Multiple Objections by Patrick Korody win online solicitation case on appeal!
In United States v. A.M, our client was charged at General Court-Martial with attempted sexual abuse of a child for communicating indecent language to a person who had not attained the age of 16 years, attempted production of child pornography, and attempted viewing of child pornography. The charges stemmed from an online chat with a FBI agent portraying a ficticious 13-year-old female on the Kik and Skout apps. Despite repeated requests by the agent to meet, the chatter rejected every meeting request. So, at the end of the day, the evidence consisted of chat logs, photographs exchanged, and information provided regarding internet protocol addresses.
NOTICE: All 13-year-old females online saying they are interested in older men are law enforcement.
There are generally two defenses to online chat cases. The first is identity – that the government cannot prove beyond a reasonable doubt the individual on the end of the chat. The second is intent by the defendant – that is did the defendant intend to communicate with a real-life underage individual.
In United States v. A.M., we elected to have a military judge alone bench trial because our trial strategy would entail making various evidentiary objections, trying to keep the government from linking up the chats to our client. We knew that if it was a bench trial the judge would likely take more time evaluating the objections than ruling immediately as is the case in a jury trial (normally the judge wants to keep the trial moving for the sake of the jury). The strategy worked – the judge refused to admit two crucial pieces of evidence that would establish the internet protocol addresses to our client because the prosecutors failed to establish the proper foundation for the evidence and failed to follow the rules for admitting such evidence. However, at trial the judge still found our client guilty. We appealed.
On appeal, the appellate court found that the evidence was both legally and factually insufficient to sustain convictions for all offenses. How did our objections play into the decision? In the opinion, the appellate court noticed that “If the IP addresses had been ad-mitted, they might have provided evidentiary corroboration sufficient to sustain a conviction.” The court also recognized that the chatter had sent pictures depicting our client, but, as we argued at trial, “in the current environment wherein photographs of individuals are readily available online through social media and otherwise, the Government needs to be able to link actual people to the underlying account in order to prove identity.”
All charges were dismissed with prejudice – that means he cannot be retried.
So what is next for our client? He is no longer a felon. He is no longer a sex offender. He must be reinstated in the Navy with backpay.
While Korody Law wishes we would have won at trial, our client and our trial strategy were vindicated on appeal. Sometimes you have to keep fighting and justice will occur, even if delayed.
Attorney Patrick Korody has close to 20 years military law experience. He has more than 10 years experience as a court-martial defense lawyer and has defended servicemembers in all branches of the military and the Coast Guard. His office is located in Jacksonville, Florida. He offers a free case evaluation and can be reached at (904) 383-7261.