United States v. Sergeant RYAN M. GORSKI

71 M.J. 729, 2012 WL 6772103, 2012 CCA LEXIS 916
CourtArmy Court of Criminal Appeals
DecidedDecember 19, 2012
DocketARMY 20100480
StatusPublished
Cited by8 cases

This text of 71 M.J. 729 (United States v. Sergeant RYAN M. GORSKI) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sergeant RYAN M. GORSKI, 71 M.J. 729, 2012 WL 6772103, 2012 CCA LEXIS 916 (acca 2012).

Opinions

OPINION OF THE COURT

BURTON, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of two specifications of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(A) (2006), one specification of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2) (2006), two specifications of transporting child pornography in violation of 18 U.S.C. § 2252A(a)(l) (2006), and one specification of obstructing justice, each in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for thirty months, and reduction to the grade of E-l. The convening authority approved only fifteen months of appellant’s sentence to confinement in accordance with appellant’s pretrial agreement and approved the remainder of the sentence as adjudged.

This case is before the court for review under Article 66, UCMJ. We have considered the record of trial, appellant’s assignments of error, the government’s answer, and the matters discussed during oral argument. We find a substantial basis in law and fact for questioning appellant’s plea to distribution of child pornography and will provide relief in our decretal paragraph.

BACKGROUND

Specification 3 of The Charge alleged the following offense:

In that Sergeant (E — 5) Ryan M. Gorski, U.S. Army, did, between on or about 27 May 2008 and on or about 25 June 2009, at or near Fort Drum, New York, a place under exclusive or concurrent federal jurisdiction, knowingly distribute, by making available for downloading from his personal computer by another, via a peer-to-peer file sharing network, fifteen (15) images and seventeen (17) video files of visual depictions of minors engaging in sexually explicit conduct, conduct using a means and facility of interstate commerce, in violation of 18 USC § 2252A(a)(2), such conduct being prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.

At the beginning of appellant’s plea, the military judge recognized that a potential issue existed with the term “distribution” as it related to Specification 3 of The Charge. In fact, the military judge detailed on the record the discussion he had with the parties during Rule for Courts-Martial [hereinafter R.C.M.] 802 sessions. The military judge noted that United States v. Christy, 65 M.J. 657 (Army Ct.Crim.App.2007), “appears to hold that merely putting those images in a shared file that goes out through the Lime-Wire process constitutes enough for delivery and that you don’t need any actual delivery under the CPPA [Child Pornography Prevention Act] to have distribution.” The military judge then stated that United States v. Craig, 67 M.J. 742 (N.M.Ct.Crim.App.2009), “holds otherwise.” The military judge next stated that United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F.2009), “appears to indicate that Christy may be wrong here.” Finally, the military judge noted “that there is no controlling authority that says that Christy is inaccurate or has been overturned in any way [and] [t]he court believes it’s bound by U.S. v. Christy in its holding.” The military judge concluded his recap of the R.C.M. 802 sessions by stating that he would “use the common definition of distribution, which is that which is in the Manual for Courts-Martial.”

When the military judge asked the trial counsel to announce the general nature of the charges, the trial counsel replied that one specification involved “distribution of child pornography in violation of 18 United States Code, Section 2252 Alpha.” Later on during the providence inquiry, the military judge informed appellant of the elements of Specification 3 of The Charge, and asked appellant how did he “attempt to distribute those images?” Appellant responded that the images “were available for download in [his] share[d] folder that was created on the — from the [732]*732LimeWire program....” The military judge then defined “distribution” for appellant, and advised that “ ‘[distribute’ means to deliver to the possession of another.” The military judge later clarified that “the way [appellant] distributed these images and videos was [appellant] made them available to be downloaded [from appellant’s] shared file[J”

Appellant explained to the military judge how images and videos could be obtained from his LimeWire shared folder:

What it was, sir, is once the — once I downloaded a video off the program, it automatically went into the shared file, which then, if somebody on the network anywhere in the world wanted to download that same file, they could just — the system would automatically go into my file and pull it out and download it to their computer.

Appellant later confirmed that he knew others could download images and videos containing child pornography from his Lime-Wire shared folder. Appellant also admitted that he could have removed the contraband files from his shared folder, which would have precluded others from accessing and downloading them. Appellant stated that he intentionally left files containing child pornography in his shared folder.

Ultimately, appellant did not know if another user downloaded any files containing child pornography from him:

MJ: Now, you don’t know, as you sit here, that someone actually downloaded those videos from your shared file; is that correct?
Acc: Roger, sir.
MJ: But you believe it’s possible—
Acc: Yes, sir.
MJ: —that they’re out there and they could have been downloaded?
Acc: Yes, sir.
MJ: And I guess the other way to put it is you don’t know that they weren’t downloaded from your shared file; is that correct?
Acc: Yes, sir.

Near the end of the providence inquiry, appellant reiterated that he knowingly distributed child pornography by allowing unknown persons access to contraband files from his shared folder.

As part of his pretrial agreement with the convening authority, appellant entered into a stipulation of fact. The stipulation of fact contained the following information pertinent to Specification 3 of The Charge:

A person interested in sharing child pornography with others in the P2P [peer-to-peer] network, need only place those files in his ‘shared’ folder. Those child pornography files are then available to all users of the P2P network for download regardless of their physical location. The accused accessed child pornography from others in the same way.
The accused made some of the images and videos depicting child pornography that he had downloaded from ‘Limewire’ available for other users to download by placing them in shared folders on both of his computers. At times, the accused left the ‘Limewire’ program on and available for others to access.

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Cite This Page — Counsel Stack

Bluebook (online)
71 M.J. 729, 2012 WL 6772103, 2012 CCA LEXIS 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sergeant-ryan-m-gorski-acca-2012.