UNITED STATES, Appellee 

v. 

Andrew P. OBER, Specialist 

U.S. Army, Appellant 

No. 07-0722 

Crim. App. No. 20040081 

United States Court of Appeals for the Armed Forces

Argued March 17, 2008 

Decided June 16, 2008 

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

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

dissenting opinion. 

Counsel

For Appellant: Captain William J. Stephens (argued); Major 

Teresa L. Raymond (on brief); Lieutenant Colonel Steven C. 

Henricks, Captain Seth A. Director, and Captain Sean F. Mangan. 

For Appellee: Captain Larry W. Downend (argued); Colonel John 

W. Miller II and Major Elizabeth G. Marotta (on brief). 

Military Judges: Debra L. Boudreau (arraignment) and Gregory A. 

Gross (trial) 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Ober, No. 07-0722/AR 

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Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of officer and enlisted 

members convicted Appellant, contrary to his pleas, of making a 

false official statement, knowingly and wrongfully transporting 

child pornography in interstate commerce, and knowingly and 

wrongfully possessing child pornography, in violation of 

Articles 107 and 134, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 907, 934 (2000). The sentence adjudged by the 

court-martial included confinement for three years, a 

dishonorable discharge, forfeiture of all pay and allowances, 

and reduction to the lowest enlisted grade. The convening 

authority approved confinement for thirty months and approved 

the balance of the sentence. The United States Army Court of 

Criminal Appeals affirmed. United States v. Ober, No. ARMY 

20040081 (A. Ct. Crim. App. May 25, 2007) (unpublished). 

On Appellant’s petition, we granted review of the following 

issues: 

I. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO 

SUPPORT A FINDING OF GUILT FOR TRANSPORTING CHILD 

PORNOGRAPHY IN INTERSTATE COMMERCE WHEN NO 

EVIDENCE EXISTS THAT APPELLANT UPLOADED CHILD 

PORNOGRAPHY FROM HIS COMPUTER TO THE INTERNET 

FILE-SHARING PROGRAM “KAZAA.” 

II. WHETHER THE ARMY COURT ERRED IN AFFIRMING THE 

FINDING OF GUILTY FOR SPECIFICATION 1 OF CHARGE I 

WHEN THE COURT AFFIRMED UNDER A DIFFERENT THEORY 

OF LIABILITY THAN WAS PROFFERED TO THE MILITARY 

PANEL, IN CONTRAVENTION OF CHIARELLA v. UNITED 

STATES, 445 U.S. 222 (1980). 
United States v. Ober, No. 07-0722/AR 

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III. WHETHER THE MILITARY JUDGE FAILED TO PROPERLY 

INSTRUCT THE PANEL ON THE ELEMENTS FOR 

SPECIFICATION 1 OF CHARGE I, BY: (1) OMITTING 

THE CHARGED LANGUAGE “CAUSE TO BE TRANSPORTED” 

FROM THE ORAL AND WRITTEN INSTRUCTIONS; (2) 

FAILING TO INSTRUCT ON A POSSIBLE GOVERNMENT 

ALTERNATE THEORY OF LIABILITY UNDER ARTICLE 77, 

UCMJ; AND (3) FAILING TO PROPERLY INSTRUCT ON THE 

TERM “UPLOADING” WHEN THE COMPUTER EXPERTS AT 

TRIAL PROVIDED TWO VARYING DEFINITIONS. 

For the reasons set forth below, we affirm. 

I. BACKGROUND 

 The present appeal focuses on the circumstances under which 

child pornography was obtained through the use of Appellant’s 

computer. The prosecution’s primary theory was that Appellant 

used a peer-to-peer file sharing program to obtain child 

pornography from other participants in the file sharing network. 

The primary defense theory of the case was that other 

individuals were responsible because they had access to 

Appellant’s computer, Appellant had an alibi for the times when 

child pornography was transported to the computer, and there was 

ample exculpatory evidence to place the blame on others. 

 Section A describes the file sharing program at issue in 

this case. Section B summarizes the evidence developed during 

the initial investigation. Section C sets forth the evidence 

and the theories presented by the parties at trial. 
United States v. Ober, No. 07-0722/AR 

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A. APPELLANT’S FILE SHARING PROGRAM 

 Appellant built a computer from individual parts, which he 

maintained in his barracks room. He also created a network that 

connected his computer with the computers of three other 

soldiers in the barracks, enabling them to utilize his highspeed Internet connection. The computers on the network 

included the computer of Appellant’s roommate, Specialist B. 

Appellant permitted Specialist B and several other soldiers to 

use his computer. 

 Appellant installed various programs on his computer, 

including KaZaA, a peer-to-peer file sharing program.1 According 

to expert testimony introduced at trial, the KaZaA program 

installed on Appellant’s computer enabled KaZaA users to share 

computer files, including music, movies, and images, over the 

Internet with other KaZaA users. 

 The KaZaA program provided two primary means of moving 

files between users of the program. In the first method, a 

KaZaA user who wanted to make files hosted on his or her 

computer available to other KaZaA users could do so by 

configuring the KaZaA program preferences to permit access by 

others. Setting the preferences involved a simple adjustment 

 

1

 The opinion of the court below and the parties’ briefs refer to 

various spellings of the program’s name. For purposes of this 

opinion, we use the spelling reflected in the record of trial. 
United States v. Ober, No. 07-0722/AR 

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that could be changed at will by the host computer’s user to 

enable or preclude access to files by other KaZaA users. 

 In the second method, the KaZaA program enabled a user to 

utilize a search function, similar to an Internet web browser, 

to obtain files hosted on the computers of other KaZaA users. 

To obtain files from other computers, the KaZaA user would open 

the KaZaA program and enter a search term. In response to the 

search request, the KaZaA program would display a list of file 

names and descriptions obtained from other KaZaA users whose 

preferences permitted such access. The KaZaA user who initiated 

the search could then view the names and file descriptions 

identified by the search and double click on the name of the 

files that the user wanted to obtain. The download process 

would begin once the user double clicked on the desired file. 

The KaZaA program would complete the download without further 

action by the user. The KaZaA user could limit the number of 

downloads that could take place at any one time. If the host 

logged out of the KaZaA program or otherwise blocked access to a 

file before the requested download was completed, the KaZaA 

program would attempt to obtain the file from another available 

user or would reinitiate the download when the host subsequently 

reopened the KaZaA program. Through the search function, the 

KaZaA program enabled the user, through a series of keystrokes, 

to identify a file, upload the file from the host computer, and 
United States v. Ober, No. 07-0722/AR 

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download the file to the user’s computer. From the perspective 

of the KaZaA user seeking to obtain a file hosted by another 

computer, the actions of uploading and downloading were part of 

a continuous process managed by that user. 

B. THE INITIAL INVESTIGATION 

 Appellant spent a substantial amount of his free time 

maintaining and upgrading his computer. The chain of events 

leading to the present case began when he returned from shopping 

for a computer device and thought that he was locked out of his 

third-floor barracks room. He attempted to enter through an 

outside window, but fell to the ground and suffered a serious 

injury requiring about a week of hospitalization and thirty days 

of convalescent leave. 

 While Appellant was absent from the barracks on 

convalescent leave, Specialist B and another soldier used 

Appellant’s computer to play video games. As they were perusing 

his files for other available video games, they came across a 

file titled “13 year old,” located in a KaZaA folder. They 

opened the file, saw a picture of a young, naked female, and 

closed the file. At that time, they did not advise anyone of 

what they had seen. A month later, Specialist B mentioned the 

incident in the course of a casual conversation with a 

noncommissioned officer. After an initial inquiry by the 
United States v. Ober, No. 07-0722/AR 

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noncommissioned officer, the Army’s Criminal Investigation 

Command (CID) initiated a formal investigation. 

 CID agents obtained a statement from Appellant in which he 

acknowledged using his computer to access adult pornography but 

denied using it to access child pornography. In the course of 

the interview, Appellant provided CID with consent to examine 

the hard drive of his computer. 

 CID arranged for an analysis of the hard drive by a 

forensic expert. The forensic analysis identified 592 files 

containing possible child pornography on the hard drive, 

including 460 files located in a KaZaA folder. At the time of 

the forensic analysis, the preferences for the KaZaA program on 

Appellant’s computer were set to: (1) permit the user to obtain 

files from other KaZaA users and download up to ten files at a 

time; and (2) preclude other KaZaA users from obtaining files 

from Appellant’s computer. 

 In a second interview with CID, Appellant stated that he 

had downloaded and saved approximately forty files containing 

child pornography on his computer. He acknowledged that he had 

been viewing child pornography on his computer “[o]nce every two 

weeks” for about eight months, and that he knew that it was 

illegal to view and download child pornography. When asked 

whether he knew that the files contained pictures of children 

before he opened the files and viewed them, he said: “Some of 
United States v. Ober, No. 07-0722/AR 

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the pictures did not have accurate descriptions of what was in 

the file. Others had a description. I knew that some of the 

files would contain underage people in the pictures before I 

opened them.” In response to the question of whether he saved 

some of the pictures, he stated: “You can’t open the pictures 

until you download them. After I downloaded the pictures and 

viewed them I never deleted them.” When asked whether he had 

passed on the child pornography to anyone else through the 

computer, he responded: “No.” Appellant explained that in his 

previous statement to CID agents, he had denied using his 

computer to view child pornography because he was afraid of the 

consequences. In addition, Appellant stated that he had acted 

out of a lack of self-control and he knew that what he did was 

wrong. 

 Following the investigation, the Government charged 

Appellant with three offenses: (1) transporting child 

pornography in violation of Article 134, UCMJ; (2) possessing 

child pornography in violation of Article 134, UCMJ; and (3) 

making a false official statement about the use of his computer 

to access child pornography in violation of Article 107, UCMJ. 

The present appeal focuses primarily on the first offense, in 

which Appellant was convicted of a charge that he “did . . . 

knowingly and wrongfully cause to be transported in interstate 

commerce child pornography by uploading pictures of child 
United States v. Ober, No. 07-0722/AR 

9

pornography to a shared internet file named ‘KAZAA’, in 

violation of 18 U.S.C. 2252A(a)(1).” 

C. DEVELOPMENTS AT TRIAL 

1. The prosecution and defense theories of the case

 The prosecution, in its opening statement, advised the 

members that the evidence would show that Appellant “searched 

for, possessed, stored, shared, and viewed child pornography on 

his personal computer” and that “the evidence is going to show . 

. . that he was downloading child pornography on [his] 

computer.” The prosecution stated that it would offer expert 

testimony to show that the KaZaA program “allows subscribers to 

download files.” The prosecution also noted that the expert 

testimony would show that KaZaA “allows subscribers to upload 

their own personal files and retrieve files from other 

computers, and that these pornographic images, these movies, and 

these still photographs were obtained via this file sharing 

program.” The prosecution described two methods used by 

Appellant to transport pornography: (1) Appellant “downloaded 

these images and possessed them on his computer”; and (2) “he 

allowed others to view them as they were transmitted from his 

computer.” 

 Defense counsel, in his opening statement, observed that 

“if what the government promises you is true, it looked like 

they’ve got a pretty good case.” Defense counsel reminded the 
United States v. Ober, No. 07-0722/AR 

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panel that the issues of “alibi” and “false confessions” had 

been discussed during voir dire. 

With respect to the forensic evidence, counsel emphasized 

that the defense was going to focus on whether the evidence 

established that Appellant was the person responsible for the 

child pornography on his computer: 

They’re going to bring in detectives to show you 

there’s child pornography on this computer; and they 

may, in fact, show you that there is real child 

pornography on the computer, but the issue here is 

that the government’s got the wrong guy. Now that may 

be hard to believe based on what you’ve heard. 

Now, what the defense is going to ask you to do 

is take a look as this case develops, keep an open 

mind, and see how good a job CID did do, how good a 

job the Defense Computer Forensic Lab did. Take a 

look at Specialist Ober and figure out if this is 

really the right guy for this crime. 

 Defense counsel proceeded to detail the defense theory of 

the case, based on alibi and exculpatory evidence: many others 

had direct access to Appellant’s computer and access through the 

network established by Appellant; Appellant was in the field or 

on leave for extended periods when others had access to the 

computer; and his admissions to CID agents were the product of 

traumatic brain injury and stress. Defense counsel told the 

members that “at the end of this trial you’re going to see the 

government does have the wrong guy.” 
United States v. Ober, No. 07-0722/AR 

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2. Evidence presented by the prosecution

 The prosecution introduced into evidence Appellant’s 

confession that he downloaded child pornography on his computer 

knowing that it was illegal to do so, as well as related 

testimony regarding the circumstances surrounding the CID 

investigation and interrogation of Appellant. The prosecution 

also introduced into evidence specific images of the alleged 

child pornography, as well as expert testimony identifying the 

images as depictions of actual children. The defense stipulated 

that certain of the images consisted of child pornography of 

actual children. 

 The prosecution presented the testimony of a computer 

forensics expert, Jason Upchurch, regarding the alleged child 

pornography on Appellant’s computer. The evidence presented by 

Mr. Upchurch indicated that there were 592 images of possible 

child pornography on the hard drive of Appellant’s computer, and 

that the majority of the images were in the folder used for 

sharing files through KaZaA. Mr. Upchurch testified that there 

was no evidence that a computer virus had placed the pornography 

on the hard drive. 

 In response to a question from the prosecution, Mr. 

Upchurch noted that from his analysis, he could not determine 

the individual responsible for the images on Appellant’s 

computer. Mr. Upchurch explained: “We can determine in most 
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cases . . . which account it came from, as well as, file dates 

and times; but as far as who put the images there, no, we can’t 

determine that.” When asked whether there were “any pointers” 

to Appellant as “the individual who downloaded the child 

pornography found on the computer,” Mr. Upchurch testified that 

“the majority of the images belonged to the account called 

‘Oberator,’ as well as, the computer was registered to a Mr. 

Ober.” 

Mr. Upchurch testified that the KaZaA preferences on 

Appellant’s computer were set so that Appellant could obtain 

files from other KaZaA users. The settings permitted him to 

“download 10 files at a time,” which was “a fairly optimized 

setting to maximize your download.” 

Mr. Upchurch explained how files were moved to Appellant’s 

computer using KaZaA. He noted that there were “many versions” 

of KaZaA, and the version on Appellant’s computer operated as a 

modified web browser. When the computer was turned on and the 

Internet connection was active, the user of the KaZaA program 

could “click on the search button,” which enabled the user to 

“search for anything from movies to music or any other files by 

either keywords or file name.” The KaZaA program also provided 

the user with the ability to search for particular types of 

files by descriptions. 
United States v. Ober, No. 07-0722/AR 

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 According to Mr. Upchurch, KaZaA would not cause child 

pornography to be downloaded on the computer without the user’s 

knowledge. He explained the specific actions that a user would 

have to take to obtain files from another computer using KaZaA: 

When you do the search it doesn’t automatically 

download everything. All it does is present you with 

files to download. So you go through and look at 

which files that you particularly want to download, 

the human element in it, and download those particular 

files. So the search term gives you the results, and 

then a human goes in and picks those results. 

 The expert added that the user could not view the image 

based upon the results of the search. The user first had to 

make a determination whether to download the file based upon the 

file name and other information associated with the file. He 

added that with regard to some of the child pornography found in 

the KaZaA file on Appellant’s computer, the file names and other 

information associated with the files were consistent with the 

age of the children depicted in the images. 

 The expert further explained the process used by KaZaA to 

obtain files selected by the user from another computer: 

[I]f the computer is on and KaZaA is running and 

you’ve selected files, KaZaA will continue to try to 

download those continuously until you tell it to stop. 

Even if at the other end if somebody logs off and the 

. . . file transfer is stopped because the other end 

is no longer available[, w]hen that other end comes 

back up KaZaA will see that and begin downloading 

again from the . . . same user because it all actually 

keeps track of files . . . . 
United States v. Ober, No. 07-0722/AR 

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Q. So the user can be away from the computer at the 

time that the -- 

A. Absolutely, days, weeks, yes. 

 At the time Appellant’s computer was seized, the settings 

for the KaZaA program were set to prohibit other users from 

obtaining files from Appellant’s computer. However, there was 

no way to determine when those settings took effect. 

 Defense counsel used the cross-examination of Mr. Upchurch 

to confirm that other KaZaA users could not upload files from 

Appellant’s computer when the file sharing option was turned 

off. Counsel then focused on the dates that files were 

downloaded and accessed on Appellant’s computer, with a view 

toward showing that someone other than Appellant had downloaded 

the files. On recross-examination, defense counsel again 

focused on questions that would suggest that Appellant was not 

the person who obtained the files. 

 During cross-examination of the other Government witnesses, 

defense counsel pointed to evidence that other individuals had 

access to Appellant’s computer and the potential that others may 

have been responsible for the child pornography on his computer, 

the impact of the injury from Appellant’s fall on his cognitive 

abilities and emotional state, the extended period in which 

Appellant was not in his barracks room, and related matters 

concerning the reliability of his confession. 
United States v. Ober, No. 07-0722/AR 

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3. Motion to dismiss

 At the conclusion of the prosecution’s case, the defense 

moved to dismiss the transportation of child pornography charge 

(Specification 1 of Charge I) on two grounds. First, the 

defense asserted that the prosecution “has failed to prove the 

element of distribution.” Second, the defense contended that 

the prosecution “has failed to show any evidence that pictures 

were uploaded to the KaZaA file. All the evidence that came in 

this case indicated that pictures were downloaded to that file . 

. . .” 

 The prosecution responded that the charged offense at issue 

involved transportation, not distribution, of child pornography. 

The prosecution also noted that the manner in which a user of 

the KaZaA program obtained a file involved transportation: 

“Specification 1 merely requires that we show that child 

pornography was transported via the Internet so even by virtue 

of conducting a search and accessing child pornography from 

another KaZaA user that causes that particular image to be 

transported via the Internet.” 

 The military judge observed that Appellant was charged with 

transporting, not distributing, child pornography; that he would 

give the members a definition of transporting; and that there 

was enough evidence on every element of the offense for the 
United States v. Ober, No. 07-0722/AR 

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issue to be decided by the panel rather than by a motion to 

dismiss. 

4. The defense

 Appellant testified as the first witness called by the 

defense. In response to defense counsel’s question as to 

whether he committed the charged offenses, he responded: “No. 

I never did the offenses I’m accused of.” He detailed the 

number of other individuals who had access to his computer. He 

also stated that he was not protective of his password, that he 

rarely logged off of his computer, that he frequently kept the 

computer on when he left his room, and that he was frequently 

away from his room performing assignments in the field. 

Appellant explained that other individuals who had access to his 

computer had an interest in pornography. He testified that his 

fall from the third floor of the barracks left him barely 

conscious, unable to eat, and fatigued, that he spent time on 

convalescent leave away from the base, and that the accident 

affected his memory and his performance. 

 Appellant acknowledged that he used the KaZaA program on 

his computer, that he had viewed adult pornography on his 

computer, and that child pornography was found on his computer. 

He denied downloading the child pornography himself or knowing 

that it was there before CID confronted him with the accusation. 

He stated that he confessed to downloading child pornography 
United States v. Ober, No. 07-0722/AR 

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during his second interview with CID because of his brain 

injury. Appellant testified that after a CID agent accused him 

of offenses involving child pornography, he felt his situation 

was hopeless. Appellant further explained that the agent told 

him that if he cooperated, the command would go easy on him. 

Appellant stated that the confession he gave to the CID agent 

was not true. 

 With respect to KaZaA, Appellant testified that it “was 

accessible to everyone.” He added: “I used KaZaA to download 

music, and -- music was pretty much all I downloaded.” He 

stated that he did not use KaZaA to download any pornography, 

child or adult. 

 The defense presented the testimony of a computer forensics 

expert who had performed an examination of Appellant’s computer 

similar to the examination conducted by the prosecution’s 

expert. The defense expert testified that he reviewed the 

computer files at issue in the present case to determine where 

in the hard drive they were located, the dates and times 

associated with the files, and “where those files came from.” 

He also sought to determine whether other individuals had 

connected to Appellant’s computer, and identified information 

indicating that at a particular time “someone was on this 

computer system, and the name does not correspond with the 

defendant.” When the trial counsel questioned the relevance of 
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the defense expert’s testimony, defense counsel responded: 

“[F]irst we’re showing alibi, and the second portion is for 

showing that other people used Specialist Ober’s computer, and 

that goes to possible exculpatory evidence.” The military judge 

overruled the prosecution’s objection. The expert then 

testified that there was information indicating that a person 

with a user name other than the name typically employed by 

Appellant used the computer at the time that child pornography 

“came into the system” onto Appellant’s computer, and that the 

date in question was a date on which Appellant was in the 

hospital. 

 In response to questions from the military judge about the 

meaning of the “File Created” designation on the computer, the 

defense expert noted that the date of creation would be “the 

date that [the] file was, in this situation, brought in . . . 

from KaZaA.” The expert also noted that files could be added to 

the hard drive without a person actually sitting at the computer 

if the person had scheduled the downloads to take place on a 

particular date. 

The military judge asked about the relationship between 

“download” and “upload.” The defense expert responded that 

downloading “is brining [sic] something to you.” He then noted 

that uploading could involve two different types of activity by 

the user of the computer hosting the files: first, “if you had 
United States v. Ober, No. 07-0722/AR 

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an open portal where you’re allowing somebody to take away from 

you,” and second, if “you’re physically going out and sending 

something out.” 

 The military judge then asked the defense expert whether it 

would be “fair to make an analysis or an analogy that 

downloading is pulling, and uploading is pushing.” The expert 

responded that the evidence in the present case involved the 

host allowing another user to obtain the material from the 

host’s computer: 

In this situation, which we really didn’t see any 

uploading going on, but in that type of situation it’s 

-- if you were to open up the portal you are letting 

people pull it from you. You’re not pushing it to 

them. 

 The expert also testified that he had seen no evidence that 

files from Appellant’s computer had been pulled to another 

computer, but the expert noted that he did not have the 

equipment necessary to verify that determination. In addition, 

the expert stated that files could have been placed on 

Appellant’s hard drive by another computer in the network. 

 The military judge then asked the defense expert whether it 

was necessary for a person to participate actively in the 

physical downloading of material from KaZaA: 

Q. Could a file that is on that hard drive that came 

from KaZaA . . . be inserted or put onto that hard 

drive, whatever the correct term might be, without 

someone sitting at the computer and downloading that? 
United States v. Ober, No. 07-0722/AR 

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A. That’s always possible. Yes. 

 In response to a question from the prosecution, the expert 

clarified that a download from KaZaA might be initiated by a 

virus; otherwise, however, it would be necessary for an 

individual to start the download by clicking on a file. 

 During recross-examination by the prosecution, the defense 

expert witness emphasized that: “[I]f you are using KaZaA you 

are actually searching for something.” The expert also 

explained that a download may not be completed on the day that 

the user first seeks to obtain the material. For example, if 

the user of the host computer prevented access to a particular 

file during the downloading process, that file could not be 

downloaded. In such a case, KaZaA would continue searching, and 

once another host opened up the file to permit access, KaZaA 

would complete the download of the file. Similarly, if the 

requested file was large, or if a user’s KaZaA settings limited 

the number of downloads, the download might take place on a 

different day. 

 The military judge asked the defense expert about the 

origin of files downloaded through KaZaA. The expert reflected 

his agreement with the description of KaZaA offered by the 

prosecution’s expert: 

KaZaA is just a tool, for instance, like Mr. Upchurch 

had said it’s like a browser and you’re looking at the 

whole Internet and other folks who have KaZaA running 
United States v. Ober, No. 07-0722/AR 

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and shares running on their computer systems. You -- 

depending on the software, if you’re using their 

versions you can get an address of who it’s coming 

from, but it’s coming from somebody else’s computer 

generally out there on the World Wide Web. 

The expert’s answers to a member’s questions clarified that the 

expert was able to identify use by different user names, but not 

by specific individuals. 

5. Rebuttal

 In rebuttal, the prosecution recalled Mr. Upchurch to 

discuss the evidence in light of the defense theories that 

others had used Appellant’s computer at the time child 

pornography had been obtained. During the rebuttal testimony, 

the military judge asked the expert whether any action was 

required on the part of the owner of the host computer beyond 

making the host computer’s files available through the KaZaA 

settings: 

Q. Mr. Upchurch, another question that was asked in 

this case was the definition of upload. I believe Mr. 

Lakes stated that when you -- uploading something is 

actually -- is not necessarily receiving -- 

A. Giving. 

Q. Giving. Right. Now, on KaZaA when a user 

conducts a search on KaZaA or if you download a file 

from KaZaA, what happens on the computer that you’re 

downloading from, on the actual user that you’re 

trying to share from? What happens on that computer? 

A. So if I was downloading a file from my computer -- 

from someone else’s computer, what happens on the 

other person’s computer? 
United States v. Ober, No. 07-0722/AR 

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Q. On the other person’s computer if you seek to 

access a file on the other computer? 

A. It causes an upload to occur on the other person’s 

computer. 

Q. Okay, and is that -- does that person have to 

specifically do anything to cause that upload? 

A. No. Everything is done prior in his settings. 

Q. So by virtue of the software you can cause the 

uploading [of] something on another individual’s 

computer? 

A. On your computer. 

Q. On your computer? 

A. Yes, on your computer. 

In its cross-examination of Mr. Upchurch, the defense 

focused on matters related to Appellant’s alibi defense, 

suggesting that the use of the computer to play a particular 

computer game pointed to another individual as the user. The 

defense did not challenge Mr. Upchurch’s explanation of the 

process used to obtain files by KaZaA. 

 At one point during Mr. Upchurch’s testimony, he identified 

a series of dates and times that suspected child pornography was 

created and accessed on Appellant’s computer. The military 

judge specifically instructed the members that the information 

about dates was being offered in regards to the defense of 

alibi; that the defense had stipulated that several of the 

images consisted of actual minors; and that it was the panel’s 
United States v. Ober, No. 07-0722/AR 

23

responsibility to decide whether the other images consisted of 

real children. 

6. The military judge’s instructions to the panel

 The military judge provided the parties with his proposed 

instructions. He noted for the record that he had “asked if 

there were any specific instructions that either side wanted” 

and that the parties had replied in the negative. Later, 

following argument, the military judge asked if there were any 

objections to the instructions or requests for additional 

instructions, and noted that no objections were made. 

 The military judge instructed the members regarding the 

transporting charge: 

In Specification 1 of Charge I, the accused is 

charged with the offense of knowingly transporting 

child pornography in interstate commerce, in violation 

of Title 10 [sic], U.S. Code, Section 2252A(a)(1). In 

order to find the accused guilty of this offense, you 

must be convinced by legal and competent evidence 

beyond a reasonable doubt: 

One, that on or about and between 1 April 2002 

and 27 December 2002, at Fort Hood, Texas, the accused 

knowingly transported material containing one or more 

visual depictions by uploading the material to a 

shared Internet file named KaZaA . . . . 

The military judge provided further instructions on the 

remaining elements of the transporting charge, along with 

specific instructions on the terms “wrongful,” “visual 

depiction,” “minor,” “sexually explicit conduct,” “lascivious,” 

“interstate commerce,” and “knowingly.” 
United States v. Ober, No. 07-0722/AR 

24

 In defining “visual depiction,” the military judge noted 

that the term “includes . . . data stored on a computer disk or 

hard drive or by electronic means, which is capable of 

conversion into a visual image.” With respect to interstate 

commerce, the military judge stated: 

Material traveling over the Internet, by its very 

nature, is within the definition of interstate 

commerce. The use of the Internet to send an image 

from one computer to another constitutes transporting 

the image in interstate commerce even if the receiving 

computer and the sending computer are located in the 

same state. 

With respect to the term “knowingly,” the military judge 

explained that the accused must have known the “nature and 

character of the material being transported . . . that it was a 

minor engaged in sexually explicit conduct.” He added that 

“while the accused did not have to know that he was placing the 

items in interstate commerce, the items must have actually been 

transported in interstate commerce.” 

 The military judge’s instructions also expressly recognized 

Appellant’s alibi defense: 

The evidence has raised the defense of alibi in 

relation to the offense of transporting child 

pornography. “Alibi” means that the accused could not 

have committed the offense charged because the accused 

was at another place when the offense occurred. Alibi 

is a complete defense to the offense of transporting 

child pornography. In this regard, there has been 

evidence that the accused was in the field and/or on 

leave during portions of time alleged in the 

specification. 
United States v. Ober, No. 07-0722/AR 

25

The burden is on the prosecution to establish the 

guilt of the accused. If you are convinced by [sic] a 

reasonable doubt that the accused was present at the 

time and place of the alleged offense, then the 

defense of alibi does not exist. 

 The military judge’s instructions provided that the offense 

of transporting was not limited to the question of whether the 

accused committed the offense by uploading: 

[I]f you have doubt that the alleged material was 

transported by uploading, you may still reach a 

finding of guilty so long as the elements of the 

offense are proved beyond a reasonable doubt, but you 

must modify the specification to correctly reflect 

your findings. 

7. Closing arguments by the parties

 The prosecution, in its closing argument, noted Appellant’s 

confession to knowingly downloading, retaining, and repeatedly 

viewing child pornography on his computer. The prosecution also 

addressed the evidence in the case apart from the confession, 

particularly in light of the defense position that Appellant did 

not know that there was child pornography on his computer, 

including his alibi defense. In the course of arguing that the 

members should reject Appellant’s alibi defense, the prosecution 

noted: “Don’t step on that land mine. He downloaded that child 

pornography. He viewed that child pornography.” 

 With respect to the charge of transporting child 

pornography, the prosecution specifically addressed the 

mechanics of transporting images over the Internet using KaZaA. 
United States v. Ober, No. 07-0722/AR 

26

The prosecution reiterated its argument that Appellant was 

guilty of transporting child pornography because downloading the 

images caused an upload to occur on the host computer. The 

trial counsel said to the members: 

On the Internet it’s not like someone has to deliver 

it to you. You can deliver it to yourself, and read 

the specification. He’s charged with causing child 

pornography to be uploaded and transported via the 

Internet, so he could -- on the Internet you could 

reach out that long arm, and nobody has to give it to 

you. It’s there. It’s just sitting there out in 

cyberspace, and all you’ve got to do is reach out, 

grab it, and carry it over interstate lines to your 

computer, and that’s what he did. No one caused that 

file to be uploaded on the Internet except him because 

KaZaA allows you to reach out and grab it, and that’s 

what he did. So consider the definition of transport, 

consider the nature of the Internet and how it allows 

us to transport without it being a two-party 

transaction. 

 The defense, in its closing argument, emphasized the alibi 

defense: 

Members of the Panel, we’ve seen a lot of evidence on 

the case today. We talked with you a lot about could 

somebody else have done it? Do they have the wrong 

guy? 

The defense described the time periods in which Appellant was in 

the hospital or otherwise away from his computer. In addition, 

the defense focused on the evidence that other individuals had 

access to his computer, the different accounts used to access 

child pornography, and the relationship between his injury and 

the likelihood of a false confession. 
United States v. Ober, No. 07-0722/AR 

27

 In an effort to underscore Appellant’s alibi defense, the 

defense counsel specifically acknowledged the use of the KaZaA 

program on Appellant’s computer to access child pornography: 

Now, we also know that KaZaA was used at the same 

time Specialist [B] was on the computer. You found 

that KaZaA logo floating out there at the same time 

that [Specialist B] was on the computer, again, from 

Specialist Ober’s hard drive. 

Defense counsel also acknowledged the presence of child 

pornography in the KaZaA folder in the course of contending that 

the material was accessed by someone else, as suggested by the 

presence of child pornography in other folders associated with a 

different user name. 

 While suggesting that the members should not rely on 

Appellant’s confession, defense counsel sought to contrast the 

presence of child pornography in the KaZaA folder with the 

absence of any reference to KaZaA in his confession: “Is there 

child pornography on this computer? No one’s denying that 

there’s child pornography on his computer, but this statement is 

not corroborated by the evidence.” Moreover, in discussing the 

expert testimony, defense counsel questioned whether the 

Government expert’s testimony could be used to identify who was 

using Appellant’s computer when files were downloaded via the 

KaZaA program, and highlighted the defense expert’s testimony to 

suggest that another person was using the computer at that time. 
United States v. Ober, No. 07-0722/AR 

28

Defense counsel’s closing argument addressed the charge of 

transporting from two different perspectives -- whether 

Appellant permitted others to transport child pornography from 

his computer and whether Appellant used KaZaA to obtain images 

from other computers: 

Let’s talk about that first charge that he’s charged 

with, uploading files to the Internet using KaZaA. 

Well, we know from his end of it, the KaZaA shared 

feature was disable[d], and so nobody took a single 

file off of his computer. We have no evidence one way 

or the other to tell you if Specialist Ober was even 

using it to take MP3 files, but you’ve got zero 

evidence that he himself was going out and reaching 

for these things, and there’s zero evidence to tell 

you a single file was taken off of his computer. 

Defense counsel proceeded on the basis that KaZaA had been used 

to access child pornography on Appellant’s computer, but asked 

the members to conclude that “access” to child pornography on 

Appellant’s computer occurred “when Ober wasn’t there,” 

emphasizing that his roommate, Specialist B, had access during 

that period. As such, defense counsel’s closing argument 

focused on who used Appellant’s computer to access child 

pornography, not whether the computer was used to transport 

child pornography. 

II. DISCUSSION 

 We are presented with three separate questions in this 

appeal: (1) whether the evidence is legally sufficient to 

support Appellant’s conviction for transporting child 
United States v. Ober, No. 07-0722/AR 

29

pornography; (2) even if the evidence is legally sufficient, 

whether the Court of Criminal Appeals affirmed on a different 

theory of liability than was presented by the prosecution at 

trial; and (3) whether the military judge failed to properly 

instruct the members. 

A. LEGAL SUFFICIENCY OF THE EVIDENCE 

 We review de novo the question whether the evidence is 

legally sufficient to support a finding of guilty for 

transporting child pornography in interstate commerce. See 

United States v. Young, 64 M.J. 404, 407 (C.A.A.F. 2007). The 

test for legal sufficiency of the evidence is “whether, 

considering the evidence in the light most favorable to the 

prosecution, a reasonable factfinder could have found all the 

essential elements beyond a reasonable doubt.” United States v. 

Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). 

 At trial, the prosecution initially offered two theories of 

transporting: (1) that Appellant used KaZaA to download child 

pornography on his computer; and (2) that Appellant made child 

pornography available to other KaZaA users. See supra Part 

I.C.1. These two theories were not mutually dependent. Even if 

the prosecution did not provide sufficient evidence to prove 

that Appellant allowed other KaZaA users to obtain child 

pornography hosted on his computer, the prosecution could rely 
United States v. Ober, No. 07-0722/AR 

30

on its other theory, that Appellant transported child 

pornography by using KaZaA to obtain files hosted on other 

computers. 

 During its case-in-chief, the prosecution offered extensive 

testimony about how KaZaA operated to prove that Appellant 

transported child pornography by obtaining it from other KaZaA 

users. See supra Part I.C.2. The evidence demonstrated that a 

user could obtain child pornography via KaZaA by entering search 

terms into the KaZaA program, reviewing a list of shared file 

names and descriptions generated by the search, and initiating a 

process that uploaded files from the host computer and 

downloaded them to his computer. 

The defense did not challenge the prosecution’s evidence 

that child pornography was transported from a host computer to 

Appellant’s computer through the KaZaA program. The defense and 

Government experts both agreed that a file could be moved 

through the Internet via the KaZaA program when a KaZaA user 

selected a file from a host computer’s shared files and caused 

the host computer to upload the requested file. See supra Part 

I.C.2, I.C.4, I.C.5. The contested issue at trial was not 

whether Appellant’s computer had been used to upload child 

pornography from another computer and download it to Appellant’s 

computer. The issue at trial was whether the person using the 
United States v. Ober, No. 07-0722/AR 

31

computer to transport child pornography was Appellant or whether 

it was another person who had access to the computer. 

On appeal, Appellant argues that there is no evidence that 

he “uploaded those [child pornography] files, made those files 

available for uploading, or stored those files in a location 

where other individuals could access them through the internet.” 

This argument fails to take into account Appellant’s admissions 

that he acquired child pornography via the Internet, the 

evidence introduced by both the prosecution and the defense 

regarding the use of Appellant’s computer to transport child 

pornography, and the expert testimony that using KaZaA to 

download files also involved uploading from the host computer. 

See supra Part I.C.2, I.C.4, I.C.5. In light of Appellant’s 

pretrial confession to CID agents, the expert testimony 

regarding the files found on Appellant’s computer, and the 

testimony regarding the underlying investigation of Appellant, 

the evidence at trial provided a legally sufficient basis upon 

which a reasonable factfinder could have found beyond a 

reasonable doubt that Appellant transported and possessed child 

pornography. 

B. THE THEORY OF LIABILITY ON APPEAL 

 An appellate court cannot affirm a criminal conviction on 

the basis of a theory of liability not presented to the trier of 

fact. Chiarella v. United States, 445 U.S. 222, 236-37 (1980). 
United States v. Ober, No. 07-0722/AR 

32

“To uphold a conviction on a charge that was neither alleged in 

an indictment nor presented to a jury at trial offends the most 

basic notions of due process.” Dunn v. United States, 442 U.S. 

100, 106 (1979); see also United States v. Riley, 50 M.J. 410, 

415 (C.A.A.F. 1999). 

 As noted above, Appellant was expressly charged with 

“knowingly and wrongfully caus[ing] to be transported in 

interstate commerce child pornography by uploading pictures of 

child pornography to a shared internet file named ‘KAZAA.’” The 

prosecution offered two different theories of transporting at 

the outset of the trial: (1) that Appellant downloaded child 

pornography onto his computer via the KaZaA program; and (2) 

that Appellant allowed other KaZaA users to obtain child 

pornography from his shared files. See supra Part I.C.1. After 

the Government’s computer forensics expert testified that 

Appellant’s KaZaA settings did not permit other KaZaA users to 

access his files, the Government focused primarily on the theory 

that Appellant was guilty of transporting child pornography 

based on his act of downloading such files via KaZaA. See supra

Part I.C.2, I.C.5. The Government’s expert testified that 

downloading images to Appellant’s computer through KaZaA caused 

an upload to occur on the host computer. The prosecution’s 

closing argument specifically contended that by downloading 
United States v. Ober, No. 07-0722/AR 

33

child pornography via the KaZaA program, Appellant “caused that 

file to be uploaded on the Internet.” 

The Army Court of Criminal Appeals sustained Appellant’s 

transporting conviction on the theory that “[A]ppellant’s method 

of acquiring child pornography through use of peer-to-peer file 

sharing constituted transportation by uploading.” Ober, No. 

ARMY 20040081, slip op. at 4. In reaching its decision, the 

Court of Criminal Appeals cited the testimony of the 

Government’s computer forensics expert that a KaZaA user’s 

download caused an upload on the host user’s computer. Id. at 

2-3. Although that specific description was not initially 

placed before the members in the prosecution’s opening 

statement, it was referenced in the charging document 

(“uploading pictures of child pornography to a shared internet 

file named ‘KAZAA’”) and it was presented through expert 

testimony during the course of the trial. That is sufficient 

under Chiarella. Chiarella, 445 U.S. at 236. Under these 

circumstances, we conclude that the theory of liability relied 

upon by the Court of Criminal Appeals was one of the alternative 

theories of liability presented by the Government at trial, not 

a different theory. 

C. ADEQUACY OF THE INSTRUCTIONS 

 Whether a panel was properly instructed is a question of 

law reviewed de novo. United States v. Maxwell, 45 M.J. 406, 
United States v. Ober, No. 07-0722/AR 

34

424 (C.A.A.F. 1996) (citing United States v. Snow, 82 F.3d 935, 

938-39 (10th Cir. 1996)). The military judge has an independent 

duty to determine and deliver appropriate instructions. United 

States v. Westmoreland, 31 M.J. 160, 163-64 (C.M.A. 1990). 

“‘[T]he military judge must bear the primary responsibility for 

assuring that the jury properly is instructed on the elements of 

the offenses raised by the evidence as well as potential 

defenses and other questions of law.’” Id. at 164 (quoting 

United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975)). 

 On appeal, Appellant argues that the military judge made 

three errors in instructing the members. First, he argues that 

the military judge erred by omitting the charged language “cause 

to be” from the oral and written instructions on the 

transporting charge. According to Appellant, this omission was 

plain error because the military judge failed to give proper 

guidance to the members. Second, Appellant claims that the 

military judge erred by failing to instruct the members on a 

theory of aiding and abetting under Article 77, UCMJ, 10 U.S.C. 

§ 877 (2000). Appellant claims that this instruction was 

mandatory because the Government theory of liability on the 

transporting charge involved the participation of another party. 

Third, Appellant argues that the military judge erred by failing 

to give the members a definition of “uploading.” He contends 

that “uploading” was used by the Government in a manner 
United States v. Ober, No. 07-0722/AR 

35

inconsistent with its normal usage, and thus the military judge 

should have provided a definition of the term to the members to 

eliminate any confusion as to its meaning or effect. 

 We address each of these contentions in turn. With 

respect to omission of the words “cause to be,” we note that the 

military judge instructed the members that Appellant was charged 

with “knowingly transporting child pornography in interstate 

commerce.” He further instructed that to convict Appellant, the 

members had to be convinced beyond a reasonable doubt that, 

among other elements, Appellant “knowingly transported material 

containing one or more visual depictions by uploading the 

material to a shared Internet file named KaZaA.” Regarding the 

omission of the “cause to be” language that appeared in the 

specification, Appellant contends that the panel might have 

ignored that language or used it to convict Appellant under 

another theory of liability for which they were not instructed. 

As a threshold matter, Appellant has not demonstrated how 

omission of the words “cause to be” -- which are not part of the 

underlying statute -- changed the nature of the offense or left 

the members with a misunderstanding of the transporting charge 

and its specification. The defense did not object to the 

military judge’s proposed instructions on the transporting 

charge, nor did the defense request any additional instructions 

to clarify the elements of the offense. Appellant’s speculation 
United States v. Ober, No. 07-0722/AR 

36

about the effect of the omission does not carry his burden to 

show an unfair prejudicial impact on the members’ deliberations 

or material prejudice to his substantial rights. See United 

States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998) (holding that 

plain error not objected to at trial does not compel reversal 

without a further determination that the error materially 

prejudiced the accused’s substantial rights). 

 With respect to whether the military judge should have 

instructed on an aiding and abetting theory, we note that 

Appellant was charged and prosecuted with transporting child 

pornography as a primary actor. See Article 77, UCMJ. The 

Government focused its case on proving that Appellant was guilty 

of transporting child pornography based on his own act of 

obtaining files via KaZaA. Neither party requested an aiding 

and abetting instruction. Irrespective of whether the 

Government could have relied on an aider and abettor theory in 

this case, Appellant was not prejudiced by the decision of the 

military judge to focus his instructions on the primary theory 

presented by the prosecution. 

 The military judge did not provide a definition of 

“uploading” during the instruction phase of the trial. However, 

the computer forensics experts who testified for the Government 

and the defense offered comprehensive explanations of the KaZaA 

process, including uploading. See supra Part I.C.2, I.C.4, 
United States v. Ober, No. 07-0722/AR 

37

I.C.5. The testimony did not produce a material difference 

between the parties or their experts regarding the operation of 

KaZaA or how KaZaA could be used to obtain files. The defense 

did not challenge the Government expert’s testimony that 

downloading files through KaZaA caused an upload to occur on the 

host computer. Instead, the defense embraced the evidence of 

how KaZaA worked in an effort to convince the panel members that 

someone other than Appellant was responsible for downloading the 

child pornography on Appellant’s computer. See supra Part 

I.C.1, I.C.4, I.C.7. The defense did not object to the military 

judge’s proposed instructions, nor did the defense request 

additional instructions on uploading. In light of the manner in 

which both parties presented their evidence and theories at 

trial regarding the use of KaZaA, Appellant has not demonstrated 

that the absence of a further description of uploading -- a 

description not requested by the defense -- constituted material 

prejudice to the substantial rights of Appellant. See Article 

59(a), UCMJ, 10 U.S.C. § 859(a) (2000). 

III. DECISION 

 The decision of the United States Army Court of Criminal 

Appeals is affirmed. 
United States v. Ober, No. 07-0722/AR 

ERDMANN, Judge (dissenting): 

Because of the cumulative effect of errors at both the 

court-martial and Court of Criminal Appeals levels, I 

respectfully dissent. This case involves the Internet-based, 

peer-to-peer file-sharing network Kazaa. The Kazaa network does 

not utilize a main server where members can post images and 

other files, but rather Kazaa allows members to search for and 

download files located in the Kazaa folders on the individual 

computers of other members. Ober was a member of Kazaa and had 

the application on his computer. Images of child pornography 

which had been downloaded using Kazaa were found on Ober’s 

computer. In addition to being charged with possession of child 

pornography, Ober was also charged with transporting child 

pornography by “uploading pictures of child pornography to a 

shared internet file named ‘KAZAA.’” 

My initial concern is that in affirming Ober’s 

“transporting” conviction, the Court of Criminal Appeals relied 

on a theory not presented to Ober or the members until the 

Government’s case in rebuttal. Consistent with the charged 

language, the Government initially proceeded on a theory that 

Ober had made images available to other Kazaa users by putting 

the images in his shared folder. Accordingly, in his opening 

statement the trial counsel stated Ober was guilty because “he 

allowed others to view [child pornography images on his 
United States v. Ober, No. 07-0722/AR 

2

computer] as they were transmitted from his computer.” Ober had 

notice and the opportunity to respond to this “uploading” theory 

because it was presented in the specification and the opening 

statement. 

In developing this theory during its case-in-chief, 

however, the Government’s computer forensic expert testified 

that the Kazaa application on Ober’s computer was set to prevent 

uploading. Under this setting Ober could obtain files using 

Kazaa, but other Kazaa users could not access files on Ober’s 

computer. In other words there could be no “upload” from Ober’s 

computer. 

The Government did not present the theory upon which the 

Court of Criminal Appeals based its decision until rebuttal, 

when the defense had already responded to the Government’s casein-chief.1

 This alternative theory of the case was presented 

when the Government’s expert testified on rebuttal that when an 

 

1

 The majority contends that the Government presented both 

theories in its opening statement because trial counsel 

discussed downloading of images. See United States v. Ober, __ 

M.J. __ (9, 32) (C.A.A.F. 2008). However, trial counsel never 

equated downloading images with “causing an upload” during his 

opening statement, nor did any witness make this strained 

connection during the Government’s case-in-chief. Instead, 

trial counsel discussed downloading during his opening statement 

in the context of explaining why Ober would be found guilty of 

the possession charge, which is not in issue before this court. 

Only one theory of liability for the transportation 

specification was presented to the panel before the defense 

responded with its case-in-chief. 
United States v. Ober, No. 07-0722/AR 

3

individual downloads a file using Kazaa that action “causes an 

upload to occur on the other person’s computer.” During closing 

arguments, trial counsel focused on the Government expert’s 

rebuttal testimony: “No one caused that file to be uploaded on 

the Internet except him.” While evidence was presented in the 

Government’s case-in-chief that images of child pornography had 

been downloaded to Ober’s computer using Kazaa, this evidence 

supported the possession specification and the Government did 

not equate this action with “uploading” until rebuttal. The 

Government abandoned the theory it relied upon in its case-inchief and contended that Ober “caused an upload” when he 

“downloaded” files via Kazaa. The Court of Criminal Appeals 

affirmed Ober’s conviction on this basis. See United States v. 

Ober, No. ARMY 20040081, slip op. at 3-4 (A. Ct. Crim. App. May 

25, 2007) (unpublished). 

Affirming a conviction based on a theory not presented in 

the Government’s case-in-chief raises concerns regarding basic 

notions of due process.2

 Based on the charging language and the 

Government’s case-in-chief, Ober did not have notice that when 

the Government charged him with “uploading,” they intended the 

term to mean “downloading.” Such a convoluted theory begs the 

 

2

 Cf. United States v. Russo, 74 F.3d 1383, 1396 (2d Cir. 1996) 

(concluding that the prosecutor’s behavior was improper where he 

created a “last minute” argument on rebuttal to which the 

defendant could not properly respond). 
United States v. Ober, No. 07-0722/AR 

4

question as to why the Government just didn’t charge him with 

“downloading.” Due process notice and fundamental fairness 

require that the Government present its theory of the case to 

the factfinder and the accused before the accused’s case-inchief. 

If this were the only error, I would be inclined to affirm 

as the “download means upload” theory was at least presented 

during rebuttal and the defense did not request additional time 

to respond. This error is compounded, however, by the military 

judge’s failure to instruct the members on the definition of 

“uploading” and “downloading” and his failure to instruct the 

members as to the “cause to be” element in the charged offense. 

As Ober was specifically charged with “uploading pictures 

of child pornography to a shared internet file named ‘KAZAA’”, 

the meaning of the term “uploading” was critical to the members’ 

deliberations. There was, however, conflicting testimony as to 

the meaning of the term. While the military judge provided the 

members with definitions of a number of terms referenced in the 

elements of the offense,3

 he failed to instruct the members as to 

the definition of the most critical term -- “uploading.” 

During the Government’s case-in-chief, the Government 

expert testified that Ober’s computer contained child 

pornography that had been downloaded from Kazaa and that, under 

 

3

 See Ober, __ M.J. at __ (23-25). 
United States v. Ober, No. 07-0722/AR 

5

Ober’s computer settings, no one could “upload” files from 

Ober’s computer. This testimony would have been helpful to the 

Government had Ober been charged with “downloading” rather than 

“uploading.” On rebuttal the Government expert revised his 

definition when he essentially testified that utilizing the 

Kazaa network, if member A “downloads” a file from member B’s 

computer, that “download” causes an “upload” from member B’s 

computer. 

In regard to these terms, the defense expert testified 

that: “‘Downloading’ is brining [sic] something to you; and 

‘uploading,’ in this situation, would be is if you had an open 

portal where you’re allowing somebody to take away from you, or 

you’re physically going out and sending something out.” At best 

the various definitions discussed by the experts are very 

confusing. 

While the majority concludes that the experts provided 

“comprehensive explanations of the KaZaA process, including 

uploading” and that these explanations were not materially 

different, this conclusion discounts the significant 

distinctions between the language initially used by both experts 

and the Government expert’s subsequent recasting of the term. 

See United States v. Ober, __ M.J. __ (36-37) (C.A.A.F. 2008). 

Additionally, the “uploading means downloading” definition upon 

which the Government relies is counterintuitive and contrary to 
United States v. Ober, No. 07-0722/AR 

6

the common understanding of the term “uploading,”4

 which further 

supports the need to define the term for the members. In this 

instance the definition of the term “uploading” is not a 

disputed fact to ultimately be found by the members, but is a 

legal term in the specification. Because the experts provided 

conflicting definitions of this crucial term, the military judge 

erred in not providing an instruction as to its meaning. 

A military judge has an obligation to “instruct the members 

of the court as to the elements of the offense.” Article 51(c), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 851(c) 

(2000); see also Rule for Courts-Martial (R.C.M.) 920(e)(1) 

(requiring the military judge to describe the elements of the 

offense to the panel). These instructions must be “tailored to 

fit the circumstances of the case, and should fairly and 

adequately cover the issues presented.” R.C.M. 920(a) 

Discussion. 

Specification 1 charged that Ober did: “knowingly and 

wrongfully cause to be transported in interstate commerce child 

pornography by uploading pictures of child pornography to a 

shared internet file named ‘KAZAA’, in violation of 18 U.S.C. 

 

4

 See, e.g., A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 

1011 n.1 (9th Cir. 2001) (“To download means to receive 

information, typically a file, from another computer to yours 

via modem. . . . The opposite term is upload, which means to 

send a file to another computer.”) (citation and quotation marks 

omitted). 
United States v. Ober, No. 07-0722/AR 

7

[§] 2252A(a)(1).” While the military judge did explain the 

various elements of this specification in his instruction, he 

did not reference or define the “cause to be” language. 

Although the Government has argued that the “cause to be” 

language is merely surplusage, it is clear that “cause to be 

transported” is not the same as “transported.” As instructed, 

the members convicted Ober of “transporting” rather than 

“caus[ing] to be transported.” 

Before this court, the Government relied extensively on the 

Government expert’s rebuttal testimony that accessing files on 

Kazaa “causes an upload to occur on the other person’s 

computer.” “Causes to be” must have meaning in order for the 

Government’s rebuttal theory to be successful. As such, the 

term was critical to the Government’s case and cannot be 

considered surplusage. When a case is premised on particular 

language in the specification, it cannot be disregarded. See

United States v. Smith, 21 C.M.A. 264, 267, 45 C.M.R. 38, 41 

(1972); United States v. Rowe, 13 C.M.A. 302, 310, 32 C.M.R. 

302, 310 (1962). The military judge, therefore, erred when he 

failed to explain this phrase to the members in his 

instructions.5 The military judge did not meet his clear 

obligation to present each element to the panel, tailor the 

 

5

 Although the military judge informed that parties that he would 

define the term “transporting”, he also failed to define that 

term. 
United States v. Ober, No. 07-0722/AR 

8

instructions to the facts of the case, and give definitions of 

key terms, particularly those in conflict. 

 Given the cumulative effect of the due process error and 

the instructional errors, I would reverse the decision of the 

United States Army Court of Criminal Appeals as to this 

specification and order the record of trial returned to the Army 

Judge Advocate General for a new trial.