A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:

David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.

A U.S. soldier will spend more than two years in prison after a military judge found him guilty in a court-martial Tuesday of throwing a crowbar that struck a German motorcyclist in the head.

Stars & Stripes reports.

The sentence for an Air Force staff sergeant who raped three young girls he baby-sat in the Kaiserslautern community far exceeded those historically handed down for such crimes in military court, legal experts say.

In another development Stars & Stripes reports.

Air Force officials refused to say this week whether they believe there are more victims of convicted child rapist Staff Sgt. Joshua Adam Smith, saying that information could not be disclosed because the case is still open.

The Southeast Sun reports.

The court-martial of an Army soldier charged locally in connection with what is being described as a gruesome child pornography case could begin before the end of the year. Coffee County District Attorney Gary McAliley said an agreement was reached between Fort Rucker officials and his office that Sgt. Dustin Ray Hogan, 30, charged with 36 counts of possession of child pornography, will be tried by the military before facing trial in a civilian courtroom.

Medscape has an interesting look at MAJ Hasan’s case.

The final day of the prosecution’s presentation focused on evidence showing that Hasan began preparing and practicing months before the November 5 massacre. Such evidence of prior planning may undercut a possible insanity defense and could be significant if the US Army decides to seek the death penalty.

The News Tribune has a statement from SSG Gibb’s attorney that he won’t be prosecuted until all the others get immunity.

A top military official at Walter Reed Army Medical Center has been relieved of duty and charged with knowingly falsifying his personnel records. Command Sgt. Maj. Stoney Crump, the senior enlisted officer for the Medical Center Brigade, had the “intent to deceive” when he submitted a false official record incorrectly stating that he had attended several military educational courses, according to the Army charge sheet.

Army Times reports:

A major federal investigation has found that dozens of military officials and defense contractors, including some with top-level security clearances, allegedly bought and downloaded child pornography on private or government computers.

Here is a link to the Boston Globe article on this subject.

Many of those apprehended were swept up in a much broader probe initiated by the Immigration and Customs Enforcement agency in 2006. Operation Flicker identified an estimated 5,000 people who had paid money over the Internet to access websites operated overseas. But until now, it has not been disclosed that a sizable number of cases were referred to the Defense Department for investigation because they involved military personnel, intelligence officials, or defense contractors.

Army Times reports that:

An influential group of five senators has asked Army Secretary John McHugh to justify the Army’s decision to exonerate officers in command when the battle at Wanat, Afghanistan, left nine soldiers dead and 27 wounded.

Here is the granted issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT ACTS WITH A MINOR. Appellant was charged with two specifications of forcible sodomy with a child under the age of sixteen, in violation of Article 125, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 925 (2006), and convicted . . . of one count of sodomy with a child who had attained the age of twelve but was under the age of sixteen, and one count of indecent acts with a child, in violation of Articles 125 and 134, UCMJ, 10 U.S.C. §§ 925, 934 (2006), respectively.

The military judge allowed the prosecution to introduce suggestive file names under Mil. R. Evid. 414 and 404(b). No images connected to the file names could be recovered by DCFL. As anyone familiar with computer forensics knows, file names

The computer filenames were treated as synonymous with possession or attempted possession of child pornography, which, under the facts of this case, we conclude is not a “qualifying” offense under M.R.E. 414. Nor, under the facts of this case, were the filenames admissible under M.R.E. 404(b) – the prejudicial effect of the evidence substantially outweighs whatever marginal relevance and probative value these computer filenames have to the charged offenses.

An Army prosecutor Tuesday opened the trial of an Iraq war veteran by accusing him of the “ultimate betrayal” — raping a comrade’s wife. Spc. Philip C. Vermeiren, 28, is accused of assaulting the woman early Oct. 31 during an alcohol-fueled party at the Fort Carson apartment she shared with her husband. Defense attorneys countered that Vermeiren is guilty only of poor judgment — sharing a brief, consensual sexual encounter with the woman after other revelers had passed out drunk and her husband had stepped out to buy cigarettes.

tdtnews.com reports that:

A Fort Hood soldier who failed to deploy with his unit to Iraq in December 2007 will spend at least 27 days in the Bell County jail.

Navy Times reports that:

A senior chief from Carrier Strike Group 8 will serve 18 months in the brig after pleading guilty to possessing child pornography.

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.

The dissent says it all.

RYAN, J., with whom ERDMANN, J., joins (dissenting): I cannot agree with the continued dilution of the requirement that there be an actual, as opposed to an intuitive or a hypothetical, nexus between the evidence sought and the location to be searched. Compare United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009) (finding no probable cause to search suspect’s home because affidavit only stated that informant had purchased contraband from suspect and did not assert informant had ever been in suspect’s home), and United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005) (finding no probable cause because “the defendant’s status as a drug dealer, standing alone, [does not] give[] rise to a fair probability that drugs will be found in his home”), with United States v. Clayton, __ M.J. __ (12-13, 16) (C.A.A.F. 2010) (finding probable cause to search suspect’s residence despite no evidence linking child pornography to that location), United States v. Macomber, 67 M.J. 214, 219-20 (C.A.A.F. 2009) (same), and United States v. Gallo, 55 M.J. 418, 422 (C.A.A.F. 2001) (same). Absent such dilution, the magistrate’s finding of probable cause is not sustainable.

This would seem a certworthy issue.

Army authorities are now claiming that Galesburg soldier Spc. Billy Miller had [AP] on his computer as well as alleged [CP] . Miller’s tour in Afghanistan has been involuntarily extended by the army while it investigates charges of possession of [CP] and failing to obey a general order. . . . But now military officials say the failing to obey a general order charge relates to pornography involving adults found on the Illinois National Guard soldier’s computer. Soldiers are not allowed to possess pornography in Afghanistan[.]

Galesburg.com reports.

A child pornography charge and a related count filed against an Illinois Army National Guard soldier in Afghanistan do not stem from family photos of a young relative, a U.S. Army spokesman told The Associated Press on Tuesday. . . . “In this case however, it was important to set the record straight with regards to the photos of the (relative) being portrayed as evidence leading to [CP] charges in this case. They are not,” Clementson wrote.

Washington Post reports.

Court martial proceedings are beginning Tuesday at Fort Lewis for a soldier blamed for the drug overdose death of a 16-year-old girl in barracks at the Army base.

Seattle Times reports.

The court martial of Pvt. Timothy E. Bennitt began this morning with a twist, as the Fort Lewis soldier pleaded guilty to drug charges but not guilty to involuntary manslaughter in the death of a Lakewood teenager. . . . After some disagreement from prosecutors over the language of Bennitt’s plea, the court recessed to allow defense attorneys to refine and formalize their client’s plea.

The News Tribune reports.