

   
   
   
   U.S. v. Murray



IN THE CASE OF
UNITED STATES, Appellee
v.
Paul H. MURRAY, Staff Sergeant
U.S. Air Force, Appellant
 
No. 99-0303
Crim. App. No. 32670
 
United States Court of Appeals for the Armed
Forces
Argued November 10, 1999
Decided April 6, 2000
EFFRON, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., SULLIVAN and GIERKE, JJ., and COX, S.J.,
joined.

Counsel
For Appellant: Captain Bryan A. Bonner
(argued); Lieutenant Colonel Jeanne M. Rueth (on brief); Colonel
Douglas H. Kohrt, Lieutenant Colonel Ray T. Blank, Jr., and
Major Carol L. Hubbard.
For Appellee: Major Steven R. Parrish
(argued); Colonel Anthony P. Dattillo, Lieutenant Colonel Ronald
A. Rodgers, and Captain James C. Fraser (on brief); Lieutenant
Colonel David N. Cooper, USAFR.
Military Judge: M.M. Boone
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
 
 

Judge EFFRON delivered the opinion
of the Court.
A general court-martial composed of
a military judge sitting alone convicted appellant, contrary to his pleas,
of 1 specification of unlawful receipt of sexually explicit depictions
of minors from the Internet, a violation of 18 USC § 2252(a)(2), as
incorporated under Article 134, Uniform Code of Military Justice, 10 USC
§ 934. Appellant was sentenced to a bad-conduct discharge, confinement
for 10 months, and reduction to pay grade E-1. The convening authority
approved the sentence as adjudged. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
On appellant's petition, we granted
review of the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT
TO SUSTAIN THE FINDING OF GUILT.

We affirm the decision of the Court of
Criminal Appeals and find that there is sufficient evidence of record to
support appellants conviction for knowingly receiving child pornography
from the Internet, in violation of 18 USC § 2252(a)(2).

I. BACKGROUND
A. Factual Setting
In May 1996, appellant experienced
problems with his computer and brought it back several times to the retailer
for repairs. During the third repair session, the owner of the shop discovered
a sexually explicit picture of a child on appellants computer and alerted
the police, who arrested appellant when he arrived to claim the computer.
When questioned by the arresting officer,
appellant admitted to having about 100 sexually explicit pictures on his
computer, including 5 to 25 which featured minors. Appellant also admitted
to knowing that sexually explicit pictures featuring children under the
age of 18 would be illegal. He explained to the investigator, and at trial,
that he acquired the pictures featuring minors accidentally, while downloading
adult pornography, and that he deleted the images as soon as he became
aware of their nature, which was upon opening the downloaded files. He
also testified that the file names did not alert him to the possibility
that the images might contain child pornography.
Appellants practice was to access
Internet newsgroups, choose files that appeared interesting based on their
names, download the files, and move them to a directory named "WINSX" on
his computer. Appellant admitted visiting newsgroups entitled "PRETEEN"
and "LOLITA" and noted that the pictures of minors were obtained from the
latter newsgroup. A witness with expertise in computer crimes verified
that these newsgroup names, and many others indicative of child pornography
themes, had been found in files associated with appellants newsgroup browser
program.
An investigator searched appellants
computer and found 61 images believed to contain child pornography. Some
of these images had been deleted and were recovered by the investigator;
others were still in active space on the hard drive. The investigator also
discovered Uniform Resource Locators (URLs) with descriptive file names
for the images appellant had downloaded. Many of these URLs still had graphics
files associated with them. Forty-four of the images were deemed by the
military judge to contain sexually explicit depictions featuring children
under 18 USC § 2252 and were admitted into evidence.

B. The Legal Setting
The Protection of Children Against
Sexual Exploitation Act of 1977, as amended, 18 USC § 2251 et
seq., was enacted to combat the growing and well-organized child
pornography industry and its harmful effects on children and society. See
Pub. L. No. 98-292, 98 Stat. 204 (1984). Appellant was convicted under
18 USC § 2252(a)(2), which imposes a criminal sanction on:

(a) Any person who 

* * *
(2) knowingly receives, or distributes,
any visual depiction that has been mailed, or has been shipped or transported
in interstate or foreign commerce, or which contains materials which have
been mailed or so shipped or transported, by any means including by computer,
or knowingly reproduces any visual depiction for distribution in interstate
or foreign commerce by any means including by computer or through the mails,
if 
(A) the producing of such visual depiction
involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such
conduct; . . . .

Appellant has urged this court to interpret
the statutory requirement that a person act "knowingly" to oblige the Government
to prove that appellant knew the sexually explicit depictions of minors
passed through interstate commerce. Appellant has not directed our attention
to a decision by any other court that would support the proposition. The
Supreme Court appears to have taken a narrower view, holding that "knowingly"
in § 2252 applies to the "sexually explicit nature of the material
and to the age of the performers." United States v. X-Citement Video,
Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)(finding
§ 2252 facially constitutional and reading in a scienter requirement
for the age of minority element); see also United States
v. Maxwell, 45 MJ 406, 424 (1996)(recognizing the Supreme Courts interpretation
of the scienter requirement in § 2252); United States v. Russell,
47 MJ 412, 413 (1998)(noting the Supreme Courts interpretation).

II. DISCUSSION
Appellant was charged with and convicted
of one specification of unlawful receipt of sexually explicit depictions
of minors from the internet, a violation of 18 U.S.C. § 2252(a)(2).
He challenges the legal sufficiency of his conviction on three grounds:
(1) that the Government failed to prove he "knowingly" received sexually
explicit depictions of minors; (2) that the Government failed to prove
he "knew" the depictions traveled in interstate commerce; and (3) as a
jurisdictional element, that the Government failed to prove the depictions
actually traveled in interstate commerce.
In considering whether the evidence
is legally sufficient to sustain appellants conviction, we must "view[]
the evidence in the light most favorable to the prosecution" and determine
whether "any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Appellant admitted to investigators
that he had a number of sexually explicit graphic images on his computer
featuring minors. Evidence at trial indicated that appellant had visited
Internet newsgroups and downloaded files with names strongly suggestive
of their explicit child-sex content. A computer crimes expert testified
that some of the 44 pictures determined by the military judge to meet the
definition of sexually explicit depictions involving minors under the statute
were found in active file space on the hard drive of appellants computer.
In his statement to the police and in his testimony at trial, appellant
admitted to moving the files he downloaded into a directory named "WINSX."
This evidence, especially the conscious segregation of the downloaded files
into a separate directory, rebuts appellants contention that he accidentally
received the illegal images while seeking adult pornography and immediately
deleted them, and is sufficient to demonstrate his knowing receipt of the
material. We conclude that the Government presented sufficient evidence
of appellants knowing receipt of sexually explicit depictions of minors.
With respect to evidence of the movement
of the images through interstate commerce, the testimony of Mr. Amram,
owner of the Internet service provider (ISP) to which appellant subscribed
at the time of the charged incident, established that the ISP received
its feeds for newsgroups from a larger ISP outside Kansas, the state in
which appellant committed the crime. Mr. Amram also testified that some
of his servers were located in other states. The computer crimes expert
testified that the type of newsgroups appellant accessed, the "ALT" category,
were worldwide in scope and that it was impossible for a user to restrict
his downloads to files originating in his state.
Courts have viewed the Internet, by
its very nature, as placing material in the stream of interstate commerce.
See United States v. Carroll, 105 F.3d 740, 742 (1st
Cir.), cert. denied, 520 U.S. 1258 (1997)(finding that transmission
of graphics files over the Internet satisfied the interstate commerce element
in a prosecution under 18 USC § 2251(a)); American Civil Liberties
Union v. Reno, 929 F. Supp. 824, 830-38 (E.D. Pa. 1996)(findings of
fact on the global nature and size of the Internet). Under these circumstances,
the evidence presented by the Government was sufficient to establish that
the images downloaded by appellant from Internet newsgroups passed through
interstate commerce.
We reject appellants contention that
the Government was required to prove that he knew the pictures passed through
interstate commerce, i.e., that the interstate commerce element
is more than jurisdictional. As the Supreme Court noted in X-Citement
Video, 513 U.S. at 73, 115 S.Ct. at 469, the legislative history is
"indistinct" on how Congress intended the knowledge requirement to apply
to the elements of the offense. The Supreme Court did not specifically
interpret the statute to extend the knowledge requirement to interstate
commerce in its analysis of the elements of the offense, nor has any other
court.
We note that under various other criminal
statutes, the courts have held that the Government need not prove that
the defendant had knowledge of the interstate aspect of the conduct at
issue. See, e.g., United States v. Manley, 563 F.2d 779 (5th
Cir. 1977)(no requirement under 18 USC § 922(h) to prove that the
defendant knew the firearm had been shipped in interstate commerce); United
States v. Napier, 518 F.2d 316 (9th Cir. 1975)(no requirement
under 18 USC § 1201 to prove that a defendant knew that he crossed
state lines while transporting a kidnapped person); Brubaker v. United
States, 183 F.2d 894 (6th Cir. 1950)(no requirement under
18 USC § 2313 to prove that a defendant knew that a stolen vehicle
had been transported in interstate commerce); United States v. Luman,
624 F.2d 152 (10th Cir. 1980)(no requirement under 18 USC §
2315 to prove that a defendant knew that stolen goods had been transported
in interstate commerce). Appellant has not presented any rationale that
persuades us to extend the scope of the knowledge requirement under 18
USC § 2252(a)(2) to include proof that the accused has knowledge that
the material was transported through interstate commerce.

III. CONCLUSION
Considering the evidence in the light
most favorable to the Government, as required by Jackson v. Virginia,
supra, we hold that there is sufficient evidence in the record of
appellants knowing receipt of sexually explicit depictions of minors and
of the passage of those depictions through interstate commerce to sustain
his conviction under 18 USC § 2252(a)(2).

IV. DECISION
The decision of the United States Air
Force Court of Criminal Appeals is affirmed.

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