CAAFLog has noted that NMCCA has scheduled oral argument in
The two issues are:
I. WHETHER THE APPELLANT’S GUILTY PLEA TO DISTRIBUTION OF CHILD PORNOGRAPHY WAS IMPROVIDENT, AS THERE WAS NO EVIDENCE THAT APPELLANT DELIVERED ANY UNLAWFUL IMAGES TO ANYONE?
II. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE DID NOT DECLARE
NMCCA wants specific argument on how United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009), affects issue I. To find this on LEXIS at the moment it's at 2009 CAAF LEXIS 4, you can't call it up under it's M.J. cite.
Kuemmerle is a 3-2 decision with Judge Baker writing for the majority. Appellant had posted CP images to a profile he had with Yahoo. He did this before he came on active duty. After he came on active duty he continued to maintain and access the profile. In fact an NCIS agent accessed and viewed the CP. Bottom line, the act of posting to profile or similar account (er, such as a blog), and leaving it there where others can access, view, and download, is distribution. The court found that the military judge's use of the Article 112a, UCMJ, definition of distribution was also fine.