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Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, shipped or transported in interstate or foreign commerce (by computer); knowingly reproducing child pornography for distribution through the mails, or in interstate or foreign commerce (by computer); and knowingly possessing child pornography on land and in a building used by and under the control of the U.S. Government (in this case by possessing approximately fifty diskettes containing child pornography in buildings at the U.S. Army installation in Germany). All four specifications were based on the Child Pornography Prevention Act of 1996. Martinelli pleaded guilty and was convicted of all four. On appeal before the U.S. Court of Appeals for the Armed Forces (CAAF), however, the defense challenged the jurisdictional basis for the convictions, arguing that the Child Pornography Prevention Act did not apply to Specialist Martinelli's conduct because it occurred overseas.

The CAAF was certainly not the first court to face the issue of the extraterritorial application of a criminal statute--or even a criminal statute addressing child pornography or sexual exploitation of children. Likewise, Specialist Martinelli was not the first (nor will he be the last) to engage in such vile conduct abroad. In past years, federal courts had been contending with such offenders and slowly building a proper foundation by which laws criminalizing the sexual exploitation of children could reach pedophiles abroad. The weight of precedent and rationale was decidedly in favor of Martinelli’s conviction. But, instead, the CAAF found Specialist Martinelli’s conduct could not be prosecuted under 18 U.S.C. § 2252A(a) because the statute did not apply extraterritorially.

The holding in United States v. Martinelli was both disappointing and legally unsupportable. The CAAF had a constellation of reasons to apply 18 U.S.C. § 2252A extraterritorially. Instead, it adopted a myopic view of implied extraterritorially, ignored the weight of federal precedent on this issue, ignored the multiple grants of extraterritorial jurisdiction allowed by international law, and misread (or failed to read) the legislative history of the statute in question. This Article will examine where the CAAF went wrong in the hope that its errors may be corrected at some later point and, at the very least, so that other federal courts might be dissuaded from emulating them.

Publication Citation

39 Geo. Wash. Int'l L. Rev. 1 (2007).