UNITED STATES, Appellee 

v. 

Christopher P. MARTINELLI, Specialist 

U.S. Army, Appellant 

No. 02-0623 

Crim. App. No. 20000311 

United States Court of Appeals for the Armed Forces 

Argued April 13, 2004 and March 1, 2005 

Decided September 28, 2005 

ERDMANN, J., delivered the opinion of the court, in which EFFRON 

and BAKER, JJ., joined. GIERKE, C.J., filed a separate opinion 

concurring in part and dissenting in part. CRAWFORD, J., filed 

a dissenting opinion. 

Counsel 

For Appellant: Captain Charles A. Kuhfahl Jr. (argued); Colonel 

Adele H. Odegard, Colonel Robert D. Teetsel, Lieutenant Colonel 

Mark Tellitocci, Major Sean S. Park, Major Jeanette K. Stone, 

and Captain Mary C. Vergona (on brief). 

For Appellee: Captain Janine P. Felsman and Captain Mason S. 

Weiss (argued); Colonel Lauren B. Leeker, Colonel Steven T. 

Salata, Lieutenant Colonel Margaret B. Baines, Lieutenant 

Colonel Theresa A. Gallagher, and Lieutenant Colonel Mark L. 

Johnson (on brief). 

Military Judge: Kenneth H. Clevenger 

This opinion is subject to revision before final publication. 
United States v. Martinelli, No. 02-0623/AR 

2

Judge ERDMANN delivered the opinion of the court. 

This case presents yet another issue arising from the 

prosecution of servicemembers for violating federal criminal 

statutes relating to child pornography in the wake of Ashcroft 

v. Free Speech Coalition, 535 U.S. 234 (2002). Specialist 

Christopher Martinelli’s convictions are based upon violations 

of the Child Pornography Prevention Act of 1996 (CPPA), 18 

U.S.C. § 2252A (2000), the same statute that we addressed in 

United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), and in 

United States v. Mason, 60 M.J. 15 (C.A.A.F 2004). 

Unlike the circumstances in O’Connor and Mason, however, 

the conduct underlying Martinelli’s conviction occurred outside 

the United States -- specifically in Darmstadt, Germany. We 

granted review of this case to examine the question of whether 

the CPPA applies to conduct engaged in outside the territorial 

boundaries of the United States when charged under clause 3 of 

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 934 (2000). 

We hold that the CPPA does not have extraterritorial 

application and therefore does not extend to Martinelli’s conduct 

in Germany. We further hold that Martinelli’s conduct under 

Specification 1 occurred in both Germany and the United States 

and therefore falls within the domestic application of the CPPA. 

We also hold that Martinelli’s plea to Specification 1 was not 
United States v. Martinelli, No. 02-0623/AR 

3

provident under O’Connor. Finally, although we have held that 

servicemembers can be prosecuted under clauses 1 and 2 of 

Article 134 for offenses involving “virtual” children, 

Martinelli’s guilty pleas to the CPPA-based specifications 

cannot be deemed provident to lesser included offenses under 

clauses 1 and 2 under the principles discussed in Mason, 60 M.J. 

at 18-20. 

PROCEDURAL BACKGROUND

Martinelli entered guilty pleas and was convicted by 

general court-martial in April 2000 on four CPPA-based 

specifications under clause 3 of Article 134, UCMJ (sending, 

receiving, reproducing and possessing child pornography) and one 

specification of obstructing justice in violation of Article 

134, UCMJ. He was sentenced by the military judge to a 

dishonorable discharge, confinement for three years, forfeiture 

of all pay and allowances and reduction to the lowest enlisted 

grade. In accordance with the terms of a pretrial agreement, 

the convening authority reduced the confinement to eighteen 

months, but approved the balance of the sentence. 

Before the Army Court of Criminal Appeals, Martinelli 

argued that his child pornography conviction must be reversed 

because the statute underlying it was unconstitutionally vague 

and overbroad. Martinelli based this contention on a Ninth 

Circuit decision that had been granted certiorari but not yet 
United States v. Martinelli, No. 02-0623/AR 

4

decided by the United States Supreme Court. See Free Speech 

Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted 

sub nom. Ashcroft v. Free Speech Coalition, 531 U.S. 1124 (2001). 

Prior to the Supreme Court issuing its decision, however, the 

Court of Criminal Appeals reviewed Martinelli’s case and 

summarily affirmed his conviction and sentence. United States v. 

Martinelli, No. Army 20000311 (A. Ct. Crim. App. Feb. 7, 2002) 

(unpublished). 

Martinelli then petitioned this court for review of the 

Court of Criminal Appeals decision. By that time, the Supreme 

Court had upheld the Ninth Circuit ruling upon which Martinelli 

had based the challenge to his conviction. See Ashcroft v. Free 

Speech Coalition, 535 U.S. 234 (2002). We granted review of 

Martinelli’s Issue I in which he challenged his CPPA-based 

convictions under clause 3 of Article 134 in light of Free Speech 

Coalition and we specified an issue addressing whether the CPPA 

had extraterritorial application.1

 Following argument on these 

 

1

 On November 24, 2003 we granted review of the following issues: 

I. WHETHER APPELLANT'S GUILTY PLEAS TO SPECIFICATIONS 1, 

2, 3 AND 4 OF THE CHARGE WERE IMPROVIDENT BECAUSE THE 

MILITARY JUDGE PROVIDED AN UNCONSTITUTIONALLY 

OVERBROAD DEFINITION OF CHILD PORNOGRAPHY AND DID NOT 

CONDUCT AN ADEQUATE PROVIDENCE INQUIRY, AS REQUIRED BY 

UNITED STATES v. CARE, 18 U.S.C.M.A. 535, 40 C.M.R. 

247 (1969), AND ITS PROGENY. 

II. WHETHER 18 U.S.C. SECTIONS 2252A(a)(1)-(a)(3) AND 

(a)(5)(A) APPLY TO CONDUCT ENGAGED IN OUTSIDE THE 
United States v. Martinelli, No. 02-0623/AR 

5

initial issues,2

 the court ordered supplemental briefing on two 

additional issues related to the extraterritorial application of 

the CPPA.3

 The case was reargued with inclusion of the two 

additional issues. 

FACTUAL BACKGROUND

Martinelli’s CPPA convictions are grounded in four discrete 

actions that he took with respect to images of “child 

pornography.” Beginning in January 1999 and continuing through 

January 2000, Martinelli downloaded images of child pornography 

from the Internet using computers located at the off-post 

Netzwork Internet Café in Darmstadt, Germany. He would search 

Internet websites and log into Internet chat rooms in order to 

communicate with individuals willing to send him images. He 

 

TERRITORIAL LIMITS OF THE UNITED STATES WHEN CHARGED 

UNDER CLAUSE 3 OF ARTICLE 134, UCMJ. 

2

 We first heard oral argument in this case at the United States 

Coast Guard Academy, New London, Connecticut, as part of this 

court’s “Project Outreach.” This practice was developed as part 

of a public awareness program to demonstrate the operation of a 

Federal Court of Appeals and the military justice system. 

3

 On October 22, 2004 we granted the additional specified issues: 

III. WHETHER 18 U.S.C. §§ 2252A(a)(1)–(a)(3) APPLY TO AN 

INDIVIDUAL WHO SENDS, RECEIVES, AND REPRODUCES 

ELECTRONIC FILES CONTAINING CHILD PORNOGRAPHY AT AN 

INTERNET CAFÉ LOCATED OFF POST IN GERMANY. 

IV. WHETHER 18 U.S.C. §§ 2252A(a)(1)–(a)(3) ARE BEING 

APPLIED DOMESTICALLY OR EXTRATERRITORIALLY WHEN EMAILS CONTAINING CHILD PORNOGTRAPHY ARE SENT THROUGH 

E-MAIL OR INTERNET SERVICE PROVIDER SERVERS LOCATED 

IN THE UNITED STATES. 
United States v. Martinelli, No. 02-0623/AR 

6

would ultimately secure the images through one of two distinct 

routes: (1) he would receive materials via electronic mail (email) sent by other individuals to e-mail accounts that he 

maintained with either Yahoo! or Hotmail or (2) he would be 

directed by individuals to their respective web pages, from 

which Martinelli would secure the images directly. Under either 

scenario, he would download the images from the e-mail 

attachments or web page contents to the hard drive of a computer 

at the Netzwork Café. Martinelli received at least sixty-four 

images of child pornography in this fashion. 

After receiving the images, Martinelli would copy them in 

order to distribute them to other individuals in the form of 

attachments to e-mail transmissions. He transmitted some of 

these images to other individuals via his Yahoo! and Hotmail 

accounts, sending approximately twenty such messages over the 

relevant time period. 

Martinelli also copied the images from the hard drives of 

the computers at the Netzwork Café to a separate disk, which he 

then took back to his barracks at the Cambrai Fritsch Kaserne, a 

United States Army installation in Darmstadt, Germany. At the 

barracks he would either keep the images on the disk or load 

them onto the hard drive of his computer. 

Martinelli was charged with the following violations of the 

CPPA under clause 3 of Article 134: 
United States v. Martinelli, No. 02-0623/AR 

7

Specification 1: knowingly mailing, transporting or 

shipping child pornography in interstate or foreign 

commerce (by computer) in violation of § 2252A(a)(1) 

(specifically, sending images over the Internet from the 

Netzwork Internet Café in Darmstadt, Germany); 

Specification 2: knowingly receiving child pornography 

that has been mailed, shipped or transported in interstate 

or foreign commerce (by computer) in violation of 

§ 2252A(a)(2)(A) (specifically, downloading images from the 

Internet in the Netzwork Internet Café in Darmstadt, 

Germany); 

Specification 3: knowingly reproducing child pornography 

for distribution through the mails, or in interstate or 

foreign commerce (by computer) in violation of 

§ 2252A(a)(3) (specifically, downloading images from the 

Internet; copying them to hard drive and transmitting the 

copied files to approximately twenty individuals over the 

Internet in the Netzwork Internet Café in Darmstadt, 

Germany); 

Specification 4: knowingly possessing child pornography on 

land and in a building used by and under the control of the 

United States Government in violation of § 2252A(a)(5)(A) 

(specifically, possessing approximately fifty diskettes 

containing child pornography in buildings at the Cambrai 

Fritsch Kaserne). 

DISCUSSION

A. Standard of Review

This case involves a guilty plea. For this court to reject 

a guilty plea on appellate review, the record of trial must show 

a substantial basis in law and fact for questioning the plea. 

United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)(citing 

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). 

Whether Congress intended the CPPA to have extraterritorial 

application is a question of statutory interpretation. 
United States v. Martinelli, No. 02-0623/AR 

8

Interpretation of a statute and its legislative history are 

questions of law that we review de novo. United States v. Falk, 

50 M.J. 385, 390 (C.A.A.F. 1999). 

B. The Nature of the Charge under Article 134

 Martinelli’s conduct was charged as a violation of Article 

134, UCMJ -- the “General Article.” Conduct is punishable under 

Article 134 if it “prejudices good order and discipline in the 

armed forces” (clause 1), if it is “of a nature to bring 

discredit upon the armed forces” (clause 2), or if it is a crime 

or offense not capital (clause 3). O’Connor, 58 M.J. at 452. 

As was the case in both O’Connor and Mason, Martinelli’s conduct 

was specifically charged as a “clause 3” offense, with the CPPA 

serving as the “crime or offense not capital.” 

The initial question that we specified for review is 

ostensibly straightforward -- does the CPPA apply to 

Martinelli’s conduct in Germany? The President, in the Manual 

for Courts-Martial, has stated that: 

A person subject to the [UCMJ] may not be punished under 

clause 3 of Article 134 for an offense that occurred in a 

place where the law in question did not apply. For 

example, a person may not be punished under clause 3 of 

Article 134 when the act occurred in a foreign country 

merely because that act would have been an offense under 

the United States Code had the act occurred in the United 

States. Regardless where committed, such an act might be 

punishable under clauses 1 or 2 of Article 134. 

Manual for Courts-Martial, United States (2002 ed.) (MCM), pt. 

IV, ¶ 60.c.(4)(c)(i) (emphasis added). As a uniformed 
United States v. Martinelli, No. 02-0623/AR 

9

servicemember stationed in Germany, Martinelli was 

unquestionably subject to the jurisdiction of the UCMJ. See

Articles 2(a)(1) and 5, UCMJ, 10 U.S.C. §§ 802(a)(1), 805 

(2000). There is also no question that the CPPA, if charged 

under clause 3 of Article 134, would be applicable to 

Martinelli’s conduct had he engaged in these acts in an Internet 

cafe in Killeen, Texas and then carried the disks back to a 

barracks room on Fort Hood. Similarly, his conduct might well 

be punishable under clauses 1 and 2 of Article 134 regardless of 

where it occurred. 

The question we address today is not the jurisdiction of 

the UCMJ itself, but rather whether the CPPA has 

extraterritorial application under clause 3 of Article 134.4 If 

we find that the CPPA, as a “crime or offense not capital,” is 

not applicable to Martinelli’s conduct in Germany, we must then 

consider whether, due to the nature of his usage of the 

Internet, his conduct fell within the domestic application of 

the CPPA. To the extent that we find that Martinelli’s conduct 

fell within the domestic application of the CPPA, we must then 

consider whether his guilty pleas were provident in light of 

O’Connor. Finally, if we find that Martinelli’s pleas were 

 

4

 The question of the extraterritorial application of federal 

statutes has nothing to do with the jurisdiction of the federal 

courts. It is a question of substantive law, which turns on the 

intent of Congress that a particular statute have 
United States v. Martinelli, No. 02-0623/AR 

10

improvident under clause 3 of Article 134 for either reason, we 

must determine whether they would be provident to lesser 

included offenses under clauses 1 or 2 of Article 134. 

C. The Extraterritorial Application of the CPPA

(1) Presumption Against Extraterritoriality

The extraterritorial application of Federal statutes does 

not involve any question as to Congress’ authority to enforce 

its criminal laws beyond the territorial boundaries of the 

United States -- Congress clearly has that authority. United 

States v. Bowman, 260 U.S. 94, 98-103 (1922). Rather, the 

question here is whether Congress has in fact exercised that 

authority, which is a matter of statutory construction. Equal 

Employment Opportunity Commission v. Arabian American Oil Co.

(Aramco), 499 U.S. 244, 248 (1991). 

 The Supreme Court has recognized as a longstanding 

principle of American law “‘that legislation of Congress, unless 

a contrary intent appears, is meant to apply only within the 

territorial jurisdiction of the United States.’” Id. (quoting 

Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)); see also

Small v. United States, 125 S. Ct. 1752, 1755 (2005). We must 

assume that Congress legislates against the backdrop of the 

presumption against extraterritoriality. Aramco, 499 U.S. at 

248. Unless the “affirmative intention” of Congress to give 

 

extraterritorial application. See Hartford Fire Ins. Co. v. 
United States v. Martinelli, No. 02-0623/AR 

11

extraterritorial effect to a statute is “clearly expressed,” it 

is presumed that the statute is “primarily concerned with 

domestic conditions.” Id. (quoting Benz v. Compania Naviera 

Hidalgo, S.A., 353 U.S. 138, 147 (1957) and Foley Bros., 336 

U.S. at 285). 

 The presumption against extraterritoriality has been 

recognized in the specific context of criminal statutes, with an 

“exception” for a certain class of offenses: 

Crimes against private individuals or their property, like 

assaults, murder, burglary, larceny, robbery, arson, 

embezzlement, and fraud of all kinds, which affect the 

peace and good order of the community, must of course, be 

committed within the territorial jurisdiction of the 

government where it may properly exercise it. If 

punishment of them is to be extended to include those 

committed outside of the strict territorial jurisdiction, 

it is natural for Congress to say so in the statute, and 

failure to do so will negative the purpose of Congress in 

this regard. . . . 

But the same rule of interpretation should not be 

applied to criminal statutes which are, as a class, not 

logically dependent on their locality for the Government’s 

jurisdiction, but are enacted because of the right of the 

Government to defend itself against obstruction, or fraud 

wherever perpetrated, especially if committed by its own 

citizens, officer or agents. Some such offenses can only 

be committed within the territorial jurisdiction of the 

Government because of the local acts required to constitute 

them. Others are such that to limit their locus to the 

strictly territorial jurisdiction would be greatly to 

curtail the scope and usefulness of the statute and leave 

open a large immunity for frauds as easily committed by 

citizens on the high seas and in foreign countries as at 

home. In such cases, Congress has not thought it necessary 

to make specific provision in the law that the locus shall 

include the high seas and foreign countries, but allows it 

to be inferred from the nature of the offense. 

 

California, 509 U.S. 764, 813 (1993) (Scalia, J., dissenting). 
United States v. Martinelli, No. 02-0623/AR 

12

Bowman, 260 U.S. at 98. We have previously characterized Bowman

as drawing a distinction between: 

(1) statutes punishing crimes against the peace and good 

order of the community (which apply only to [acts] 

committed within the territorial jurisdiction of the United 

States unless Congress had specifically directed 

otherwise); and (2) statutes punishing fraud or 

obstructions against the United States Government (which 

include by implication acts which were committed in foreign 

countries). 

United States v. Gladue, 4 M.J. 1, 5 (C.M.A. 1977). 

 The principles articulated by the Supreme Court in Aramco

and Bowman can be harmonized to provide the following analytical 

framework for assessing whether the CPPA was intended to have 

extraterritorial effect: Unless the CPPA can be viewed as 

falling within the second category described in Bowman

(“criminal statutes which are, as a class, . . . enacted because 

of the right of the government to defend itself against 

obstruction, or fraud wherever perpetrated,” 260 U.S. at 98), 

the statute is subject to the presumption against 

extraterritoriality recognized in both Bowman and Aramco. 

 We do not believe that the CPPA can be viewed as a “second 

category” offense under Bowman and thus exempt from application 

of the presumption against extraterritoriality. The ultimate 

objective behind the criminal proscription of activities 

pertaining to child pornography is to protect children from 

abuse. Free Speech Coalition, 535 U.S. at 245. While few 
United States v. Martinelli, No. 02-0623/AR 

13

crimes are more serious or morally repugnant, child abuse does 

not involve “fraud” or “obstruction” against the United States 

Government. Rather, child abuse epitomizes that class of 

“[c]rimes against private individuals [including children]” that 

“affect the peace and good order of the community” described in 

the first category of Bowman. 260 U.S. at 98. 

 We are aware of the body of law, primarily from the Ninth 

Circuit, that does not read the second category in Bowman as 

limited to crimes against the Government. See, e.g., United 

States v. Vasquez-Velasco, 15 F.3d 833, 839 n.4 (9th Cir. 1993); 

United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir. 1990). 

Those cases all trace their roots, in one fashion or another, 

back to United States v. Baker, 609 F.2d 134, 136 (5th Cir. 

1980), where the Fifth Circuit read Bowman as allowing a court, 

in the absence of any expression of congressional intent, to 

“infer” Congress’ intent to provide for extraterritorial 

application “from the nature of the offenses and Congress’ other 

legislative efforts to eliminate the type of crime involved.”5

 

 

5

 For a critical discussion of the roles of Congress, the 

Executive and the judiciary regarding the extraterritorial 

application of federal statutes, see Mark P. Gibney, The 

Extraterritorial Application of U.S. Law: The Perversion of 

Democratic Governance, The Reversal of Institutional Roles, and 

the Imperative of Establishing Normative Principles, 19 B.C. 

Int’l & Comp. L. Rev. 297, 308 (1996). 
United States v. Martinelli, No. 02-0623/AR 

14

The Baker court concluded that a federal statute prohibiting 

drug possession with intent to distribute fell within “the 

second category described in Bowman” and thus was intended to 

apply extraterritorially. Id. at 137. 

 The holding in Baker has been subsequently used to support 

the “inference” of a congressional intent for extraterritorial 

application in several circumstances that do not involve crimes 

against the Government, including child pornography-related 

offenses. See, e.g., United States v. Harvey, 2 F.3d 1318, 1327 

(3d Cir. 1993)(sentencing guidelines for child pornography 

offenses); Thomas, 893 F.2d at 1068-69 (production of child 

pornography under 18 U.S.C. § 2251). We disagree, however, with 

Baker’s expanded view of the “second category” offenses in 

Bowman. The phrase “inferred from the nature of the offense” in 

Bowman was clearly cast in reference to the “class” of criminal 

statutes involving fraud or obstruction against the Government 

and is not a free standing principle of statutory construction: 

But the same rule of interpretation should not be applied 

to criminal statutes which are, as a class, not logically 

dependent on their locality for the Government’s 

jurisdiction, but are enacted because of the right of the 

Government to defend itself against obstruction, or fraud 

wherever perpetrated, especially if committed by its own 

citizens, officers or agents. . . . In such cases, 

Congress has not thought it necessary to make specific 

provision in the law that the locus shall include the high 

seas and foreign countries, but allows it to be inferred 

from the nature of the offense. 

 
United States v. Martinelli, No. 02-0623/AR 

15

260 U.S. at 98.6

 

Accordingly, we adhere to the view we originally expressed 

in Gladue. The only category of offenses exempt under the 

language of Bowman from any presumption against 

extraterritoriality and for which a congressional intent for 

extraterritorial application can be “inferred from the nature of 

the offense” are those involving “obstructions” and “frauds” 

against the Government. See United States v. Gatlin, 216 F.3d 

207, 211 n.5 (2d Cir. 1999). 

 (2) Indicia of Congressional Intent

 Our conclusion that the CPPA is subject to a presumption 

against extraterritoriality under Aramco and Bowman does not end 

our inquiry into its applicability. We now “look to see whether 

‘language in the [relevant statute] gives any indication of a 

congressional purpose to extend its coverage beyond places over 

which the United States has sovereignty or has some measure of 

legislative control.’” Aramco, 499 U.S. at 248 (quoting Foley 

Bros., 336 U.S. at 285). In searching for the clear expression 

of congressional intent required by Aramco, we are not limited 

to the text of the statute and can “consider ‘all available 

evidence’ about the meaning of the statute, including its text, 

 

6

 We also note that the Baker concept of “inferring” 

extraterritorial intent based on the nature of the offense and 

Congress’ other efforts to eliminate the type of crime involved 

could apply to almost any crime committed anywhere in the world. 
United States v. Martinelli, No. 02-0623/AR 

16

structure, and legislative history.” Gatlin, 216 F.3d at 212 

(quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 177 

(1993)). 

 (a) Text and Structure

 Our reading of the CPPA does not find any indication in the 

text and structure of the statute of a congressional purpose to 

extend its coverage. See Bradley Scott Shannon, The 

Jurisdictional Limits of Federal Criminal Child Pornography Law, 

21 Hawaii L. Rev. 73, 106 (1999) (noting that the language of 

the CPPA “do[es] not clearly express an intent” that the statute 

is to apply extraterritorially). The text and structure of the 

statute prohibits five categories of conduct: 

• mailing, transporting or shipping child pornography in 

interstate or foreign commerce by any means, including 

by computer (18 U.S.C. § 2252A(a)(1)); 

• receipt or distribution of child pornography that has 

been mailed, shipped or transported in interstate or 

foreign commerce by any means, including by computer 

(18 U.S.C. § 2252A(a)(2)(A), (B)); 

• reproduction of child pornography for distribution by 

mail or interstate or foreign commerce, including by 

computer (18 U.S.C. § 2252A(a)(3)(A)); 

• sale or possession with intent to sell of (1) child 

pornography that has moved in interstate or foreign 

commerce by any means, including by computer or was 

produced using materials that have moved in commerce 

or (2) any child pornography “in the special maritime 

and territorial jurisdiction of the United States, or 

on any land or building owned by, leased to, or 

otherwise used by or under the control of the United 

 

This would turn the presumption against extraterritorial 

application on its head where criminal statutes are involved. 
United States v. Martinelli, No. 02-0623/AR 

17

States Government, or in the Indian country (as 

defined in section 1151). . . . ” (18 U.S.C. § 

2252A(a)(4)(A), (B)); and 

• possession of (1) child pornography that has moved in 

interstate or foreign commerce by any means, including 

by computer or was produced using materials that have 

moved in commerce or (2) any child pornography “in the 

special maritime and territorial jurisdiction of the 

United States, or on any land or building owned by, 

leased to, or otherwise used by or under the control 

of the United States Government, or in the Indian 

country (as defined in section 1151). . . .” (18 

U.S.C. § 2252A(a)(5)(A), (B)). 

The criminal acts in the first three subsections all refer 

to the movement of child pornography “in interstate or foreign 

commerce,” whether it be the act of moving the material itself 

(§ 2252A(a)(1)) or the acts of receiving, distributing or 

reproducing for distribution materials that have moved in that 

fashion (§ 2252A(a)(2)-(3)). 

 The criminal acts in the final two subsections are sale, 

possession with intent to sell, and simple possession. Under 

these subsections, criminal liability can attach under either of 

two separate circumstances. The first involves the same 

“interstate or foreign commerce” context attendant to the 

offenses in § 2252A(a)(1)-(3). The second circumstance is 

purely dependent on physical location or the “situs” of the 

defendant -- if the requisite act occurs “in the special 

maritime and territorial jurisdiction of the United States, or 

on any land or building owned by, leased to or otherwise used by 

or under the control of the United States Government,” it does 
United States v. Martinelli, No. 02-0623/AR 

18

not matter whether the child pornography ever moved in commerce. 

See § 2252A(a)(4)(A), (5)(A). 

There are two aspects of the statutory language in § 

2252A(a)(1)–(a)(5) that could possibly be read as expressing 

congressional intention as to extraterritorial effect -- (1) the 

references to “interstate or foreign commerce” and (2) the situs 

language in § 2252A(a)(4)(A), (a)(5)(A). In terms of the 

former, they are not, in and of themselves, a “clear expression” 

of any congressional intention that the acts proscribed by the 

statute constitute a federal crime no matter where in the world 

they occur. Rather, we view them as a straightforward reference 

to the source authority of Congress for proscribing these acts 

as criminal in the first instance, i.e., the Commerce Clause of 

the United States Constitution: 

Many Acts of Congress are based on the authority of that 

body to regulate commerce among the several States, and the 

parts of these Acts setting forth the basis for legislative 

jurisdiction will obviously refer to such commerce in one 

way or another. If we were to permit possible, or even 

plausible, interpretations of language such as that 

involved here to override the presumption against 

extraterritorial application, there would be little left of 

the presumption. 

Aramco, 499 U.S. at 253. The use of the term “foreign commerce” 

in addition to “interstate commerce” does not alter that 

conclusion, as the Supreme Court “has repeatedly held” that even 

statutes that expressly refer to “foreign commerce” do not apply 

abroad. Id. at 251. 
United States v. Martinelli, No. 02-0623/AR 

19

 That leaves the situs language in §§ 2252A(a)(4)(A) and 

2252A(a)(5)(A) as a possible basis for overcoming the 

presumption against extraterritoriality. There are three 

alternative locations referenced in the statute: 

• “the special maritime and territorial jurisdiction of 

the United States”; or 

• “any land or building owned by, leased to, or 

otherwise used by or under the control of the United 

States Government”; or 

• “the Indian country” (as defined in 18 U.S.C. § 1151). 

 The reference to Indian country reflects a congressional 

focus on complex jurisdictional issues that flow from the 

unique, and inherently domestic, relationship between the United 

States Government and American Indians. It certainly does not 

reflect any clear legislative concern for matters arising 

outside the territorial boundaries of the United States. 

 The term “special maritime and territorial jurisdiction of 

the United States” is, like “Indian country,” a term of art that 

carries its own distinct definition. See 18 U.S.C. § 7 (2000). 

That term of art has been the subject of different 

interpretations as to its extraterritorial reach, particularly 

whether it extends to lands within the territory of a sovereign 

foreign nation. See, e.g., United States v. Corey, 232 F.3d 

1166, 1183 (9th Cir. 2000)(term includes property inside Yokota 
United States v. Martinelli, No. 02-0623/AR 

20

Air Base in Japan and private apartment building rented by 

United States embassy in Philippines); Gatlin, 216 F.3d at 220 

(term does not include housing complex on U.S. Army base in 

Darmstadt, Germany). 

We conclude that the depth and complexity of the debate 

reflected in Corey and Gatlin inherently demonstrates something 

less than a “clear expression” of congressional intention that 

the term “special maritime and territorial jurisdiction of the 

United States” extends to lands inside the boundaries of a 

foreign nation. Further, Congress has since acted to resolve 

the specific subject of the debate in Corey and Gatlin, which 

was narrowly focused on the reach of certain federal criminal 

statutes to conduct engaged in overseas by civilians employed by 

or accompanying the armed forces. See Military Extraterritorial 

Jurisdiction Act of 2000, Pub. L. No. 106-523, 114 Stat. 2488 

(codified at 18 U.S.C. § 3261) (MEJA). Congress used MEJA to 

create a new federal criminal offense involving conduct engaged 

in “outside the United States” that would otherwise constitute a 

felony if the conduct had been engaged in “within the special 

maritime and territorial jurisdiction of the United States.” 18 

U.S.C. § 3261 (a) (2000).7

 

 

7

 See also Glen R. Schmitt, Closing the Gap in Criminal 

Jurisdiction Over Civilians Accompanying the Armed Forces Abroad 

-- A First Person Account of the Creation of the Military 

Extraterritorial Jurisdiction Act of 2000, 51 Cath. U. L. Rev. 

55, 78, 113-14 (2001). 
United States v. Martinelli, No. 02-0623/AR 

21

The remaining situs language refers to conduct occurring 

“on any land or building owned by, leased to, or otherwise used 

by or under the control of the United States Government.” That 

language undoubtedly reflects a congressional intent to 

criminally proscribe conduct in physical locations where the 

United States Government enjoys some type of proprietary control 

over the location. The language, however, does not provide 

clear evidence of a congressional intent that the statute should 

apply outside the boundaries of the United States. That 

language could just as easily apply only to land and buildings 

located within the territorial United States such as national 

parks, federal office buildings and domestic military 

installations. 

We also note that the language concerning “land or 

building” does not stand alone, but is instead bracketed by 

language dealing with the “special maritime and territorial 

jurisdiction of the United States” and “the Indian country (as 

defined in section 1151).” Under the canon of statutory 

construction noscitur a sociis (a word is known by the company 

it keeps), it is reasonable to conclude that Congress intended 

the “land or building” language to have the same domestic 

application as evidenced in the surrounding language. See Amgen 

Inc. v. Smith, 357 F.3d 103, 112-13 (D.C. Cir. 2004) (applying 

the canon of noscitur a sociis to support consistent 
United States v. Martinelli, No. 02-0623/AR 

22

interpretation of separate phrases within a statutory section); 

In re Application of the United States for an Order Authorizing 

the Roving Interception of Oral Communications, 349 F.3d 1132, 

1142-43 (9th Cir. 2003) (using the canon of noscitur a sociis to 

interpret a section of the federal wiretapping statute); see

also United States v. Hicks, 6 C.M.A. 621, 623, 20 C.M.R. 337, 

339 (1956). 

We do not view the statutory phrases discussed above, 

either individually or collectively, as the type of “clear 

expression” of congressional intention required by Aramco. The 

analysis dictated by Bowman and Aramco requires that the 

statutory text reflect a clear expression of Congress’ intent 

that the statute have extraterritorial reach. Aramco, 499 U.S. 

at 248. The language must be clear enough to overcome a 

presumption that it was intended to apply domestically, not 

simply lend itself to a plausible argument that it applies 

overseas. Mere plausibility is not sufficient to overcome the 

presumption. Id. In the context of that presumption, we do not 

view the “any land or building” language of §§ 2252A(a)(4)(A) 

and 2252A(a)(5)(A) as a “clear expression” by Congress that it 

have extraterritorial application. 

 (b) Legislative History

 Having concluded that the text and structure of the CPPA do 

not express any clear intent by Congress that the statute apply 
United States v. Martinelli, No. 02-0623/AR 

23

extraterritorially, we reach the same conclusion with respect to 

its legislative history. The clear focus of that legislative 

history is on the patent evils of child pornography and the new 

dimension that computer technology adds to those evils. See

Congressional Findings, notes following 18 U.S.C.A. § 2251, 18 

U.S.C.S. 2251. Although the history contains extensive 

discussion of those issues, it is devoid of any reference to 

issues of extraterritoriality, much less any clear expression of 

congressional intent in that regard. See S. Rep. No. 104-358, 

at 12-23 (1996). 

(c) Examples of Clear Congressional Intent

 Our conclusion regarding the absence of any clearly 

expressed intent by Congress that the CPPA apply 

extraterritorially is bolstered by the numerous instances where 

such intent has been clearly expressed. Even in the specific 

context of child pornography, Congress knows how to makes its 

intention clear that a particular criminal statute extend to 

conduct engaged in outside the United States. See, e.g., 18 

U.S.C. § 2260(b)(“a person who, outside the United States, 

knowingly receives, transports, . . . any visual depiction of a 

minor engaging in sexually explicit conduct . . . intending that 

the visual depiction will be imported into the United States”); 

18 U.S.C. § 2251(c)(1)(“[a]ny person who . . . employs, uses, . 

. . any minor to engage in, or who has a minor assist any other 
United States v. Martinelli, No. 02-0623/AR 

24

person to engage in, any sexually explicit conduct outside of 

the United States”). 

 Congress has clearly expressed its intent in other criminal 

statutes as well: the Biological Weapons Anti-Terrorism Act of 

1989 provides, “There is extraterritorial federal jurisdiction 

over an offense under this section committed by or against a 

national of the United States,” 18 U.S.C. § 175(a) (2000); the 

Maritime Drug Law Enforcement Act provides, “This section is 

intended to reach acts of possession, manufacture, or 

distribution committed outside the territorial jurisdiction of 

the United States.” 46 U.S.C. app. § 1903(h) (2000). 

 Congress also amended 18 U.S.C. § 7 (2000), which defines 

the “special maritime and territorial jurisdiction” of the 

United States, as part of the Uniting and Strengthening America 

by Providing Appropriate Tools Required to Intercept and 

Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 

107-56, 115 Stat. 272 (2001). The USA PATRIOT Act amendments 

inserted a new provision that, with respect to “offenses 

committed by or against a national of the United States,” 

extends the special maritime and territorial jurisdiction of the 

United States under 18 U.S.C. § 7 to the “premises of . . . 

diplomatic, consular, military or other . . missions . . in 

foreign States. . . .” USA PATRIOT Act § 804 (codified at 18 

U.S.C. § 7(9)(A)). This is a clear expression of congressional 
United States v. Martinelli, No. 02-0623/AR 

25

intent that a crime committed in “the special maritime and 

territorial jurisdiction” now includes conduct that may in some 

instances have occurred inside the boundaries of a foreign 

nation. 

Finally, we note Congress’ ability to make its intentions 

in this regard clear with respect to a broad range of criminal 

acts rather than a single crime. In legislation proscribing 

“[a]cts of terrorism transcending national boundaries,” Congress 

has provided that the statute extends to “conduct occurring 

outside of the United States in addition to conduct occurring 

inside of the United States” and that “[t]here is 

extraterritorial Federal jurisdiction” over the wide range of 

offenses described in the statute. See 18 U.S.C. § 2332(e), 

(g)(1) (2000). These examples of express congressional intent 

constitute various indicia, none of which are present with 

respect to the CPPA. 

To reach the conclusion urged by the Government, that 

Congress intended the CPPA to criminalize conduct inside the 

boundaries of sovereign foreign countries,8

 we would have to 

 

8

 Unless restricted by Congress, a statute with a clear 

congressional intent of extraterritorial effect, applies to 

foreign nationals as well as United States nationals. Such an 

interpretation raises international law concerns. See United 

States v. Delgado-Garcia, 374 F.3d 1337, 1344–45 (D.C. Cir. 

2004); see also id. at 1351–62 (Rogers, J., dissenting); 

Restatement (Third) of Foreign Relations Law of the United 

States §§ 401-03 (1987). 
United States v. Martinelli, No. 02-0623/AR 

26

disregard the Bowman and Aramco presumption and the absence of 

these indicia. The rules of statutory construction laid down by 

the Supreme Court simply do not support that conclusion. 

Accordingly, we cannot view the CPPA as overcoming the 

presumption against extraterritorial application dictated by 

Bowman and Aramco. The charges against Martinelli fall squarely 

within the example the President described in the Manual for 

Courts-Martial, i.e., “a person may not be punished under clause 

3 of Article 134 when the act occurred in a foreign country 

merely because that act would have been an offense under the 

United States Code had the act occurred in the United States.” 

MCM, pt. IV, ¶ 60.c.(4)(c)(i). As a result, there is a 

substantial basis in law and fact for viewing Martinelli’s 

guilty pleas to the CPPA-based clause 3 offenses under Article 

134 for conduct occurring in Germany as improvident. 

D. The Domestic Application of the CPPA

Martinelli stipulated that all of the e-mails that he sent 

or received at his Yahoo! or Hotmail e-mail accounts were 

electronically routed through the servers in the United States.9

 

This connection to the United States raises the possibility that 

the CPPA could be applied domestically to the three 

 

9

 We address only those instances where e-mails were routed 

through Martinelli’s U.S.-based e-mail accounts. Martinelli did 

not stipulate, nor is there any evidence on the record, that he 

utilized U.S.-based servers when he downloaded child pornography 
United States v. Martinelli, No. 02-0623/AR 

27

specifications that were based upon e-mail messages sent or 

received through Martinelli’s e-mail accounts.10 Martinelli 

argues that in each specification, the charge sheet alleges that 

the conduct occurred only “at or near Darmstadt, Germany” and 

therefore the Government put him on notice that the misconduct 

occurred in Germany. He argues that the situs of the offenses 

was in Germany and the fact that the material may have been 

routed through an Internet server located in the United States 

does not transform what was an extraterritorial act into a 

domestic act. 

The Government responds that there was more than one situs 

for Martinelli’s misconduct and that the prosecution was proper 

under either a domestic or extraterritorial application of the 

CPPA. The Government contends that because the Internet server 

was located in the United States and due to the continuing 

nature of the offenses involved (sending, receiving, and 

reproducing child pornography) a part of each offense was 

committed in the United States. Therefore the Government argues 

that a domestic application of the CPPA is proper. The 

Government cites United States v. Moncini, 882 F.2d 401 (9th 

Cir. 1989), in support of its position. 

 

directly from websites and we therefore do not address that 

issue. 

10 Specification 4 is the situs based possession charge and the 

specification did not allege movement through the Internet. 
United States v. Martinelli, No. 02-0623/AR 

28

In Moncini, a citizen and resident of Italy was arrested as 

he entered the United States and was tried in the United States 

District Court for the Central District of California for 

mailing child pornography from Italy to an undercover officer in 

California in violation of 18 U.S.C. § 2252. Moncini, 882 F.2d 

at 403. Prior to his trial Moncini filed a motion to dismiss 

the indictment for lack of personal jurisdiction. The trial 

court denied his motion on the ground that the mailings were 

“continuing offenses which continued to take place as Moncini’s 

letters traveled from Italy to California, giving the court 

territorial jurisdiction.” Id. The trial court found, in the 

alternative, that extraterritorial jurisdiction would be proper. 

Id.

Moncini was convicted and on appeal he again urged a lack 

of jurisdiction. The Ninth Circuit affirmed the lower court’s 

decision explaining that “[j]urisdiction is proper if the 

offense, or part of the offense, occurred within the United 

States.” Id. (citing Rocha v. United States, 288 F.2d 545, 547 

(9th Cir. 1961)). The court went on to explain that “Moncini’s 

mailing of child pornography was a continuing offense, so that 

part of the offense was committed in the United States as his 

letters traveled through the mail and were delivered to their 

destination.” Id. The court “reject[ed] Moncini’s argument 

that the crime was complete at the time the letter was deposited 
United States v. Martinelli, No. 02-0623/AR 

29

in the mail in Italy.” Id. The Ninth Circuit did not reach the 

question of extraterritoriality. 

The obvious distinction between Moncini and this case is 

that in this case the child pornography flowed through the 

Internet rather than through the mails. The statute, however, 

is not limited to “mail” but includes “mail, transport or ship” 

and as such includes material routed through the Internet. It 

can not be disputed that for purposes of sending and receiving 

communications, the Internet e-mail system is rapidly becoming 

the 21st century equivalent of the 20th century postal system. 

The domestic application of the CPPA is therefore possible under 

the “continuing offense” theory for Specifications 1–3. As each 

specification alleges different misconduct, each must be 

examined individually. 

Specification 1 (sending): This specification charged that 

Martinelli used “electronic mail to send electronic files 

containing child pornography through the Internet”. We agree 

with the Ninth Circuit that “sending” child pornography is a 

continuing offense that continues as the e-mail travels through 

the Internet to its destination. In this case those travels 

included a routing through servers located in the United States. 

As a result, a domestic application of the CPPA to Specification 

1 is appropriate. Moncini, 882 F.2d at 403. 
United States v. Martinelli, No. 02-0623/AR 

30

Specification 2 (receiving): This specification charged 

that Martinelli received “child pornography that had been . . . 

transported . . . by means of a computer to wit: downloading 

electronic files containing child pornography from the 

Internet.” Unlike the “sending” specification, Martinelli’s 

acts of receiving the child pornography were not the start of 

any conduct that continued into the United States. His conduct 

in “receiving” the e-mails occurred in Germany only and there 

can be no domestic application of the CPPA to this 

specification.11

Specification 3 (reproducing): This specification charged 

that Martinelli “reproduced by means of a computer child 

pornography for distribution . . . by downloading from the 

 

11 With respect to the question of whether all of the e-mail 

messages in Martinelli’s Yahoo! and Hotmail accounts were 

“resident” on Internet servers located in the United States, 

both Yahoo! and Hotmail (which is operated by MSN, a division of 

Microsoft Corp.) have significant international operations. See

Yahoo! 2004 Annual Report, available at 

http://yhoo.client.shareholder.com/annual.cfm (follow “2004 

Annual Report” hyperlink) (listing office locations in thirtythree cities around the world and noting that: “Our principal 

Web server equipment and operations are maintained in California 

and several other domestic and international locations.”); 

Microsoft Fiscal Year 2004 Form 10-K, available at 

http://www.microsoft.com/msft/sec.mspx (follow “Fiscal Year 2004 

Form 10-K” hyperlink) (listing a European Operations Center in 

Dublin, Ireland and noting that: “Our facilities are fully used 

for current operations of all segments. . . .”). Martinelli 

stipulated only that his e-mail messages had been routed through 

servers located in the United States. The record does not 

include any information about the servers on which his opened 

and unopened e-mail messages were stored. 
United States v. Martinelli, No. 02-0623/AR 

31

Internet electronic files . . . copying said files to computer 

diskettes and sending the copied files . . . by electronic 

mail.”12 Similar to the “receipt” specification, in reproducing 

for distribution, Martinelli commenced no conduct that continued 

into the United States and there can be no domestic application 

of the CPPA. 

In summary, we find that while Specification 1 involves 

conduct that continued into the United States and therefore 

provides for the domestic application of the CPPA, 

Specifications 2 and 3 involve conduct that is not continuing in 

nature and do not provide for the domestic application of the 

CPPA. 

E. The Providence of Martinelli’s Guilty Plea to

Specification 1

 

Having determined that the CPPA is domestically applicable 

to Specification 1, and therefore finding no basis to question 

Martinelli’s plea to Specification 1 on extraterritoriality 

grounds, we must now determine whether Martinelli’s guilty plea 

to that specification was provident under O’Connor, 58 M.J. at 

453-40. 

(1) The Providence Inquiry and Record of Trial

Under Specification 1, Martinelli was charged with 

violation of the CPPA as a “crime or offense not capital” under 

 

12 “Sending” is not an element of this offense, rather the 

offense is “reproducing for distribution” and the “sending” 
United States v. Martinelli, No. 02-0623/AR 

32

clause 3 of Article 134. The military judge explained to 

Martinelli that clause 3 of Article 134 prohibits the commission 

of crimes and offenses not capital and that he had been charged 

with violation of 18 U.S.C. § 2252A. The military judge went on 

to explain the elements of knowingly and wrongfully mailing, 

transporting or shipping child pornography by using electronic 

mail to send electronic files containing child pornography 

through the Internet, which Martinelli acknowledged he 

understood. The military judge then read Martinelli the 

definition of several terms that were used in 18 U.S.C. § 2252A, 

including the definition of child pornography, which the 

military judge noted was found in 18 U.S.C. § 2256. The 

military judge defined “child pornography” as follows: 

[A]ny visual depiction, including any photograph, film, 

video, picture, or computer, or computer-generated image or 

picture, whether made or produced by electronic, 

mechanical, or other means of sexually explicit conduct, 

where: 

(A) the production of such visual depiction involves the 

use of a minor engaging in sexually explicit conduct; 

(B) such visual depiction is, or appears to be, of a minor 

engaging in sexually explicit conduct; 

(C) such visual depiction has been created, adapted, or 

modified to appear that an identifiable minor is 

engaging in sexually explicit conduct; or 

(D) such visual depiction is advertised, promoted, 

presented, described, or distributed in such a manner 

that conveys the impression that the material is or 

contains a visual depiction of a minor engaged in 

sexually explicit conduct. 

 

allegation was included to meet the “distribution” element. 
United States v. Martinelli, No. 02-0623/AR 

33

 

The military judge did not inquire as to whether Martinelli 

believed that his conduct was either prejudicial to good order 

and discipline or service discrediting. As in O’Connor, the 

military judge’s use of the pre-Free Speech Coalition definition 

of “child pornography” properly reflected the law at the time of 

trial. His failure to inquire into the “actual” or “virtual” 

distinction or discuss the possible “service discrediting” or 

“prejudicial to good order and discipline” characteristics was 

perfectly understandable. O’Connor, 58 M.J. at 453. 

(2) The Providence of the Plea Under Clause 3

In O’Connor this court reviewed a guilty plea to a clause 3 

Article 134 CPPA offense in light of the Supreme Court’s 

decision in Free Speech Coalition: 

In Free Speech Coalition, the Supreme Court determined that 

certain portions of the § 2256(8) definition are 

unconstitutional, specifically the “or appears to be” 

language of § 2256(8)(B), and the entirety of § 2256(8)(D). 

535 U.S. at 256, 258. In striking the former, the Court 

specifically discussed the distinction between “virtual” 

child pornography and “actual” pornography and concluded 

that the rationales for restricting pornographic materials 

involving actual children do not extend to computergenerated simulations or images. Id. at 249-56. 

The Supreme Court concluded that the First Amendment 

prohibits any prosecution under the CPPA based on “virtual” 

child pornography. 

. . . . 

Prior to Free Speech Coalition, knowing possession and 

receipt of images of child pornography, virtual or actual, 

was sufficient to establish one of the factual predicates 
United States v. Martinelli, No. 02-0623/AR 

34

for a plea of guilty under the CPPA. The “virtual” or 

“actual” character of the images was not, in and of itself, 

a factual predicate to a guilty plea -- criminal liability 

could arise under either circumstance. . . . In the wake of 

Free Speech Coalition, the relevant provisions of 18 U.S.C. 

§ 2256(8) require that the visual depiction be of an actual 

minor engaging in sexually explicit conduct. The “actual” 

character of the visual depictions is now a factual 

predicate to any plea of guilty under the CPPA. 

58 M.J. at 452-53 (internal footnote omitted). 

 Similar to the situation in O’Connor, the definition used 

by the military judge in this case included those portions of 

the definition later struck down by the Supreme Court in Free 

Speech Coalition. The military judge did not discuss those 

aspects of the CPPA that were not affected by the Supreme 

Court’s ruling, i.e., “actual” child pornography under 18 U.S.C. 

§ 2256(8)(A), (B) or “computer morphed” images of an 

identifiable minor under § 2256(8)(C). O’Connor, 58 M.J. at 

452. As we noted in Mason: 

Under our decision in O’Connor, a provident guilty plea to 

a violation of the CPPA must reflect that the accused 

violated those portions of the statute not affected by the 

Supreme Court’s ruling in Free Speech Coalition. 58 M.J. 

at 454. The absence of any focus on or discussion 

concerning those aspects of the statute in the present 

record coupled with the use of the unconstitutionally 

overbroad definition during Mason’s plea colloquy render 

this case indistinguishable from O’Connor. 

60 M.J. at 18. 

Similarly, and for the same reasons, the absence of any 

focus on the “actual” versus “virtual” nature of the images, the 

use of the unconstitutional definition of “child pornography,” 
United States v. Martinelli, No. 02-0623/AR 

35

and the absence of anything in the record that would demonstrate 

that Martinelli pled guilty to a constitutionally defined 

violation of federal law, we find Martinelli’s guilty plea to 

Specification 1 improvident. 

F. The Possibility of Lesser Included Offenses

The improvidence of Martinelli’s pleas under clause 3 does 

not end our inquiry -- an improvident plea to a CPPA-based 

clause 3 offense may, under certain circumstances, be upheld as 

a provident plea to a lesser included offense under clauses 1 or 

2 of Article 134. Mason, 60 M.J. at 18-19; O’Connor, 58 M.J. at 

454. The only question is whether those circumstances are 

present in Martinelli’s case.13

The nature of the defects in Martinelli’s clause 3 pleas in 

regard to Specification 1 and in regard to Specifications 2, 3 

and 4 are different. In Specification 1 the defect, similar to 

O’Connor and Mason, involved the impact of the Supreme Court’s 

 

13 This court ruled, in United States v. James, 55 M.J. 297 

(C.A.A.F. 2001), that the CPPA was constitutional as applied to 

images of “virtual” children. The Supreme Court, however, ruled 

to the contrary in Free Speech Coalition and we are required to 

follow that precedent. The Supreme Court decision in Free 

Speech Coalition did not, however, address military-specific 

prohibitions in clauses 1 and 2 of Article 134. Accordingly, we 

have held that military personnel, unlike their civilian 

counterparts, can be prosecuted under clauses 1 and 2 of Article 

134 for child pornography offenses involving “virtual” children. 

Mason, 60 M.J. at 16. Thus, the question we reach today is not 

whether military personnel can be prosecuted and punished for 

cases involving “virtual” children but whether the providence 

inquiry was sufficient to sustain a conviction on a lesser 

included offense under clauses 1 or 2 of Article 134. 
United States v. Martinelli, No. 02-0623/AR 

36

decision in Free Speech Coalition on the CPPA offense. The 

defect with respect to Specifications 2, 3 and 4 involves the 

threshold question of whether the CPPA applies to Martinelli’s 

conduct in the first instance. 

We conclude, however, that any qualitative difference in 

the nature of the plea defect does not preclude the potential 

availability of a lesser included offense under these 

circumstances. As noted in the Manual for Courts-Martial, 

conduct that may not constitute a violation of clause 3 in a 

foreign country may still be punishable under clauses 1 and 2. 

See MCM, pt. IV. ¶ 60.c.(4)(c)(i). 

In O’Connor we recognized that after Free Speech Coalition

the possession and receipt of “virtual” child pornography is 

protected speech under the First Amendment: 

The Supreme Court has now extended a cloak of First 

Amendment protection to certain depictions of minors 

engaging in sexually explicit conduct. Accordingly, 

the question of whether or not the possession of such 

visual depictions can be viewed as service 

discrediting now has a constitutional dimension that 

was not at issue in Sapp or Augustine.14

58 M.J. at 454. We then explained that where the constitutional 

rights of a servicemember could come into play, we will closely 

 

14 United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), and United 

States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000), pre-dated Free 

Speech Coalition and dealt with the possibility of a lesser 

included offense under clause 2 of Article 134 where a guilty 

plea to a CPPA-based clause 3 Article 134 charge was found 

improvident. In those cases, where no constitutional 
United States v. Martinelli, No. 02-0623/AR 

37

scrutinize the providence inquiry. If there are constitutional 

implications, we will require a more definite showing that the 

servicemember clearly understood which of his acts were 

prohibited and why those acts were service-discrediting or 

prejudicial to good order and discipline before we will find 

that an improvident plea to a CPPA-based clause 3 offense is a 

provident plea to a lesser included offense under clause 1 or 2. 

Id. at 455. 

 The difference between our review of a providence inquiry 

under the O’Connor standard and our review under the less strict 

Augustine/Sapp standard is a qualitative difference. Although 

the understanding required of the servicemember remains the 

same, we require a clearer more precise articulation of the 

servicemember’s understanding under O’Connor than we require in 

the cases where the accused’s First Amendment rights are not 

implicated. 

Applying this stricter scrutiny, we examined the providence 

inquiry in O’Connor and determined that O’Connor’s plea was not 

provident to a lesser included offense under clause 2 of Article 

134 because “[T]here was no specific discussion with Appellant 

concerning the service-discrediting character of his conduct, 

much less any constitutional implications his conduct may or may 

not have had.” O’Connor, 59 M.J. at 455. 

 

considerations were involved, we found the pleas provident to a 
United States v. Martinelli, No. 02-0623/AR 

38

The next year we used the same analysis in Mason, but 

reached a different conclusion about the providence of the 

pleas. 60 M.J. at 18-20. In Mason the military judge used the 

unconstitutional language but did not focus on or discuss the 

distinction between “virtual” or “actual” children. Id. at 18. 

The military judge did, however, discuss the character of the 

underlying conduct and Mason agreed that his conduct was both 

service-discrediting and prejudicial to good order and 

discipline. Id. at 19. 

We held that the providence inquiry sufficiently 

established the nature of Mason’s conduct as servicediscrediting or prejudicial to good order and discipline even in 

the absence of a discussion about the “virtual” or “actual” 

character of the images. Id. at 19-20. The difference between 

Mason and O’Connor was that the military judge in Mason

specifically discussed the character of the underlying conduct 

and Mason agreed that his conduct was both service-discrediting 

and prejudicial to good order and discipline. 

Given the constitutional implications, the critical inquiry 

here is whether the record reflects an appropriate discussion of 

and focus on the character of the conduct at issue as servicediscrediting and/or prejudicial to good order and discipline. 

Id. at 19. In other words, the record must conspicuously 

 

clause 2 Article 134 offense. 
United States v. Martinelli, No. 02-0623/AR 

39

reflect that the accused “clearly understood the nature of the 

prohibited conduct” as being a violation of clause 1 and clause 

2, Article 134, apart from how it may or may not have met the 

elements of the separate criminal statute underlying the clause 

3 charge. Id. (internal quotation marks omitted)(citing 

O’Connor, 58 M.J. at 455). 

The present record does not support that type of 

determination. Martinelli’s plea inquiry and underlying 

stipulation of fact were directed solely at demonstrating how 

his conduct with respect to the child pornography met the 

elements of the CPPA. For example, during the plea inquiry the 

military judge set out the elements of each offense (e.g., (1) 

that the accused knowingly mailed, transported or shipped child 

pornography in interstate or foreign commerce, (2) that such 

action was wrongful, and (3) that the accused knew the nature of 

the images to be child pornography at the time of the offense). 

He then defined the term “child pornography” using the complete 

definition set out in 18 U.S.C. § 2556. After walking through 

the elements of the offense one at a time, the military judge 

then asked: 

MJ: Trial Counsel, . . . [d]o you have any concerns about 

whether or not the Court has correctly described the 

offense as to elements? Do you wish me to inquire 

about any further elements? 

[Trial Counsel]: No, Your Honor. 
United States v. Martinelli, No. 02-0623/AR 

40

MJ: Major Weir, do you believe there are any further 

elements that are not properly described in this 

offense, that the Court ought to inquire about? 

[Defense Counsel]: No, sir. 

 

There was no reference to or discussion during the providence 

inquiry of Martinelli’s conduct as service-discrediting or 

prejudicial to good order and discipline. The absence of this 

type of inquiry is even clearer when viewed in contrast with the 

inquiry concerning the separate obstruction of justice 

specification, where both the stipulation and discussion with 

the military judge make clear reference to the character of 

Martinelli’s conduct as service-discrediting and/or prejudicial 

to good order. Under these circumstances, we cannot view 

Martinelli’s guilty plea to the child pornography-related 

conduct as provident to a lesser included offense under clause 1 

or clause 2 of Article 134. 

DECISION

 The decision of the United States Army Court of Criminal 

Appeals as to Specifications 1 through 4 of the Charge and the 

sentence is reversed, but is affirmed in all other respects. 

The findings of guilty of Specifications 1 through 4 of the 

Charge and the sentence are set aside and the record of trial is 

returned to the Judge Advocate General of the Army for a 
United States v. Martinelli, No. 02-0623/AR 

41

rehearing on Specifications 1 through 4 and the sentence.15 If a 

rehearing on Specifications 1 through 4 is deemed impracticable, 

Specifications 1 through 4 may be dismissed and a rehearing held 

on the sentence alone. Thereafter, the provisions of Articles 

66(b) and 67(a), UCMJ, 10 U.S.C. §§ 866(b), 867(a) (2000), shall 

apply. 

 

15 Because of our decision in this case, Specifications 1 through 

4 will necessarily have to be amended prior to any rehearing to 

allege lesser included offenses of conduct prejudicial to good 

order and discipline in the armed forces, or of a nature to 

bring discredit upon the armed forces in violation of clauses 1 

and/or 2 of Article 134. 
United States v. Martinelli, No. 02-0623/AR 

GIERKE, Chief Judge (concurring in part and dissenting in 

part): 

I agree with the majority that Appellant’s plea to 

specification 1 was improvident under United States v. O’Connor,1

and I agree that his guilty pleas to the other specifications 

based on the Child Pornography Prevention Act of 1996 (CPPA)2

cannot be deemed provident to the lesser included offenses under 

clauses 1 and 2 of Article 1343 based the principles discussed in 

United States v. Mason.4 Because the majority remands each of 

the CPPA-based specifications due to the improvidency of 

Appellant’s pleas, I believe the question of whether the CPPA has 

extraterritorial application does not need to be reached in this 

case. But because the majority chooses to decide the 

extraterritoriality issue, I must respectfully dissent in part. 

I cannot agree that the CPPA does not have extraterritorial 

application. 

 The most important step in determining if the CPPA applies 

extraterritorially in this case is to discern whether Congress 

intended the CPPA to prohibit the acts of a servicemember 

stationed overseas who sends, receives, reproduces, and possesses 

child pornography.5

 To complete this task, we must engage in 

what Judge Learned Hand called “[by] far the greatest part” of 

 

1

 58 M.J. 450 (C.A.A.F. 2003). 

2

 18 U.S.C. § 2251A (2000). 

3

 60 M.J. 15 (C.A.A.F. 2004). 

4

 Uniform Code of Military Justice, UCMJ, 10 U.S.C. § 934 (2000). 

5

 See United States v. Bowman, 260 U.S. 94, 97 (1922).
United States v. Martinelli, No. 02-0623/AR 

2

the law: “the interpretation of words.”6 As we do so, we must 

remember that the words we interpret “cover many diverse 

instances,” including instances that their authors did not fully 

foresee.7

 Interpretation is “necessarily an act of creative 

imagination” that requires judges to put themselves in the place 

of the author of those words and determine “how he would have 

dealt with the instance that has arisen.”8

 

Putting myself in the place of the Congress that adopted the 

CPPA and determining “how [it] would have dealt with the instance 

that has arisen,”9 I disagree with the majority’s conclusion that 

Congress did not intend to prohibit a servicemember from 

possessing child pornography on a United States military 

installation or from receiving or reproducing that same 

pornography that was routed through Internet servers located in 

the United States.10 Because Appellant was in Germany when he 

 

6

 The Honorable Learned Hand, In Commemoration of Fifty Years of 

Federal Judicial Service, 264 F.2d 6, 28 (2d Cir. 

1959)(proceedings of a special session of the United States Court 

of Appeals for the Second Circuit, Apr. 10, 1959). 

7

 Id.

8

 Id.

9

 Id.

10 The most perplexing part of today’s result is that it allows a 

servicemember accused of violating the CPPA to be prosecuted 

domestically for sending the child pornography over the Internet, 

but not for his other offenses directly related to the same 

pornography. The result of the majority’s holding is that the 

servicemember can be prosecuted “domestically” for sending 

pornography from an off-base Internet cafe in Germany. But he 

cannot be prosecuted for possessing that same pornography in his 

barracks on a United States military installation, or for 

receiving or reproducing the child pornography over the same 

U.S.-based Internet servers that establish the jurisdictional 

basis for the sending charge. 
United States v. Martinelli, No. 02-0623/AR 

3

sent the pornography over the Internet, I also disagree with the 

majority that applying the CPPA to Appellant’s offense of sending 

the child pornography is a domestic application of the Act.11 I 

believe Congress intended the CPPA to apply extraterritorially 

and that the Act reaches Appellant’s conduct in this case.12 

I. The presumption against extraterritoriality

The Supreme Court explained the presumption against 

extraterritoriality in Equal Employment Opportunity Commission v. 

Arabian American Oil Company (Aramco).13 Aramco was a civil case 

that involved racial discrimination in employment practices by 

 

11 See, e.g., United States v. Noriega, 746 F. Supp. 1506, 1512-

13 (S.D. Fla. 1990)(the United States would be exercising 

extraterritorial jurisdiction to prosecute “a person standing in 

Canada who fires a bullet across the border which strikes a 

second person standing in the United States”); United States v. 

Baker, 609 F.2d 134, 136 (5th Cir. 1980)(the United States 

exercises extraterritorial jurisdiction to reach offenses 

committed in the “marginal sea” which is located just past the 

“territorial sea” and between three and twelve miles off the 

coast). 

12 See Walter C. Dauterman Jr., Internet Regulation: Foreign 

Actors and Local Harms -– at the Crossroads of Pornography, Hate 

Speech, and Freedom of Expression, 28 N.C.J. Int’l L. & Com. Reg. 

177, 183 (2002)(“[The] view that the Internet is somehow beyond 

national regulation ignores the realities of cyberspace. While 

it is true that the transnational nature of the Internet may make 

jurisdictional issues more complicated . . . [g]iven that the 

Internet is populated by real people causing real harm, there is 

no reason to believe that [it] is beyond the jurisdictional scope 

of national regulation.”).

13 499 U.S. 244, 248 (1991)(noting the “longstanding principle of 

American law that legislation of Congress, unless a contrary 

intent appears, is meant to apply only within the territorial 

jurisdiction of the United States . . . serves to protect against 

unintended clashes between our laws and those of other nations 

which could result in international discord” (internal quotations 

omitted)(quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 

(1949); McCulloch v. Sociedad Nacional de Marineros de Honduras, 

372 U.S. 10, 20-22 (1963))). 
United States v. Martinelli, No. 02-0623/AR 

4

United States companies who employ United States citizens 

abroad.14 The Supreme Court thus applied the presumption against 

extraterritoriality to employment practices abroad –- which is 

exactly the kind of domestic concern to which the presumption 

should apply. In doing so, the Supreme Court made clear that the 

presumption applies unless the “language in the [relevant 

statute] gives any indication of a congressional purpose to 

extend its coverage beyond places over which the United States 

has sovereignty or some measure of legislative control.”15

In United States v. Bowman, the Supreme Court was confronted 

with a jurisdictional issue in a case involving three American 

citizens and one British citizen who planned to defraud a 

corporation in which the United States was a stockholder.16 The 

statute under which the defendants were to be prosecuted 

contained no explicit grant of extraterritorial jurisdiction to 

try the offenders on the high seas, where the crime took place.17 

In response to the absence of an explicit statement of 

extraterritorial application in that particular criminal statute, 

the Supreme Court applied and clarified the exception to the 

presumption against extraterritoriality.18 

The Supreme Court delineated two types of criminal offenses 

in Bowman. The nature of some criminal offenses, such as those 

 

14 Id. at 246. 

15 Id. (internal quotation marks omitted)(quoting Foley Bros., 

336 U.S. at 285).

16 260 U.S. at 95-96. 

17 Id. at 97.

18 Id. at 98-103. 
United States v. Martinelli, No. 02-0623/AR 

5

crimes against private individuals or their property which 

“affect the peace and good order of the community,” is such that 

the acts that constitute the offenses occur locally.19 But other 

criminal offenses “are such that to limit their locus to the 

strictly territorial jurisdiction would be greatly to curtail the 

scope and usefulness of the statute . . . .”20 Thus, when 

Congress does not explicitly state in the plain language of a 

particular criminal statute that it intends for that statute to 

apply extraterritorially, courts can infer such intent “from the 

nature of the offenses and Congress’ other legislative efforts to 

eliminate the type of crime involved.”21 

I interpret the Bowman language as drawing a dividing line 

between those criminal offenses that are “domestic” in nature and 

those whose nature “warrant[s] a broad sweep of power.”22 For 

example, a U.S. citizen’s assault on his next-door neighbor would 

affect the “peace and good order of the community” in his 

 

19 Id. at 98. 

20 Id. 21 United States v. Vasquez-Valasco, 15 F.3d 833, 839 (9th Cir. 

1994) (quoting United States v. Felix-Gutierrez, 940 F.2d 1200, 

1204 (9th Cir. 1991)(internal quotation marks and citations 

omitted)); see also Baker, 609 F.2d at 136; United States v. 

Wright-Barker, 784 F.2d 161, 166-67 (3d Cir. 1986). See 

generally Christopher L. Blakesley & Dan Stigall, Wings for 

Talons: The Case for the Extraterritorial Jurisdiction Over 

Sexual Exploitation of Children through Cyberspace, 50 Wayne L. 

Rev. 109, 124 (2004)(asserting that, in certain situations, the 

United States will ignore the general rule against 

extraterritorial application, and assert jurisdiction “over 

nationals who commit crimes abroad even though the appropriate 

statute did not explicitly declare that it applied 

extraterritorially”). 

22 Baker, 609 F.2d at 137. 
United States v. Martinelli, No. 02-0623/AR 

6

neighborhood and is a domestic crime. The nature of this offense 

does not warrant a sweep of power any broader than that provided 

to the local police force to arrest him. However, if a U.S. 

citizen commits a criminal offense whose effects are not confined 

to one particular situs –- for example, smuggling illegal drugs 

between countries or trafficking in child pornography over the 

Internet –- then, the nature of that offense warrants a broader 

sweep of power. 

The majority reads the language in Aramco and Bowman to 

allow an exception to the presumption only for certain types of 

criminal statutes –- those enacted so that the Government can 

defend itself against obstruction or fraud.23 However, I do not 

read this language as narrowly as the majority. Notably, Bowman

was a case about fraud against the Government and, thus, the 

limiting language on which the majority relies directly applies 

to the circumstances of that case.24 

Moreover, I believe that a narrow interpretation of Bowman

is inconsistent with the purpose of the criminal offense 

exception the Supreme Court recognized. Like Judge Sand, I think 

the underlying purpose of the criminal offense exception in 

 

23 See Martinelli, 61 M.J. __, __ (12)(C.A.A.F. 2005). 

24 See 260 U.S. at 96.
United States v. Martinelli, No. 02-0623/AR 

7

Bowman is two-fold.25 On the one hand, the United States has the 

right “to protect itself from harmful conduct -- irrespective of 

the locus of this conduct.”26 On the other hand, a presumption 

exists that Congress would not both “enact a statute designed to 

serve this protective function, and -- where the statute 

proscribes acts that could just as readily be performed outside 

the United States as within it . . . undermine this protective 

intention by limiting the statute’s application to United States 

territory.”27 By reading the Bowman language to limit the 

criminal offense exception to crimes of fraud or obstruction 

against the Government, I believe the majority ignores the 

underlying rationale of the exception to the presumption against 

extraterritoriality. 

Child pornography, particularly over the Internet, is just 

the type of offense that falls squarely within the Bowman

criminal statute exception to the presumption against 

 

25 See United States v. Bin Laden, 92 F. Supp. 2d 189, 194 

(S.D.N.Y. 2000)(holding the Bowman exception to the presumption 

against extraterritoriality applies to various criminal statutes, 

such as statutes prohibiting the malicious destruction of 

property owned or possessed by the United States or the killing 

in the course of an attack on a federal facility involving a 

dangerous weapon, but also holding that the exception does not 

apply to the statute penalizing murder within the “special 

maritime and territorial jurisdiction of the United States”). 

26 Id.; see also Blakesley & Stigall, supra note 21, at 141-42 

(“The Constitution interposes no bar as such to the 

extraterritorial application of criminal law,” and thus, if 

Congress proscribes extraterritorial conduct, “United States law 

is satisfied.”). 

27 Bin Laden, 92 F. Supp. 2d at 194. 
United States v. Martinelli, No. 02-0623/AR 

8

extraterritoriality.28 Child pornography is not an “inherently 

domestic” crime because it can be received from and sent to the 

United States by a few simple key strokes on the computer. 

Images of minors engaging in sexually explicit conduct proscribed 

by the CPPA can travel through the Internet easily, providing 

ready access to pedophiles.29 

Therefore, the first underlying reason for the presumption 

against extraterritoriality -- that Congress legislates with 

domestic concerns in mind -- is inapplicable to offenses related 

to trafficking child pornography. Concluding that the Congress 

did not intend to reach those individuals who can simply download 

pornographic images to a website from another country and e-mail 

them through servers that are located in the United States is 

inconsistent with Congress’ goal of eradicating child 

 

28 See Blakesley & Stigall, supra note 21, at 152 (“Cyberspace is 

a wonderful tool for education, communication, and entertainment, 

giving users access to massive volumes of information and 

connecting people around the world. Unfortunately, this has also 

generated new opportunities for predators and pornographers to 

victimize children.”); Dauterman, supra note 12, at 177-78 (“The 

Internet, like the telephone and the printing press, has 

revolutionized the way people communicate, providing a global 

audience with instant access to a wealth of political, cultural, 

and scientific data. . . . Unfortunately, though, there is a much 

darker and sinister side to the Internet, one full of hate speech 

and pornography. . . . Sexual deviants have used the Internet to 

exchange pictures of children being forcibly raped and 

sodomized.”).

29 See Blakesley & Stigall, supra note 21, at 153-54 (“With the 

recent technological advances in communication, child 

exploitation has become an international problem. There can be 

no doubt that the Internet makes children targets for pedophiles 

around the globe. As an international system, the Internet . . . 

is considered the absolute best hunting ground (for a) pedophile, 

and the most efficient pornography distribution engine even 

conceived.” (internal quotations and citations omitted)). 
United States v. Martinelli, No. 02-0623/AR 

9

pornography. The majority’s holding “greatly . . . curtail[s] 

the scope and usefulness”30 of the CPPA by concluding that § 

2252A does not apply extraterritorially. 

Furthermore, the other underlying reason given for the 

presumption against extraterritoriality -- to avoid unintended 

clashes with the governments of foreign countries –- is also 

inapplicable to offenses targeted by the CPPA. It is well 

settled that the United States can assert jurisdiction over 

offenses that occur outside the territorial jurisdiction of the 

United States, but that affect the United States.31 And the 

United States Government is not invading some right or taking 

away some interest of a foreign government by prosecuting those 

individuals who send child pornography into the United States 

from that foreign country or who receive child pornography that 

has been sent through the United States. For example, in United 

States v. Corey,32 the defendant was a United States citizen who 

lived in the Philippines and in Japan during his employment with 

the Air Force as a civilian postmaster. When he was accused of 

the aggravated sexual abuse of his stepdaughter, neither the 

Philippines nor Japan protested the United States’ assertion of 

jurisdiction over the defendant, even though he was physically 

located in those countries when he committed the offenses.33 

“Quite the contrary, both countries have abjured any interest in 

 

30 Bowman, 260 U.S. at 98. 

31 Id.

32 232 F.3d 1166, 1169 (9th Cir. 2000).

33 Id. at 1171. 
United States v. Martinelli, No. 02-0623/AR 

10

prosecuting [the defendant], no doubt recognizing that the case 

involves internal U.S. matters.”34 

Of course the question in this case is whether Germany would 

protest U.S. jurisdiction over Appellant. And the answer is 

certainly no. Because of the Status of Forces Agreement that 

exists between the United States and Germany, Germany agreed that 

the United States would have the right to exercise jurisdiction 

over all military servicemembers that the U.S. sends to 

Germany.35

The actions of other countries support the United States’ 

assertion of jurisdiction over a U.S. citizen who violates a 

statute proscribing child pornography. “Every nation has 

criminalized the sexual abuse of children, and the vast majority 

of states have enacted legislation against child pornography.”36 

Additionally, “[i]nternational conventions on the rights of 

children favor the strict enforcement of such laws and lend 

support to the assertion of extraterritorial jurisdiction of 

 

34 Id.

35 See Agreement Between the Parties to the North Atlantic Treaty 

Regarding the Status of Their Forces art. VII, § 1(a), June 19, 

1951, 4 U.S.T. 1792; see also Martinelli, 61 M.J. at __ (10-

11)(Crawford, J., dissenting); James B. Roan & Cynthia Buxton, 

The American Military Justice System in the New Millennium, 52 

A.F. L. Rev. 185, 191 n.32 (2002)(noting that the “German 

government has agreed to a general waiver of their jurisdiction 

due to the United States military’s proven ability to handle 

disciplinary problems through the [Uniform Code of Military 

Justice]”). 

36 Dauterman, supra note 12, at 203. 
United States v. Martinelli, No. 02-0623/AR 

11

these types of cases.”37 Therefore, asserting federal U.S. 

jurisdiction is particularly appropriate in light of the nature 

of Appellant’s offenses.38 

II. Plain meaning of the CPPA

The question of whether the presumption against 

extraterritorial application is rebutted for a particular statute 

“is a matter of statutory construction” that turns on whether 

Congress intended that a particular statute have extraterritorial 

application.39 Therefore, the tools of statutory construction 

should apply. As articulated by Judge Learned Hand, the most 

important aspect of statutory construction is to look to the 

meaning of the words of the statute and discern the legislature’s 

intent in adopting those words.40 Furthermore, “[w]herever 

possible, statutes should be construed in a commonsense manner 

. . . honoring plain meaning . . . and avoiding absurd or 

 

37 Id. at 204 (discussing that the Convention on the Rights of 

the Child, created by the United Nations in 1989, provides basic 

international guidelines for the protection of children from 

sexual exploitation via child pornography); see also Allison M. 

Scott, Note, From a State-Centered Approach to Transnational 

Openness: Adapting the Hague Convention with Contemporary Human 

Rights Standards as Codified in the Convention on the Rights of 

the Child, 11 Ind. J. Global Legal Stud. 233, 235 n.18 (2004) 

(noting that the Convention on the Rights of the Child has been 

ratified by 192 countries, and that only the United States and 

Somalia have not ratified it, but the United States has formally 

signed the Convention). 

38 See Dauterman, supra note 12, at 219 (noting that the 

“universally recognized consensus that child pornography is an 

evil that should be eliminated enables states to prosecute 

offenders outside of its borders”).

39 Martinelli, 61 M.J. at __ (9-10 n.4)(citing Hartford Fire Ins. 

Co. v. California, 509 U.S. 764, 813 (1993)(Scalia, J., 

dissenting)). 

40 Judge Learned Hand, supra note 6, at 28. 
United States v. Martinelli, No. 02-0623/AR 

12

counterintuitive results.”41 I believe that denying the CPPA 

extraterritorial effect is counterintuitive in light of the plain 

meaning of § 2252A and Congress’ intent to eradicate all forms of 

child pornography in passing the CPPA.42 

Section 2252A can be divided into four types of child 

pornography offenses: (1) knowingly mailing or transporting; (2) 

knowingly receiving and distributing; (3) knowingly reproducing; 

and (4) knowingly selling or possessing. The proscription on 

mailing, shipping, or transporting in “foreign commerce” applies 

to all four types of offenses.43 

The Supreme Court has defined “foreign commerce” as commerce 

between the United States and a foreign nation.44 I believe the 

CPPA’s use of the “foreign commerce” language defines the scope 

of materials Congress intended to reach –- those child 

pornography materials that have traveled in foreign or interstate 

commerce -- and is more than just a jurisdictional hook. In 

other words, the inclusion of the “foreign commerce” language was 

not “a straightforward reference to the source of authority of 

Congress for proscribing these acts as criminal in the first 

 

41 United States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997) 

(internal citations omitted). 

42 See Blakesley & Stigall, supra note 21, at 150-58 (discussing 

how federal laws proscribing child exploitation offenses must 

apply extraterritorially based on the international nature of the 

offense due to recent technological advances in communication, 

the comprehensiveness of the legislative scheme that has already 

been judicially determined to apply extraterritorially, and 

American jurisprudence).

43 See 18 U.S.C. § 2252A(a)(1)-(3),(5). 

44 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193 (1824). 
United States v. Martinelli, No. 02-0623/AR 

13

instance, i.e., the Commerce Clause,”45 but rather, a description 

of the material prohibited under the statute. “By proscribing 

the distribution of child pornography in ‘foreign commerce,’ 

Congress intended the criminal sanctions to apply even where some 

part of the criminal conduct occurred outside the territorial 

limits of the United States.”46 Therefore, just as the statute 

applies to an individual who sends child pornography from a city 

in one state to another state, commonsense and logic would 

dictate that “Congress would be equally interested in preventing 

that same citizen from making the same distribution to a [U.S. 

city] from a foreign country.”47

 Appellant used his Hotmail and Yahoo! e-mail accounts, 

which are located on a server in the United States, to send and 

receive e-mail messages with embedded or attached images. 

Because Appellant was in Germany and outside of the military base 

when he sent and received the images, the CPPA would reach his 

acts only if it has extraterritorial application. In considering 

the extraterritorial application of the CPPA, I find persuasive 

the reasoning of Judge Hoeveler of the United States District 

Court for the Southern District of Florida. He stated that the 

United States would “unquestionably have authority to prosecute a 

person standing in Canada who fires a bullet across the border 

 

45 Martinelli, 61 M.J. at __ (18). 

46 United States v. Martens, 59 M.J. 501, 504 (A.F. Ct. Crim. 

App. 2003). 

47 Id.
United States v. Martinelli, No. 02-0623/AR 

14

which strikes a second person standing in the United States.”48 

So U.S. law applies extraterritorially because the actor is 

located outside of the territorial borders of the United States. 

Because of the unique facts of this case, it is particularly 

appropriate that the CPPA have extraterritorial application. 

“Given the fact that cyberspace has no borders and distance is 

[sic] in that realm is irrelevant, there is no reason why U.S. 

courts should not eschew reliance on traditional notions of 

territoriality and directly rule that such statutes have 

extraterritorial application.”49 

“All nations of the world recognize ‘the principle that a 

man who outside of a country willfully puts in motion a force to 

take effect in it is answerable at the place where the evil is 

done . . . .’”50 Similar to a bullet shot from another country, 

an image of child pornography can be “shot” across borders with 

the touch of a computer key. And like the individual standing in 

Canada who fires a bullet into the United States, the U.S. 

servicemember in Germany who sends or receives the child 

pornography is subject to U.S. federal jurisdiction. 

The plain language of the statute reaches Appellant’s acts 

of possessing, sending, receiving, and reproducing child 

 

48 Noriega, 746 F. Supp. at 1512-13; see also Church v. Hubbart, 

6 U.S. (2 Cranch) 187, 234 (1804)(“[A nation’s] power to secure 

itself from injury, may certainly be exercised beyond the limits 

of its territory.”). 

49 Blakesley & Stigall, supra note 21, at 147. 

50 Noriega, 746 F. Supp. at 1513 (citing Rivard v. United States, 

375 F.2d 882, 887 (5th Cir. 1967)). 
United States v. Martinelli, No. 02-0623/AR 

15

pornography that has been “mailed, shipped or transported in 

interstate or foreign commerce.”51 The “foreign commerce” 

language of the statute is satisfied by Appellant’s admission 

that he used Hotmail and Yahoo! accounts to send, receive, and 

store the pornographic images. Moreover, this link to the United 

States, by sending the images through and storing the images in 

Internet servers located in the United States, makes it even more 

implausible that Congress did not intend the CPPA to reach 

conduct like Appellant’s. 

Based on the plain meaning of the statute, it appears that 

Congress wanted to explicitly extend jurisdiction over those 

individuals who possess child pornography not only within the 

territorial boundaries of the United States, but also on any land 

or building under the control of the United States.52 In other 

words, Congress’ addition of the “on any land or building owned 

by, leased to, or otherwise used by or under the control of the 

United States Government” language clearly establishes 

jurisdiction over an individual who admits to being on property 

“under the control of the United States” when he possessed the 

obscene material.53 Because Appellant admitted to being on 

 

51 See 18 U.S.C. § 2252A(a)(1)-(3).

52 See 18 U.S.C. § 2252A(a)(5)(A),(B). Section 2252A(a)(5)(A) 

proscribes knowingly possessing child pornography in the “special 

maritime and territorial jurisdiction of the United States, or on 

any land or building owned by, leased to, or otherwise used by or 

under the control of the United States Government.” Section 

2252A(a)(5)(B) proscribes knowingly possessing child pornography 

that has been “mailed, or shipped or transported in interstate or 

foreign commerce by any means, including by computer.”

53 See 18 U.S.C. § 2252A(a)(5)(A).
United States v. Martinelli, No. 02-0623/AR 

16

property “under the control of the United States” -- his barracks 

at the Cambrai Fritsch Kaserne, a United States Army installation 

in Darmstadt, Germany -- his offense of possessing child 

pornography on a United States military installation is 

proscribed by the CPPA. 

The majority argues that this language would “just as easily 

apply only to . . . domestic military installations.”54 We have 

explicitly rejected such a reading of “territory under the 

control or jurisdiction” of the United States. In United States 

v. Wilmot,55 we held that this language included in the Narcotics 

Control Act of 195656 made the statute applicable to drug 

offenses committed at Yokota Air Force Base in Japan. 

I agree with the majority that neither the “foreign 

commerce” language nor the “special maritime and territorial 

jurisdiction of the United States” language alone evidences a 

clear congressional intent for a statute to apply 

extraterritorially.57 But the question is not whether particular 

words within the statute can be defined to establish 

extraterritorial jurisdiction, but whether Congress intended the 

 

54 Martinelli, 61 M.J. at __ (21). 

55 11 C.M.A. 698, 702, 29 C.M.R. 514, 518 (1960). 

56 Pub. L. No. 84-728, 70 Stat. 567 (repealed 1970). 

57 See Martinelli, 61 M.J. at __ (17-22). 
United States v. Martinelli, No. 02-0623/AR 

17

statute itself to apply to Appellant’s offenses.58 As discussed 

in further detail below, the CPPA was enacted as part of a 

comprehensive congressional scheme aimed at eradicating child 

pornography. I believe that interpreting the plain language of 

the CPPA, its structure and the comprehensive scheme of the 

entire statute, leads to the conclusion that Congress clearly 

meant for the CPPA to apply extraterritorially to reach 

Appellant’s acts in this case. The key question is whether the 

Congress that passed the CPPA intended to prohibit or allow the 

possession of child pornography on a U.S. military base overseas. 

The answer is obvious. 

Relying on only two criminal cases -- this Court’s 1977 

 

58 Because the issue in this case is whether Congress intended 

the CPPA to apply extraterritorially to reach Appellant’s 

offenses, and because I believe that it does, there is no need to 

decide whether 18 U.S.C. § 7(3) (2000), which defines “special 

maritime and territorial jurisdiction of the United States,” has 

extraterritorial application in this case. Compare United States 

v. Gatlin, 216 F.3d 207, 220 (2d Cir. 2000)(holding that 18 

U.S.C. § 7(3) does not apply extraterritorially to reach 

appellant’s offense of sexual abuse of a minor on a United States 

military installation in the Federal Republic of Germany), with

Corey, 232 F.3d at 1183 (holding that 18 U.S.C. § 7(3) applies 

extraterritorially to appellant’s offense of sexual abuse of a 

minor on an Air Force base in Japan and in an off-base private 

apartment building in the Philippines). See also Blakesley & 

Stigall, supra note 21, at 147 (asserting that the holding of 

Gatlin, 216 F.3d 220, is based on the same flawed reasoning as 

the holdings in Corey, 232 F.3d 1183, and United States v. Cream, 

58 M.J. 750, 755 (N-M. Ct. Crim. App. 2003), because “[t]here is 

no need to look to 18 U.S.C. § 7(3) or traditional notions of 

territoriality to find jurisdiction over the acts of pedophiles 

abroad. Given the fact that cyberspace has no borders and 

distance in that realm is irrelevant, there is no reason why U.S. 

courts should not eschew reliance on traditional notions of 

territoriality and directly rule that such statutes have 

extraterritorial application.”).
United States v. Martinelli, No. 02-0623/AR 

18

opinion in United States v. Gladue59 and Gatlin,60 a Second Circuit 

case -- the majority dismisses the multiple opinions of other 

federal courts that interpret the Bowman exception to apply more 

broadly than solely to offenses that involve fraud or obstruction 

against the Government.61 The majority opinion is also 

 

59 4 M.J. 1, 5 (C.M.A. 1977). I believe our Court in Gladue

misread the Bowman exception to the presumption against 

extraterritoriality and defined it too narrowly. A statute may 

not indicate, on its face, a congressional intent to be given 

extraterritorial application. But such intent can be “readily 

implied” from the nature of the offense targeted by the statute 

and if to deny extraterritorial application “would be greatly to 

curtail the scope and usefulness of the statute[].” WrightBarker, 784 F.2d at 167 (citations and internal quotation marks 

omitted); see also Vasquez-Valasco, 15 F.3d at 839 (citing FelixGutierrez, 940 F.2d at 1204); Baker, 609 F.2d at 136. 

60 216 F.3d at 211 n.5. Interestingly, although the majority 

relies on footnote five in the Gatlin opinion to support its 

narrow reading of the Bowman language, the Second Circuit itself 

rejected such a narrow reading in an earlier opinion. Citing 

Baker, 609 F.2d at 139, the Second Circuit held that the “intent 

to cause effects within the United States . . . makes it 

reasonable to apply to persons outside United States territory a 

statute which is not expressly extraterritorial in scope.” 

United States v. Orozco-Prada, 732 F.2d 1076, 1087-88 (2d Cir. 

1984)(internal quotation marks omitted). 

61 See Vasquez-Velasco, 15 F.3d at 843 (concluding that the 

statute applies extraterritorially to defendant’s act of 

murdering both a U.S. citizen and a legal resident alien of the 

U.S. in Mexico to further a drug trafficking enterprise); United 

States v. Thomas, 893 F.2d 1066, 1068-70 (9th Cir. 1990)(holding 

that 18 U.S.C. § 2251(a) applied extraterritorially to 

defendant’s acts in Mexico of engaging a minor in sexually 

explicit conduct for the purpose of creating a visual depiction 

of that conduct, mailing visual depictions of the conduct, and 

receiving the material); Baker, 609 F.2d at 136-39 (concluding 

that the statute proscribing the possession of narcotics with the 

intent to distribute applies extraterritorially to possession 

beyond the three-mile limit of the “territorial sea”); United 

States v. Harvey, 2 F.3d 1318, 1327-30 (3d Cir. 1993)(holding 

that sentencing guideline addressing the offense of causing a 

minor to engage in sexually explicit conduct for the purpose of 

producing visual depictions of such conduct applies when the 

offense occurs in the Philippines). See also United States v. 

Bredimus, 234 F. Supp. 2d 639, 650 (N.D. Tex. 2002)(deciding that 
United States v. Martinelli, No. 02-0623/AR 

19

inconsistent with precedent from our intermediate level appellate 

courts which, although not binding on this Court, have construed 

the CPPA and decided that it applies extraterritorially.62

III. Comprehensive scheme of the CPPA

When determining whether a statute applies 

extraterritorially, courts are not “limited to the text of the 

statute itself. To the contrary, [courts] are permitted to 

consider ‘all available evidence’ about the meaning of the 

statute, including its text, structure, and legislative 

history.”63 In 1996, Congress added § 2252A to Chapter 110 of 

Title 18 of the United States Code, which defines the offenses 

related to the Sexual Exploitation and Other Abuse of Children.64 

 

18 U.S.C. § 2251A applies extraterritorially to traveling in 

foreign commerce with the intent to use minors to produce visual 

depictions of sexually explicit conduct); Felix-Gutierrez, 940 

F.2d at 1204 (holding that the Bowman criminal offense exception 

applies to the murder of a Drug Enforcement Administration agent 

in Mexico). 

62 See, e.g., United States v. Kolly, 48 M.J. 795, 797 (N-M. Ct. 

Crim. App. 1998)(holding that 18 U.S.C. § 2252(a)(2) applies 

extraterritorially to the receipt of child pornography the 

appellant ordered while stationed in Hawaii, and had sent from a 

supplier in Florida to Japan, where the appellant was later 

stationed); Martens, 59 M.J. at 505 (concluding that Congress 

intended 18 U.S.C. § 2252(a)(2)(A) to apply extraterritorially to 

the receipt of child pornography at Ramstein Air Base in 

Germany); United States v. Pullen, 41 M.J. 886, 888 (A.F. Ct. 

Crim. App. 1995) (holding that the language of 18 U.S.C. § 

2252(a)(4)(A) is broader than that in the statute at issue in 

Wilmot, 11 C.M.A at 700, 29 C.M.R. at 516, and is therefore a 

clear expression of Congress’ intent to apply it 

extraterritorially to the possession of child pornography on 

Clark Air Base in the Philippines). 

63 Gatlin, 216 F.3d at 212 (quoting Sale v. Haitian Ctrs. 

Council, Inc., 509 U.S. 155, 177 (1993)). 

64 Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 

div. A, tit. I, § 121(3)(a), 110 Stat. 3009 (codified as amended 

at 18 U.S.C. § 2252A (2000)). 
United States v. Martinelli, No. 02-0623/AR 

20

The history of the CPPA can be traced to 1977 when Congress 

passed the Protection of Children Against Sexual Exploitation 

Act.65 

In the time period between the initial enactment of the 1977 

Act and today, Congress has repeatedly emphasized its intent to 

eradicate the exploitation of children and has acted on this 

intent by continuously expanding federal jurisdiction over 

offenses involving child pornography wherever they occur. For 

example, regarding a 1996 hearing on the CPPA, Senator Joseph 

Biden noted that Congress has “kept a sharp eye on the problem of 

child pornography, and where [it] has found gaps in the coverage 

of the criminal law, [it] ha[s] moved quickly to fill them.”66 

Thus, when the “computer was [first] becoming an increasingly 

important tool of the child pornographer,” Congress reacted by 

“making it a federal crime to transport child pornography using a 

computer in addition to the mails.”67 In 1998, Congress passed 

the Protection of Children from Sexual Predators Act, modifying 

and adding additional statutes to 18 U.S.C. §§ 2251-2257.68 As 

Senator Leahy observed: 

The goal of [the act] is to provide stronger protections for 

children from those who would prey upon them. Concerns over 

protecting our children have only intensified in recent 

years with the growing popularity of the Internet and World 

Wide Web. Cyberspace gives users access to a wealth of 

 

65 Pub. L. No. 95-225, 92 Stat. 7 (codified as amended at 18 

U.S.C. § 2251 (2000)). 

66 Statement of Sen. Joseph R. Biden (regarding hearing on Child 

Pornography Prevention Act)(June 4, 1990), available at 1996 WL 

292976 (F.D.C.H.).

67 Id. at 1-2. 

68 Pub. L. No. 105-314, 112 Stat. 2974 (1998). 
United States v. Martinelli, No. 02-0623/AR 

21

information; it connects people from around the world. But 

it also creates new opportunities for sexual predators and 

child pornographers to ply their trade.69

Numerous courts agree that Congress has created a 

“comprehensive scheme” to combat and eradicate child 

pornography.70 These courts typically quote the language from 

Bowman to conclude that the section applies extraterritorially 

because to hold otherwise would “greatly . . . curtail the scope 

and usefulness of the statute.”71 For example, inferring the 

exercise of extraterritorial power of 18 U.S.C. §§ 2251(a) and 

2252(a) from the nature of the offenses defined in each statute, 

 

69 144 Cong. Rec. S12263 (daily ed. Oct. 9, 1998) (statement of 

Sen. Patrick Leahy).

70 See Harvey, 2 F.3d at 1327-29 (holding that 18 U.S.C. § 2251 

was enacted as part of Congress’ continuing effort to contain 

evils caused on American soil by foreign as well as domestic 

suppliers of child pornography, and to deny extraterritorial 

application of the Act would “greatly curtail the scope and 

usefulness” of the statute); Martens, 59 M.J. at 504 (concluding 

that, because the CPPA includes several provisions that clearly 

reach conduct occurring outside the United States, “the statutory 

framework compels the conclusion that Congress intended it to 

apply broadly to counter the sexual exploitation of children”); 

Bredimus, 234 F. Supp. 2d at 649-50 (holding that 18 U.S.C. § 

2251A should apply extraterritorially because, given the location 

of the statute in the criminal portion of the U.S. Code and the 

nature of the offense, the section was enacted to expand 

Congress’ statutory scheme to combat sexual exploitation of 

children, both domestic and abroad, and because it “only makes 

sense” that the statute would apply to the conduct of United 

States citizens on foreign soil; otherwise, the comprehensive 

scheme to combat international trafficking of child pornography 

and sexual exploitation of children could not be effectively 

implemented as contemplated by Congress); Kolly, 48 M.J. at 797 

(holding that 18 U.S.C. § 2252(a)(2) of the CPPA applied 

extraterritorially because “to allow a U.S. citizen in the United 

States who ordered child pornography through the United States 

postal service to escape prosecution simply because he is 

overseas when he finally receives it would greatly . . . curtail 

the scope and usefulness” of the CPPA).

71 Bowman, 260 U.S. at 98. 
United States v. Martinelli, No. 02-0623/AR 

22

as well as Congress’ other legislative efforts to eliminate child 

pornography, the Ninth Circuit in Thomas determined that Congress 

created a comprehensive statutory scheme to eradicate sexual 

exploitation of children.72 Because “[p]unishing the creation of 

child pornography outside the United States that is actually, is 

intended to be, or may reasonably be expected to be transported 

in interstate or foreign commerce is an important enforcement 

tool . . . . [I]t [is] likely that under section 2251(a) Congress 

intended to reach extraterritorial acts that otherwise satisfy 

statutory elements.”73 The same principle applies to Congress’ 

intent in enacting 18 U.S.C. § 2252A. 

IV. Conclusion

I agree with the majority’s decision that Appellant’s guilty 

plea to specification 1 is improvident under O’Connor and that 

his guilty pleas to the other CPPA-based specifications are 

improvident to the lesser included offenses under clauses 1 and 2 

of Article 134 under Mason. Therefore, I concur in part. 

I disagree, however, with the majority’s determination that 

the CPPA does not apply extraterritorially to reach Appellant’s 

offenses. I believe the Bowman exception to the presumption 

against extraterritoriality applies in this case based on the 

nature of the offenses which the CPPA targets and because to deny 

application of the exception would greatly curtail the scope and 

usefulness of the CPPA. Congressional intent for a statute to 

 

72 Thomas, 893 F.2d at 1068-69. 

73 Id. at 1069 (internal footnotes omitted). 
United States v. Martinelli, No. 02-0623/AR 

23

apply extraterritorially can be inferred in criminal statutes, 

even in the absence of an explicit statement, based on the text 

of the entire statute, its legislative history and structure. A 

reading of the CPPA, together with the comprehensive scheme of 

the Act and repeated efforts by Congress to eradicate child 

exploitation and expand federal jurisdiction over these types of 

offenses, shows a clear congressional intent for the CPPA to 

apply extraterritorially to Appellant’s acts in this case. 

Therefore, I must respectfully dissent in part. 

Finally, I note that today’s opinion construes a generally 

applicable federal criminal statute rather than a Uniform Code of 

Military Justice provision. While federal circuit precedent 

exists on both sides of this issue, the majority’s holding is 

against the weight of authority. This issue cries out for our 

superior court to settle this dispute among the federal courts of 

appeals. 
United States v. Martinelli, No. 02-0623/AR 

 CRAWFORD, Judge (dissenting): 

This case presents three issues of immediate importance and 

worldwide impact: (1) the domestic aspect of Internet 

transactions initiated outside the United States that result in 

the receipt, reproduction, or transmission of electronic images 

within or from discrete, electronic “space” on Internet servers 

located within the United States; (2) the extraterritorial 

application of the Child Pornography Prevention Act of 1996 

(CPPA), 18 U.S.C. § 2252A (2000), to members of the armed forces 

stationed overseas; and (3) the providence of a guilty plea to 

violations of the CPPA when the record clearly demonstrates 

Appellant’s knowledge of the “actual” nature of the victims, but 

the military judge explains the offenses to Appellant using 

language found to be overbroad in Ashcroft v. Free Speech

Coalition.1 

I must respectfully dissent from the lead opinion’s holding 

that § 2252A does not apply to Appellant’s conduct in Germany, 

that Appellant’s receipt, reproduction, and distribution of 

electronic, pornographic images did not occur in the United 

States, and from the majority’s holding that Appellant’s plea to 

specification 1 was improvident based on United States v. 

O’Connor, 58 M.J. 450 (C.A.A.F. 2003). In specifications 1, 2, 

and 3 Appellant was charged under Article 134, Uniform Code of 

 

1

 535 U.S. 234 (2002). 
United States v. Martinelli, No. 02-0623/AR 

2

Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with knowingly 

and wrongfully, by means of a computer, mailing, transporting, 

shipping, receiving, and reproducing child pornography in 

“interstate or foreign commerce” at an Internet café in 

Darmstadt, Germany, in violation of § 2252A. He was also 

charged under Article 134 with receiving child pornography and 

with possessing child pornography on a United States Army 

installation, in violation of § 2252A, in specification 4. The 

mailing, transporting, shipping, receiving, and reproducing 

occurred at Hotmail and Yahoo! computer servers located in the 

United States, with each such action having been effected by 

Appellant’s physical contact with a computer terminal located in 

Darmstadt, Germany. 

The lead opinion takes the position that a citizen-soldier 

who is knowingly sending, receiving, and reproducing computer 

images of actual children engaged in graphic sexual conduct in 

“interstate or foreign commerce,” who is possessing those images 

on a United States military installation, and –- because of the 

nature of Hotmail and Yahoo! e-mail accounts –- whose sending, 

receipt, reproduction, and possession is simultaneously 

occurring on e-mail servers located in the United States, cannot 

be prosecuted under § 2252A. Not only is that position 

unsettling, but it constitutes a dramatic shift in this Court’s 

view of military criminal jurisdiction. 
United States v. Martinelli, No. 02-0623/AR 

3

I. Domestic Application of § 2252A 

When Appellant sat in the Netzwerk Internet Café in 

Darmstadt, Germany, he didn’t open envelopes, remove 

photographs, copy photographs, place photographs in envelopes, 

or place those envelopes in a mail drop, at least not in the 

physical sense. Appellant rented a web browser, which he used 

to visit Internet websites and to gain access to his Hotmail or 

Yahoo! e-mail accounts. These particular e-mail accounts are 

“web-based,” as distinct from e-mail operated through a local 

client such as Microsoft Outlook (a program that can be locally 

installed and which creates a local storage facility for e-mail 

files and attachments). Because “web-based” accounts operate 

without a local server and consist of discrete pools of 

information electronically assembled and stored under a user’s 

filename on a client server owned by the host, all of 

Appellant’s e-mails -– and their attachments –- were “resident” 

on the Internet servers of Hotmail and Yahoo!, located in the 

United States. 

While this is not the technology many of us grew up with, 

it is the technology that prevails today. It is the technology 

that appellants and counsel not infrequently must explain to 

judges and, more to the point, it is the technology Appellant 
United States v. Martinelli, No. 02-0623/AR 

4

stipulated to and explained to the military judge during the 

Care2 inquiry in this case. 

The majority misconstrues the “routed through” language in 

the stipulation to conclude that all the images –- including 

those attached to e-mail -– were located outside the United 

States when Appellant sent or received them or when he 

reproduced them, and that when Appellant sent or received them 

they all merely went “through” the United States in electronic 

form. 

What actually occurred, at least on those occasions that 

Appellant sent or received images by e-mail, is that Appellant, 

by typing on the keyboard of a computer in Darmstadt, used his 

electronic address on a server located in the United States, to 

send and receive e-mail messages with embedded or attached 

images, to and from his address on that server. Appellant also 

used his “space” on the Hotmail and Yahoo! servers in the United 

States to store pornographic images of children, which was made 

crystal clear by the language of specification 5,3

 the testimony 

 

2

 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). 

3

 “Specification 5 states that Appellant wrongfully endeavor[ed] 

to impede an investigation into his own misconduct by asking SPC 

Morgan A. Oviatt to destroy evidence that the said SPC 

Christopher P. Martinelli had received and possessed child 

pornography in violation of 18 U.S. Code § 2252A, to wit: by 

deleting all files with attachments from his two electronic mail 

accounts.” Emphasis added. 
United States v. Martinelli, No. 02-0623/AR 

5

of Specialist (SPC) Oviatt and Appellant’s admissions during the 

providency inquiry. 

Appellant also admitted to downloading images directly onto 

the hard drive of a computer at the Netzwerk Internet Café and 

onto portable disks that Appellant took back to the barracks. 

But Appellant also admitted that each day, after he had left the 

Netzwerk Internet Café, many if not all of the images Appellant 

had collected, reproduced, or sent to others remained stored, 

under his name, in his user account, on the servers of Hotmail 

and Yahoo! within the territorial borders of the United States. 

 Because much of the storage of images, all of the sending, 

and all of the receiving, actually occurred in the electronic 

space controlled by Appellant on Hotmail and Yahoo! servers in 

the United States, the crimes of sending and receiving were 

committed there.4

 Further, although some of the products of 

Appellant’s reproduction (e.g., the portable computer disks 

Appellant took back to his barracks) were located in Germany, 

much of the actual reproduction occurred on the servers where 

those images were located, in electronic form, in the United 

States. 

In light of these facts of record, there was a domestic 

application of § 2252A to specifications 1 through 3. 

 

4

 As reflected in the specifications, they were simultaneously 

committed in Germany, a proposition discussed below. 
United States v. Martinelli, No. 02-0623/AR 

6

II. Extraterritoriality 

If required to examine § 2252A and Article 134, in an 

extraterritorial setting, I would follow this Court’s precedents 

and the great bulk of federal case law, while considering the 

worldwide deployment of our forces, and the melding of federal 

statutes in Article 134. 

FACTS 

As detailed above, Appellant possessed over sixty images of 

child pornography on a U.S. military installation in Germany. 

He also used a computer in a German community to effect the 

repeated reproduction, transmission, and receipt of child 

pornography in interstate and foreign commerce. Appellant’s 

electronic transactions were, at a minimum, routed through 

Internet servers in the United States: 

 In Prosecution Exhibit 1, Appellant stipulated that 

[a]ll e-mail sent to or received from the accused’s 

Yahoo or Hotmail e-mail accounts is electronically 

routed through the respective service’s computers in 

the United States. As a result, all of the child 

pornography that the accused had either sent or 

received using these two accounts was transported 

through interstate or foreign commerce. 

 As a matter of practice, over the course of the 

year, after copying the child pornography onto floppy 

diskettes, the accused would then take the diskettes 

to his barracks room in building 4002 on the Cambrai 

Fritsch Kaserne, Darmstadt, Germany. The Cambrai 
United States v. Martinelli, No. 02-0623/AR 

7

Fritsch Kaserne is a U.S. Army installation used by 

and under the control of the United States Government.5

Emphasis added. 

 

DISCUSSION 

 Outside the military context, modern law recognizes five 

theories in support of extraterritorial application of a 

sovereign’s jurisdiction: (1) regulating conduct of its 

citizens; (2) regulating activities which have a substantial 

territorial effect; (3) regulating extraterritorial conduct when 

there is a connection between the act and national security; (4) 

asserting jurisdiction as to crimes against humanity; and (5) 

asserting jurisdiction where the victim of the act is a citizen 

of the state asserting jurisdiction.6 

 In the context of United States servicemembers, Congress’ 

authority to “make Rules for the Government and Regulation of 

the land and naval forces,”7

 creates additional sources of 

jurisdiction under Article 134. 

 

5

 Before this Court, the Government noted “the child pornography 

at issue moved in ‘foreign commerce’ because it was filtered 

through internet service providers operating from the United 

States.” 

6

 See Restatement (Third) Foreign Relations Law §§ 401-402 

(1986). 

7

 U.S. Const. art. I, § 8, cl. 13. 
United States v. Martinelli, No. 02-0623/AR 

8

Citizenship 

 Notwithstanding the common law presumption against 

extraterritorial application of a sovereign’s law,8 there remains 

little question as to the power of Congress to extend 

application of U.S. criminal statutes to the acts of U.S. 

citizens undertaken beyond our territorial borders. The 

extraterritorial reach of federal statutes, at least as to 

citizens, arose as far back as 1824, when the United States 

Supreme Court recognized the nationality principle. In The 

Apollon,9 the Court stated: “The laws of no nation can justly 

extend beyond its own territories, except so far as regards its 

own citizens.” Again in 1960, the Court hinted that 

nationality-based jurisdiction over civilian dependents of 

military personnel overseas was possible but venue would lie in 

the United States.10 Clearly, Appellant is a citizen. 

Effects 

 In addition to the nationality justification for 

jurisdiction, the effects doctrine also applies to conduct from 

outside the border that has a consequence or effect within the 

 

8

 United States v. Foley Bros., Inc. v. Filardo, 336 U.S. 281, 

285 (1949). 

9

 22 U.S. 362, 370 (1824). 

10 Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 

(1960); see also United States ex rel. Toth v. Quarles, 350 U.S. 

11, 21 (1955). 

 
United States v. Martinelli, No. 02-0623/AR 

9

border, provided Congress has the authority in that area. Just 

as the Federal Government can defend itself “against 

obstruction[] or fraud wherever perpetrated,”11 it also can cast 

a wide net for drug trafficking, or in this case, trafficking in 

child pornography. In United States v. Felix-Gutierrez,12 the 

Ninth Circuit applied a criminal accessory statute -– silent as 

to extraterritorial application –- to the murder of a Drug 

Enforcement Agency (DEA) agent in Mexico. Finding 

extraterritorial application of the laws of the United States 

constitutionally permissible, the court emphasized the need to 

look at both the express and implied congressional intent in 

deciding whether the law should be given extraterritorial 

application. Agreeing with the Fifth Circuit’s analysis in 

United States v. Baker,13 the Felix-Gutierrez court noted that 

the effectiveness of the statute would be compromised if the 

citizens of the United States could commit these offenses abroad 

without the intercession of the United States Government.14 

Permitting the Government to exercise extraterritorial 

jurisdiction comports with the international principle of 

protective jurisdiction because the underlying crime affected 

 

11 United States v. Bowman, 260 U.S. 94, 98 (1922). 

12 940 F.2d 1200, 1204 (9th Cir. 1991). 

13 609 F.2d 134, 136 (5th Cir. 1980). 

14 Felix-Gutierrez, 940 F.2d at 1204. 
United States v. Martinelli, No. 02-0623/AR 

10

the nation itself.15 As Judge Hand recognized in United States 

v. Aluminum Co. of America,16 concluding that the Sherman Act 

applied to conduct that took place entirely outside the United 

States but had a territorial effect on exports and imports: “It 

is settled law . . . that any state may impose liabilities, even 

upon persons not within its allegiance, for conduct outside its 

borders that has consequences within its borders which the state 

reprehends. . . .” 

 Further, construing the statute against extraterritorial 

application to members of the armed forces stationed abroad has 

practical effects that would thwart the plainly stated intent of 

Congress to eradicate child pornography. If this had been a 

contested case, the material that Appellant transmitted and 

received could have been obtained pursuant to a search warrant 

from a United States Internet site.17 The search would not have 

required the consent of German officials. This is not an 

instance where United States law enforcement officials need the 

assistance, or even indulgence, of another territory to enforce 

 

15 See id. at 1206. 

16 148 F.2d 416, 443 (2d Cir. 1945) (citations omitted). 

17 See generally United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 

1996)(warrant executed at site of interstate Internet service 

provider). 
United States v. Martinelli, No. 02-0623/AR 

11

its law.18 Nor is this an instance of the searching state having 

a stronger interest in the data than the state in which the data 

is stored. Both are the same. The searching state knows where 

the data is and there would be no interference with another 

state as a byproduct of the search. Just as clearly, this is 

not an instance of extraterritorial criminal enforcement that 

would “potentially frustrate one of the central purposes of the 

presumption against extraterritoriality -– namely, the 

prevention of ‘unintended clashes between our laws and those of 

other nations which could result in international discord.’” 19 

As with nearly all other members of our armed forces, Appellant 

was subject to a Status of Forces Agreement. Such agreements 

have provided, since before United States v. Gatlin,20 that “the 

military authorities of the sending State shall have the right 

to exercise within the receiving State all criminal and 

disciplinary jurisdiction conferred on them by the law of the 

sending State over all persons subject to the military law of 

 

18 See generally Yahoo!, Inc. v. La Ligue Contre Le Racisme Et 

L’Antisemitesme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001)(court 

declined to enforce a French order, but did not rule that the 

French were without proper jurisdiction to prevent the 

distribution of anti-Semitism on the Internet in France). 

19 United States v. Gatlin, 216 F.3d 207, 216 n.11 (2d Cir. 

2000)(quoting Equal Employment Opportunity Commission v. Arabian 

American Oil Co. (Aramco), 499 U.S. 244, 248 (1991). 

20 Id. at 207. 
United States v. Martinelli, No. 02-0623/AR 

12

that State.”21 Appellant’s prosecution for these crimes was not 

merely tolerated by German authorities, it was officially 

condoned pursuant to an international treaty. 

Plain Meaning of § 2252A 

 While citizenship and impact on “interstate and foreign 

commerce” provide sufficient bases for jurisdiction, there is an 

additional basis for applying the statute extraterritorially --

the plain meaning and purpose of the statute itself. “While the 

legislation of the Congress, unless the contrary intent appears, 

is construed to apply only within the territorial jurisdiction 

of the United States, the question of its application, 

[extraterritorially] is one of construction, not of legislative 

power.”22 “Congress has the authority to enforce its laws beyond 

the territorial boundaries of the United States. Whether 

Congress has in fact exercised that authority . . . is a matter 

of statutory construction.”23 

 This case deals with a specific federal statute, i.e., 

§ 2252A, which provides: 

 

 

21 Agreement Between the Parties to the North Atlantic Treaty 

Regarding the Status of Their Forces, art. VII § 1(a),. June 19, 

1951, 4 U.S.T. 1792. 

 

22 Blackmer v. United States, 284 U.S. 421, 437 (1932) (citations 

omitted). 

23 Aramco, 499 U.S. at 248. 
United States v. Martinelli, No. 02-0623/AR 

13

(a) Any person who —- 

 (1) knowingly mails, or transports or ships in 

interstate or foreign commerce by any means, including 

by computer, any child pornography; 

 (2) knowingly receives or distributes -- 

 (A) any child pornography that has been mailed, 

or shipped or transported in interstate or foreign 

commerce by any means, including by computer; or 

 (B) any material that contains child pornography 

that has been mailed, or shipped or transported in 

interstate or foreign commerce by any means, including 

by computer . . . 

 . . . . 

 (5)(B) knowingly possesses any . . . computer disk, 

or any other material that contains an image of child 

pornography that has been mailed, or shipped or 

transported in interstate or foreign commerce by any 

means, including by computer . . . 

 . . . . 

 shall be punished as provided in subsection (b). 

 Emphasis added. 

 When interpreting this statute, it is appropriate to look 

at the plain meaning of the statute,24 its history, and the 

purpose of the statute.25 

 The Commerce Clause grants Congress the power “to regulate 

commerce with foreign Nations . . . .”26 Section 2252A was an 

exercise by Congress of its authority over interstate and 

 

24 Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 

U.S. 1, 6 (2000)(“[W]hen the statute’s language is plain, the 

sole function of the courts –- at least where the disposition 

required by the text is not absurd –- is to enforce it according 

to its terms.”)(internal quotation marks and citations omitted). 

25 The purpose of the statute might be an important aspect of 

statutory interpretation. Geier v. American Honda Motors Co., 

529 U.S. 861, 888 (2000). 

26 U.S. Const. art. I, § 8, cl. 3. 
United States v. Martinelli, No. 02-0623/AR 

14

foreign commerce. This power to regulate foreign commerce has 

been broadly construed to encompass all “transactions which 

either immediately, or at some stage of their progress, must be 

extraterritorial.”27 

 Certainly, Congress is interested in controlling commerce 

in cyberspace as evidenced by the statute. This statute is a 

broad, comprehensive scheme to eradicate, or at least control, 

sexual exploitation of children. It was part of the CPPA. In 

expanding the congressional statute, Congress specifically found 

that “elimination of child pornography and the protection of 

children from sexual exploitation provide a compelling 

governmental interest for prohibiting the production, 

distribution, possession, sale, or viewing of visual depictions 

of children engaging in sexually explicit conduct. . . .”28

 I cannot join the majority’s conclusion that because the 

CPPA was enacted to “protect children from abuse,” United States 

v. Martinelli, 61 M.J. __, __ (12) (C.A.A.F. 2005), it therefore 

focuses on individual victims and cannot fall within the “second 

category” of criminal statutes described in Bowman. Similar 

language has been applied by numerous federal circuits in 

recognizing that many criminal prohibitions enacted by Congress 

 

27 Veazie v. Moor, 55 U.S. 568, 573 (1852). 

28 Child Pornography Prevention Act, Pub. L. No. 104-208, div. 

A., tit. I, § 121 (1)(13), 110 Stat. 3009. 
United States v. Martinelli, No. 02-0623/AR 

15

were intended primarily to protect the national interest, as 

opposed to the property or persons of individuals.29 

 Not only on the weight of decisional law in the federal 

circuits and our own precedents, but based on the compelling 

similarities between this Nation’s struggle against the 

production, importation, distribution, and possession of illegal 

drugs and the much more recent efforts to combat the creation, 

distribution, and possession of child pornography, I conclude 

that, even if applied extraterritorially, Appellant’s plea and 

 

29 E.g., United States v. Harvey, 2 F.3d 1318 (3d Cir. 1993) 

(possession of child pornography under 18 U.S.C. § 2252(a)(4)(B) 

(subject to aggravated punishment even though aggravating factor 

occurred in Philippines); United States v. Wright-Barker, 784 

F.2d 161 (3d Cir. 1986) (drug offenses on the high seas); United 

States v. Thomas, 893 F.2d 1066 (9th Cir. 1990)(using a minor in 

Mexico to produce child pornography violating 18 U.S.C. § 

2251(a)); Chandler v. United States, 171 F.2d 921 (1st Cir. 

1948)(treason by U.S. citizen in Germany); United States v. 

Yousef, 327 F.3d 56 (2d Cir. 2003)(attempting to damage U.S. 

aircraft in flight outside U.S.); United States v. Brown, 549 

F.2d 954 (4th Cir. 1977)(conspiracy to import heroin to U.S. 

from Germany involving an Army sergeant stationed in Germany); 

United States v. Erdos, 474 F.2d 157 (4th Cir. 1973)(murder of 

U.S. citizen by U.S. citizen at U.S. embassy in Guinea); United 

States v. Perez-Herrera, 610 F.2d 289 (5th Cir. 1980)(conspiracy 

and attempted importation of marijuana into U.S. from high 

seas); United States v. Baker, 609 F.2d 134 (5th Cir. 

1980)(possession with intent to distribute marijuana nine miles 

off Florida coast); United States v. Dawn, 129 F.3d 878 (7th 

Cir. 1997)(possession of child pornography under 18 U.S.C. § 

2252(a) subject to aggravated punishment even though aggravating 

factor occurred in Honduras); United States v. Schmucker-Bula, 

609 F.2d 399 (7th Cir. 1980)(conspiracy to import cocaine in 

Colombia); United States v. Plummer, 221 F.3d 1298 (11th Cir. 

2000)(attempted smuggling forty miles off Florida coast); FelizGutierrez, 940 F.2d 1200 (kidnapping and murder of DEA agent in 

Mexico). 
United States v. Martinelli, No. 02-0623/AR 

16

conviction by application of § 2252A was jurisdictionally 

proper. 

Appellant’s Military Status 

 A final rationale for jurisdiction to prosecute Appellant 

arises under the UCMJ. Pursuant to this authority, Congress has 

provided that under Article 134 “all disorders and neglects to 

the prejudice of good order and discipline in the armed forces” 

or conduct which would bring “discredit upon the armed forces” 

may be tried under the UCMJ. The UCMJ specifically provides for 

extraterritorial jurisdiction.30 In light of Article 36, UCMJ,31

it is clear that clause 3 of Article 134 contemplates 

prosecution of crimes such as those enumerated in § 2252A. 

 Congress delegated authority to the President to prescribe 

“[p]retrial, trial, and post-trial procedures, including modes 

of proof, for cases” triable under the UCMJ.32 In the Manual for 

Courts-Martial, United States (MCM) (2002 ed.), pt. IV, ¶ 

60.c(4)(c)(i) notes that under clause 3 of Article 134, “[t]here 

are two types of congressional enactments of local application: 

specific federal statutes (defining particular crimes), and a 

 

30 Article 5, UCMJ, 10 U.S.C. § 805 (2000). 

 

31 10 U.S.C. § 836 (2000). 

32 Id. at § 836(a). 
United States v. Martinelli, No. 02-0623/AR 

17

general federal statute, the Federal Assimilative Crimes Act 

(which adopts certain state criminal laws).” 

 This approach was recognized in United States v. Scholten.33 

In Scholten, this Court held that there are four jurisdictional 

bases to try an individual for kidnapping overseas, including 

“interstate or foreign commerce, maritime or territorial 

jurisdiction, special aircraft jurisdiction and foreign guests 

of the government.”34 Even though 18 U.S.C. § 1201(a), the 

statute at issue in Scholten, does not apply under clause 3, it 

may be charged under clauses 1 and 2 where the conduct is 

prejudicial to good order and discipline or of a nature to bring 

discredit upon the armed forces.35 Thus, assuming Appellant was 

not engaged in “interstate or foreign commerce,” those clauses 

would also permit the prosecution of Appellant under the UCMJ. 

 For all of the above reasons, I respectfully dissent from 

the majority’s holding that § 2252A does not have 

extraterritorial application. The impact of this holding is 

far-reaching because it overlooks our prior case law36 and 

 

33 17 M.J. 171 (C.M.A. 1984). 

34 Id. at 173 (citation and internal quotation marks omitted). 

35 Id. at 173-74. 

36 See, e.g., United States v. Collins, 7 M.J. 188 (C.M.A. 1979); 

United States v. Jackson, 17 C.M.A. 580, 38 C.M.R. 378 (1968); 

United States v. Wilmot, 11 C.M.A. 698, 29 C.M.R. 514 (1960); 

United States v. Blevens, 5 C.M.A. 480, 18 C.M.R. 104 (1955). 
United States v. Martinelli, No. 02-0623/AR 

18

forecloses application by military authorities of numerous 

federal statutes overseas.37

 III. Providence of the Plea 

 I also dissent from the majority’s conclusion that 

Appellant’s pleas were improvident in light of Ashcroft v. Free 

Speech Coalition.38 In my dissent from a similarly erroneous 

conclusion by this Court in O’Connor, 58 M.J. at 456-457 

(Crawford, C.J., dissenting), I emphasized that O’Connor’s pleas 

were factually provident to offenses involving actual children 

and therefore unaffected by Free Speech Coalition. 

Notwithstanding nearly unanimous support for this position in 

the federal circuits that have addressed that very question of 

law, the majority steadfastly moves this Court, without 

justification, on a path that threatens, rather than protects, 

the military community by providing extra “rights” for 

servicemembers who possess, traffic in, and even create child 

pornography, even when those acts occur on a military 

installation. 

Actual Children 

 In explaining the elements of each of the four child 

pornography specifications, the military judge defined “child 

 

37 See, e.g., Espionage Act of 1900, 18 U.S.C. § 792-99 (2000). 

38 535 U.S. 234 (2002). 
United States v. Martinelli, No. 02-0623/AR 

19

pornography” by reading § 2256(8) to Appellant, including the 

impermissibly overbroad language “appears to be” and “conveys 

the impression.” The stipulation of fact, however, 

explicitly recognizes that the children in all sixty-four 

images appended to the stipulation are actual children: 

“Rather than focusing on a technical listing of the elements 

of an offense, this Court looks at the context of the entire 

record to determine whether an accused is aware of the 

elements, either explicitly or inferentially.”39

Appellant assured the military judge that he understood the 

stipulation and that everything in it was true. After the 

defense waived objection, the military judge admitted the 

document, which provided, in part: “[t]he identity of these 

children, as well as any lasting damage that may have occurred 

because of their abuse in these photographs, is not known”; and 

“[t]he accused never attempted to discover the identities or 

well-being of these children.” 

 Virtual children do not have “identities,” they do not 

suffer “damage” when abused, nor may their “well-being” be 

restored. Appellant knowingly and voluntarily stipulated as 

fact that the children in the sixty-four images were real, 

potentially identifiable, female children, some of whom were 

 

39 United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 

2003)(citation omitted). 
United States v. Martinelli, No. 02-0623/AR 

20

prepubescent, and all of whom were abused. Appellant’s 

understanding of the animate, corporeal nature of the children 

depicted in the sixty-four images attached to the record of 

trial is clear. Moreover, the sixty-four images attached to the 

record in this case graphically support Appellant’s belief that 

the images are of actual minors.40 There is no substantial basis 

in law and fact to question the providence of Appellant’s plea. 

Appellant was aware of the elements and the facts objectively 

support his plea. 

The “Specialized Society” Revisited 

By departing from the bulk of federal precedent, without 

articulating any military necessity or distinction, this Court 

continues to suggest that servicemembers accused of child 

pornography offenses have First Amendment and trial rights 

paramount to those extended by the federal circuits to similarly 

situated civilian defendants prosecuted under the same statute. 

Further, without even articulating a balance, the majority 

implicitly promotes the newly elevated rights for accused 

military child pornographers over those of the military 

community as a whole. 

 

40 See, e.g., images 58, 59, 60, and 63 (attached to the 

stipulation of fact). These images unquestionably depict actual 

female children of kindergarten age in graphic sexual poses. 
United States v. Martinelli, No. 02-0623/AR 

21

A. Application of Free Speech Coalition in the Federal 

Courts 

Since Free Speech Coalition, most of the federal courts 

that have considered cases in which the constitutionally 

overbroad language of § 2256(8) was employed have looked to the 

entire record to determine the legal impact of constitutionally 

impermissible instructions or explanations. Even in contested 

cases, these courts have found sufficient evidence that images 

depicted actual children in cases where a pediatric expert 

testified as to the age of the child depicted and “the 

photographs appeared to portray real children.” See, e.g., 

United States v. Bender, 290 F.3d 1279, 1282 (11th Cir. 

2002)(denying defendants’ free speech claim and noting that 

“there [was] sufficient evidence that the images portray[ed] 

real children”). Courts have upheld convictions when the 

appellate judges’ own viewings left no doubt that “the images 

shown to the jury . . . depicted . . . real” children. United 

States v. Richardson, 304 F.3d 1061, 1064 (11th Cir. 2002). The 

Richardson court “reached [that] conclusion because the evidence 

clearly established that the children depicted in the images or 

pictures were actual children.” Id. at 1064-65. In that case, 

a special agent testified that, based on his training and 

experience, the images depicted actual children and not what 

simply appeared to be children. 
United States v. Martinelli, No. 02-0623/AR 

22

 Other federal courts addressing this issue have upheld 

convictions where the factfinder concluded that the images 

depicted actual children or where the appellate court deemed 

that it must have been so. Padgett v. United States, 302 F. 

Supp. 2d 593, 598-600 (D.S.C. 2004)(finding that language of 

providence inquiry established actual nature of children and 

that, by appellate court’s own review, photos were of actual 

children); United States v. Slanina, 359 F.3d 356, 357 (5th 

Cir. 2004) (stating that the “Government was not required to 

present any additional evidence or expert testimony . . . to 

show that the images downloaded . . . depicted real children, 

and not virtual children”); United States v. Farrelly, 389 

F.3d. 649, 655 (6th Cir. 2004)(affirming conviction where the 

Government presented “sufficient evidence of actual children” 

and the trier of fact ‘was capable of reviewing the evidence to 

determine whether the Government met its burden to show that the 

images depicted real children’”) (quoting Slanina, 359 F.3d at 

357);41 United States v. Kelly, 314 F.3d 908, 912 (7th Cir. 

2003)(upholding a guilty plea “[b]ecause regulation of real 

child pornography remains constitutional . . . and Mr. Kelly 

 

41 See, e.g., 3 Leonard B. Sand et al., Modern Federal Jury 

Instructions -- Criminal, Inst. 62-22 (2005) (“You may consider 

all of the evidence, including your viewing of the depiction, in 

determining whether the depiction portrayed an actual person 

under the age of eighteen engaging in sexually explicit 

conduct.”). 
United States v. Martinelli, No. 02-0623/AR 

23

possessed real child pornography”); United States v. Deaton, 

328 F.3d 454, 455 (8th Cir. 2003)(reaffirming the reasonableness 

of a “jury’s conclusion that real children were depicted, even

where the images themselves were the only evidence the 

government presented on the subject.”); United States v. Vig, 

167 F.3d 443, 449 (8th Cir. 1999)(holding that the “images were

viewed by the jury which was in a position to draw its own 

independent conclusion as to whether real children were 

depicted.”); United States v. Reardon, 349 F.3d 608, 612-14 (9th 

Cir. 2003)(evidence at trial sufficient to prove real children); 

United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir. 

2003)(stating that factfinders are “still capable of 

distinguishing between real and virtual images”); United States 

v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002)(affirming a Free 

Speech Coalition conviction because “no reasonable jury could

have found that the images were virtual children”). But see

United States v. Hilton, 386 F.3d 13, 18-19 (1st Cir. 

2004)(because the jury was not required to find that the images 

were of actual children, even if a commonsense determination 

would compel such a finding, the conviction could not stand).42 

 

42 See also United States v. Maxwell 49 F.App’x 410, 411 (4th 

Cir. 2002)(affirming pre-Free Speech Coalition guilty plea on 

the basis that pornography was of actual children); United 

States v. Roberts, 84 F.App’x 440, 441 (5th Cir. 2004)(denying 

attack on pre-Free Speech Coalition conviction on ground that 

detailed testimonial description of pictures established their 
United States v. Martinelli, No. 02-0623/AR 

24

Thus, it is clear that the great weight of federal authority 

supports the analysis and conclusions of the Army Court of 

Criminal Appeals. 

 B. Treatment of Free Speech Coalition in this Court 

This case revisits a familiar question: how is this Court 

to ensure compliance with Free Speech Coalition when, during the 

course of court-martial proceedings, the military judge employed 

the statutory language found by Free Speech Coalition to be 

overbroad –- language that could ostensibly permit conviction 

based on visual depictions of virtual children? In this case, 

that question is narrowed to the context of a Care inquiry. 

The answer, of course, begins with our duty to follow the 

decisions of our superior court. But when we impose upon the 

Government a greater burden than the Supreme Court requires, we 

must first articulate a balance between the First Amendment and 

trial rights of a military accused, on the one hand, and the 

military community’s interest in good order and discipline on 

the other. Both the servicemember and the military community 

share an interest in a lawful, rational application of the CPPA. 

Unfortunately, while maintaining a position that affords 

military child pornographers a level of sanctuary unrecognized 

 

actual nature). 
United States v. Martinelli, No. 02-0623/AR 

25

by other jurisdictions, the majority provides no balancing and 

serves only one interest. 

As noted above, a growing majority of federal courts have 

declined an overly restrictive application of Free Speech 

Coalition, in favor of a measured approach, e.g., consideration 

of waiver, United States v. Hay, 231 F.3d 630, 639 (9th Cir. 

2000), plain error, Hall, 312 F.3d at 1259, and other legal 

theories, in conjunction with an examination of the facts of 

each case, including the nature and characteristics of the 

prohibited images themselves. Richardson, 304 F.3d at 1064. 

The majority has rejected that approach and has essentially 

established a per se reversal rule to be applied to any case in 

which the unconstitutionally overbroad language is used, unless 

the conviction can be upheld under clauses 1 and 2 of Article 

134. The application of that rule in this case operates to 

exonerate an accused who clearly admitted to trafficking in 

pornographic images of actual early teen, preteen, and 

kindergarten girls. 

C. Balancing –- Now and in Future Cases 

The approach this Court should take in Appellant’s case 

need not be inconsistent with the Court’s holding in O’Connor: 

For present purposes, however, a provident guilty plea 

to a violation of the CPPA provision at issue here 

must reflect that an accused has violated those 

portions of the statute upheld by the Supreme Court. 

In light of that, and in the absence of any discussion 
United States v. Martinelli, No. 02-0623/AR 

26

or focus in the record before us regarding the 

“actual” character of the images, we cannot view 

Appellant’s plea of guilty to violations of the CPPA 

as provident. 

 . . . . 

We have long recognized that the First Amendment 

rights of civilians and members of the armed forces 

are not necessarily coextensive. At the same time, 

however, we must ensure that the connection between 

any conduct protected by the First Amendment and its 

effect on the military environment be closely 

examined. 

58 M.J. at 454-455 (citations omitted). 

This Court’s disposition of Appellant’s case should, at a 

minimum, treat those very same considerations addressed by 

O’Connor: evaluating any “discussion or focus in the record 

before us regarding the ‘actual’ character of the images,” and 

ensuring “that the connection between any conduct protected by 

the First Amendment and its effect in the military environment 

[is] closely examined.” Id. Instead, without explanation or 

elaboration, the majority purports to rely on O’Connor, while 

conducting no balancing and implicitly declining to adopt the 

reasoning of the clear majority of Article III courts. 

As a matter of general practice, when we choose to depart 

from Supreme Court precedent, or from the reasoning of the 

majority of the federal circuit courts that have followed 

Supreme Court precedent in construing and applying a 

constitutional or statutory provision, and when that departure 
United States v. Martinelli, No. 02-0623/AR 

27

is not required by legislative or executive mandate, this Court 

should articulate the military necessity or distinction that 

compels our reasoning. See, e.g., United States v. Roberts, 59 

M.J. 323, 327 (C.A.A.F. 2004) (rejecting Supreme Court standard 

for evaluating discovery violation and applying a more stringent 

standard based on “military practice”); United States v. Unrue, 

22 C.M.A. 466, 469, 47 C.M.R. 556, 559 (C.M.A. 1973)(recognizing 

“military necessity” in evaluating reasonableness of search and 

seizure); United States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 

2002)(declining to view court member challenge “through the 

prism of the Sixth Amendment”); United States v. Moore, 58 M.J. 

466, 469 (C.A.A.F. 2003)(applying “good order and discipline” 

rationale in validating Government’s abrogation of First 

Amendment free speech rights); United States v. Brown, 45 M.J. 

389, 395 (C.A.A.F. 1996)(applying “clear danger to loyalty, 

discipline, mission, or morale” standard to First Amendment 

claim). 

“This Court has long recognized that the military is, by 

necessity, a specialized society. We have also recognized that 

the military has, again by necessity, developed laws and 

traditions of its own during its long history.” Parker v. Levy, 

417 U.S. 733, 743 (1974). Balancing this recognition of the 

military’s specialized need for enhanced discipline and 

regulation, our Court has long maintained vigilance in 
United States v. Martinelli, No. 02-0623/AR 

28

preserving the rights of servicemembers in the court-martial 

process. See generally United States v. Jacoby, 11 C.M.A. 428, 

29 C.M.R. 244 (1960). When we perform this balancing, however, 

we must not fail to consider the fabric of the “specialized 

society” in which servicemembers and their families exist. The 

Department of Defense and the military departments have 

emphasized that this “specialized society” consists not only of 

servicemembers, but of their families as well.43

When this Court applies a U.S. Code provision and our 

superior court’s interpretation thereof in a manner inconsistent 

with the bulk of Article III courts -- presumably for the 

purpose of providing an elevated level of protection for the 

trial rights of a military accused -- we must weigh the reasons 

for our divergent application of that statute against the 

concomitant reduction in the level of protection that statute 

would otherwise provide to the “specialized society” we also 

serve. As noted, that society is populated not only by the 

uniformed men and women who bravely serve our Nation, but by 

their spouses and children, all of whom have every right to 

 

43 See, e.g., Department of Defense (DoD) Directive, Family 

Policy, at E3.1.1 (Dec. 30, 1988) (“DoD personnel and their 

families are the most valuable resource in support of the 

national defense. DoD Families serve as a force multiplier, 

contributing to the readiness and retention of quality 

personnel. The goal is a combat-ready force supported by 

families whose quality of life reflects the high standards and 

pride of the Nation they defend.”). 
United States v. Martinelli, No. 02-0623/AR 

29

expect a measured and rational application of law by trial and 

appellate courts. More particularly, in light of this Court’s 

historical balance between individual First Amendment rights and 

the needs of the “specialized society,” the members of that 

society could hardly anticipate that this Court would, despite 

the weight of federal decisions to the contrary, construe a 

Supreme Court decision so as to elevate the right of an 

individual servicemember to traffic in child pornography above 

the need of that “specialized society” for good order and 

discipline. 

How then, without being compelled to do so by our superior 

court, by Congress, or by the President, does this Court elevate 

the First Amendment and fair trial rights of servicemembers over 

the military’s need for good order and discipline? Are good 

order and discipline, as well as the safety and security of the 

community not threatened by the creation and proliferation of 

child pornography within that community? This Court’s 

application of Free Speech Coalition not only places us in the 

minority of federal fora, but, for reasons that remain a 

mystery, confers on servicemembers accused of owning, 

distributing, and trafficking in child pornography a status that 

exalts their constitutional rights above those of civilians 

accused of identical crimes, while unnecessarily and 

unintentionally denigrating the legitimate interests of the 
United States v. Martinelli, No. 02-0623/AR 

30

thousands of other servicemembers and their families who 

comprise the “specialized society” recognized by the Supreme 

Court for over thirty years. 

IV. Conclusion 

 Both on the question of extraterritorial application of § 

2252A and on implementation of Free Speech Coalition, the 

majority moves this Court still further from the mainstream of 

federal practice. In doing so, the lead opinion departs from 

our own precedent by failing to conduct a balancing of competing 

rights and interests. For these reasons alone, I must 

respectfully dissent. Because Appellant’s stipulation of fact 

provides no “substantial basis in law and fact to question the 

providence of,” United States v. Prater, 32 M.J. 433 (C.M.A. 

1991), Appellant’s pleas to possession and trafficking in child 

pornography, because the images in question clearly depict 

actual minors, and because Appellant waived the issue,44 I must 

also respectfully dissent. Finally, I respectfully dissent from 

the majority’s declination to find both that specifications 1, 

2, and 3 were not committed within the territory of the United 

States and that Appellant’s pleas provident to the lesser 

 

44 O’Connor, 58 M.J. at 455-57 (Crawford, C.J., dissenting). 
United States v. Martinelli, No. 02-0623/AR 

31

included offense of conduct prejudicial to good order and 

discipline or to bring discredit upon the armed forces.45

 

45 Id. at 457-59.