NMCCA released its per curiam opinion in United States v. MacWhinnie, siding with the government and affirming the conviction and sentence.
MacWhinnie opinion here.
During FCC Sean C. MacWhinnie’s deployment aboard the USS San Antonio, Pinterest found ten images of suspected child porn that had been saved to an account associated with MacWhinnie’s name and email address. The company reported these images to the NCMEC CyberTipline. Subsequently, authorities obtained additional evidence linking MacWhinnie’s use of a shipboard computer to the times during which the images were saved to his Pinterest account. After subpoenaing subscriber information from Google and executing search warrants on Pinterest, NCIS obtained several collections of images associated with MacWhinnie’s account, labeled “Yes Sir,” “Hot Chicks,” and “Too Young.” However, the search warrant material did not include any of the ten images of suspected child porn. NCIS interviewed MacWhinnie, who admitted to using the shipboard computers to view pornography. He denied searching for child porn.
Based on the investigation, MacWhinnie was charged with viewing two images of child porn. At the general court-martial, the government sought to introduce several additional images and information from MacWhinnie’s Pinterest account and the NCMEC CyberTipline reports under MRE 404(b) to prove MacWhinnie’s intent, knowledge and absence of mistake or accident with respect to the charges of knowingly and wrongfully viewing and possessing child porn. Over the defense’s objection, the military judge admitted the evidence. MacWhinnie was subsequently convicted and sentenced to 6 months’ confinement, a dishonorable discharge, and reduction in grade from E-7 to E-1.
II. MacWhinnie’s Claims on Appeal
On appeal at NMCCA, MacWhinnie argued that (1) the military judge abused his discretion under MRE 404(b) by allowing the Government to introduce its proffered evidence, and (2) that the evidence was insufficient to support the conviction because it failed to establish that MacWhinnie knowingly viewed child porn. NMCCA denied both claims.
A. MRE 404(b)
Reviewing the military judge’s admissibility ruling for abuse of discretion, the court applied the three-factor MRE 404(b) test from United States v. Reynolds, which incorporates the nine-factor MRE 403 test from United States v. Wright and United States v. Berry. NMCCA found that the military judge’s discussion of the Reynolds factors, was “thorough and reasonable,” and agreed with his conclusions, finding no abuse of discretion.
B. Insufficiency of Evidence
MacWhinnie’s insufficiency argument was based on the fact that all of the evidence against him was circumstantial. The only direct evidence linking MacWhinnie to images of child porn were the images from the NCMEC CyberTipline reports and the shipboard computer login records. MacWhinnie also pointed out that the search warrant yielded no child porn, and no evidence showed that MacWhinnie had searched for child porn. Nevertheless, the NMCCA found that the circumstantial evidence was sufficient to sustain the conviction. Because it would have been impossible for MacWhinnie to add the images of suspected child porn to his collection without viewing the images, the court found that it was reasonable to infer that MacWhinnie knowingly and wrongfully viewed the images.
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