Instructions -- Criminal, Inst. 62-22 (2005) (“You may consider
all of the evidence, including your viewing of the depiction, in
determining whether the depiction portrayed an actual person
under the age of eighteen engaging in sexually explicit
conduct.”).



                                 22
United States v. Martinelli, No. 02-0623/AR


possessed real child pornography”);   United States v. Deaton,

328 F.3d 454, 455 (8th Cir. 2003)(reaffirming the reasonableness

of a “jury’s conclusion that real children were depicted, even

where the images themselves were the only evidence the

government presented on the subject.”); United States v. Vig,

167 F.3d 443, 449 (8th Cir. 1999)(holding that the “images were

viewed by the jury which was in a position to draw its own

independent conclusion as to whether real children were

depicted.”); United States v. Reardon, 349 F.3d 608, 612-14 (9th

Cir. 2003)(evidence at trial sufficient to prove real children);

United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.

2003)(stating that factfinders are “still capable of

distinguishing between real and virtual images”); United States

v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002)(affirming a Free

Speech Coalition conviction because “no reasonable jury could

have found that the images were virtual children”).     But see

United States v. Hilton, 386 F.3d 13, 18-19 (1st Cir.

2004)(because the jury was not required to find that the images

were of actual children, even if a commonsense determination

would compel such a finding, the conviction could not stand).42


42
  See also United States v. Maxwell 49 F.App’x 410, 411 (4th
Cir. 2002)(affirming pre-Free Speech Coalition guilty plea on
the basis that pornography was of actual children); United
States v. Roberts, 84 F.App’x 440, 441 (5th Cir. 2004)(denying
attack on pre-Free Speech Coalition conviction on ground that
detailed testimonial description of pictures established their

                               23
United States v. Martinelli, No. 02-0623/AR


Thus, it is clear that the great weight of federal authority

supports the analysis and conclusions of the Army Court of

Criminal Appeals.

    B.   Treatment of Free Speech Coalition in this Court

     This case revisits a familiar question:     how is this Court

to ensure compliance with Free Speech Coalition when, during the

course of court-martial proceedings, the military judge employed

the statutory language found by Free Speech Coalition to be

overbroad –- language that could ostensibly permit conviction

based on visual depictions of virtual children?    In this case,

that question is narrowed to the context of a Care inquiry.

     The answer, of course, begins with our duty to follow the

decisions of our superior court.     But when we impose upon the

Government a greater burden than the Supreme Court requires, we

must first articulate a balance between the First Amendment and

trial rights of a military accused, on the one hand, and the

military community’s interest in good order and discipline on

the other.   Both the servicemember and the military community

share an interest in a lawful, rational application of the CPPA.

Unfortunately, while maintaining a position that affords

military child pornographers a level of sanctuary unrecognized




actual nature).



                                24
United States v. Martinelli, No. 02-0623/AR


by other jurisdictions, the majority provides no balancing and

serves only one interest.

       As noted above, a growing majority of federal courts have

declined an overly restrictive application of Free Speech

Coalition, in favor of a measured approach, e.g., consideration

of waiver, United States v. Hay, 231 F.3d 630, 639 (9th Cir.

2000), plain error, Hall, 312 F.3d at 1259, and other legal

theories, in conjunction with an examination of the facts of

each case, including the nature and characteristics of the

prohibited images themselves.    Richardson, 304 F.3d at 1064.

       The majority has rejected that approach and has essentially

established a per se reversal rule to be applied to any case in

which the unconstitutionally overbroad language is used, unless

the conviction can be upheld under clauses 1 and 2 of Article

134.   The application of that rule in this case operates to

exonerate an accused who clearly admitted to trafficking in

pornographic images of actual early teen, preteen, and

kindergarten girls.

       C.   Balancing –- Now and in Future Cases

       The approach this Court should take in Appellant’s case

need not be inconsistent with the Court’s holding in O’Connor:

       For present purposes, however, a provident guilty plea
       to a violation of the CPPA provision at issue here
       must reflect that an accused has violated those
       portions of the statute upheld by the Supreme Court.
       In light of that, and in the absence of any discussion


                                  25
United States v. Martinelli, No. 02-0623/AR


     or focus in the record before us regarding the
     “actual” character of the images, we cannot view
     Appellant’s plea of guilty to violations of the CPPA
     as provident.

            . . . .

          We have long recognized that the First Amendment
     rights of civilians and members of the armed forces
     are not necessarily coextensive. At the same time,
     however, we must ensure that the connection between
     any conduct protected by the First Amendment and its
     effect on the military environment be closely
     examined.

58 M.J. at 454-455 (citations omitted).

     This Court’s disposition of Appellant’s case should, at a

minimum, treat those very same considerations addressed by

O’Connor:   evaluating any “discussion or focus in the record

before us regarding the ‘actual’ character of the images,” and

ensuring “that the connection between any conduct protected by

the First Amendment and its effect in the military environment

[is] closely examined.”   Id.   Instead, without explanation or

elaboration, the majority purports to rely on O’Connor, while

conducting no balancing and implicitly declining to adopt the

reasoning of the clear majority of Article III courts.

     As a matter of general practice, when we choose to depart

from Supreme Court precedent, or from the reasoning of the

majority of the federal circuit courts that have followed

Supreme Court precedent in construing and applying a

constitutional or statutory provision, and when that departure



                                 26
United States v. Martinelli, No. 02-0623/AR


is not required by legislative or executive mandate, this Court

should articulate the military necessity or distinction that

compels our reasoning.   See, e.g., United States v. Roberts, 59

M.J. 323, 327 (C.A.A.F. 2004) (rejecting Supreme Court standard

for evaluating discovery violation and applying a more stringent

standard based on “military practice”); United States v. Unrue,

22 C.M.A. 466, 469, 47 C.M.R. 556, 559 (C.M.A. 1973)(recognizing

“military necessity” in evaluating reasonableness of search and

seizure); United States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F.

2002)(declining to view court member challenge “through the

prism of the Sixth Amendment”); United States v. Moore, 58 M.J.

466, 469 (C.A.A.F. 2003)(applying “good order and discipline”

rationale in validating Government’s abrogation of First

Amendment free speech rights); United States v. Brown, 45 M.J.

389, 395 (C.A.A.F. 1996)(applying “clear danger to loyalty,

discipline, mission, or morale” standard to First Amendment

claim).

     “This Court has long recognized that the military is, by

necessity, a specialized society.    We have also recognized that

the military has, again by necessity, developed laws and

traditions of its own during its long history.”   Parker v. Levy,

417 U.S. 733, 743 (1974).   Balancing this recognition of the

military’s specialized need for enhanced discipline and

regulation, our Court has long maintained vigilance in


                                27
United States v. Martinelli, No. 02-0623/AR


preserving the rights of servicemembers in the court-martial

process.   See generally United States v. Jacoby, 11 C.M.A. 428,

29 C.M.R. 244 (1960).   When we perform this balancing, however,

we must not fail to consider the fabric of the “specialized

society” in which servicemembers and their families exist.     The

Department of Defense and the military departments have

emphasized that this “specialized society” consists not only of

servicemembers, but of their families as well.43

     When this Court applies a U.S. Code provision and our

superior court’s interpretation thereof in a manner inconsistent

with the bulk of Article III courts -- presumably for the

purpose of providing an elevated level of protection for the

trial rights of a military accused -- we must weigh the reasons

for our divergent application of that statute against the

concomitant reduction in the level of protection that statute

would otherwise provide to the “specialized society” we also

serve.   As noted, that society is populated not only by the

uniformed men and women who bravely serve our Nation, but by

their spouses and children, all of whom have every right to


43
  See, e.g., Department of Defense (DoD) Directive, Family
Policy, at E3.1.1 (Dec. 30, 1988) (“DoD personnel and their
families are the most valuable resource in support of the
national defense. DoD Families serve as a force multiplier,
contributing to the readiness and retention of quality
personnel. The goal is a combat-ready force supported by
families whose quality of life reflects the high standards and
pride of the Nation they defend.”).

                                28
United States v. Martinelli, No. 02-0623/AR


expect a measured and rational application of law by trial and

appellate courts.   More particularly, in light of this Court’s

historical balance between individual First Amendment rights and

the needs of the “specialized society,” the members of that

society could hardly anticipate that this Court would, despite

the weight of federal decisions to the contrary, construe a

Supreme Court decision so as to elevate the right of an

individual servicemember to traffic in child pornography above

the need of that “specialized society” for good order and

discipline.

     How then, without being compelled to do so by our superior

court, by Congress, or by the President, does this Court elevate

the First Amendment and fair trial rights of servicemembers over

the military’s need for good order and discipline?   Are good

order and discipline, as well as the safety and security of the

community not threatened by the creation and proliferation of

child pornography within that community?   This Court’s

application of Free Speech Coalition not only places us in the

minority of federal fora, but, for reasons that remain a

mystery, confers on servicemembers accused of owning,

distributing, and trafficking in child pornography a status that

exalts their constitutional rights above those of civilians

accused of identical crimes, while unnecessarily and

unintentionally denigrating the legitimate interests of the


                                29
United States v. Martinelli, No. 02-0623/AR


thousands of other servicemembers and their families who

comprise the “specialized society” recognized by the Supreme

Court for over thirty years.

       IV. Conclusion

       Both on the question of extraterritorial application of §

2252A and on implementation of Free Speech Coalition, the

majority moves this Court still further from the mainstream of

federal practice.    In doing so, the lead opinion departs from

our own precedent by failing to conduct a balancing of competing

rights and interests.    For these reasons alone, I must

respectfully dissent.    Because Appellant’s stipulation of fact

provides no “substantial basis in law and fact to question the

providence of,” United States v. Prater, 32 M.J. 433 (C.M.A.

1991), Appellant’s pleas to possession and trafficking in child

pornography, because the images in question clearly depict

actual minors, and because Appellant waived the issue,44 I must

also respectfully dissent.    Finally, I respectfully dissent from

the majority’s declination to find both that specifications 1,

2, and 3 were not committed within the territory of the United

States and that Appellant’s pleas provident to the lesser




44
     O’Connor, 58 M.J. at 455-57 (Crawford, C.J., dissenting).



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United States v. Martinelli, No. 02-0623/AR


included offense of conduct prejudicial to good order and

discipline or to bring discredit upon the armed forces.45




45
     Id. at 457-59.

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