CSAM images–sharing or broadcasting

In United States v. Grijalva, the Coast Guard court addresses whether a prosecution under Article 134(2) for sharing or broadcasting of another person is preempted by Article 117a, UCMJ.

The accused hacked into a female friend’s Snapchat account. He then downloaded various images of her from that account. He then created a fake Tinder account in that person’s name and put the photos he had gotten through the hacking on the account which were of course shared. He even made some money out of these acts. The idea was that for a fee he would set up a meeting with “her.”

He was convicted at court-martial because he knowingly, wrongfully, and without consent broadcast the images. In the process, he violated the person’s privacy interest which was likely to cause harm to her reputation, and emotional state, or cause embarrassment and harassment. The court did not address the idea that the victim had already shared the images on her Snapchat account so might have given up her right to privacy.

An element of Article 117a is that “under the circumstances, [there was] a reasonably direct and palpable connection to a military mission or military environment.” This phrasing is somewhat ambiguous and sounds like something that is prejudicial to good order and discipline or is service discrediting. This is something a military defense counsel should consider.

The court reviewed the law on preemption—which is found in the R.C.M. under Article 134. Generally, preemption arises when an Article 134 charge is identical to one found in Articles 80 through 132 of the UCMJ. For preemption to apply Congress had to be clear in limiting a prosecution defined in one of the Articles and there is a “residuum of elements” in the Article 134 charge.

The court next reviewed the legislative history of Article 117a and determined that the offense was intended to address only situations where a servicemember or veteran were the victims. In doing so, it held that prosecution where there was a civilian victim could not be maintained under the Article. With that, the court turned to the Article 134(2) allegation of which Gajalava had been convicted. The Article was Congress’s response to a spate of social media postings by a group of Marines.

The person in Gajalava was a civilian, and the sharing was done to others, which would include civilians.

In the process the court has devined a congressional intent to add a service-connection requirement for a prosecution under Article 117a—both the accused and the victim must be on active duty, in the Reserves, or a veteran. Keep in mind that a veteran includes anyone who has served in the military long enough to have been discharged at the end of the contract or served until retirement. That is a rather large pool of potential victims—there are millions serving or who are veterans. A retiree accused of such conduct should talk to an experienced military defense lawyer for ways in which to attack such a prosecution.

Remember, since Solorio v. United States, there is no Supreme Court dictate that a court-martial prosecution must have a service-connection. The Suprem Court overruled O’Callahan v. Parker and Relford v. Commandant to hold that a person’s military status was all that was needed to confer court-martial jurisdiction. For court-martial purposes anyone on active duty, on Reserve or National Guard orders, and a retiree is subject to court-martial. Thus, it is quite likely a court would hold that a retiree can be guilty of an Article 117a offense.

Interestingly, during the congressional discussions on enacting Article 117a the Department of Justice, in 2017, had recommended creating an enumerated offense under Article 134 in the Manual for Courts-Martial. The current Manual (2019) does not contain an enumerated offense.

That is partly why the charging decision was correct here. But, it is quite likely that Gajalava will petition the Court of Appeals for the Armed Forces to see if they will agree with him about the preemption issue. For the moment, Gajalava is good law for the Coast Guard and may be persuasive if a similar case has to be decided by the Army Court of Criminal Appeals, the Air Force Court of Criminal Appeals, or the Navy-Marine Corps Court of Criminal Appeals. It is quite possible that the CAAF will deny the petition.

Aggressive CSAM Defense Lawyers

There is perhaps nothing more traumatic than being accused of the possession, distribution, production or receipt of illegal pictures or videos. The lawyers of Cave & Freeburg, LLP, have many years of experience in successfully defending these cases and can help you every step of the way.

Allegations of having or distributing illegal images are difficult to defend due to the immense emotional and political responses they create within the public and with juries. But good and innocent people can be and often are charged with these offenses. Too often the rights of the Accused are ignored as people and prosecutors rush to judgment. But the military defense lawyers of Cave & Freeburg, LLP, are here for you.

Unlike with many other defense lawyers, pleading guilty is an option of last resort with Cave & Freeburg, LLP. When we take a case, we force the U.S. Attorneys to prove their case beyond a reasonable doubt. We take nearly every case to trial and fight the allegations in front of a jury of your peers. You and your future is our main concern. We will work on your case from day one, always fighting aggressively to save your future.

We cannot sugarcoat this. CSAM allegations are very serious. The federal law, 18 U.S.C. 2252, lays out a maximum punishment of up to 20 years in prison per charge, and, in many cases, a mandatory minimum sentence of 10 years in prison. You could be facing these severe penalties even though you have never committed a crime before and have never been in trouble.

We at Cave & Freeburg, LLP, have multiple strategies for defending against allegations relating to CSAM. These defenses include:

Accident. You may not have known that there were files y within your possession. Unfortunately, this is very common. Many websites have large collections of legal, adult and also have samples of illegal images hidden within. It is a defense that you did not know that you downloaded or possessed the illegal files.

Share Drive. Many times the alleged CSAM is contained on an external hard drive or other device with multiple users. The federal prosecutors must prove beyond a reasonable doubt that you were the user responsible for the contraband files or images. In cases where this defense may be viable, Cave & Freeburg, LLP, works with the best digital forensic experts (DFE) in the world to develop this defense and save your future.

Suppression. Allegations involving CSAM are such a priority for federal law enforcement that they often cut corners and violate Constitutional rights in order to investigate them. In these situations Cave & Freeburg, LLP, conducts a thorough investigation and then files what is called a “suppression motion” in order to get the case thrown out. When this is successful, you cannot be prosecuted.

Entrapment. Many websites or chat rooms that contain CSAM are actually run by law enforcement, especially the FBI. A possible defense can be that you did not originally plan to download the illegal content but were convinced to do so by law enforcement.

Not CSAM. Law enforcement often assumes that images involve minors when in fact they do not. For example, there was 23 year-old actress in films that was often assumed to be underage by law enforcement. Many people were initially prosecuted for possessing her videos until her age was established. There is no scientific way to conclusively prove that someone past puberty is under-18. In cases where this may be an issue, Cave & Freeburg, LLP, works with some of the best pediatricians in the world to show that the prosecution cannot prove that anyone was underage in the charged images or files.

Another version of this defense involves the possession of what is actually “erotica.” Child erotica are legal images involving people under 18. The U.S. Supreme Court laid out what are known as the Doss factors which describe the difference between legal child erotica and illegal child images. In many cases, it is necessary to legally examine each image to see which category it falls under. In some cases, none of the charged images are actually illegal!

If you are are under investigation for the possession, distribution, receipt or production of child pornography, you cannot wait to retain a military defense lawyer. The earlier we can start defending you, the higher the chances of success. These cases are complex and difficult but military defense counsel with a proven track record in courts-martial under the UCMJ can help you.