United States v. Marchand

56 M.J. 630, 2001 CCA LEXIS 325, 2001 WL 1540729
U S Coast Guard Court of Criminal Appeals·Decided December 5, 2001·No. CGCMG 0149; Docket No. 1112·Published·Cited by 5 cases

Opinion

CASSELS, Judge:

Appellant was tried by a general court-martial composed of a military judge alone. Under a pretrial agreement, he pled guilty and was convicted of the following offenses: twenty-two specifications of violating a lawful general order by using a Coast Guard computer to access, view, download, transfer, modify, and store computer files that contained images depicting nudes, erotica, and sexually explicit conduct (Charge I); and six specifications of wrongfully and knowingly receiving visual depictions that had been transported interstate by computer of minors engaged in sexually explicit conduct, an act made criminal by 18 U.S.C. § 2252(a)(2) (Charge II); in violation of Articles 92 and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 934.

After finding that none of the charges or specifications were multiplicious for sentencing, the military judge sentenced Appellant to a reduction to pay grade E-3, confinement for ten months, and a bad conduct discharge. The trial judge recommended that Appellant’s confinement in excess of four months be suspended conditioned upon Appellant’s successful completion of a treatment program for paraphilia after release from the brig. Relevant provisions of the pretrial agreement required the convening authority to suspend Appellant’s confinement in excess of five months for a period of twelve months from the date sentence was adjudged. It also required that automatic forfeitures of $1,728.30 be deferred from the date that sentence was adjudged until the date of the convening authority’s action, and then be waived for a period of six months in favor of Appellant’s wife. In a post-trial session on 14 January 1999, the pretrial agreement was changed to suspend all confinement in excess of the time served, two months and fifteen days, for twelve months from the date that sentence was adjudged. The convening authority approved the sentence as adjudged but suspended all confinement in excess of two months and fifteen days for twelve months.

The facts are straightforward. Appellant was issued a Coast Guard laptop computer in the course of his official duties. He used this computer to surf the internet and visit sexually explicit websites. As Appellant was preparing to leave the service, he returned the computer to his unit, where it was discovered that he had used it to commit the offenses of which he was convicted, including violations of 18 U.S.C. § 2252(a)(2). This statute prohibits wrongfully and knowingly receiving visual depictions that have been transported interstate by computer of minors engaged in sexually explicit conduct.

Before this Court, Appellant has assigned one error, that the military judge abused his discretion and erred to Appellant’s substantial prejudice by admitting, over defense objection, government expert witness testimony outside the scope of Rule for Courts-Martial (RCM) 1001(b)(4) of the UCMJ. That rule sets forth the evidence in aggravation that the trial counsel may present during the [632] sentencing phase of the trial. In pertinent part, it reads:

The trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from, the offenses of which the accused has been found guilty. Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused____

RCM 1001(b)(4) (emphasis added).

The expert testimony at issue, introduced during the sentencing phase of the court-martial, described the impact of child pornography upon minors depicted in pornographic images. The expert witness had viewed some of the visual depictions that were the subject of the six specifications of Charge II, and had read the detañed stipulation of fact. The expert testified that the use of chñdren to make the pornographic images was an emotionally traumatic event for the chüd and was a form of sexual abuse. She testified that chñdren who are subjected to such sexual abuse were more likely to have behavioral problems, to develop personality disorders and substance abuse disorders, to have problems in school and with relationships, to suffer depression and a higher risk of suicide, and to develop psychiatric problems. She also testified that certain symptoms such as self-destructive behavior, social withdrawal, and feelings of shame, despair and hopelessness are more common in people who have suffered chñdhood sexual abuse. On cross-examination, the expert admitted that she neither knew who the chñdren in the images were or their ages, nor where, when, or under what circumstances the images were taken.

First, it is clear that the chñdren exhibited in the images which are the subject of the six specifications under Charge II were victims of those violations of 18 U.S.C. 2252(a)(2). See our recent opinion in United States v. LaBean, 56 M.J. 587 (C.G.Ct.Crim.App.2001). See also United States v. Rugh, 968 F.2d 750 (8th Cir.1992) (primary victim of receiving chüd pornography in violation of 18 U.S.C. § 2252(a)(2) is the exploited chüd). As noted in LaBean, the Court of Appeals for the Seventh Circuit recently examined this statute and determined that although society at large was a victim of this offense, the primary victims were the exploited children depicted in the pornographic images. United States v. Sherman, 268 F.3d 539 (7th Cir.2001). The Court of Appeals in Sherman stated:

The possession, receipt and shipping of chüd pornography directly victimizes the children portrayed by violating their right to privacy, and in particular violating their individual interest in avoiding the disclosure of personal matters____ Chñdren also suffer profound emotional repercussions from a fear of exposure, and the tension of keeping the abuse secret. Indeed, one of the reasons for criminalizing the “mere” possession of chüd pornography is to create an incentive for the possessor to destroy the material, and alleviate some of these harms to the children depicted____ Because the chñdren depicted in the pornography suffer a direct and primary emotional harm when another person possesses, receives or distributes the material, we join the six circuits that have concluded that these counts should not be grouped under [the provision of the sentencing guidelines]. Although society at large is also a victim of these crimes, the primary, identifiable victim is the chüd portrayed, who must live with the knowledge that adults like [Appellant] can pull out a picture or watch a video that has recorded the abuse of that child at any time.

Id. at 547-48 (citations omitted).

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United States v. Marchand, 56 M.J. 630, 2001 CCA LEXIS 325, 2001 WL 1540729 (uscgcoca 2001).

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