The AFCCA affirmed the findings and sentence of Airman First Class Mercilous M. Massillon, finding no prejudicial error in Appellant's two assignments of error.
Massillon opinion here.
BitTorrent is a peer-to-peer file sharing network which allows a person to download files which then immediately become available to other network users. On either June 8th or June 9th, 2017, a Special Agent from the Internet Crimes Against Children Division of the New Mexico Attorney General’s office used certain peer-to-peer software to search for child pornography on the BitTorrent network. Using this software, the Special Agent was able to download and trace files containing child pornography to a single BitTorrent user, without sharing those files with other users. This BitTorrent was traced back to Holloman Air Force Base, where the Air Force Office of Special Investigations agents were able to search through the user’s dormitory. In their search, the agents recovered videos and still images of children engaged in sexually explicit conduct from the user’s hard drive, some of which had been downloaded in June 2017.
Appellant pleaded guilty before the U.S. Air Force Trial Judiciary to knowingly and wrongfully possessing child pornography on various occasions but pleaded not guilty to knowingly and wrongfully distributing child pornography. The elements of Appellant’s distribution crime under UCMJ Article 134 include: (1) that on the dates and at the place alleged, Appellant knowingly and wrongfully distributed child pornography to another; and (2) under the circumstances such conduct was of a nature to bring discredit upon the armed forces. He was found guilty on both accounts and sentenced to confinement for 18 months, a dishonorable discharge, and reduction to E-2.
On Appeal before the AFCCA are three questions: (1) whether the evidence is legally and factually sufficient to support his conviction for distribution of child pornography; (2) whether he is entitled to relief for the conditions of his post-trial confinement; and (3) whether he is entitled to relief for facially unreasonable post-trial delay.
First, the AFCCA held that the evidence was legally and factually sufficient to support Appellant’s conviction for distributing child pornography. The court found that there was enough evidence that a reasonable trier of fact could have found the elements of distributing child pornography beyond a reasonable doubt, when viewed in the light most favorable to the prosecution. Appellant challenged his conviction on the distribution claim because he claims the government could not prove that he knowingly distributed the files through the BitTorrent program. The AFCCA disagreed because the Government provided evidence that indicated that the Appellant was the only one who accessed the computer where they found the child pornography,was a proficient user of the BitTorrent program, and would have been notified by the BitTorrent program that his downloaded files would be shared among other users.This evidence was also factually sufficient for the AFCCA to find that evidence in the trial record proved appellant’s guilt beyond a reasonable doubt.
Second, the court held that Appellant is not entitled to relief for the conditions of his post-trial confinement under UCMJ Article 55 and the Eighth Amendment. Appellant contends that during his 37-day confinement in the Otero County Prison Facility he was not given an appropriate amount of recreational time out of his cell, was subject to inappropriate light exposure during the night, was given only two left shoes to wear, and was singled out when required to wear a different uniform than the other confinees. He adds that he was not given sufficient time to shower, went over two weeks without commissary privileges, and was passed off when he tried to bring these concerns to the prison staff, and therefore is entitled to relief for the unlawful conditions.
The AFCCA disagreed, finding that there was not an objective or sufficiently serious act or omission which resulted in the denial of necessities (such as food, shelter, basic hygienic supplies, and the opportunity to shower regularly), the prison officials were not culpable of deliberate indifference to Appellant’s health and safety, and Appellant did not petition for relief under UCMJ Article 138. Therefore, “the conditions Appellant describes, although undoubtedly restrictive, do not constitute one of those very rare circumstances in which Appellant's sentence has been rendered inappropriate as a matter of law.”
Finally, the court held that the Appellant is not entitled to relief for facially unreasonable post-trial delay. Although Appellant’s court-marital concluded on October 31, 2018, the convening authority did not take action until 136 days later. This exceeded the 120-day limit for presumptively unreasonable post-trial delay. The AFCCA considers four factors to determine whether Appellant’s due process rights were violated for his unreasonable post-trial delay: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant's assertion of the right to timely review and appeal; and (4) prejudice. Ultimately, the AFCCA determined:
Where, as in this case, the appellant does not prevail on the substantive grounds of his appeal, there is no oppressive incarceration. Similarly, where Appellant's substantive appeal fails, his ability to present a defense at a rehearing is not impaired. As for anxiety and concern, the CAAF has explained “the appropriate test for the military justice system is to require an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision.
Since there was no qualifying prejudice from the delay, there was no violation of Appellant’s due process rights.
The Appellant lived alone and possessed the only profile on the computer hard drive where the files were found.
Forensic computer examinations revealed that torrent files, which had been deleted on seven different days, “would normally require the user to use the BitTorrent program itself through an interface screen, unless the user was sophisticated enough to find the torrent files in a ‘hidden folder structure.’”
Evidenced by a screen which BitTorrent users must click on and away from in order to install the program on a computer.
As established in U.S. v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), the three kinds of prejudice are oppressive incarceration, anxiety and concern, and impairment of the Appellant’s ability to present a defense at rehearing.
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