                       UNITED STATES, Appellee

                                    v.

                  Joshua P. NAVRESTAD, Specialist
                        U.S. Army, Appellant

                              No. 07-0199

                       Crim. App. No. 20030335

       United States Court of Appeals for the Armed Forces

                       Argued December 4, 2007

                         Decided May 14, 2008

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

                                 Counsel


For Appellant: Captain Nathan J. Bankson (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Fansu Ku (on brief); Captain Eugene Ham.

For Appellee: Captain Jaired D. Stallard (argued); Colonel John
W. Miller II, Major Elizabeth G. Marotta, and Captain Michael
Friess (on brief).

Military Judge:   Robin L. Hall


       This opinion is subject to revision before final publication.
United States v. Navrestad, No. 07-0199/AR

     Judge ERDMANN delivered the opinion of the court.

     Specialist Joshua P. Navrestad was charged under Article

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934

(2000), with distributing and possessing child pornography in

violation of the Child Pornography Prevention Act of 1996

(CPPA), 18 U.S.C. §§ 2251-2260 (2000).   He entered pleas of not

guilty to both specifications but was convicted at trial by a

military judge.1   We granted this case to determine two issues:

whether sending a hyperlink to a Yahoo! Briefcase during an

Internet chat session, where that Briefcase contained child

pornography images, is legally sufficient to constitute

distribution of child pornography; and whether utilizing a

public computer to view images of child pornography in a Yahoo!

Briefcase is legally sufficient to constitute possession of

child pornography.   We hold, under the facts of this case, that

Navrestad’s actions did not constitute either distribution or

possession of child pornography and therefore reverse the United

States Army Court of Criminal Appeals on those issues.

                       Procedural Background

     Navrestad was initially charged with distribution

(Specification 4) and possession (Specification 5) of child


1
  Consistent with his guilty pleas, Navrestad was also convicted
of the attempted transfer of obscene material to a minor and
attempted enticement of a minor to engage in illegal sexual
activity, under Article 134, UCMJ. Those specifications are not
pertinent to the issues appealed by Navrestad.

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United States v. Navrestad, No. 07-0199/AR

pornography in violation of the CPPA, as “crime[s] or offense[s]

not capital” under clause 3 of Article 134, UCMJ.   Before

arraignment, however, Article 134, UCMJ, clause 1 and 2 language

was added to both specifications.2   Navrestad was found guilty of

both specifications as amended and was sentenced to reduction to

the lowest enlisted grade, forfeiture of all pay and allowances,

two years of confinement, and a bad-conduct discharge.    The

convening authority approved the sentence as adjudged.3

     The Army Court of Criminal Appeals amended the possession

specification (Specification 5) to exclude reference to the CPPA

because the charged activity under that specification occurred

solely in Germany and, in United States v. Martinelli, 62 M.J.

52 (C.A.A.F. 2005), this court held that the CPPA does not have

extraterritorial application.   United States v. Navrestad, No.

ARMY 20030335, slip op. at 1-2. (A. Ct. Crim. App. Oct. 31,

2006).   The Army court then affirmed a finding of guilty to



2
  Conduct is punishable under Article 134, UCMJ, 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]. See Manual for Courts-Martial, United States pt. IV, para.
60.a.-c. (2005 ed.) (MCM).
3
  We note an inconsistency in Specification 4, which charged
Navrestad with distribution of child pornography but cited 18
U.S.C. § 2252A(a)(1), which prohibits the mailing or
transportation of child pornography, rather than 18 U.S.C. §
2252A(a)(2), which prohibits distribution. The specification
was treated as a distribution offense by all parties at trial.
As we reverse Navrestad’s conviction under this specification,
any notice issues arising out of the charging language are moot.

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United States v. Navrestad, No. 07-0199/AR

amended Specification 5 and the remaining findings of guilty.

Id.   The lower court reassessed and affirmed the sentence.      Id.

      Specification 5 included Article 134, UCMJ, clause 1 and 2

language prior to arraignment and the theory of those provisions

was presented at trial by the prosecution.    We recently held

that a member can be convicted under Article 134, UCMJ, clause 1

or 2 when a clause 3 offense is set aside, if the clause 1 or 2

language has been alternatively charged.     United States v.

Medina, 66 M.J. 21, 28 (C.A.A.F. 2008).    As the Article 134,

UCMJ, clause 1 and 2 language was alternatively charged in

Specification 5, the Army court properly set aside the CPPA

language and reviewed the specification in the context of those

provisions.

                        Factual Background

      Navrestad had an account at an Internet café in a United

States Army morale, welfare and recreation center in Vilseck,

Germany.   He would pay for a set amount of time and then use a

kiosk-style computer terminal to access the Internet.    While at

the café, Navrestad had Internet chat sessions over the course

of several days with someone who identified himself as “Adam.”

Navrestad believed “Adam” was a fifteen-year-old boy from New

Hampshire while actually “Adam” was Detective James F.

McLaughlin, a New Hampshire police officer.




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United States v. Navrestad, No. 07-0199/AR

     During the course of several chat sessions, Navrestad made

requests for phone sex and encouraged “Adam” to engage in sex

acts with “Adam’s” younger brother and a friend of “Adam’s” who

was also a minor.   During these sessions “Adam” made inquiries

about seeking pictures, often in response to Navrestad’s

requests for phone sex.   Eventually, “Adam” made a specific

request for pictures of “guys 10-13.”

     In response to “Adam’s” request, Navrestad sought out child

pornography on the Internet using the Internet café computer and

located links to several Yahoo! Briefcases4 that contained child

pornography.   While at the Internet café, Navrestad opened and

viewed the Briefcases to confirm the contents and then sent a

hyperlink to one of the Briefcases that contained child

pornography to “Adam.”

     The websites that are viewed on the Internet café computers

are automatically saved in a “temporary internet files” folder

on the computer’s hard drive.5   Navrestad and other Internet café


4
  Yahoo! Briefcase is an online service that allows users to
store files on the Yahoo! servers. See http://briefcase.
yahoo.com (follow “Help” hyperlink; then follow “Briefcase
Basics” hyperlink; then follow “What is a Yahoo! Briefcase?”
hyperlink) (last visited May 7, 2008). Users may or may not
make the contents of their Briefcases public. See http:
//briefcase.yahoo.com (follow “Help” hyperlink; then follow
“Abuse” hyperlink; then follow “What is the difference between
private and public folders?” hyperlink) (last visited May 7,
2008).
5
  A temporary Internet file “is created when any of the Windows
operating systems is installed with an Internet Browser. This
temporary cache is a ‘first in first out’ algorithm in which the

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United States v. Navrestad, No. 07-0199/AR

users did not have access to that folder and there is nothing in

the record that indicates Navrestad was aware that the sites

were being saved on the hard drive.   Individuals who use the

computers at the Internet café cannot download files or save

documents to portable storage devices6 although they could e-mail

the documents or print them on a central café printer.   The

printer was located in a staff-only area and users must request

the printed documents from the Internet café staff.   There is no

evidence that Navrestad e-mailed or printed any of the images.

                            Discussion

Distribution of Child Pornography

     We first address whether the evidence is legally sufficient

to support a conviction for distribution of child pornography

under the CPPA.   We review questions of legal sufficiency de

novo as questions of law.   United States v. Young, 64 M.J. 404,

407 (C.A.A.F. 2007).   Legal sufficiency is determined by asking

“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



files most recently viewed on the Internet by the end user
remain in storage for quick recall.” United States v. Grimes,
244 F.3d 375, 379 (5th Cir. 2001).
6
  By “portable storage devices” we refer to any portable computer
memory, which include flash drives (such as USB memory sticks),
CDs, DVDs and external hard drives. The Internet café computers
were configured in such a way that Navrestad and other users
could not download files and leave the café with the files.



                                 6
United States v. Navrestad, No. 07-0199/AR

States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006) (citation

omitted).   Utilizing this standard, the issue before the court

is whether, under the facts of this case, sending a hyperlink

that leads to a Yahoo! Briefcase which contains images of child

pornography constitutes distribution of child pornography under

the CPPA.

     Because Specification 4 alleged a violation of the CPPA,

the definitions contained in that chapter control in this case.

18 U.S.C. § 2256(8) defines child pornography as “any visual

depiction, including any photograph, film, video, picture, or

computer or computer-generated image or picture . . . of

sexually explicit conduct, where . . . the production of such

visual depiction involves the use of a minor engaging in

sexually explicit conduct[.]”   “Visual depiction” in turn,

“includes . . . data stored on computer disk or by electronic

means which is capable of conversion into a visual image[.]”    18

U.S.C. § 2256(5).

     The issue in this case centers on what was actually

distributed when Navrestad sent the hyperlink to “Adam.”

Navrestad argues he did not distribute child pornography because

a hyperlink does not contain “data . . . capable of conversion

into a visual image” of child pornography.   He argues that the

hyperlink only contained data that is convertible to an address

which, in this case, did not even take users directly to the



                                 7
United States v. Navrestad, No. 07-0199/AR

prohibited images.   The Government responds that this court

should uphold the lower court because a hyperlink meets the

definition of a “visual depiction” set forth in the 18 U.S.C. §

2256(5).

     The initial inquiry is whether this hyperlink contains

“data stored . . . by electronic means which is capable of

conversion into a visual image[.]”   Commencing our inquiry with

a basic dictionary definition, we find that “hyperlink” is

defined as “an electronic link providing direct access from one

distinctively marked place in a hypertext or hypermedia document

to another in the same or a different document.”   Webster’s

Third New International Dictionary Unabridged (2002), available

at http://unabridged.merriam-webster.com.    This definition

centers on a hyperlink as an electronic link which provides

access.7

     David Hardinge, a senior systems administrator whose

responsibilities include providing technical support for the

Internet café at Vilseck, testified for the Government.   During

cross-examination, he defined a hyperlink as an address or a

“way that you can display a web site,” which the recipient can

click on to go to the particular site.   Hardinge agreed that a


7
  A “link” has been defined as “something in a document like an
email, usually highlighted or underlined, that sends users who
click on it directly to a new location -– usually an internet
address or a program of some sort.” United States v. Hair, 178
F. App’x 879, 882 n.3 (11th Cir. 2006).

                                 8
United States v. Navrestad, No. 07-0199/AR

hyperlink is a shortcut to typing in the website address

manually and that clicking on it does not move any documents on

the user’s computer.8   He also agreed that it was an accurate

analogy to say that sending a hyperlink is like sending someone

an address of a store or of a location of a building.

     Hardinge further agreed that sending an individual file as

an attachment to an e-mail takes longer than sending a hyperlink

because, with an attachment, the user is sending a file that is

moving onto someone else’s computer.   He admitted that a picture

is not sent to the recipient when a hyperlink is sent “[b]ecause

a hyperlink is nothing more than . . . just a shortcut to get

somewhere.”   While trial counsel tried to mitigate Hardinge’s

statements on re-direct, Hardinge continued to state that a

hyperlink is a “direct shortcut to a location.”   He did not

testify at any point that the hyperlink in this case contained

any images or data that were capable of conversion to images.

     Unlike an e-mail attachment, the sending of a hyperlink in

a chat session does not move a file or document from one

location to another.    As such, the data contained in the

hyperlink is an electronic address that allows the recipient to

direct his browser to the new location without having to type in


8
  We note that while clicking on a hyperlink may create a file in
the recipient’s temporary Internet file folder, clicking this
hyperlink does not move images or documents from the sender’s
computer to the recipient’s computer.



                                  9
United States v. Navrestad, No. 07-0199/AR

the website of that location.   The data contained in the

hyperlink is not capable of conversion into any type of visual

image.   Rather, the data provides the recipient with the path to

a website on a server distinct from Navrestad’s own computer.

It is this separate server that contained the visual images of

child pornography, not the hyperlink Navrestad sent.   In

contrast, a file received as an e-mailed attachment is self-

contained and capable of conversion into an image independent of

other factors.   The difference between a hyperlink and a file

that is sent as an e-mailed attachment is significant because

the attached picture or graphics file9 is a complete image that

is just not opened yet.   When that complete image is received,

it is housed on the recipient’s computer.

     Since the hyperlink sent by Navrestad was a path or address

to a website and not a file that contains data that is “capable

of being converted” into visual images, this case is

distinguishable from circuit court cases that involved GIF

files.   See, e.g., United States v. Hockings, 129 F.3d 1069 (9th

Cir. 1997); United States v. Thomas, 74 F.3d 701 (6th Cir.

1996).   In those cases, the defendants argued that GIF files


9
  Picture or graphic file formats are used to place images on the
Internet. The different formats include JPEG/JPG (Joint
Photographic Experts Group), GIF (Graphics Interchange Format),
and PNG (Portable Network Graphics). Webopedia: JPG vs. GIF
vs. PNG, http://www.webopedia.com (follow “Did You Know?”
hyperlink; then follow the “JPG vs. GIF vs. PNG” hyperlink)
(last visited May 7, 2008).

                                10
United States v. Navrestad, No. 07-0199/AR

were not visual depictions because the file itself was binary

code and not images.   Hockings, 129 F.3d at 1070; Thomas, 74

F.3d at 706.   Both courts, however, concluded that GIF files are

included in the statutory definition of child pornography

because, as the Hockings court stated, “[t]he visual image

transported in binary form starts and ends pornographically.”

129 F.3d at 1072; see also Thomas, 74 F.3d at 707.    In contrast,

the hyperlink here did not start or end as pornography, but was

simply a shortcut to a particular web address.10

     The Government also argued that once the hyperlink was

sent, the recipient was “just a click away” from the child

pornography images.    Here the Government confuses the manner of

the alleged distribution with what is allegedly being

distributed.   Navrestad does not dispute that he sent the


10
  We have no quarrel with the hyperlink discussion in Universal
City Studios v. Corley, which is consistent with the majority
opinion. 273 F.3d 429, 455-457 (2d Cir. 2001) (“[H]yperlinks .
. . facilitate instantaneous . . . access . . . .”); see United
States v. Navrestad, __ M.J. at __ (7-8) (C.A.A.F. 2008)
(Effron, C.J., joined by Stucky, J., dissenting). In relying on
Corley, however, the dissent completely ignores the language of
18 U.S.C. § 2256(5) and (8) which specifically prohibit the
distribution of data which is “capable of conversion into” child
pornography. The language in Corley upon which the dissent
relies stands for the limited proposition that a hyperlink
“facilitates” access to another Internet site. Corley, a civil
case, does not suggest, let alone hold, that a hyperlink sends
or distributes data that “is capable of conversion,” into child
pornography, as the criminal statute in this case requires for
the offense of distribution.   While the language relied upon by
the dissent may be pertinent in a case in which an accused is
charged with aiding and abetting the distribution of child
pornography that is not the offense at issue in this case.

                                 11
United States v. Navrestad, No. 07-0199/AR

hyperlink to “Adam.”   His position is that the hyperlink did not

contain child pornography as that term is defined in the CPPA

and therefore cannot constitute the distribution of child

pornography.   We agree.   However, even if the number of clicks

were a factor in determining whether the hyperlink contained

child pornography, the hyperlink in this case did not take the

recipient directly to any child pornography images.   When

McLaughlin clicked on the link, he was taken to a directory of

files and had to click on an individual file name in order to

view the image.

     We note that the United States Court of Appeals for the

Eleventh Circuit has addressed a similar issue in an unpublished

case where the defendant sent a hyperlink to his own Briefcase

which contained child pornography.    United States v. Hair, 178

F. App’x 879 (11th Cir. 2006).   That court determined the

defendant was properly convicted of attempting to transport, and

transporting child pornography in violation of 18 U.S.C. §

2252A(1).   Hair, 178 F. App’x at 885.   Hair is distinguishable

from the instant case on several grounds:    Hair was charged with

both attempted transportation and transportation of child

pornography, id. at 881; Navrestad was not charged with

attempted distribution but only distribution of child

pornography; the government in Hair also presented the

transportation charge under an aiding and abetting theory,



                                 12
United States v. Navrestad, No. 07-0199/AR

arguing that by sending the hyperlink, Hair had assisted Yahoo!

in transporting child pornography, id. at 884; the Government

did not present an aiding and abetting theory on Navrestad’s

distribution charge;11 the hyperlink Hair sent was to his own

Briefcase over which he exercised dominion and control, id. at

883; the hyperlink Navrestad sent was to a public Briefcase over

which he exercised no dominion or control.12

     We hold that under the facts of this case, the sending of a

hyperlink to a Yahoo! Briefcase does not constitute the

distribution of “child pornography” as that term is defined in

18 U.S.C. § 2256(5) and (8).

Possession of Child Pornography

     We next address whether the evidence is legally sufficient

to support a conviction of possession of child pornography under

Article 134, UCMJ, clause 1 or 2.      Both parties point to the

definition of “possess” contained in the Explanation to Article

112a, UCMJ, 10 U.S.C. § 912a (2000), which deals with the

possession of controlled substances:

11
  An appellate court may not affirm a conviction on a theory not
presented to the trier of fact. Chiarella v. United States, 445
U.S. 222, 236-37 (1980); United States v. Riley, 50 M.J. 410,
415 (C.A.A.F. 1999); United States v. Standifer, 40 M.J. 440,
445 (C.M.A. 1994). “To do so ‘offends the most basic notions of
due process,’ because it violates an accused’s ‘right to be
heard on the specific charges of which he [or she] is accused.’”
United States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999)
(quoting Dunn v. United States, 442 U.S. 100, 106 (1979)).




                                  13
United States v. Navrestad, No. 07-0199/AR

     “Possess” means to exercise control of something.
     Possession may be direct physical custody like holding
     an item is [sic] one’s hand, or it may be
     constructive, as in the case of a person who hides an
     item in a locker or car to which that person may
     return to retrieve it. Possession must be knowing and
     conscious. Possession inherently includes the power
     or authority to preclude control by others. It is
     possible, however, for more than one person to possess
     an item simultaneously, as when several people share
     control of an item.

MCM pt. IV, para. 37.c.(2).   This court has also evaluated

constructive possession in the drug context as having “dominion

or control” over the contraband.     Young, 64 M.J. at 407.    The

United States Court of Appeals for the Tenth Circuit has applied

that same definition to possession of child pornography, noting

the absence of a definition in the CPPA.    United States v.

Tucker, 305 F.3d 1193, 1204 (10th Cir. 2002).

     While Navrestad concedes that he viewed the images on the

public computer monitor, he argues that mere viewing does not

constitute sufficient control to constitute “possession.”      In

support of this position he argues:    he could not download the

images from the public computer to a portable storage device;

he did not have access to any of the files stored on the

computer’s hard drive; he had no control over the Yahoo!

Briefcase where the images were located; and while he could have

printed or e-mailed the images, there is no evidence that he did


12
  The Army Criminal Investigation Command found no images of
child pornography in Navrestad’s own Yahoo! Briefcase over which
he did exercise control.

                                14
United States v. Navrestad, No. 07-0199/AR

so.   The Government argues that Navrestad’s actions are

sufficient to constitute possession:   he admittedly sought out

the images on the Internet; he viewed them on the computer

monitor; he had the ability to copy, print or e-mail the images

to others; and, he sent a hyperlink to the Yahoo! Briefcase that

contained the images to “Adam.”

      The definition in MCM pt. IV, para. 37.c.(2), provides that

“[p]osses[sion] means to exercise control of something.”

Navrestad viewed the images in the Yahoo! Briefcase, but his

actions with the images went no further.   He could not access

the computer’s hard drive where the Briefcase images were

automatically saved nor could he download the images to a

portable storage device.   There is no evidence that he e-mailed,

printed or purchased copies of the images or that he was even

aware that he could take any of these actions.   As to what

Navrestad might have been able to do with the images,

“possession” is not based upon unknown contingencies but “must

be knowing and conscious.”   MCM pt. IV, para. 37.c.(2).

      While MCM pt. IV, para. 37.c.(2), provides that

“[p]ossession inherently includes the power or authority to

preclude control by others[,]” Navrestad did not have the

ability to control who else would have access to the contents of

the Briefcases he was viewing.    Finally, as we have held that

sending a hyperlink during a chat session to a Yahoo! Briefcase



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United States v. Navrestad, No. 07-0199/AR

that contains child pornography does not constitute

“distribution” of child pornography, the fact that Navrestad

sent the hyperlink does not reflect “dominion” or “control” over

the child pornography images in the Briefcase.     In this context,

viewing alone does not constitute “control” as that term is used

in MCM pt. IV, para. 37.c.(2).

     The Government relies on several federal circuit court

decisions to support its argument that Navrestad’s actions in

this case constituted sufficient dominion and control over the

images to constitute possession.      See United States v. Romm, 455

F.3d 990 (9th Cir. 2006); Tucker, 305 F.3d 1193.      These cases

involve “possession” of child pornography under the CPPA.     The

pivotal distinction between those cases and the instant case is

that both the circuit court cases involve images of child

pornography that had been saved to “temporary internet files” of

the defendant’s personal computers and the defendants in both

cases knew that the images were stored on their computers and

had ready access to the files.   Romm, 455 F.3d at 1001; Tucker,

305 F.3d at 1205.   In this case the Government has agreed that

while the Internet café computer saved the Yahoo! Briefcase

websites to a temporary Internet file, those files were not

accessible by Navrestad.   In addition, there was no evidence at

trial that Navrestad had any knowledge that the images were even

being saved on the café computer.



                                 16
United States v. Navrestad, No. 07-0199/AR

      We hold that under the facts of this case, Navrestad

lacked the dominion and control necessary to constitute

“possession” of the child pornographic images.

                           Conclusion

     As Navrestad’s actions are legally insufficient to support

a conviction for possession or distribution of child

pornography, the findings of the United States Army Court of

Criminal Appeals as to Specifications 4 and 5 are set aside.13

The remaining findings are affirmed.    The record of trial is

returned to the Judge Advocate General of the Army for remand to

the United States Army Court of Criminal Appeals for sentence

reassessment.




13
     There is no question that sexual crimes against minors
     and the area of child pornography encompass a variety
     of despicable crimes for which society has justifiably
     proscribed serious penalties. We should not, however,
     allow our disgust for [Navrestad’s] actions color our
     judgment in evaluating the legal sufficiency of the
     charges.

United States v. Hays, 62 M.J. 158, 170 (C.A.A.F. 2005)
(Erdmann, J., concurring in part and dissenting in part).

                               17
United States v. Navrestad, No. 07-0199/AR


     EFFRON, Chief Judge, with whom STUCKY, Judge, joins
(dissenting):

     Appellant accessed child pornography on the Internet,

personally selected specific sets of images for transmission to

a designated recipient, and used a hyperlink to transmit the

images to the recipient.    The majority opinion concludes that

the record does not provide a legally sufficient basis for

sustaining Appellant’s convictions for distribution and

possession of child pornography.    For the reasons set forth

below, I respectfully dissent.



           I.   APPELLANT’S POSSESSION AND DISTRIBUTION OF
                   CHILD PORNOGRAPHY ON THE INTERNET

     Appellant’s experience with child pornography on the

Internet commenced more than two years prior to the events at

issue in the present appeal.    He regularly accessed child

pornography on the Internet, usually about once a week.

     Appellant, who did not own a computer, had an account at an

Internet cafe located on a military installation in Vilseck,

Germany.   During one of his on-line sessions at the Internet

cafe, Appellant accessed a website known as a “Yahoo! chat room”

that specialized in conversations involving persons purporting

to be sexually active, underage males.    The chat room provided

an opportunity for a person to engage in a one-on-one written
United States v. Navrestad, No. 07-0199/AR


communication with another individual that would not be visible

to others.

     Appellant initiated a communication with an individual

whose profile indicated that he was a fifteen-year-old boy named

“Adam” who lived in New Hampshire.   Appellant, who engaged in a

discussion of sexual matters with “Adam,” offered to send

pictures if “Adam” would engage in “phone sex.”   Through the

chat room, Appellant transmitted a hyperlink to “Adam” for an

Internet site known as a “Yahoo! Briefcase.”   “Adam,” who was a

New Hampshire police officer, clicked on the briefcase, which

contained eight sexually explicit pictures.

     Appellant and “Adam” had added one another to their “buddy

lists,” which provided an on-screen indication as to whether

named persons were available for communicating in the chat room.

Several days later, Appellant returned to the Internet cafe,

logged onto a computer, accessed the chat room, and initiated

communication with “Adam.”   In response to Appellant’s request

to engage in phone sex, “Adam” asked Appellant to send pictures.

After further chat room conversation of a sexual nature,

Appellant sent “Adam” two new hyperlinks for locations

containing sexually explicit pictures.   He also transmitted the

hyperlink for the eight pictures he had shared during their

first online chat.




                                 2
United States v. Navrestad, No. 07-0199/AR


     The following week, Appellant initiated a third online chat

with “Adam.”   Once again, the conversation focused on sexual

matters, including Appellant’s sexual interest in “Adam’s”

younger brother, a fictitious person whom Appellant believed to

be a real twelve-year-old boy.   In response to “Adam’s” request

for pictures of “guys 10-14,” Appellant accessed a Yahoo!

Briefcase site that contained child pornography.   After he

viewed the pictures to confirm that they contained child

pornography, he sent the hyperlink for those sites to “Adam” via

a chat room conversation.   “Adam” promptly clicked on the

hyperlink, which revealed fifty-two pictures, the majority of

which depicted children under the age of eighteen engaged in

sexual acts and exhibition of genitalia.

     The undercover detective, who posed as “Adam,” testified

that the pictures appeared on his computer as soon as he clicked

on the hyperlink and selected the individual photographs listed

as image files in the Yahoo! Briefcase.    The detective explained

that the hyperlink provides a superior method of sending

pictures, as compared to sending files containing individual

pictures, noting that “you can send hundreds of pictures with a

single transmission, whereas if you actually send the individual

files, it’s going to take more time, and they have to be sent

one at a time.”




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United States v. Navrestad, No. 07-0199/AR


               II.   LEGAL SUFFICIENCY OF THE EVIDENCE

     The present appeal concerns Appellant’s convictions for

distributing and possessing child pornography, as modified and

affirmed by the Court of Criminal Appeals.     The standard for

legal sufficiency involves a very low threshold to sustain a

conviction.    See Jackson v. Virginia, 443 U.S. 307, 318 (1979).

As noted in the majority opinion, the standard 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. Navrestad, __ M.J. __ (6) (C.A.A.F. 2008) (quoting United

States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006)).

                           A.   Distribution

     As affirmed by the Court of Criminal Appeals, Appellant was

convicted of distributing child pornography in violation of

Article 134, UCMJ, 10 U.S.C. § 934 (2000) (proscribing conduct

that is service discrediting or prejudicial to good order and

discipline).   Assuming that the distribution charge incorporated

the terms of 18 U.S.C. § 2252A(a)(2) (2000), see Navrestad, __

M.J. at __ (3 n.3), Appellant must demonstrate on appeal that

the evidence was insufficient to convince a reasonable

factfinder that he knowingly distributed “child pornography” or

“material that contain[ed] child pornography,” and that he did

so “by any means, including by computer.”      The term “child


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United States v. Navrestad, No. 07-0199/AR


pornography,” which is not limited to images or pictures,

includes “data stored on computer disk or by electronic means

which is capable of conversion into a visual image.”   18 U.S.C.

§ 2256(5), (8) (2000).

     In the present appeal, Appellant does not contest that he

was familiar with the procedures for accessing child pornography

on the Internet, that he knowingly accessed several sites on the

Internet in response to another person’s request to receive

child pornography, or that he knowingly selected specific images

for viewing by the recipient.   Further, he does not contest that

he knowingly transmitted hyperlinks to the recipient in response

to the request for child pornography, or that he knew that his

action in transmitting the hyperlinks would provide the

recipient with near-instantaneous views of the specific child

pornography images selected by Appellant.

     Appellant’s claim on appeal is that the evidence is

insufficient as a matter of law because transmission of a

hyperlink, a path to a website, does not meet the statutory

criteria for the offense of distribution.    According to

Appellant, the hyperlink in the present case was not capable of

conversion into child pornography because the recipient could

not access the pornography through a one-step click on the

hyperlink.   Appellant relies on the fact that the recipient of

the hyperlink had to take two steps to view the pornography:


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United States v. Navrestad, No. 07-0199/AR


first, click on the briefcase to access the briefcase, and

second, click on a specific file in the briefcase to view the

child pornography.

      The United States Court of Appeals for the Second Circuit,

in Universal City Studios, Inc. v. Corley, 273 F.3d 429, 456 (2d

Cir. 2001), encountered a similar objection when addressing the

issue of improper trafficking of copyrighted material under the

Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 1201-1332

(Supp. V 1999).   In Corley, the district court issued an

injunction prohibiting a company from posting software on its

website that facilitated improper access to copyrighted

materials through pirating software.    Corley, 273 F. 3d at 434-

35.   The company also posted hyperlinks to other websites where

the pirating software could be found.   Id.

      In affirming the injunction against a variety of

challenges, including First Amendment considerations, the Second

Circuit offered the following description of the manner in which

a hyperlink permits distribution of restricted information:

      A hyperlink is a cross-reference (in a distinctive
      font or color) appearing on one web page that, when
      activated by the point-and-click of a mouse, brings
      onto the computer screen another web page. The
      hyperlink can appear on a screen (window) as text,
      such as the Internet address (“URL”) of the web page
      being called up or a word or phrase that identifies
      the web page to be called up, for example, “DeCSS web
      site.” Or the hyperlink can appear as an image, for
      example, an icon depicting a person sitting at a
      computer watching a DVD movie and text stating “click


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United States v. Navrestad, No. 07-0199/AR


      here to access DeCSS and see DVD movies for free!”
      The code for the web page containing the hyperlink
      includes a computer instruction that associates the
      link with the URL of the web page to be accessed, such
      that clicking on the hyperlink instructs the computer
      to enter the URL of the desired web page and thereby
      access that page. With a hyperlink on a web page, the
      linked web site is just one click away.

Id. at 455.

      The Second Circuit agreed with the district court’s

conclusion that the DMCA, including statutory prohibitions

against trafficking, should apply to hyperlinks because of the

“functional capability” of the hyperlink even though the

hyperlink was merely a path rather than an actual version of the

pirating software.   Id. at 456.   Although the hyperlink did not

literally contain the pirating software, the Second Circuit

observed, “[a hyperlink] conveys information, the Internet

address of the linked web page, and has the functional capacity

to bring the content of the linked web page to the user’s

computer screen.”    Id.

      As in the present case, the appellants in Corley contended

that a hyperlink should be treated as merely publication of an

address at which a third party might obtain prohibited material.

Id.   The Second Circuit rejected the analogy, stating:


      Appellants ignore the reality of the functional
      capacity of . . . hyperlinks to facilitate
      instantaneous unauthorized access to copyrighted
      materials by anyone anywhere in the world. . . .
      [T]he injunction’s linking prohibition validly


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United States v. Navrestad, No. 07-0199/AR


       regulates the Appellant’s opportunity instantly to
       enable anyone anywhere to gain unauthorized access to
       copyrighted movies on DVDs.

Id. at 457.

       The Second Circuit emphasized that hyperlinks take one

“‘almost instantaneously to the desired destination.’”     Id. at

456.   Unlike a website address printed in the newspaper

describing where to find child pornography, a hyperlink provides

a means to transmit the content of the website to the user’s

computer.   The recipient’s ability to access and use images

transmitted by hyperlink is functionally indistinguishable from

the ability to access and use images transmitted as individually

saved files.

       In that context, the Second Circuit also rejected the

company’s suggestion that providing a hyperlink to a website

should be analogized to a newspaper publishing the address of a

bookstore that carries obscene materials.    Id. at 456-57.

Focusing on the instantaneous distribution that occurs when a

website is accessed via a hyperlink:

       Like many analogies posited to illuminate legal
       issues, the bookstore analogy is helpful primarily in
       identifying characteristics that distinguish it from
       the context of the pending dispute. If a bookstore
       proprietor is knowingly selling obscene materials, the
       evil of distributing such materials can be prevented
       by injunctive relief against the unlawful distribution
       (and similar distribution by others can be deterred by
       punishment of the distributor). And if others publish
       the location of the bookstore, preventive relief
       against a distributor can be effective before any


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United States v. Navrestad, No. 07-0199/AR


     significant distribution of the prohibited materials
     has occurred. The digital world, however, creates a
     very different problem. If obscene materials are
     posted on one web site and other sites post hyperlinks
     to the first site, the materials are available for
     instantaneous worldwide distribution before any
     preventive measures can be effectively taken.

Id. at 457.

     The Second Circuit’s functional treatment of distribution

of information via hyperlinks in the context of the highly

sensitive First Amendment considerations applicable to copyright

litigation is consistent with the testimony developed during

Appellant’s trial.   Witnesses for the Government established

that a hyperlink provided an efficient means of distributing

photographic images.   One witness testified that although images

can be distributed numerous ways, use of a hyperlink is

“streamlined.”   One click on the hyperlink brought the recipient

directly to the website, along with access to any files and

digital images located at that website.   Through the hyperlink,

Appellant distributed child pornography by electronic means

capable of conversion into images within the meaning of the

statute, 10 U.S.C. §§ 2256(5), (8), and accomplished his

distribution in a manner far more expeditious and efficient than

if he had done so through traditional mail or by attaching

individual files to an e-mail.

     There may well be situations in which the use of a

hyperlink falls outside of the proscriptions of the CPPA.    The


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United States v. Navrestad, No. 07-0199/AR

present case, however, does not involve unknowing or inadvertent

transmission, nor does it concern communications arguably

protected by the First Amendment or other applicable law.

Appellant used a hyperlink to send “Adam” fifty-two images of

child pornography -- images that the recipient could access with

a simple click on the hyperlink, followed by a click on the

individual images.   Law enforcement officials testified that the

images included photographs of actual children who had been

sexually abused and photographed by adults.   Accordingly, the

evidence was legally sufficient to sustain Appellant’s

conviction for distribution of child pornography.

                          B.   Possession

     Appellant contends that he did not possess child

pornography because possession entails more than viewing or

storage on a temporary Internet file.   Assuming that mere

viewing through a medium in which images are stored on a

temporary file does not amount to possession, the present case

is not so limited.   Appellant knowingly accessed a child

pornography website for purposes of transmitting images to

another person.   After he accessed the website displaying the

images, he used hyperlinks to capture specific images, and

transmitted the images via the hyperlinks to another party.   The

fact that others may have had the ability to access the website

as well does not diminish the fact that Appellant exercised


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United States v. Navrestad, No. 07-0199/AR

sufficient dominion and control over the images to select

personally the pictures he wished to transmit, and to take the

necessary steps to distribute the pictures to a specific

recipient selected by Appellant without interference or control

by another person.   In that context, the record contains ample

evidence under which a reasonable factfinder could conclude that

he possessed child pornography in a manner that was either

service discrediting or prejudicial to good order and discipline

under Article 134, UCMJ.




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