UNITED STATES, Appellee 

v. 

Matthew C. KUEMMERLE, Aviation Boatswain’s Mate Third Class 

U.S. Navy, Appellant 

No. 08-0448 

Crim. App. No. 200700899 

United States Court of Appeals for the Armed Forces 

Argued November 18, 2008 

Decided January 8, 2009 

BAKER, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a 

separate dissenting opinion. 

Counsel

For Appellant: Lieutenant Gregory W. Manz, JAGC, USN (argued). 

For Appellee: Lieutenant Duke J. Kim, JAGC, USN (argued); Brian 

K. Keller, Esq. (on brief); Commander Paul C. LeBlanc, JAGC, 

USN, Lieutenant Derek D. Butler, JAGC, USN, and Lieutenant 

Timothy H. Delgado, JAGC, USN. 

Military Judge: R. C. Klant 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Kuemmerle, No. 08-0448/NA 

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Judge BAKER delivered the opinion of the Court. 

 A military judge sitting as a general court-martial 

convicted Appellant, pursuant to his pleas, of one specification 

of carnal knowledge in violation of Article 120, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 920 (2000); one 

specification of receiving child pornography in violation of 

Article 134, UCMJ, 10 U.S.C. § 934 (2000); and one specification 

of distributing child pornography in violation of 18 U.S.C. § 

2252A(a)(2)(A) (2000), as incorporated into the UCMJ under 

Article 134, clause 3, UCMJ. The adjudged and approved sentence 

included a dishonorable discharge, confinement for seven years, 

and reduction to E-1. The convening authority suspended 

confinement in excess of forty-eight months for a period of six 

years from the date of the convening authority’s action in 

accordance with the pretrial agreement. The United States NavyMarine Corps Court of Criminal Appeals affirmed. United States 

v. Kuemmerle, No. NMCCA 200700899 (N-M. Ct. Crim. App. Jan. 21, 

2008). We granted review of the following issue: 

WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER THE 

OFFENSE OF DISTRIBUTING AN IMAGE OF CHILD PORNOGRAPHY 

WHERE APPELLANT POSTED THE IMAGE ON THE INTERNET PRIOR 

TO ENTERING ACTIVE DUTY AND HE TOOK NO FURTHER STEPS 

TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED. 

We hold that the court-martial had jurisdiction over the offense 

charged and affirm. 
United States v. Kuemmerle, No. 08-0448/NA 

3

BACKGROUND 

 Appellant enlisted in the United States Navy on June 21, 

2001, and entered active duty on the same date. He reenlisted 

on June 20, 2005. On or before September 7, 2000, and prior to 

joining the Navy, Appellant posted a sexually explicit image of 

a child to his Yahoo! profile.1

 Other Internet users could 

access the image on Appellant’s profile. Indeed, one purpose of 

the Yahoo! profile is to allow users to publicly post 

information on their profile page. While on active duty, 

Appellant accessed his Yahoo! e-mail account, but did not update 

or make any modifications to his profile or the image posted on 

his profile. 

 In October 2005, the United States Attorney’s Office for 

the District of New Jersey, along with Immigration and Customs 

Enforcement (ICE), conducted an investigation into a purported 

child pornography website called “Illegal CP.” A warrant search 

of the website’s server revealed that Appellant paid for a 

membership and maintained a log-in name to access the website. 

ICE collected Appellant’s Yahoo! e-mail address as a result of 

this search. The Naval Criminal Investigative Service became 

 

1 A Yahoo! “public profile is a page with information about [the 

user] that other Yahoo! members can view. [The user’s] profile 

allows [the user] to publicly post information about [himself] 

that [he] want[s] to share with the world.” Yahoo! Member 

Directory -- What is a public profile?, 

http://help.yahoo.com/l/us/yahoo/members/basics/md-06.html (last 

visited Dec. 3, 2008).
United States v. Kuemmerle, No. 08-0448/NA 

4

involved in the ICE investigation in July 2006. On August 10, 

2006, ICE Special Agent Aaron Meeks, who knew Appellant 

maintained a Yahoo! account, accessed Appellant’s Yahoo! profile 

and viewed the image that Appellant had previously posted to 

this profile. SA Meeks printed a hard copy of the image 

indicating the date of access. The stipulation of fact 

indicates that Appellant had accessed his Yahoo! e-mail account 

a few days prior to SA Meeks’s discovery of the image. 

Appellant did not attempt to remove the image from his profile 

until June 28, 2007. 

 Appellant was subsequently charged with distributing child 

pornography under the Child Pornography Prevention Act (CPPA), 

18 U.S.C. § 2252A(a)(2)(A) (2000), as incorporated as a UCMJ 

violation by clause 3 of Article 134, UCMJ. Specifically, 

specification 3 charged Appellant with distribution on or about 

August 10, 2006. After agreeing to a pretrial agreement, 

Appellant filed a motion to dismiss for lack of jurisdiction, 

claiming that any distribution offense that occurred was 

complete prior to Appellant joining the Navy. After hearing 

argument by the defense counsel, the military judge denied the 

motion, “finding that the charged offense does not implicate any 

act conducted by the accused before he entered onto active duty 

. . .” 
United States v. Kuemmerle, No. 08-0448/NA 

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During the plea colloquy with Appellant, the military judge 

defined “distribute” as follows: 

Distribute means to deliver to the possession of 

another. Deliver means the actual, constructive or 

attempted transfer of an item. While transfer of 

child pornography may have been made or attempted in 

exchange for money or other property or promise of 

payment, proof of a commercial transaction is not 

required. 

While the military judge did not specifically identify from what 

source he drew this definition, it mirrors the definition used 

in the Manual for Courts-Martial for drug offenses. See Manual 

for Courts-Martial, United States pt. IV, para. 37.c(3) (2005 

ed.) (MCM). Neither party objected to the military judge’s 

definition of distribute when given to Appellant. 

On appeal, Appellant contends that the alleged offense of 

distributing child pornography is not subject to court-martial 

jurisdiction because the act of distribution was complete when 

he posted the image on his Yahoo! profile in September 2000 and, 

as both parties agree, the image was posted before he entered 

military service. The Government argues that Appellant engaged 

in a continuing act of distribution by maintaining the profile 

while on active duty, and thus jurisdiction exists. 

ANALYSIS 

Article 2, UCMJ, delimits those persons subject to courtmartial jurisdiction, permitting jurisdiction over, inter alia, 

“[m]embers of a regular component of the armed forces . . .” 
United States v. Kuemmerle, No. 08-0448/NA 

6

Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1) (2000). The 

Supreme Court has further delimited court-martial jurisdiction 

based on the time of offense. Thus, courts-martial may only 

exercise jurisdiction over a servicemember “who was a member of 

the Armed Services at the time of the offense charged.” Solorio 

v. United States, 483 U.S. 435, 451 (1987). 

This Court reviews questions of jurisdiction de novo. 

United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006). 

Whether jurisdiction existed over the alleged offense depends on 

when the offense of “distribution” occurs. The parties agree, 

as do we, that this, in turn, depends on the meaning of 

“distribute” for the purposes of the CPPA. However, we do not 

agree with the manner in which the parties have cast the 

question. The real question is whether Appellant committed an

offense of distribution on August 10, 2006, and if so, whether 

the military had jurisdiction over the charged offense. 

The CPPA punishes: 

(a) Any person who -- 

. . . . 

(2) knowingly receives or distributes -- 

(A) any child pornography that has been 

mailed, or . . . shipped or transported in 

or affecting interstate or foreign commerce 

by any means, including by computer . . . . 
United States v. Kuemmerle, No. 08-0448/NA 

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18 U.S.C. § 2252A(a)(2)(A). However, the statute does not 

define “distribute.” See id. In the absence of a statutory 

definition, we consider three sources: (1) the plain meaning of 

the term distribute; (2) the manner in which Article III courts 

have interpreted the term; and (3) guidance, if any, the UCMJ 

may provide through reference to parallel provisions of law. 

See Lopez v. Gonzales, 127 S. Ct. 625, 630 (2006) (in the 

absence of a statutory definition of a particular term, courts 

look “to regular usage to see what Congress probably meant”); 

Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“When interpreting a 

statute, we must give words their ‘ordinary or natural’ 

meaning.”) (citation omitted); United States v. McCollum, 58 

M.J. 323, 340 (C.A.A.F. 2003) (“[W]ords should be given their 

common and approved usage.”) (citation and quotation marks 

omitted). Toward this end, Appellant urges this Court to adopt 

the definition of “distribute” found in the Federal Sentencing 

Guidelines.2

 The Government urges the Court to define 

 

2 The Sentencing Guidelines for the offense of sexual 

exploitation of a minor state that: 

“Distribution” means any act, including possession 

with intent to distribute, production, advertisement, 

and transportation, related to the transfer of 

material involving the sexual exploitation of a minor. 

Accordingly, distribution includes posting material 

involving the sexual exploitation of a minor on a 

website for public viewing but does not include the 

mere solicitation of such material by a defendant. 
United States v. Kuemmerle, No. 08-0448/NA 

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distribution as a continuous action based on the continuing 

nature of the Internet posting in this case. We begin instead 

with observations regarding how the term is defined elsewhere. 

Black’s Law Dictionary defines “distribute” as “1. To 

apportion; to divide among several. 2. To arrange by class or 

order. 3. To deliver. 4. To spread out; to disperse.” 

Black’s Law Dictionary 508 (8th ed. 2004) (emphasis added). 

Merriam-Webster provides the following definition: “to divide 

among several or many: deal out . . . to give out or deliver 

especially to the members of a group.” Webster’s Third New 

International Dictionary Unabridged (2002), available at

http://unabridged.merriam-webster.com (last visited Dec. 4, 

2008). As an example in common usage, distribute means “[to 

distribute] magazines to subscribers.” Id. The definition used 

by the military judge comports with these dictionary definitions 

because the plain usage shows that delivery can complete a 

distribution offense. 

This usage of the term is consistent with the manner in 

which Article III federal courts have interpreted “distribution” 

in the context of the CPPA. In United States v. Shaffer, for 

example, the United States Court of Appeals for the Tenth 

Circuit concluded that the appellant distributed child 

pornography because he “delivered, transferred, dispersed, or 

 

U.S. Sentencing Guidelines Manual § 2G2.2 cmt. n.1 (2008).
United States v. Kuemmerle, No. 08-0448/NA 

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dispensed” the image to others using a file-sharing program. 

472 F.3d 1219, 1223 (10th Cir. 2007) (quotation marks omitted). 

Other courts, interpreting the term “distribute” as it applies 

to sentence enhancements, have relied on Shaffer to define 

distribute: United States v. Geiner, 498 F.3d 1104, 1109-10 

(10th Cir. 2007) (finding that a transaction constitutes any act 

of conducting business or any action involving two or more 

persons, and “distribution” under the CPPA is a subset of such a 

transaction); United States v. Carani, 492 F.3d 867, 875-76 (7th 

Cir. 2007) (finding that the defendant distributed child 

pornography when he posted videos on a file-sharing program and 

knew that other users were downloading these videos from his 

shared folder); United States v. Griffin, 482 F.3d 1008, 1012 

(8th Cir. 2007) (finding that the defendant distributed child 

pornography when he made files available for others to search 

and download on a file-sharing program); United States v. McVey, 

476 F. Supp. 2d 560, 563 (E.D. Va. 2007) (holding that the 

defendant committed the offense of distribution because he “knew 

that his file-sharing software allowed others to obtain child 

pornography from his computer”). The parties have not 

identified any contrary holdings.3

 

3 In his brief, Appellant cites three cases to suggest that 

uploading and posting an image could complete the offense of 

distributing child pornography. United States v. Gross, 437 

F.3d 691 (7th Cir. 2006); United States v. Griffith, 344 F.3d 
United States v. Kuemmerle, No. 08-0448/NA 

10

The plain meaning of “distribute” and decisions by federal 

courts interpreting the term under the CPPA are also consistent 

with the definition of distribute used in the MCM for drug 

offenses. The explanation to the MCM defines distribute as “to 

deliver to the possession of another[,]” albeit in the context 

of the wrongful distribution of a controlled substance. MCM pt. 

IV, para. 37.c(3). While this definition was not intended to be 

used to inform interpretation of a civilian statute, and is not 

authoritative in that regard, it is noteworthy that the 

definition used by the military judge and by other federal 

courts is consistent with the manner in which the term 

“distribution” is used in the UCMJ to connote in effect both 

“offer” and “delivery.” 

Based on the foregoing, we conclude that distribution of 

child pornography through the Internet under the CPPA, as 

factually presented in this case, consisted of two acts -- (1) 

the posting of the image, whereby the image left the possession 

of the original user, and (2) delivery of the image, whereby 

another user accessed and viewed the image. 

Here, Appellant posted a pornographic image of a child to 

his Yahoo! profile. A Yahoo! profile operates as a so-called 

 

714 (7th Cir. 2003); United States v. Bassignani, No. CR 06-0657 

SI, 2007 U.S. Dist. LEXIS 65648, 2007 WL 2406868 (N.D. Cal. Aug. 

20, 2007). However, regardless of whether posting an image can 

constitute “distribution,” we must only decide today whether 

Appellant distributed child pornography on August 10, 2006.
United States v. Kuemmerle, No. 08-0448/NA 

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“public bulletin board” such that all Internet users can access 

information posted by the profile’s owner. Appellant thus 

posted the image for other users to view on his profile and did 

so before entering on active duty. Significantly, however, 

Appellant stipulated that he accessed his Yahoo! account while 

on active duty. He also stipulated that he had the ability to 

access the profile while on active duty, including the capacity 

to remove the image of child pornography. Indeed, after he was 

already charged, Appellant took steps to remove the image on 

June 28, 2007, the same day on which he was convicted. By 

implication, Appellant made an affirmative decision while on 

active duty to keep the image posted on his profile. Thus, 

whether or not a civilian criminal offense may have occurred 

sometime in September 2000, when Appellant initially posted the 

image, an offense occurred under the UCMJ on August 10, 2006. 

On this date, at a time when Appellant maintained control over 

the content on his profile, SA Meeks accessed and viewed the 

sexually explicit image of a child that Appellant had posted 

there for others to view. This access constituted delivery of 

the image under the CPPA on August 10, 2006. 

As a result, the court-martial had jurisdiction over the 

offense of distribution on August 10, 2006, a date on which all 
United States v. Kuemmerle, No. 08-0448/NA 

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parties agree Appellant was on active duty and subject to the 

UCMJ.4

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 

 

4

 We do not and need not accept the Government’s invitation to 

also decide whether Appellant could have or may have committed 

other military or civilian offenses on a continuing basis or any 

other specific date between September 7, 2000, and August 10, 

2006. 
United States v. Kuemmerle, No. 08-0448/NA 

 STUCKY, Judge (dissenting): 

Believing that, under these facts, the court-martial did 

not have jurisdiction, I respectfully dissent. 

It is very important that the facts of this case, and its 

legal posture, be set out before an analysis of the situation is 

essayed. Appellant enlisted in the United States Navy on June 

21, 2001, reenlisted without a break in service in June of 2005, 

and was on active duty in the Navy in August of 2006. In 2000, 

prior to enlisting in the Navy, he had posted a single image of 

child pornography on his Yahoo! profile. He last updated that 

profile on September 7, 2000, before entering the Navy. 

Thereafter, although he received e-mail at his Yahoo! e-mail 

account, he took no action with regard to the profile until June 

28, 2007, immediately before his court-martial, when he took 

steps to have the image removed. 

The specification at issue set out a crime and offense not 

capital under clause 3 of Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (2000), viz., distribution of 

the image in question on or about August 10, 2006, in violation 

of 18 U.S.C. § 2252A(a)(2)(A) (2000), part of the Child 

Pornography Prevention Act of 1996 (CPPA). In the Care1

 

 

1

 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). 
United States v. Kuemmerle, No. 08-0448/NA 

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inquiry, Appellant explicitly refused to admit that the conduct 

in question was contrary to good order and discipline or 

service discrediting. The military judge did not pursue the 

matter. It is therefore solely as a clause 3 offense that it 

must be analyzed. 

To be subject to court-martial jurisdiction, an accused 

must be a member of the armed forces or a civilian who falls 

into one of the very narrow categories set out in the UCMJ. 

Article 2(a), UCMJ, 10 U.S.C. § 802(a) (2000); William Winthrop, 

Military Law and Precedents 105 (2d ed., Government Printing 

Office 1920) (1895); United States v. King, 11 C.M.A. 19, 27, 28 

C.M.R. 243, 251 (1959). Appellant was neither when he posted 

the image to his profile. He pled guilty to a single 

distribution of the image in question on August 10, 2006, a date 

on which he was a member of the United States Navy on active 

duty and therefore subject to court-martial jurisdiction. 

The term “distribution” is not defined in the CPPA. In the 

context of the statute, it has generally been interpreted in its 

ordinary sense, i.e., “to dispense” or “to deliver.” United 

States v. Probel, 214 F.3d 1285, 1288 (11th Cir. 2000); United 

States v. Horn, 187 F.3d 781, 791 (8th Cir. 1999); United States 

v. Hibbler, 159 F.3d 233, 237 (6th Cir. 1998) (citing United 
United States v. Kuemmerle, No. 08-0448/NA 

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States v. Canada, 110 F.3d 260, 263 (5th Cir. 1997)).2 It would 

seem that delivery of the image in question was effected when 

Appellant placed it on his Yahoo! profile. Thereafter, it was 

available to anyone who chose to look at the profile. Appellant 

does not deny that this action constituted “distribution” within 

the meaning of the statute. 

The question is thus whether Appellant’s action prior to 

entering on active duty somehow carried over to August 10, 2006, 

the date on which the NCIS agent discovered the image. The 

stipulation of fact entered into at trial stated that Appellant 

had not updated the Yahoo! profile since September 7, 2000, 

before entering on active duty. The only “action” that 

Appellant took after becoming subject to court-martial was the 

purely negative one of leaving the image undisturbed. I can 

find no support in the case law -- and the Government cites none 

-- for the proposition that simply posting an image and then 

taking no other action constitutes “distribution” six years 

later when someone happens upon the image. The numerous cases 

dealing with peer-to-peer networks, e.g., United States v. Ober, 

66 M.J. 393 (C.A.A.F. 2008), and United States v. Shaffer, 472 

F.3d 1219 (10th Cir. 2007), are inapposite, because those 

 

2

 Technically, these cases deal with the definition of the term 

as a sentence enhancer for CPPA offenses in the Federal 

Sentencing Guidelines. However, for these purposes the two may 

be considered identical. 
United States v. Kuemmerle, No. 08-0448/NA 

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networks require continued positive actions (turning on one’s 

computer and the file-sharing program) every time the person 

wishes to engage in file-sharing. By contrast, posting a 

picture on the Internet requires no continued action; the 

picture is there, available to anyone who cares to look without 

further action by the originator. On August 10, 2006, Appellant 

did absolutely nothing relevant to the image; the action was 

solely that of the NCIS agent.3

Nor does the concept of “continuing offense” save the 

specification.4

 A continuing offense is one in which the 

offense is committed on a date certain but continues to be 

committed each day that the original fact situation obtains. 

See United States v. Cores, 356 U.S. 405, 408-09 (1958). The 

continuing offense doctrine is to be applied only in limited 

circumstances because of its obvious relationship to statutes of 

limitation. Toussie v. United States, 397 U.S. 112, 115 (1970), 

superseded by statute, Pub. L. No. 92-129, § 101(a)(31), 85 

Stat. 352 (1971). Its application is purely a matter of 

 

3

 If the offense was completed in 2000, it was also barred by the 

statute of limitations, since child pornography offenses are not 

“child abuse offenses” extending the statute. Article 43(b), 

UCMJ, 10 U.S.C. § 843(b) (2000). It is the military judge’s 

duty to inform the accused of a potential statute of limitations 

defense. See Rule for Courts-Martial 907(b)(2)(B); United 

States v. Rodgers, 8 C.M.A. 226, 228, 24 C.M.R. 36, 38 (1957). 

4

 The Government argued the applicability of the continuing 

offense doctrine in its brief, but abandoned the idea in oral 

argument. 
United States v. Kuemmerle, No. 08-0448/NA 

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statutory interpretation, and is limited to situations in which 

Congress explicitly stated that the offense was a continuing 

one, or the nature of the crime compels the conclusion that 

Congress must have intended it. Id.; United States v. Lee, 32 

M.J. 857, 859-60 (N-M. Ct. Crim. App. 1991). There is nothing 

in the CPPA making distribution a continuing offense, and 

nothing inherent in the nature of distribution that would compel 

treating it as such. Under the standard enunciated in Toussie, 

it is therefore not a continuing offense. 

On these facts, I believe the court-martial lacked 

jurisdiction over the offense of distribution of the image 

because Appellant’s action of distribution was completed prior 

to entry on active duty, and he thereafter took no action to 

review the image or further effectuate distribution. I 

emphasize that the issue of whether the same conduct might 

violate clause 1 or 2 of Article 134, UCMJ, is not raised here, 

and cannot be answered on these facts. 

I respectfully dissent.