New ACCA opinion

ACCA issued published opinion today finding error and granting relief in United States v. Amazaki, ARMY 20070676 (A. Ct. Crim. App. March 31, 2009).

We hold, as a matter of due process, appellant was not on fair notice that his conduct, arising from simply negligent possession of child pornography, violated Article 133, UCMJ, under the facts and circumstances of this case. Accordingly, we set aside and dismiss Charge II and its Specification alleging a violation of Article 133, UCMJ, and reassess appellant’s sentence.

[T]he governmentcharged appellant with violating Article 134, UCMJ, by knowingly possessing child pornography in violation of 18 U.S.C. § 2252A.4 On the date the convening authority referred appellant’s charges and specifications to trial, the government dismissed and replaced the Article 134, UCMJ, violation with a charge alleging appellant violated Article 133, UCMJ, by “wrongfully and dishonorably possess[ing]” a diskette containing eight images of child pornography, “negligently fail[ing] to note that there was child pornography” on the diskette, “negligently fail[ing] to eliminate” child pornography from the diskette, and “negligently leaving . . . child pornography on the [d]iskette in his place of residence in such a manner that other persons could easily access” the images.

Before an officer can be convicted of an offense under Article 133, UCMJ, due process requires “‘fair notice’ that an act is forbidden and subject to criminalsanction.” United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citing United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)); see United States v. Anderson, 60 M.J. 548, 554 (A.F. Ct. Crim. App. 2004).

It seems that the appellant told the judge that he was given a disc with a zip file of adult porn by a colleague. He never opened the file.  Until the results of a forensic search by law enforcement he did not know that there were eight CP images in the zip file.  According to the prosecution and the judge, he had a duty to open the file and check to see there was nothing illegal on it, and if he found something illegal he should have gotten rid of it and — not stated in the case — turned in his friend who gave him the disc.  Having failed to do that, he could be convicted of conduct unbecoming through a negligent dereliction theory.  The other charge that related to mishandling classified information was allowed to stand.

This is another case of a pyhrric victory.  He was sentenced to the maximum at trial of 12 months.  IAW with a PTA the excess of six months was disapproved.  It looks like the case was tried in 2005, and now the opinion in 2009.  His sentence was reduced from six months to five months on reassessment.  This seems odd, because while the mishandling of classified information is obviously serious, isn't it more likely his sentence was more harsh because of child pornography?

One assumes the court was aware of CAAF's action in United States v. Forney, __ M.J. ___, No. 05-0647/NA (C.A.A.F. March 26, 2009).  See CAAFLog's analysis of Forney.

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