Circumstantial Proof of Non-Nationality under MEJA and Evidentiary Standards in United States v. Flaming

Introduction

The Tenth Circuit’s April 8, 2025 opinion in United States v. Flaming breaks new ground in how the Military Extraterritorial Jurisdiction Act (“MEJA”) may be satisfied by circumstantial proof of non-host-nation nationality and clarifies evidentiary thresholds in child-exploitation prosecutions. Defendant Derek Ray Flaming, a U.S. citizen and former military dependent stationed in South Korea, was convicted of: distribution and receipt of obscene depictions of child sexual abuse (18 U.S.C. § 1466A), aggravated sexual abuse (18 U.S.C. § 2241), and attempted coercion of a minor by placing her in fear (18 U.S.C. § 2242(1)). On appeal he challenged (1) sufficiency of evidence on MEJA’s nationality element, receipt of child pornography, and the “fear” element of attempted coercion, and (2) two adverse evidentiary rulings. The panel—Judges Matheson, Eid, and Rossman—affirmed and in so doing articulated key principles on jurisdiction under MEJA, the proof of “receipt” of digital contraband, the breadth of § 2242(1), and permissible limits on impeachment and summaries of voluminous data.

Summary of the Judgment

The Court of Appeals unanimously affirmed the district court’s convictions, holding:

MEJA Nationality Element: Evidence including a Department of Defense personnel record showing only U.S. citizenship, Flaming’s own admission of American citizenship, South Korean authorities’ refusal to prosecute him due to U.S. citizenship, and his status as a military dependent in Korea supported a finding that he was not a South Korean national.
Receipt of Child Pornography: A reasonable jury could conclude that Flaming downloaded illicit images on a computer he used in South Korea—images later sent from his personal Skype account—thus satisfying “receipt.”
Attempt by Placing in Fear: Under 18 U.S.C. § 2242(1), Flaming’s naked demand for oral sex and his history of sexual abuse of the child stepdaughter allowed a jury to infer he placed her in fear sufficient to convict for attempted coercion.
Evidentiary Rulings: (a) The district court permissibly limited Flaming’s Confrontation-Clause–based cross-examination where he failed to lay a proper foundation for alleged prior inconsistent statements; (b) summaries of voluminous Skype chats under Federal Rule of Evidence 1006 were correctly admitted, as the underlying chats were admissible party admissions and the summaries accurately reflected that data.

Analysis

1. Precedents Cited

Williams (D.C. Cir. 2016): Established that a prior declaration of sole U.S. citizenship can support an inference of non-foreign nationality under MEJA.
Atencio, Sapp (10th Cir.): Reinforced that circumstantial evidence and all reasonable inferences go to the jury on sufficiency challenges.
Mohrbacher (9th Cir. 1999): Held that downloading files constitutes “receipt” of child pornography.
Schene (10th Cir. 2008): Upheld convictions for child pornography when files were associated with the defendant’s account on a shared computer.
Castillo (10th Cir. 1998): Clarified that § 2242(1)’s “placing in fear” element does not require an express threat and that parental molestation inherently creates a risk of force.
Van Arsdall (U.S. 1986): Confirmed trial judges’ broad discretion to impose reasonable limits on cross-examination.
Hale (U.S. 1975): Requires a threshold demonstration of actual inconsistent statements before impeachment with prior declarations is permitted.
Channon (10th Cir. 2018): Explained Rule 1006’s requirements for summaries of voluminous evidence and the admissibility of underlying data.

2. Legal Reasoning

The panel’s reasoning unfolds in three core areas:

MEJA’s Nationality Requirement:
- MEJA applies when a non-host-nation national commits specified felonies while with U.S. forces abroad (18 U.S.C. §§ 3261, 3267).
- Although untested, the Court assumes the government must prove non-foreign nationality as an element and finds circumstantial proof sufficient:
  - DoD record showing only U.S. citizenship;
  - Defendant’s own admission to CID agents;
  - South Korean refusal to prosecute due to U.S. citizenship;
  - Status as a military dependent.
Receipt of Child Pornography:
- “Receipt” under 18 U.S.C. § 2252 requires possession or acceptance of visual depictions; downloading suffices (Mohrbacher).
- Circumstantial evidence—access to the apartment computer, presence of Flaming’s ID, personal Skype account links, child-porn keywords—supported the inference that Flaming downloaded the images while in Korea.
Attempted Coercion by Fear:
- Section 2242(1) prohibits knowingly causing another to engage in a sexual act by threatening or placing the victim in fear of bodily harm (excluding threats of death or serious injury).
- Physical molestation of a minor inherently carries a high risk of force; a naked demand for oral sex, coupled with prior abuse, implicitly placed the child in fear.
Evidentiary Rulings:
- Confrontation/Impeachment: Cross-examination may be limited if the defense fails to lay a foundation for prior inconsistent statements. Flaming never identified a concrete prior statement inconsistent with trial testimony, so the court reasonably curtailed repetitive questioning.
- Summaries under Rule 1006: The government may use summaries of voluminous electronic data when the underlying data are admissible and the summaries accurately reflect them. Here, the Skype chats qualified as party admissions (Fed. R. Evid. 801(d)(2)(A)), and the forensic summaries faithfully tracked the records.

3. Impact

This decision carries several significant consequences:

MEJA Prosecutions: Prosecutors can rely on DoD citizenship records and collateral government investigations to meet MEJA’s nationality requirement, reducing the need for direct evidence of foreign-nation status.
Digital Evidence in Child Exploitation Cases: Reinforces that circumstantial and forensic links between user accounts and downloaded files suffice to prove “receipt” of illicit content.
Definition of “Fear” in Sexual Coercion: Affirms that implicit threats arising from prior abuse meet § 2242(1)’s “placing in fear” element without explicit language or a threat of serious injury.
Evidentiary Boundaries: Clarifies lower-court discretion in limiting cross-examination without a proper foundation and in admitting summaries of large data sets under Rule 1006.

Complex Concepts Simplified

MEJA (Military Extraterritorial Jurisdiction Act): Federal law extending U.S. criminal jurisdiction abroad over certain military-related personnel, with an exception if the accused is a national of the host country.
“Receipt” of Child Pornography: Legally includes any act of downloading or otherwise obtaining illicit images, even if not viewed directly.
Section 2242(1) “Placing in Fear”: No explicit threat of harm is required—forcing or coercive behavior toward a minor reasonably implies fear of force.
Confrontation Clause & Impeachment: Defendants have a right to cross-examine witnesses, but courts may limit repetitive or speculative questioning, especially without a clear prior statement to impeach.
Rule 1006 Summaries: When original electronic records are too bulky for the jury, a properly authenticated summary may be used, provided the source data are admissible and accurately reflected.

Conclusion

United States v. Flaming establishes that MEJA’s non-nationality requirement can be met through circumstantial evidence and clarifies evidentiary standards in digital child-exploitation prosecutions. By affirming the sufficiency of DoD citizenship records and related proof, and by delineating the scope of “receipt” and “fear” under federal statutes, the Tenth Circuit provides a roadmap for future cases involving military personnel abroad. The ruling also reinforces trial courts’ discretion over cross-examination and data summaries, ensuring both efficiency and fairness in complex criminal trials.