Child Porn Deportation Ruling Tossed by 9th

SAN FRANCISCO - A man who was kicked out of the Marines over pornography depicting minors may face deportation after the 9th Circuit withdrew an earlier opinion Tuesday.

Rigoberto Aguilar-Turcios, a native of Honduras and a legal permanent resident of the United States, pleaded guilty about a decade ago in military court to accessing pornographic Internet sites and downloading pornographic images of minors, the court noted. The Marines gave him a bad-conduct discharge, and the federal government began a process to remove him from the country in 2005.

The government justified removal by claiming that his convictions under Articles 92 and 134 of the Uniform Code of Military Justice qualified as an "aggravated felony" under federal law.

In August 2012, a divided three-judge panel granted Aguilar-Turcios's petition for review and vacated the removal order against him.

The majority found that the military law to which Aguilar-Turcios had pleaded guilty to violating was not the same as the corresponding federal aggravated felonies that would allow for his removal.

To qualify, Aguilar-Turcios would have had to admit to "knowingly receiving, distributing, reproducing for distribution, or possessing visual depictions of a minor engaging in sexually explicit conduct," the decision stated. In pleading guilty to Article 92, however, Aguilar-Turcios admitted only to "accessing pornographic Internet sites on his government computer, as the MJ defined pornography at his court martial."

The majority said the Article 92 conviction ultimately "does not necessarily rest on facts satisfying the elements of either § 2252(a)(2) or (a)(4)."

"Even if Aguilar-Turcios' Article 92 conviction was somehow understood to encompass the phrase 'engaging in sexually explicit conduct,' we could not hold that Aguilar-Turcios' admission under Article 134 of possessing images of minors engaged in such conduct satisfies this element of § 2252(a)(2) and (a)(4) because the definition of 'sexually explicit conduct' offered by the MJ does not correspond to the federal definition," Judge Richard Paez wrote for the court.

Based on the differences in the definitions, "an image of minors kissing would satisfy the MJ's definition, while falling far short of the federal definition," Paez wrote.

As such, "Aguilar-Turcios' conviction under Article 134 did not necessarily rest on facts satisfying the federal definition of 'sexually explicit conduct.'"

The 9th Circuit withdrew the ruling without explanation on Tuesday, saying only that "a new opinion will be filed in due course."

This actually marks the second time the 9th Circuit has withdrawn an opinion in the Aguilar-Turcios case. The court withdrew an initial reversal to request supplemental briefs from the parties based on its decision in a similar case.

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