              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      ARNOLD C. KAMARA
            GUNNERY SERGEANT (E-7), U.S. MARINE CORPS

                           NMCCA 201400156
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 5 December 2013.
Military Judge: LtCol Eugene H. Robinson, Jr., USMC.
Convening Authority: Commanding General, 1st MAW, Okinawa,
Japan.
Staff Judge Advocate's Recommendation: Maj J.M. Hackel,
USMC.
For Appellant: Maj Jason R. Wareham, USMC.
For Appellee: Capt Matthew M. Harris, USMC; LT James M.
Belforti, JAGC, USN.

                              21 May 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A panel comprised of both officer and enlisted members
sitting as a general court-martial convicted the appellant,
contrary to his pleas, of two specifications of possession of
child pornography, in violation of Article 134, Uniform Code of
Military Justice, 10 U.S.C. § 934. The members sentenced the
appellant to confinement for ten years and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged and ordered it executed. 1

     The appellant now raises three assignments of error (AOEs):

     1. that the appellant’s conviction should be
     overturned because a general verdict cannot be upheld
     when the evidence offered to support the charge also
     includes constitutionally protected content;

     2. that the appellant’s conviction for possessing 14
     DVDs containing child pornography cannot be sustained
     without amendment since one of the DVDs is not
     viewable; and,

     3. that the files recovered from “unallocated space”
     are legally and factually insufficient to sustain the
     appellant’s conviction.

     After careful consideration of the record of trial and the
submissions of the parties, we find merit in the appellant’s
second and third AOEs. We will grant relief in our decretal
paragraph. We are convinced the findings as amended and the
sentence are correct in law and fact and that no error material
prejudicial to the substantial rights of the appellant remains.
Arts. 59(a) and 66(c), UCMJ.

                             Background

     On 8 November 2012, an agent of the Naval Criminal
Investigative Service (NCIS) executed a valid search
authorization in the appellant’s workplace and residence. He
seized a laptop computer, an external hard drive labeled “G
drive,” a tower computer, an Iomega external hard drive, and
several thumb drives. These devices contained video clips and
images of both adults and children engaged in sexual activity.
The NCIS agent also retrieved a safe from the appellant’s
residence; inside were 14 DVDs allegedly containing child
pornography.

     The contraband uncovered in the appellant’s possession
depicted children as young as five engaging in oral, vaginal,
and anal sex, as well as digital and object penetration of their
vaginas and anuses. While some of the evidence also depicted
1
  To the extent the CA’s action purports to execute the dishonorable
discharge, it is a legal nullity. United States v. Bailey, 68 M.J. 409
(C.A.A.F. 2009).
                                     2
adult pornography and nudist images, the agent estimated at
trial that approximately 70% of the images found were child
pornography. Record at 459.

     Specification 1 of the Charge was based upon images
allegedly found on the “external hard drives, computers, and
thumb drives.” Charge Sheet. The “G drive” contained these
images as saved files. The images found on the other devices
were located in “unallocated space.” 2 The second specification
concerned the 14 DVDs. The members received all of the
electronic evidence, but it is unknown which DVDs or CDs they
viewed during deliberations. One of the DVDs, Prosecution
Exhibit 16, will no longer open for viewing.

     Prior to closing arguments, the military judge properly
instructed the members, inter alia, on the definitions of “child
pornography,” “sexually explicit conduct,” and “lascivious.”
Record at 661-62. He instructed that the evidence must go
beyond mere child nudity, and must be “sexually suggestive” and
“designed to elicit a sexual response in the viewer.” Id. at
662. During argument, trial counsel acknowledged that there was
adult pornography mixed in with the child pornography, and urged
the members to appropriately distinguish between the two when
reaching a decision. Id. at 692-94. The members returned a
general verdict of guilt without specifically indicating which
pieces of evidence they relied upon to reach their decision.

       Other facts necessary to address the assigned errors will
be provided below.

                              General Verdict

     Relying on United States v. Barberi, 71 M.J. 127 (C.A.A.F.
2012), the appellant contends that his conviction should be
overturned because the members returned a general verdict where
the evidence presented contained both child pornography and
constitutionally protected material (adult pornography and non-
prurient nudist pictures). He claims that, given the
possibility the members may have based their verdict on
constitutionally protected images, this court cannot affirm the
conviction.



2
  “Unallocated Space” was defined by the Government’s expert as that portion
of a disc drive “not currently occupied by file in the systems” and which
“often retains information that was previously in a file that has since then
been deleted.” Record at 587.
                                      3
     We may have found merit in this argument if Barberi was
still an accurate reflection of the law. In United States v.
Piolunek, 74 M.J. 107, No. 14-0283 & 14-5006, 2015 CAAF Lexis
313 at *3, (C.A.A.F. Mar. 26, 2015), the Court of Appeals for
the Armed Forces (CAAF) held that Barberi “was wrongly decided.”
In Piolunek, which, like the instant case, dealt with a general
verdict where the evidence contained both proscribed and
constitutionally protected material, the CAAF “recognize[d] that
properly instructed members are well suited to assess the
evidence and make the . . . factual determination . . . whether
an image does or does not depict the genitals or pubic region,
and is, or is not, a visual depiction of a minor engaging in
sexually explicit conduct.” Id., at *8. Furthermore, “[A]bsent
an unconstitutional definition of criminal conduct, flawed
instructions, or evidence that members did not follow those
instructions . . . there is simply no basis in law to upset the
ordinary assumption that members are well suited to assess the
evidence in light of the military judge’s instructions.” Id.,
at *3-4.

     Here, the prosecution offered hundreds of images and videos
to prove the appellant possessed child pornography. While there
was some amount of constitutionally protected content mixed in
with the contraband, there is no reason to second-guess the
ability of the members to distinguish between the two when
reaching a verdict, particularly when the record shows that the
military judge instructed them properly and trial counsel
cautioned the members to be careful in making the distinction.
Accordingly, we are confident that the members were able to
properly identify child pornography and distinguish it from
other content.

                       Malfunctioning DVD

     Although not styled as such, the appellant’s second AOE is
a question of whether the record of trial is incomplete. This
is a matter of law we review de novo. United States v. Henry,
53 M.J. 108, 110 (C.A.A.F. 2000). “A substantial omission
renders a record of trial incomplete and raises a presumption of
prejudice that the Government must rebut.” Id. at 111
(citations omitted).

     We find our inability to view Prosecution Exhibit 16 to be
tantamount to the DVD being missing from the record, and we find
this “omission” to be substantial. Article 66, UCMJ, states
that this court “may affirm findings of guilty and the sentence
or such part or amount of the sentence, as it finds correct in

                                4
law and fact and determines, on the basis of the entire record,
should be approved.” The contents of Prosecution Exhibit 16 go
to the very heart of the charged misconduct. Without the
ability to view the exhibit, we cannot determine whether it did
indeed contain child pornography.

     In its Answer, the Government claims any prejudice is
remedied by the fact it provided this court with copies of all
14 DVDs admitted at trial, including Prosecution Exhibit 16. We
cannot agree, as we are unable to discern which of the images in
the copies reflect those contained in Prosecution Exhibit 16.
The Government also argues that the pictures on the DVD wrapper
are sufficient to show that Prosecution Exhibit 16 contains
images of child pornography. The pictures are small and of very
poor quality. Even if we could find an adequate connection
between the wrapper images and the contents of the DVD, the
wrapper’s pictures do not clearly depict child pornography.

     As there is no other substitute for, or sufficient
description of, the unviewable DVD, we find the Government has
failed to rebut the presumption of prejudice. Accordingly, we
cannot affirm a finding of guilt to the specification insofar as
it alleges the appellant possessed 14 DVDs containing child
pornography.

                   Files in Unallocated Space

     The appellant claims that his conviction of Specification 1
cannot stand as it is based, in part, on files extracted from
the unallocated space on the Iomega hard drive, and the
Government failed to prove he knowingly possessed those files.
We agree, but only to the extent the specification alleges
knowing possession of child pornography images on any electronic
device other than the “G drive” external drive.

     We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). The test for legal sufficiency is whether any rational
trier of fact could have found that the evidence met the
essential elements of the charged offense, viewing the evidence
in a light most favorable to the Government. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987); United States v. Reed,
51 M.J. 559, 561-62 (N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37
(C.A.A.F. 2000).   The test for factual sufficiency is whether
we are convinced of the appellant’s guilt beyond a reasonable
doubt, allowing for the fact that we did not personally observe
the witnesses. Turner, 25 M.J. at 325.

                                5
1.   The Images

     At trial, the Government’s expert testified she reviewed 25
images provided by the NCIS agent. Of those, 19 were in saved
files on the appellant’s “G drive” external drive. The
remaining six were located in unallocated space on the Iomega
external drive. The expert also located possible images of
child pornography in unallocated space on one thumb drive and
the laptop computer. Using evidence of search terms used on 18
September 2012, the expert was able to link the images on the “G
drive” to the laptop computer. She was also able to show that
the “G drive” and Iomega drives were at some point connected to
the laptop. However, due to her inability to discern the
filenames of the images in unallocated space on the Iomega
drive, the expert could not say when or whether these files were
accessed.

2.   Legal Sufficiency

      The elements of possessing child pornography, as charged in
the present case, are: (1) that the accused knowingly and
wrongfully possessed child pornography; and, (2) that under the
circumstances, the conduct of the appellant was of a nature to
bring discredit upon the armed forces. MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.), Part IV, ¶ 68b. The Government charged
the appellant with possessing the child pornography in question
“between on or about 7 October 2012 and on or about 8 November
2012.” Charge Sheet.

     Viewing the evidence in the light most favorable to the
Government, we find that the testimony of the NCIS agent and the
Government’s computer forensic expert, as well as the images
contained in Prosecution Exhibit 1, support a finding that the
appellant knowingly possessed child pornography in files found
on his “G drive” external drive when it was seized on 8 November
2012. Thus, we find the evidence to be legally sufficient for
the images on that electronic device.

     We cannot do the same with regards to images found on the
other devices. The CAAF has recognized that “knowing
possession” as it relates to child pornography means “‘to
exercise control of something.’” United States v. Navrestad, 66
M.J. 262, 267 (C.A.A.F. 2008) (quoting MCM, Part IV, ¶ 37c(2)).
Here, the Government’s expert testified she would be unable to
view the files found in unallocated space without using some
sort of forensic device. The Government presented no evidence
to show the appellant possessed or knew how to use such a

                                6
forensic device. Thus, the existence of the images in
unallocated space on the thumb drives, IOMEGA external drive and
computers is, alone, legally insufficient to prove the appellant
exercised “dominion and control” over the files on the date NCIS
seized these devices. Id.; see United States v. Kuchinski, 469
F.3d 853, 862 (9th Cir. 2006) (holding that in situation in
which “a defendant lacks knowledge about the cache files, and
concomitantly lacks access to and control over those files, it
is not proper to charge him with possession and control of the
child pornography images located in those files, without some
other indication of dominion and control over the images. To do
so turns abysmal ignorance into knowledge and a less than
valetudinarian grasp into dominion and control”).

     We find no other evidence in the record to overcome this
shortcoming. While the record includes circumstantial evidence
indicating the appellant downloaded these images, this evidence
does nothing to show the appellant “knowingly possessed” the
image during the period charged. See United States v. Flyer,
633 F.3d 911, 919-20 (9th Cir. 2011) (citing Navrestad and
holding that evidence was legally insufficient to prove knowing
possession of child pornography in his computer’s unallocated
space on or about the date charged in the indictment). The
Government charged a specific, month-long period during which
the appellant allegedly possessed child pornography. However,
they produced no evidence to indicate when the appellant
accessed the images found in unallocated space. Accordingly, we
find the evidence to be legally insufficient to prove the
appellant knowingly and wrongfully possessed images depicting
child pornography on any devices other than the “G drive”
external hard drive.

3.   Factual sufficiency

      Based on a careful review of the record, we are convinced
beyond a reasonable doubt both that the appellant knowingly
possessed child pornography on the “G drive” external hard drive
and that such possession was of a nature to bring discredit upon
the armed forces.

                       Sentence Reassessment

     We find no reason to alter the appellant’s punishment in
this case. Setting aside one of the 14 DVDs and the images
found in unallocated space does not dramatically alter the
sentencing landscape. See United States v. Buber, 62 M.J. 476
(C.A.A.F. 2006). The remaining evidence includes many dozens of

                                 7
videos involving young children engaging in sexual activity.
The nature and gravity of the offenses has not changed. There
is no lessening of the appellant’s punitive exposure. Applying
the analysis set forth in United States v. Sales, 22 M.J. 305
(C.M.A. 1986), United States v. Moffeit, 63 M.J. 40 (C.A.A.F.
2006), and United States v. Cook, 48 M.J. 434, 438, (C.A.A.F.
1998), we are convinced the members would have imposed the same
sentence in the absence of the fourteenth DVD and unallocated
space images, and find that the sentence imposed is appropriate.

                           Conclusion

     Accordingly, the finding as to the charge is affirmed. The
finding as to Specification 1 is affirmed, excepting the words
“external hard drives, computers and thumb drives,” substituting
therefore the words “his ‘G drive’ external hard drive.” The
finding as to Specification 2 is affirmed, excepting the numeral
“14” and substituting therefor the numeral “13.” The sentence
as approved by the CA is affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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