                        UNITED STATES, Appellee

                                     v.

                      Andrew P. OBER, Specialist
                         U.S. Army, Appellant

                               No. 07-0722
                        Crim. App. No. 20040081

       United States Court of Appeals for the Armed Forces

                         Argued March 17, 2008

                         Decided June 16, 2008

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, STUCKY, and RYAN, JJ., joined. ERDMANN, J., filed a
dissenting opinion.

                                  Counsel


For Appellant: Captain William J. Stephens (argued); Major
Teresa L. Raymond (on brief); Lieutenant Colonel Steven C.
Henricks, Captain Seth A. Director, and Captain Sean F. Mangan.

For Appellee: Captain Larry W. Downend (argued); Colonel John
W. Miller II and Major Elizabeth G. Marotta (on brief).


Military Judges:    Debra L. Boudreau (arraignment) and Gregory A.
Gross (trial)




        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ober, No. 07-0722/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of making a

false official statement, knowingly and wrongfully transporting

child pornography in interstate commerce, and knowingly and

wrongfully possessing child pornography, in violation of

Articles 107 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 907, 934 (2000).   The sentence adjudged by the

court-martial included confinement for three years, a

dishonorable discharge, forfeiture of all pay and allowances,

and reduction to the lowest enlisted grade.   The convening

authority approved confinement for thirty months and approved

the balance of the sentence.    The United States Army Court of

Criminal Appeals affirmed.   United States v. Ober, No. ARMY

20040081 (A. Ct. Crim. App. May 25, 2007) (unpublished).

     On Appellant’s petition, we granted review of the following

issues:

     I.    WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO
           SUPPORT A FINDING OF GUILT FOR TRANSPORTING CHILD
           PORNOGRAPHY IN INTERSTATE COMMERCE WHEN NO
           EVIDENCE EXISTS THAT APPELLANT UPLOADED CHILD
           PORNOGRAPHY FROM HIS COMPUTER TO THE INTERNET
           FILE-SHARING PROGRAM “KAZAA.”

     II.   WHETHER THE ARMY COURT ERRED IN AFFIRMING THE
           FINDING OF GUILTY FOR SPECIFICATION 1 OF CHARGE I
           WHEN THE COURT AFFIRMED UNDER A DIFFERENT THEORY
           OF LIABILITY THAN WAS PROFFERED TO THE MILITARY
           PANEL, IN CONTRAVENTION OF CHIARELLA v. UNITED
           STATES, 445 U.S. 222 (1980).


                                  2
United States v. Ober, No. 07-0722/AR


     III. WHETHER THE MILITARY JUDGE FAILED TO PROPERLY
          INSTRUCT THE PANEL ON THE ELEMENTS FOR
          SPECIFICATION 1 OF CHARGE I, BY: (1) OMITTING
          THE CHARGED LANGUAGE “CAUSE TO BE TRANSPORTED”
          FROM THE ORAL AND WRITTEN INSTRUCTIONS; (2)
          FAILING TO INSTRUCT ON A POSSIBLE GOVERNMENT
          ALTERNATE THEORY OF LIABILITY UNDER ARTICLE 77,
          UCMJ; AND (3) FAILING TO PROPERLY INSTRUCT ON THE
          TERM “UPLOADING” WHEN THE COMPUTER EXPERTS AT
          TRIAL PROVIDED TWO VARYING DEFINITIONS.

     For the reasons set forth below, we affirm.

                           I.    BACKGROUND

     The present appeal focuses on the circumstances under which

child pornography was obtained through the use of Appellant’s

computer.    The prosecution’s primary theory was that Appellant

used a peer-to-peer file sharing program to obtain child

pornography from other participants in the file sharing network.

The primary defense theory of the case was that other

individuals were responsible because they had access to

Appellant’s computer, Appellant had an alibi for the times when

child pornography was transported to the computer, and there was

ample exculpatory evidence to place the blame on others.

     Section A describes the file sharing program at issue in

this case.   Section B summarizes the evidence developed during

the initial investigation.      Section C sets forth the evidence

and the theories presented by the parties at trial.




                                    3
United States v. Ober, No. 07-0722/AR


               A.   APPELLANT’S FILE SHARING PROGRAM

     Appellant built a computer from individual parts, which he

maintained in his barracks room.       He also created a network that

connected his computer with the computers of three other

soldiers in the barracks, enabling them to utilize his high-

speed Internet connection.   The computers on the network

included the computer of Appellant’s roommate, Specialist B.

Appellant permitted Specialist B and several other soldiers to

use his computer.

     Appellant installed various programs on his computer,

including KaZaA, a peer-to-peer file sharing program.1      According

to expert testimony introduced at trial, the KaZaA program

installed on Appellant’s computer enabled KaZaA users to share

computer files, including music, movies, and images, over the

Internet with other KaZaA users.

     The KaZaA program provided two primary means of moving

files between users of the program.      In the first method, a

KaZaA user who wanted to make files hosted on his or her

computer available to other KaZaA users could do so by

configuring the KaZaA program preferences to permit access by

others.   Setting the preferences involved a simple adjustment



1
  The opinion of the court below and the parties’ briefs refer to
various spellings of the program’s name. For purposes of this
opinion, we use the spelling reflected in the record of trial.

                                   4
United States v. Ober, No. 07-0722/AR


that could be changed at will by the host computer’s user to

enable or preclude access to files by other KaZaA users.

     In the second method, the KaZaA program enabled a user to

utilize a search function, similar to an Internet web browser,

to obtain files hosted on the computers of other KaZaA users.

To obtain files from other computers, the KaZaA user would open

the KaZaA program and enter a search term.   In response to the

search request, the KaZaA program would display a list of file

names and descriptions obtained from other KaZaA users whose

preferences permitted such access.   The KaZaA user who initiated

the search could then view the names and file descriptions

identified by the search and double click on the name of the

files that the user wanted to obtain.   The download process

would begin once the user double clicked on the desired file.

The KaZaA program would complete the download without further

action by the user.   The KaZaA user could limit the number of

downloads that could take place at any one time.   If the host

logged out of the KaZaA program or otherwise blocked access to a

file before the requested download was completed, the KaZaA

program would attempt to obtain the file from another available

user or would reinitiate the download when the host subsequently

reopened the KaZaA program.   Through the search function, the

KaZaA program enabled the user, through a series of keystrokes,

to identify a file, upload the file from the host computer, and


                                 5
United States v. Ober, No. 07-0722/AR


download the file to the user’s computer.    From the perspective

of the KaZaA user seeking to obtain a file hosted by another

computer, the actions of uploading and downloading were part of

a continuous process managed by that user.

                   B.    THE INITIAL INVESTIGATION

     Appellant spent a substantial amount of his free time

maintaining and upgrading his computer.    The chain of events

leading to the present case began when he returned from shopping

for a computer device and thought that he was locked out of his

third-floor barracks room.    He attempted to enter through an

outside window, but fell to the ground and suffered a serious

injury requiring about a week of hospitalization and thirty days

of convalescent leave.

     While Appellant was absent from the barracks on

convalescent leave, Specialist B and another soldier used

Appellant’s computer to play video games.    As they were perusing

his files for other available video games, they came across a

file titled “13 year old,” located in a KaZaA folder.    They

opened the file, saw a picture of a young, naked female, and

closed the file.   At that time, they did not advise anyone of

what they had seen.     A month later, Specialist B mentioned the

incident in the course of a casual conversation with a

noncommissioned officer.    After an initial inquiry by the




                                   6
United States v. Ober, No. 07-0722/AR


noncommissioned officer, the Army’s Criminal Investigation

Command (CID) initiated a formal investigation.

     CID agents obtained a statement from Appellant in which he

acknowledged using his computer to access adult pornography but

denied using it to access child pornography.    In the course of

the interview, Appellant provided CID with consent to examine

the hard drive of his computer.

     CID arranged for an analysis of the hard drive by a

forensic expert.   The forensic analysis identified 592 files

containing possible child pornography on the hard drive,

including 460 files located in a KaZaA folder.    At the time of

the forensic analysis, the preferences for the KaZaA program on

Appellant’s computer were set to:     (1) permit the user to obtain

files from other KaZaA users and download up to ten files at a

time; and (2) preclude other KaZaA users from obtaining files

from Appellant’s computer.

     In a second interview with CID, Appellant stated that he

had downloaded and saved approximately forty files containing

child pornography on his computer.    He acknowledged that he had

been viewing child pornography on his computer “[o]nce every two

weeks” for about eight months, and that he knew that it was

illegal to view and download child pornography.    When asked

whether he knew that the files contained pictures of children

before he opened the files and viewed them, he said:    “Some of


                                  7
United States v. Ober, No. 07-0722/AR


the pictures did not have accurate descriptions of what was in

the file.   Others had a description.     I knew that some of the

files would contain underage people in the pictures before I

opened them.”   In response to the question of whether he saved

some of the pictures, he stated:       “You can’t open the pictures

until you download them.   After I downloaded the pictures and

viewed them I never deleted them.”      When asked whether he had

passed on the child pornography to anyone else through the

computer, he responded:    “No.”   Appellant explained that in his

previous statement to CID agents, he had denied using his

computer to view child pornography because he was afraid of the

consequences.   In addition, Appellant stated that he had acted

out of a lack of self-control and he knew that what he did was

wrong.

     Following the investigation, the Government charged

Appellant with three offenses:     (1) transporting child

pornography in violation of Article 134, UCMJ; (2) possessing

child pornography in violation of Article 134, UCMJ; and (3)

making a false official statement about the use of his computer

to access child pornography in violation of Article 107, UCMJ.

The present appeal focuses primarily on the first offense, in

which Appellant was convicted of a charge that he “did . . .

knowingly and wrongfully cause to be transported in interstate

commerce child pornography by uploading pictures of child


                                   8
United States v. Ober, No. 07-0722/AR


pornography to a shared internet file named ‘KAZAA’, in

violation of 18 U.S.C. 2252A(a)(1).”

                      C.   DEVELOPMENTS AT TRIAL

1.   The prosecution and defense theories of the case

      The prosecution, in its opening statement, advised the

members that the evidence would show that Appellant “searched

for, possessed, stored, shared, and viewed child pornography on

his personal computer” and that “the evidence is going to show .

. . that he was downloading child pornography on [his]

computer.”   The prosecution stated that it would offer expert

testimony to show that the KaZaA program “allows subscribers to

download files.”   The prosecution also noted that the expert

testimony would show that KaZaA “allows subscribers to upload

their own personal files and retrieve files from other

computers, and that these pornographic images, these movies, and

these still photographs were obtained via this file sharing

program.”    The prosecution described two methods used by

Appellant to transport pornography:      (1) Appellant “downloaded

these images and possessed them on his computer”; and (2) “he

allowed others to view them as they were transmitted from his

computer.”

      Defense counsel, in his opening statement, observed that

“if what the government promises you is true, it looked like

they’ve got a pretty good case.”       Defense counsel reminded the


                                   9
United States v. Ober, No. 07-0722/AR

panel that the issues of “alibi” and “false confessions” had

been discussed during voir dire.

     With respect to the forensic evidence, counsel emphasized

that the defense was going to focus on whether the evidence

established that Appellant was the person responsible for the

child pornography on his computer:

     They’re going to bring in detectives to show you
     there’s child pornography on this computer; and they
     may, in fact, show you that there is real child
     pornography on the computer, but the issue here is
     that the government’s got the wrong guy. Now that may
     be hard to believe based on what you’ve heard.

          Now, what the defense is going to ask you to do
     is take a look as this case develops, keep an open
     mind, and see how good a job CID did do, how good a
     job the Defense Computer Forensic Lab did. Take a
     look at Specialist Ober and figure out if this is
     really the right guy for this crime.

     Defense counsel proceeded to detail the defense theory of

the case, based on alibi and exculpatory evidence:   many others

had direct access to Appellant’s computer and access through the

network established by Appellant; Appellant was in the field or

on leave for extended periods when others had access to the

computer; and his admissions to CID agents were the product of

traumatic brain injury and stress.   Defense counsel told the

members that “at the end of this trial you’re going to see the

government does have the wrong guy.”




                               10
United States v. Ober, No. 07-0722/AR

2.   Evidence presented by the prosecution

      The prosecution introduced into evidence Appellant’s

confession that he downloaded child pornography on his computer

knowing that it was illegal to do so, as well as related

testimony regarding the circumstances surrounding the CID

investigation and interrogation of Appellant.    The prosecution

also introduced into evidence specific images of the alleged

child pornography, as well as expert testimony identifying the

images as depictions of actual children.     The defense stipulated

that certain of the images consisted of child pornography of

actual children.

      The prosecution presented the testimony of a computer

forensics expert, Jason Upchurch, regarding the alleged child

pornography on Appellant’s computer.    The evidence presented by

Mr. Upchurch indicated that there were 592 images of possible

child pornography on the hard drive of Appellant’s computer, and

that the majority of the images were in the folder used for

sharing files through KaZaA.   Mr. Upchurch testified that there

was no evidence that a computer virus had placed the pornography

on the hard drive.

      In response to a question from the prosecution, Mr.

Upchurch noted that from his analysis, he could not determine

the individual responsible for the images on Appellant’s

computer.   Mr. Upchurch explained:   “We can determine in most


                                11
United States v. Ober, No. 07-0722/AR

cases . . . which account it came from, as well as, file dates

and times; but as far as who put the images there, no, we can’t

determine that.”   When asked whether there were “any pointers”

to Appellant as “the individual who downloaded the child

pornography found on the computer,” Mr. Upchurch testified that

“the majority of the images belonged to the account called

‘Oberator,’ as well as, the computer was registered to a Mr.

Ober.”

     Mr. Upchurch testified that the KaZaA preferences on

Appellant’s computer were set so that Appellant could obtain

files from other KaZaA users.    The settings permitted him to

“download 10 files at a time,” which was “a fairly optimized

setting to maximize your download.”

     Mr. Upchurch explained how files were moved to Appellant’s

computer using KaZaA.    He noted that there were “many versions”

of KaZaA, and the version on Appellant’s computer operated as a

modified web browser.    When the computer was turned on and the

Internet connection was active, the user of the KaZaA program

could “click on the search button,” which enabled the user to

“search for anything from movies to music or any other files by

either keywords or file name.”   The KaZaA program also provided

the user with the ability to search for particular types of

files by descriptions.




                                 12
United States v. Ober, No. 07-0722/AR

     According to Mr. Upchurch, KaZaA would not cause child

pornography to be downloaded on the computer without the user’s

knowledge.   He explained the specific actions that a user would

have to take to obtain files from another computer using KaZaA:

     When you do the search it doesn’t automatically
     download everything. All it does is present you with
     files to download. So you go through and look at
     which files that you particularly want to download,
     the human element in it, and download those particular
     files. So the search term gives you the results, and
     then a human goes in and picks those results.

     The expert added that the user could not view the image

based upon the results of the search.   The user first had to

make a determination whether to download the file based upon the

file name and other information associated with the file.   He

added that with regard to some of the child pornography found in

the KaZaA file on Appellant’s computer, the file names and other

information associated with the files were consistent with the

age of the children depicted in the images.

     The expert further explained the process used by KaZaA to

obtain files selected by the user from another computer:

     [I]f the computer is on and KaZaA is running and
     you’ve selected files, KaZaA will continue to try to
     download those continuously until you tell it to stop.
     Even if at the other end if somebody logs off and the
     . . . file transfer is stopped because the other end
     is no longer available[, w]hen that other end comes
     back up KaZaA will see that and begin downloading
     again from the . . . same user because it all actually
     keeps track of files . . . .




                                13
United States v. Ober, No. 07-0722/AR

       Q. So the user can be away from the computer at the
       time that the --

       A.   Absolutely, days, weeks, yes.

       At the time Appellant’s computer was seized, the settings

for the KaZaA program were set to prohibit other users from

obtaining files from Appellant’s computer.   However, there was

no way to determine when those settings took effect.

       Defense counsel used the cross-examination of Mr. Upchurch

to confirm that other KaZaA users could not upload files from

Appellant’s computer when the file sharing option was turned

off.   Counsel then focused on the dates that files were

downloaded and accessed on Appellant’s computer, with a view

toward showing that someone other than Appellant had downloaded

the files.    On recross-examination, defense counsel again

focused on questions that would suggest that Appellant was not

the person who obtained the files.

       During cross-examination of the other Government witnesses,

defense counsel pointed to evidence that other individuals had

access to Appellant’s computer and the potential that others may

have been responsible for the child pornography on his computer,

the impact of the injury from Appellant’s fall on his cognitive

abilities and emotional state, the extended period in which

Appellant was not in his barracks room, and related matters

concerning the reliability of his confession.



                                  14
United States v. Ober, No. 07-0722/AR

3.   Motion to dismiss

      At the conclusion of the prosecution’s case, the defense

moved to dismiss the transportation of child pornography charge

(Specification 1 of Charge I) on two grounds.     First, the

defense asserted that the prosecution “has failed to prove the

element of distribution.”   Second, the defense contended that

the prosecution “has failed to show any evidence that pictures

were uploaded to the KaZaA file.      All the evidence that came in

this case indicated that pictures were downloaded to that file .

. . .”

      The prosecution responded that the charged offense at issue

involved transportation, not distribution, of child pornography.

The prosecution also noted that the manner in which a user of

the KaZaA program obtained a file involved transportation:

“Specification 1 merely requires that we show that child

pornography was transported via the Internet so even by virtue

of conducting a search and accessing child pornography from

another KaZaA user that causes that particular image to be

transported via the Internet.”

      The military judge observed that Appellant was charged with

transporting, not distributing, child pornography; that he would

give the members a definition of transporting; and that there

was enough evidence on every element of the offense for the




                                 15
United States v. Ober, No. 07-0722/AR

issue to be decided by the panel rather than by a motion to

dismiss.

4.   The defense

      Appellant testified as the first witness called by the

defense.   In response to defense counsel’s question as to

whether he committed the charged offenses, he responded:     “No.

I never did the offenses I’m accused of.”   He detailed the

number of other individuals who had access to his computer.    He

also stated that he was not protective of his password, that he

rarely logged off of his computer, that he frequently kept the

computer on when he left his room, and that he was frequently

away from his room performing assignments in the field.

Appellant explained that other individuals who had access to his

computer had an interest in pornography.    He testified that his

fall from the third floor of the barracks left him barely

conscious, unable to eat, and fatigued, that he spent time on

convalescent leave away from the base, and that the accident

affected his memory and his performance.

      Appellant acknowledged that he used the KaZaA program on

his computer, that he had viewed adult pornography on his

computer, and that child pornography was found on his computer.

He denied downloading the child pornography himself or knowing

that it was there before CID confronted him with the accusation.

He stated that he confessed to downloading child pornography


                                16
United States v. Ober, No. 07-0722/AR

during his second interview with CID because of his brain

injury.   Appellant testified that after a CID agent accused him

of offenses involving child pornography, he felt his situation

was hopeless.   Appellant further explained that the agent told

him that if he cooperated, the command would go easy on him.

Appellant stated that the confession he gave to the CID agent

was not true.

     With respect to KaZaA, Appellant testified that it “was

accessible to everyone.”   He added:   “I used KaZaA to download

music, and -- music was pretty much all I downloaded.”   He

stated that he did not use KaZaA to download any pornography,

child or adult.

     The defense presented the testimony of a computer forensics

expert who had performed an examination of Appellant’s computer

similar to the examination conducted by the prosecution’s

expert.   The defense expert testified that he reviewed the

computer files at issue in the present case to determine where

in the hard drive they were located, the dates and times

associated with the files, and “where those files came from.”

He also sought to determine whether other individuals had

connected to Appellant’s computer, and identified information

indicating that at a particular time “someone was on this

computer system, and the name does not correspond with the

defendant.”   When the trial counsel questioned the relevance of


                                17
United States v. Ober, No. 07-0722/AR

the defense expert’s testimony, defense counsel responded:

“[F]irst we’re showing alibi, and the second portion is for

showing that other people used Specialist Ober’s computer, and

that goes to possible exculpatory evidence.”   The military judge

overruled the prosecution’s objection.   The expert then

testified that there was information indicating that a person

with a user name other than the name typically employed by

Appellant used the computer at the time that child pornography

“came into the system” onto Appellant’s computer, and that the

date in question was a date on which Appellant was in the

hospital.

     In response to questions from the military judge about the

meaning of the “File Created” designation on the computer, the

defense expert noted that the date of creation would be “the

date that [the] file was, in this situation, brought in . . .

from KaZaA.”   The expert also noted that files could be added to

the hard drive without a person actually sitting at the computer

if the person had scheduled the downloads to take place on a

particular date.

     The military judge asked about the relationship between

“download” and “upload.”   The defense expert responded that

downloading “is brining [sic] something to you.”   He then noted

that uploading could involve two different types of activity by

the user of the computer hosting the files:    first, “if you had


                                18
United States v. Ober, No. 07-0722/AR

an open portal where you’re allowing somebody to take away from

you,” and second, if “you’re physically going out and sending

something out.”

     The military judge then asked the defense expert whether it

would be “fair to make an analysis or an analogy that

downloading is pulling, and uploading is pushing.”   The expert

responded that the evidence in the present case involved the

host allowing another user to obtain the material from the

host’s computer:

     In this situation, which we really didn’t see any
     uploading going on, but in that type of situation it’s
     -- if you were to open up the portal you are letting
     people pull it from you. You’re not pushing it to
     them.

     The expert also testified that he had seen no evidence that

files from Appellant’s computer had been pulled to another

computer, but the expert noted that he did not have the

equipment necessary to verify that determination.    In addition,

the expert stated that files could have been placed on

Appellant’s hard drive by another computer in the network.

     The military judge then asked the defense expert whether it

was necessary for a person to participate actively in the

physical downloading of material from KaZaA:

     Q. Could a file that is on that hard drive that came
     from KaZaA . . . be inserted or put onto that hard
     drive, whatever the correct term might be, without
     someone sitting at the computer and downloading that?



                               19
United States v. Ober, No. 07-0722/AR

     A.   That’s always possible.      Yes.

     In response to a question from the prosecution, the expert

clarified that a download from KaZaA might be initiated by a

virus; otherwise, however, it would be necessary for an

individual to start the download by clicking on a file.

     During recross-examination by the prosecution, the defense

expert witness emphasized that:     “[I]f you are using KaZaA you

are actually searching for something.”        The expert also

explained that a download may not be completed on the day that

the user first seeks to obtain the material.       For example, if

the user of the host computer prevented access to a particular

file during the downloading process, that file could not be

downloaded.   In such a case, KaZaA would continue searching, and

once another host opened up the file to permit access, KaZaA

would complete the download of the file.       Similarly, if the

requested file was large, or if a user’s KaZaA settings limited

the number of downloads, the download might take place on a

different day.

     The military judge asked the defense expert about the

origin of files downloaded through KaZaA.       The expert reflected

his agreement with the description of KaZaA offered by the

prosecution’s expert:

     KaZaA is just a tool, for instance, like Mr. Upchurch
     had said it’s like a browser and you’re looking at the
     whole Internet and other folks who have KaZaA running


                                  20
United States v. Ober, No. 07-0722/AR

      and shares running on their computer systems. You --
      depending on the software, if you’re using their
      versions you can get an address of who it’s coming
      from, but it’s coming from somebody else’s computer
      generally out there on the World Wide Web.

The expert’s answers to a member’s questions clarified that the

expert was able to identify use by different user names, but not

by specific individuals.

5.   Rebuttal

      In rebuttal, the prosecution recalled Mr. Upchurch to

discuss the evidence in light of the defense theories that

others had used Appellant’s computer at the time child

pornography had been obtained.   During the rebuttal testimony,

the military judge asked the expert whether any action was

required on the part of the owner of the host computer beyond

making the host computer’s files available through the KaZaA

settings:

      Q. Mr. Upchurch, another question that was asked in
      this case was the definition of upload. I believe Mr.
      Lakes stated that when you -- uploading something is
      actually -- is not necessarily receiving --

      A.    Giving.

      Q. Giving. Right. Now, on KaZaA when a user
      conducts a search on KaZaA or if you download a file
      from KaZaA, what happens on the computer that you’re
      downloading from, on the actual user that you’re
      trying to share from? What happens on that computer?

      A. So if I was downloading a file from my computer --
      from someone else’s computer, what happens on the
      other person’s computer?



                                 21
United States v. Ober, No. 07-0722/AR

     Q. On the other person’s computer if you seek to
     access a file on the other computer?

     A. It causes an upload to occur on the other person’s
     computer.

     Q. Okay, and is that -- does that person have to
     specifically do anything to cause that upload?

     A.   No.   Everything is done prior in his settings.

     Q. So by virtue of the software you can cause the
     uploading [of] something on another individual’s
     computer?

     A.   On your computer.

     Q.   On your computer?

     A.   Yes, on your computer.

     In its cross-examination of Mr. Upchurch, the defense

focused on matters related to Appellant’s alibi defense,

suggesting that the use of the computer to play a particular

computer game pointed to another individual as the user.    The

defense did not challenge Mr. Upchurch’s explanation of the

process used to obtain files by KaZaA.

     At one point during Mr. Upchurch’s testimony, he identified

a series of dates and times that suspected child pornography was

created and accessed on Appellant’s computer.   The military

judge specifically instructed the members that the information

about dates was being offered in regards to the defense of

alibi; that the defense had stipulated that several of the

images consisted of actual minors; and that it was the panel’s



                                   22
United States v. Ober, No. 07-0722/AR

responsibility to decide whether the other images consisted of

real children.

6.   The military judge’s instructions to the panel

      The military judge provided the parties with his proposed

instructions.    He noted for the record that he had “asked if

there were any specific instructions that either side wanted”

and that the parties had replied in the negative.     Later,

following argument, the military judge asked if there were any

objections to the instructions or requests for additional

instructions, and noted that no objections were made.

      The military judge instructed the members regarding the

transporting charge:

           In Specification 1 of Charge I, the accused is
      charged with the offense of knowingly transporting
      child pornography in interstate commerce, in violation
      of Title 10 [sic], U.S. Code, Section 2252A(a)(1). In
      order to find the accused guilty of this offense, you
      must be convinced by legal and competent evidence
      beyond a reasonable doubt:

           One, that on or about and between 1 April 2002
      and 27 December 2002, at Fort Hood, Texas, the accused
      knowingly transported material containing one or more
      visual depictions by uploading the material to a
      shared Internet file named KaZaA . . . .

The military judge provided further instructions on the

remaining elements of the transporting charge, along with

specific instructions on the terms “wrongful,” “visual

depiction,” “minor,” “sexually explicit conduct,” “lascivious,”

“interstate commerce,” and “knowingly.”


                                 23
United States v. Ober, No. 07-0722/AR

     In defining “visual depiction,” the military judge noted

that the term “includes . . . data stored on a computer disk or

hard drive or by electronic means, which is capable of

conversion into a visual image.”    With respect to interstate

commerce, the military judge stated:

     Material traveling over the Internet, by its very
     nature, is within the definition of interstate
     commerce. The use of the Internet to send an image
     from one computer to another constitutes transporting
     the image in interstate commerce even if the receiving
     computer and the sending computer are located in the
     same state.

With respect to the term “knowingly,” the military judge

explained that the accused must have known the “nature and

character of the material being transported . . . that it was a

minor engaged in sexually explicit conduct.”   He added that

“while the accused did not have to know that he was placing the

items in interstate commerce, the items must have actually been

transported in interstate commerce.”

     The military judge’s instructions also expressly recognized

Appellant’s alibi defense:

          The evidence has raised the defense of alibi in
     relation to the offense of transporting child
     pornography. “Alibi” means that the accused could not
     have committed the offense charged because the accused
     was at another place when the offense occurred. Alibi
     is a complete defense to the offense of transporting
     child pornography. In this regard, there has been
     evidence that the accused was in the field and/or on
     leave during portions of time alleged in the
     specification.



                               24
United States v. Ober, No. 07-0722/AR

           The burden is on   the prosecution to establish the
      guilt of the accused.    If you are convinced by [sic] a
      reasonable doubt that   the accused was present at the
      time and place of the   alleged offense, then the
      defense of alibi does   not exist.

      The military judge’s instructions provided that the offense

of transporting was not limited to the question of whether the

accused committed the offense by uploading:

      [I]f you have doubt that the alleged material was
      transported by uploading, you may still reach a
      finding of guilty so long as the elements of the
      offense are proved beyond a reasonable doubt, but you
      must modify the specification to correctly reflect
      your findings.

7.   Closing arguments by the parties

      The prosecution, in its closing argument, noted Appellant’s

confession to knowingly downloading, retaining, and repeatedly

viewing child pornography on his computer.    The prosecution also

addressed the evidence in the case apart from the confession,

particularly in light of the defense position that Appellant did

not know that there was child pornography on his computer,

including his alibi defense.    In the course of arguing that the

members should reject Appellant’s alibi defense, the prosecution

noted:   “Don’t step on that land mine.   He downloaded that child

pornography.   He viewed that child pornography.”

      With respect to the charge of transporting child

pornography, the prosecution specifically addressed the

mechanics of transporting images over the Internet using KaZaA.



                                  25
United States v. Ober, No. 07-0722/AR

The prosecution reiterated its argument that Appellant was

guilty of transporting child pornography because downloading the

images caused an upload to occur on the host computer.   The

trial counsel said to the members:

     On the Internet it’s not like someone has to deliver
     it to you. You can deliver it to yourself, and read
     the specification. He’s charged with causing child
     pornography to be uploaded and transported via the
     Internet, so he could -- on the Internet you could
     reach out that long arm, and nobody has to give it to
     you. It’s there. It’s just sitting there out in
     cyberspace, and all you’ve got to do is reach out,
     grab it, and carry it over interstate lines to your
     computer, and that’s what he did. No one caused that
     file to be uploaded on the Internet except him because
     KaZaA allows you to reach out and grab it, and that’s
     what he did. So consider the definition of transport,
     consider the nature of the Internet and how it allows
     us to transport without it being a two-party
     transaction.

     The defense, in its closing argument, emphasized the alibi

defense:

     Members of the Panel, we’ve seen a lot of evidence on
     the case today. We talked with you a lot about could
     somebody else have done it? Do they have the wrong
     guy?

The defense described the time periods in which Appellant was in

the hospital or otherwise away from his computer.   In addition,

the defense focused on the evidence that other individuals had

access to his computer, the different accounts used to access

child pornography, and the relationship between his injury and

the likelihood of a false confession.




                               26
United States v. Ober, No. 07-0722/AR

     In an effort to underscore Appellant’s alibi defense, the

defense counsel specifically acknowledged the use of the KaZaA

program on Appellant’s computer to access child pornography:

          Now, we also know that KaZaA was used at the same
     time Specialist [B] was on the computer. You found
     that KaZaA logo floating out there at the same time
     that [Specialist B] was on the computer, again, from
     Specialist Ober’s hard drive.

Defense counsel also acknowledged the presence of child

pornography in the KaZaA folder in the course of contending that

the material was accessed by someone else, as suggested by the

presence of child pornography in other folders associated with a

different user name.

     While suggesting that the members should not rely on

Appellant’s confession, defense counsel sought to contrast the

presence of child pornography in the KaZaA folder with the

absence of any reference to KaZaA in his confession:   “Is there

child pornography on this computer?   No one’s denying that

there’s child pornography on his computer, but this statement is

not corroborated by the evidence.”    Moreover, in discussing the

expert testimony, defense counsel questioned whether the

Government expert’s testimony could be used to identify who was

using Appellant’s computer when files were downloaded via the

KaZaA program, and highlighted the defense expert’s testimony to

suggest that another person was using the computer at that time.




                               27
United States v. Ober, No. 07-0722/AR

     Defense counsel’s closing argument addressed the charge of

transporting from two different perspectives -- whether

Appellant permitted others to transport child pornography from

his computer and whether Appellant used KaZaA to obtain images

from other computers:

     Let’s talk about that first charge that he’s charged
     with, uploading files to the Internet using KaZaA.
     Well, we know from his end of it, the KaZaA shared
     feature was disable[d], and so nobody took a single
     file off of his computer. We have no evidence one way
     or the other to tell you if Specialist Ober was even
     using it to take MP3 files, but you’ve got zero
     evidence that he himself was going out and reaching
     for these things, and there’s zero evidence to tell
     you a single file was taken off of his computer.

Defense counsel proceeded on the basis that KaZaA had been used

to access child pornography on Appellant’s computer, but asked

the members to conclude that “access” to child pornography on

Appellant’s computer occurred “when Ober wasn’t there,”

emphasizing that his roommate, Specialist B, had access during

that period.   As such, defense counsel’s closing argument

focused on who used Appellant’s computer to access child

pornography, not whether the computer was used to transport

child pornography.

                          II.   DISCUSSION

     We are presented with three separate questions in this

appeal:   (1) whether the evidence is legally sufficient to

support Appellant’s conviction for transporting child



                                 28
United States v. Ober, No. 07-0722/AR

pornography; (2) even if the evidence is legally sufficient,

whether the Court of Criminal Appeals affirmed on a different

theory of liability than was presented by the prosecution at

trial; and (3) whether the military judge failed to properly

instruct the members.

                A.   LEGAL SUFFICIENCY OF THE EVIDENCE

     We review de novo the question whether the evidence is

legally sufficient to support a finding of guilty for

transporting child pornography in interstate commerce.     See

United States v. Young, 64 M.J. 404, 407 (C.A.A.F. 2007).        The

test for legal sufficiency of the evidence is “whether,

considering the evidence in the light most favorable to the

prosecution, a reasonable factfinder could have found all the

essential elements beyond a reasonable doubt.”    United States v.

Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

     At trial, the prosecution initially offered two theories of

transporting:   (1) that Appellant used KaZaA to download child

pornography on his computer; and (2) that Appellant made child

pornography available to other KaZaA users.    See supra Part

I.C.1.   These two theories were not mutually dependent.   Even if

the prosecution did not provide sufficient evidence to prove

that Appellant allowed other KaZaA users to obtain child

pornography hosted on his computer, the prosecution could rely


                                  29
United States v. Ober, No. 07-0722/AR

on its other theory, that Appellant transported child

pornography by using KaZaA to obtain files hosted on other

computers.

     During its case-in-chief, the prosecution offered extensive

testimony about how KaZaA operated to prove that Appellant

transported child pornography by obtaining it from other KaZaA

users.   See supra Part I.C.2.   The evidence demonstrated that a

user could obtain child pornography via KaZaA by entering search

terms into the KaZaA program, reviewing a list of shared file

names and descriptions generated by the search, and initiating a

process that uploaded files from the host computer and

downloaded them to his computer.

     The defense did not challenge the prosecution’s evidence

that child pornography was transported from a host computer to

Appellant’s computer through the KaZaA program.   The defense and

Government experts both agreed that a file could be moved

through the Internet via the KaZaA program when a KaZaA user

selected a file from a host computer’s shared files and caused

the host computer to upload the requested file.   See supra Part

I.C.2, I.C.4, I.C.5.   The contested issue at trial was not

whether Appellant’s computer had been used to upload child

pornography from another computer and download it to Appellant’s

computer.    The issue at trial was whether the person using the




                                 30
United States v. Ober, No. 07-0722/AR

computer to transport child pornography was Appellant or whether

it was another person who had access to the computer.

        On appeal, Appellant argues that there is no evidence that

he “uploaded those [child pornography] files, made those files

available for uploading, or stored those files in a location

where other individuals could access them through the internet.”

This argument fails to take into account Appellant’s admissions

that he acquired child pornography via the Internet, the

evidence introduced by both the prosecution and the defense

regarding the use of Appellant’s computer to transport child

pornography, and the expert testimony that using KaZaA to

download files also involved uploading from the host computer.

See supra Part I.C.2, I.C.4, I.C.5.     In light of Appellant’s

pretrial confession to CID agents, the expert testimony

regarding the files found on Appellant’s computer, and the

testimony regarding the underlying investigation of Appellant,

the evidence at trial provided a legally sufficient basis upon

which a reasonable factfinder could have found beyond a

reasonable doubt that Appellant transported and possessed child

pornography.

                 B.   THE THEORY OF LIABILITY ON APPEAL

        An appellate court cannot affirm a criminal conviction on

the basis of a theory of liability not presented to the trier of

fact.    Chiarella v. United States, 445 U.S. 222, 236-37 (1980).


                                   31
United States v. Ober, No. 07-0722/AR

“To uphold a conviction on a charge that was neither alleged in

an indictment nor presented to a jury at trial offends the most

basic notions of due process.”   Dunn v. United States, 442 U.S.

100, 106 (1979); see also United States v. Riley, 50 M.J. 410,

415 (C.A.A.F. 1999).

     As noted above, Appellant was expressly charged with

“knowingly and wrongfully caus[ing] to be transported in

interstate commerce child pornography by uploading pictures of

child pornography to a shared internet file named ‘KAZAA.’”     The

prosecution offered two different theories of transporting at

the outset of the trial:   (1) that Appellant downloaded child

pornography onto his computer via the KaZaA program; and (2)

that Appellant allowed other KaZaA users to obtain child

pornography from his shared files.    See supra Part I.C.1.    After

the Government’s computer forensics expert testified that

Appellant’s KaZaA settings did not permit other KaZaA users to

access his files, the Government focused primarily on the theory

that Appellant was guilty of transporting child pornography

based on his act of downloading such files via KaZaA.   See supra

Part I.C.2, I.C.5.   The Government’s expert testified that

downloading images to Appellant’s computer through KaZaA caused

an upload to occur on the host computer.   The prosecution’s

closing argument specifically contended that by downloading




                                 32
United States v. Ober, No. 07-0722/AR

child pornography via the KaZaA program, Appellant “caused that

file to be uploaded on the Internet.”

       The Army Court of Criminal Appeals sustained Appellant’s

transporting conviction on the theory that “[A]ppellant’s method

of acquiring child pornography through use of peer-to-peer file

sharing constituted transportation by uploading.”      Ober, No.

ARMY 20040081, slip op. at 4.     In reaching its decision, the

Court of Criminal Appeals cited the testimony of the

Government’s computer forensics expert that a KaZaA user’s

download caused an upload on the host user’s computer.     Id. at

2-3.   Although that specific description was not initially

placed before the members in the prosecution’s opening

statement, it was referenced in the charging document

(“uploading pictures of child pornography to a shared internet

file named ‘KAZAA’”) and it was presented through expert

testimony during the course of the trial.     That is sufficient

under Chiarella.    Chiarella, 445 U.S. at 236.   Under these

circumstances, we conclude that the theory of liability relied

upon by the Court of Criminal Appeals was one of the alternative

theories of liability presented by the Government at trial, not

a different theory.

                   C.   ADEQUACY OF THE INSTRUCTIONS

       Whether a panel was properly instructed is a question of

law reviewed de novo.     United States v. Maxwell, 45 M.J. 406,


                                   33
United States v. Ober, No. 07-0722/AR

424 (C.A.A.F. 1996) (citing United States v. Snow, 82 F.3d 935,

938-39 (10th Cir. 1996)).   The military judge has an independent

duty to determine and deliver appropriate instructions.    United

States v. Westmoreland, 31 M.J. 160, 163-64 (C.M.A. 1990).

“‘[T]he military judge must bear the primary responsibility for

assuring that the jury properly is instructed on the elements of

the offenses raised by the evidence as well as potential

defenses and other questions of law.’”   Id. at 164 (quoting

United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975)).

     On appeal, Appellant argues that the military judge made

three errors in instructing the members.   First, he argues that

the military judge erred by omitting the charged language “cause

to be” from the oral and written instructions on the

transporting charge.   According to Appellant, this omission was

plain error because the military judge failed to give proper

guidance to the members.    Second, Appellant claims that the

military judge erred by failing to instruct the members on a

theory of aiding and abetting under Article 77, UCMJ, 10 U.S.C.

§ 877 (2000).   Appellant claims that this instruction was

mandatory because the Government theory of liability on the

transporting charge involved the participation of another party.

Third, Appellant argues that the military judge erred by failing

to give the members a definition of “uploading.”   He contends

that “uploading” was used by the Government in a manner


                                 34
United States v. Ober, No. 07-0722/AR

inconsistent with its normal usage, and thus the military judge

should have provided a definition of the term to the members to

eliminate any confusion as to its meaning or effect.

      We address each of these contentions in turn.    With

respect to omission of the words “cause to be,” we note that the

military judge instructed the members that Appellant was charged

with “knowingly transporting child pornography in interstate

commerce.”   He further instructed that to convict Appellant, the

members had to be convinced beyond a reasonable doubt that,

among other elements, Appellant “knowingly transported material

containing one or more visual depictions by uploading the

material to a shared Internet file named KaZaA.”   Regarding the

omission of the “cause to be” language that appeared in the

specification, Appellant contends that the panel might have

ignored that language or used it to convict Appellant under

another theory of liability for which they were not instructed.

As a threshold matter, Appellant has not demonstrated how

omission of the words “cause to be” -- which are not part of the

underlying statute -- changed the nature of the offense or left

the members with a misunderstanding of the transporting charge

and its specification.   The defense did not object to the

military judge’s proposed instructions on the transporting

charge, nor did the defense request any additional instructions

to clarify the elements of the offense.   Appellant’s speculation


                                35
United States v. Ober, No. 07-0722/AR

about the effect of the omission does not carry his burden to

show an unfair prejudicial impact on the members’ deliberations

or material prejudice to his substantial rights.   See United

States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998) (holding that

plain error not objected to at trial does not compel reversal

without a further determination that the error materially

prejudiced the accused’s substantial rights).

     With respect to whether the military judge should have

instructed on an aiding and abetting theory, we note that

Appellant was charged and prosecuted with transporting child

pornography as a primary actor.    See Article 77, UCMJ.   The

Government focused its case on proving that Appellant was guilty

of transporting child pornography based on his own act of

obtaining files via KaZaA.   Neither party requested an aiding

and abetting instruction.    Irrespective of whether the

Government could have relied on an aider and abettor theory in

this case, Appellant was not prejudiced by the decision of the

military judge to focus his instructions on the primary theory

presented by the prosecution.

     The military judge did not provide a definition of

“uploading” during the instruction phase of the trial.     However,

the computer forensics experts who testified for the Government

and the defense offered comprehensive explanations of the KaZaA

process, including uploading.   See supra Part I.C.2, I.C.4,


                                  36
United States v. Ober, No. 07-0722/AR

I.C.5.   The testimony did not produce a material difference

between the parties or their experts regarding the operation of

KaZaA or how KaZaA could be used to obtain files.   The defense

did not challenge the Government expert’s testimony that

downloading files through KaZaA caused an upload to occur on the

host computer.   Instead, the defense embraced the evidence of

how KaZaA worked in an effort to convince the panel members that

someone other than Appellant was responsible for downloading the

child pornography on Appellant’s computer.   See supra Part

I.C.1, I.C.4, I.C.7.   The defense did not object to the military

judge’s proposed instructions, nor did the defense request

additional instructions on uploading.   In light of the manner in

which both parties presented their evidence and theories at

trial regarding the use of KaZaA, Appellant has not demonstrated

that the absence of a further description of uploading -- a

description not requested by the defense -- constituted material

prejudice to the substantial rights of Appellant.   See Article

59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

                          III.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                 37
United States v. Ober, No. 07-0722/AR


     ERDMANN, Judge (dissenting):

     Because of the cumulative effect of errors at both the

court-martial and Court of Criminal Appeals levels, I

respectfully dissent.   This case involves the Internet-based,

peer-to-peer file-sharing network Kazaa.   The Kazaa network does

not utilize a main server where members can post images and

other files, but rather Kazaa allows members to search for and

download files located in the Kazaa folders on the individual

computers of other members.   Ober was a member of Kazaa and had

the application on his computer.    Images of child pornography

which had been downloaded using Kazaa were found on Ober’s

computer.   In addition to being charged with possession of child

pornography, Ober was also charged with transporting child

pornography by “uploading pictures of child pornography to a

shared internet file named ‘KAZAA.’”

     My initial concern is that in affirming Ober’s

“transporting” conviction, the Court of Criminal Appeals relied

on a theory not presented to Ober or the members until the

Government’s case in rebuttal.   Consistent with the charged

language, the Government initially proceeded on a theory that

Ober had made images available to other Kazaa users by putting

the images in his shared folder.    Accordingly, in his opening

statement the trial counsel stated Ober was guilty because “he

allowed others to view [child pornography images on his
United States v. Ober, No. 07-0722/AR


computer] as they were transmitted from his computer.”   Ober had

notice and the opportunity to respond to this “uploading” theory

because it was presented in the specification and the opening

statement.

     In developing this theory during its case-in-chief,

however, the Government’s computer forensic expert testified

that the Kazaa application on Ober’s computer was set to prevent

uploading.   Under this setting Ober could obtain files using

Kazaa, but other Kazaa users could not access files on Ober’s

computer.    In other words there could be no “upload” from Ober’s

computer.

     The Government did not present the theory upon which the

Court of Criminal Appeals based its decision until rebuttal,

when the defense had already responded to the Government’s case-

in-chief.1   This alternative theory of the case was presented

when the Government’s expert testified on rebuttal that when an


1
  The majority contends that the Government presented both
theories in its opening statement because trial counsel
discussed downloading of images. See United States v. Ober, __
M.J. __ (9, 32) (C.A.A.F. 2008). However, trial counsel never
equated downloading images with “causing an upload” during his
opening statement, nor did any witness make this strained
connection during the Government’s case-in-chief. Instead,
trial counsel discussed downloading during his opening statement
in the context of explaining why Ober would be found guilty of
the possession charge, which is not in issue before this court.
Only one theory of liability for the transportation
specification was presented to the panel before the defense
responded with its case-in-chief.



                                  2
United States v. Ober, No. 07-0722/AR


individual downloads a file using Kazaa that action “causes an

upload to occur on the other person’s computer.”    During closing

arguments, trial counsel focused on the Government expert’s

rebuttal testimony:   “No one caused that file to be uploaded on

the Internet except him.”    While evidence was presented in the

Government’s case-in-chief that images of child pornography had

been downloaded to Ober’s computer using Kazaa, this evidence

supported the possession specification and the Government did

not equate this action with “uploading” until rebuttal.    The

Government abandoned the theory it relied upon in its case-in-

chief and contended that Ober “caused an upload” when he

“downloaded” files via Kazaa.    The Court of Criminal Appeals

affirmed Ober’s conviction on this basis.    See United States v.

Ober, No. ARMY 20040081, slip op. at 3-4 (A. Ct. Crim. App. May

25, 2007) (unpublished).

     Affirming a conviction based on a theory not presented in

the Government’s case-in-chief raises concerns regarding basic

notions of due process.2    Based on the charging language and the

Government’s case-in-chief, Ober did not have notice that when

the Government charged him with “uploading,” they intended the

term to mean “downloading.”    Such a convoluted theory begs the


2
  Cf. United States v. Russo, 74 F.3d 1383, 1396 (2d Cir. 1996)
(concluding that the prosecutor’s behavior was improper where he
created a “last minute” argument on rebuttal to which the
defendant could not properly respond).


                                  3
United States v. Ober, No. 07-0722/AR


question as to why the Government just didn’t charge him with

“downloading.”    Due process notice and fundamental fairness

require that the Government present its theory of the case to

the factfinder and the accused before the accused’s case-in-

chief.

       If this were the only error, I would be inclined to affirm

as the “download means upload” theory was at least presented

during rebuttal and the defense did not request additional time

to respond.    This error is compounded, however, by the military

judge’s failure to instruct the members on the definition of

“uploading” and “downloading” and his failure to instruct the

members as to the “cause to be” element in the charged offense.

       As Ober was specifically charged with “uploading pictures

of child pornography to a shared internet file named ‘KAZAA’”,

the meaning of the term “uploading” was critical to the members’

deliberations.    There was, however, conflicting testimony as to

the meaning of the term.    While the military judge provided the

members with definitions of a number of terms referenced in the

elements of the offense,3 he failed to instruct the members as to

the definition of the most critical term -- “uploading.”

       During the Government’s case-in-chief, the Government

expert testified that Ober’s computer contained child

pornography that had been downloaded from Kazaa and that, under

3
    See Ober, __ M.J. at __ (23-25).


                                  4
United States v. Ober, No. 07-0722/AR


Ober’s computer settings, no one could “upload” files from

Ober’s computer.    This testimony would have been helpful to the

Government had Ober been charged with “downloading” rather than

“uploading.”    On rebuttal the Government expert revised his

definition when he essentially testified that utilizing the

Kazaa network, if member A “downloads” a file from member B’s

computer, that “download” causes an “upload” from member B’s

computer.

        In regard to these terms, the defense expert testified

that:    “‘Downloading’ is brining [sic] something to you; and

‘uploading,’ in this situation, would be is if you had an open

portal where you’re allowing somebody to take away from you, or

you’re physically going out and sending something out.”    At best

the various definitions discussed by the experts are very

confusing.

        While the majority concludes that the experts provided

“comprehensive explanations of the KaZaA process, including

uploading” and that these explanations were not materially

different, this conclusion discounts the significant

distinctions between the language initially used by both experts

and the Government expert’s subsequent recasting of the term.

See United States v. Ober, __ M.J. __ (36-37) (C.A.A.F. 2008).

Additionally, the “uploading means downloading” definition upon

which the Government relies is counterintuitive and contrary to


                                   5
United States v. Ober, No. 07-0722/AR


the common understanding of the term “uploading,”4 which further

supports the need to define the term for the members.        In this

instance the definition of the term “uploading” is not a

disputed fact to ultimately be found by the members, but is a

legal term in the specification.       Because the experts provided

conflicting definitions of this crucial term, the military judge

erred in not providing an instruction as to its meaning.

     A military judge has an obligation to “instruct the members

of the court as to the elements of the offense.”      Article 51(c),

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 851(c)

(2000); see also Rule for Courts-Martial (R.C.M.) 920(e)(1)

(requiring the military judge to describe the elements of the

offense to the panel).   These instructions must be “tailored to

fit the circumstances of the case, and should fairly and

adequately cover the issues presented.”      R.C.M. 920(a)

Discussion.

     Specification 1 charged that Ober did:       “knowingly and

wrongfully cause to be transported in interstate commerce child

pornography by uploading pictures of child pornography to a

shared internet file named ‘KAZAA’, in violation of 18 U.S.C.


4
  See, e.g., A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004,
1011 n.1 (9th Cir. 2001) (“To download means to receive
information, typically a file, from another computer to yours
via modem. . . . The opposite term is upload, which means to
send a file to another computer.”) (citation and quotation marks
omitted).


                                   6
United States v. Ober, No. 07-0722/AR


[§] 2252A(a)(1).”   While the military judge did explain the

various elements of this specification in his instruction, he

did not reference or define the “cause to be” language.

Although the Government has argued that the “cause to be”

language is merely surplusage, it is clear that “cause to be

transported” is not the same as “transported.”   As instructed,

the members convicted Ober of “transporting” rather than

“caus[ing] to be transported.”

     Before this court, the Government relied extensively on the

Government expert’s rebuttal testimony that accessing files on

Kazaa “causes an upload to occur on the other person’s

computer.”   “Causes to be” must have meaning in order for the

Government’s rebuttal theory to be successful.   As such, the

term was critical to the Government’s case and cannot be

considered surplusage.   When a case is premised on particular

language in the specification, it cannot be disregarded.     See

United States v. Smith, 21 C.M.A. 264, 267, 45 C.M.R. 38, 41

(1972); United States v. Rowe, 13 C.M.A. 302, 310, 32 C.M.R.

302, 310 (1962).    The military judge, therefore, erred when he

failed to explain this phrase to the members in his

instructions.5   The military judge did not meet his clear

obligation to present each element to the panel, tailor the

5
  Although the military judge informed that parties that he would
define the term “transporting”, he also failed to define that
term.


                                  7
United States v. Ober, No. 07-0722/AR


instructions to the facts of the case, and give definitions of

key terms, particularly those in conflict.

     Given the cumulative effect of the due process error and

the instructional errors, I would reverse the decision of the

United States Army Court of Criminal Appeals as to this

specification and order the record of trial returned to the Army

Judge Advocate General for a new trial.




                                8
