Appellant was convicted under an aiding and abetting theory for counseling his lover (“MB”) to take and distribute explicit photos of her daughter (“EF”). The CAAF granted review on whether it is legally impossible for Appellant to be convicted of distributing indecent images to himself under Article 77, UCMJ, when the plain language of article 120c(d)(5) requires the images to be distributed to “another.” The NMCCA found that it was legally possible for the reasons summarized below.
Charge II, Specification 2 read “[Appellant] knowingly distributed a recording of the private area of [EF] when he knew or reasonably should have known that the recording was made and distributed without the consent of [EF] and under the circumstances in which she had a reasonable expectation of privacy.” Article 120c(d)(5) defines “distribute” as “delivering to the actual or constructive possession of another, including transmission by electronic means.” Moreover, Article 77, UCMJ provides that a person can be liable if “[he] commits an offense punishable by this chapter, or aids, abets, counsels, commands or procures its commission.”
Appellant claimed that (1) it is legally impossible for him to “distribute” to himself; and (2) he can only be liable if MB’s actions were criminal under the UCMJ. However, Appellant ignored the Government’s charging theory, which subjects him to criminal liability as a principal for aiding and abetting the act of MB in distributing the recordings “to another.” Appellant understood the theory because the judge explained it to him in front of his counsel, and Appellant conceded that he knowingly and willfully counseled MB to take the photos. Furthermore, he admitted that MB would not have taken the photos or sent them to him without his guidance. Accordingly, it was legally possible for him to be liable.
 Appellant argued that MB was not subject to the UCMJ and therefore he could not be held criminally liable in aiding and abetting her. But the Court rejected this argument because Article 77 does not require the perpetrator to be subject to the UCMJ for the accused to be liable for aiding and abetting the perpetrator in criminal activity.
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