Former Marine Won’t Be Deported for Child Porn

(CN) - The 9th Circuit on Wednesday refused to deport a former Marine who was kicked out of the military for viewing and downloading Internet pornography depicting minors.

The federal appeals panel found that differing definitions of "sexually explicit conduct" and a supposition that the man would have been convicted under the military's definition for viewing "minors kissing" prevent the charge from being an aggravated felony under federal law.

Rigoberto Aguilar-Turcios, a native of Honduras and a legal permanent resident of the United States, in 2003 pleaded guilty in military court to accessing pornographic Internet sites and downloading pornographic images of minors, according to the ruling. The Marines gave him a bad-conduct discharge, and in 2005 the federal government began a process to remove him from the country.

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.

An Immigration Judge disagreed as to Article 134, but found that, since the Article 92 charge contained the phrase "minor engaging in sexually explicit conduct", which is the same language used in the federal law, the conviction qualified as an aggravated felony. The Board of Immigration Appeals affirmed, and Aguilar-Turcios took the issue to the 9th Circuit. An initial three-judge panel reversed, but the court later withdrew the opinion and requested supplemental briefs from the parties based on its decision in a similar case.

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

The panel ruled 2-1 that the military law that Aguilar-Turcios 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." However, in pleading guilty to Article 92, he admitted only to "accessing pornographic Internet sites on his government computer, as the MJ defined pornography at his court martial."

"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," the ruling states.

The military judge in Aguilar-Turcios' court martial defined it as "conduct that is plainly or clearly involving sexually [sic] activity; the organs of sex; or the instincts, drives, or behavior associated with sexual activity'," as quoted in the ruling. Federal law defines it as "'(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oralanal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person,'" according to the ruling.

Based on the differences in the definitions, Judge Richard Paez wrote that since "an image of minors kissing would satisfy the MJ's definition, while falling far short of the federal definition ... Aguilar-Turcios' conviction under Article 134 did not necessarily rest on facts satisfying the federal definition of 'sexually explicit conduct.'"

"Aguilar-Turcios' Article 92 conviction does not necessarily rest on facts satisfying the elements of either § 2252(a)(2) or (a)(4)," Paez added. "It is possible that his separate conviction under Article 134 would satisfy those elements-although doubtful, given the differing definitions of 'sexually explicit conduct'-but the government did not appeal the IJ's ruling that Article 134 could not serve as a basis for removal. The government must accept the consequences of its litigation strategies, as must any defendant."

Judge Jay Bybee, writing in dissent, called the ruling "fatuous" and "contrary to all reason".

"The idea that viewing pornography and downloading pornographic images does not involve possessing or receiving a visual depiction, that a pornographic website does not contain visual depictions, that Aguilar-Turcios was not viewing child pornography, or that any sexually explicit conduct Aguilar-Turcios was viewing might just have involved minors kissing is contrary to all that we know," he wrote. "We know ... that the Marine Corps does not sentence its Marines to ten months of confinement, a pay-grade reduction, and a bad-conduct discharge for viewing pictures of minors kissing. But we need not speculate because, with military precision, the Special Court Martial laid out exactly what Aguilar-Turcios was doing. As Lance Corporal Aguilar-Turcios forthrightly admitted in his plea colloquy, he knew that the 'individuals [were] engaged in sexually explicit conduct, that 'they were minor children,' that it was his 'purpose to download and view those photographs," that he was 'actually in possession of those images,' and that he 'realize[d] it was wrong at the time [he] did it.' Lest there be any lingering doubt as to what Aguilar-Turcios was admitting to, the BIA's administrative record has three of the pictures he downloaded and that were introduced at his court martial. They do not depict minors kissing."

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