United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009) is a case about child pornography. The accused in the case posted a sexually explicit image of a child to his Yahoo! profile, which other users could access. This took place on or before 7 September 2000. He later enlisted in the Navy and he entered active duty on 21 June 2001. He re-enlisted on 20 June 2005. When active duty, the accused accessed his Yahoo! e-mail account, but did not alter his profile or modify the image on his profile. In an Immigration and Customs Enforcement (ICE) investigation into a child pornography website to which the accused had access using a paid membership, ICE recovered the appellant’s Yahoo! e-mail address. On 10 August 2006, an ICE agent accessed the account, viewed his profile and the image described above, and printed a hardcopy of the image. The accused removed the image from his profile on 28 June 2007. The accused was convicted, in relevant part, of one specification of distributing child pornography under 18 U.S.C. § 2252A(a)(2)(A), charged using Clause 3 of Art. 134. The Court had to consider two issues: Did the court-martial have jurisdiction over this offense of distributing an image of child pornography? More specifically, when did the alleged offense of “distribution of child pornography” occur in this case? The CAAF held that the court-martial had jurisdiction over the offense. Because the CPPA does not expressly define “distribute,” the Court considered three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions. Using these sources, under the CPPA, distribution of child pornography via the Internet consists of two acts: (1) the posting of the image, where the image left the possession of the original user, and (2) the delivery of the image, where another user accessed and viewed the image. In this case, the accused uploaded the image to his Yahoo! profile before his entry on active duty. The CAAF reasoned that the profile serves as a “’public bulletin board’ such that all Internet users can access information posted by the profile’s owner.” Although this was done before entering active duty, he used the account during active duty and could have removed the image. The offense of distribution occurred when he was on active duty when the ICE agent accessed and viewed the image that he had posted for others to view.
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