Establishing Non-Host-Nation Nationality Under MEJA by Circumstantial Evidence

Introduction

United States v. Flaming, No. 23-5064 (10th Cir. Apr. 8, 2025) presents a prosecution under the Military Extraterritorial Jurisdiction Act (MEJA) for crimes allegedly committed in South Korea by a U.S. military dependent. Derek Flaming was convicted by a jury of distribution and receipt of an obscene visual representation of child sexual abuse, aggravated sexual abuse, and attempted coercion of a minor by placing her in fear. On appeal, Flaming challenged (1) sufficiency of the evidence to prove he was not a South Korean national (a MEJA jurisdictional element), (2) sufficiency of the evidence that he “received” child‐pornographic images, (3) sufficiency of proof that he placed his minor stepdaughter in fear under 18 U.S.C. § 2242(1), and (4) two adverse evidentiary rulings at trial. The Tenth Circuit rejected all challenges and affirmed.

Summary of the Judgment

The court assumed, without deciding, that MEJA’s “not a host‐nation national” requirement is an element the government must prove. Applying plain‐error and de novo review as appropriate, it held:

• MEJA Nationality Requirement: Circumstantial proof (a Department of Defense record listing only U.S. citizenship, defendant’s admission of U.S. citizenship, South Korean authorities’ declination to prosecute because of U.S. citizenship, and testimony that Flaming was a mere military dependent) sufficed to show he was not a South Korean national.
• Receipt of Child Pornography: Evidence that child‐pornographic images were downloaded onto a computer in Flaming’s residence—images sent via his personal Skype account and bearing his identifying information—supported a reasonable inference he “received” them.
• Fear Under § 2242(1): Flaming’s naked demand that the minor “get him off,” combined with his prior sexual abuses, implicitly placed her in fear of bodily harm, satisfying the “fear” element without a direct threat of death or serious physical injury.
• Evidentiary Rulings: (a) The trial court reasonably limited cross‐examination for lack of proper foundation for a prior inconsistent statement and did not violate the Confrontation Clause; (b) summaries of voluminous electronically stored information (ESI) were admissible under Federal Rule of Evidence 1006 because the source materials were admissible (as opposing‐party admissions) and the summaries accurately reflected them.

Analysis

1. Precedents Cited

1. United States v. Williams, 836 F.3d 1 (D.C. Cir. 2016): Circumstantial inference of non‐host‐nation nationality from a prior nationality questionnaire.
2. Jackson v. Virginia, 443 U.S. 307 (1979): Standard for reviewing sufficiency of the evidence.
3. United States v. Atencio, 435 F.3d 1222 (10th Cir. 2006): Jury may draw reasonable inferences from circumstantial evidence.
4. United States v. Gallegos, 784 F.3d 1356 (10th Cir. 2015): Plain‐error review of sufficiency claims parallels de novo review.
5. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003): Circumstantial evidence can support a verdict beyond a reasonable doubt.
6. United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999): Downloading constitutes “receipt” of child pornography.
7. United States v. Schene, 543 F.3d 627 (10th Cir. 2008): Possession of child pornography proved by circumstantial evidence.
8. United States v. Castillo, 140 F.3d 874 (10th Cir. 1998): “Fear” element under § 2242(1) satisfied by implicit threats.
9. Delaware v. Van Arsdall, 475 U.S. 673 (1986): Reasonable limits on cross‐examination under the Confrontation Clause.
10. United States v. Hale, 422 U.S. 171 (1975): Foundation required for impeachment by prior inconsistent statements.
11. United States v. Channon, 881 F.3d 806 (10th Cir. 2018): Rule 1006 summaries of voluminous ESI must accurately reflect admissible underlying data.

2. Legal Reasoning

a. MEJA Nationality Requirement

The MEJA extends U.S. criminal jurisdiction over offenses committed abroad by those “employed by or accompanying the Armed Forces” who are “not a national of or ordinarily resident in the host nation.” 18 U.S.C. §§ 3261(a)(1), 3267(1)(C), (2)(C). Accepting that this is an element the government must prove, the court applied the Jackson standard (via Gallegos plain‐error review) to the circumstantial evidence: a DoD personnel record showing only U.S. citizenship; defendant’s admission in a criminal investigation that he was an American citizen and a military dependent; testimony that South Korean authorities declined prosecution because of his U.S. citizenship; and no hint of dual nationality in those records. The court held a rational jury could infer he was not a South Korean national at the time of the charged conduct.

b. Receipt of Child Pornography

Under 18 U.S.C. § 1466A(a)(1), “receipt” means knowing acceptance or possession of a prohibited visual depiction. Applying Mohrbacher and Schene, the court found it sufficient that images of child sexual abuse were downloaded onto a computer in Flaming’s apartment, bearing his personal identifiers (driver’s license, rations card) and sent via his personal Skype account. Access to the machine, search terms linked to child porn, and prior testimony that Flaming showed the minor child pornography supported a reasonable inference he was the recipient.

c. “Fear” Element in 18 U.S.C. § 2242(1)

Section 2242(1) criminalizes knowing coercion of a sexual act “by threatening or placing that other person in fear.” The court followed Castillo in interpreting “fear” broadly: an implicit threat of bodily harm constitutes fear. Here, Flaming’s naked demand that his minor stepdaughter “get him off,” coupled with his history of sexual abuse (including choking and forced oral sex), created a substantial risk that she would fear physical harm. No specific threat of severe injury was required.

d. Confrontation Clause & Impeachment Foundation

Flaming sought to impeach the minor victim with alleged prior denials that he abused her in South Korea. Citing Van Arsdall, the court held trial judges enjoy wide latitude to impose “reasonable limits” on cross‐examination—especially when the defendant cannot establish any actual prior inconsistent statement. Under Hale, Flaming had to lay a foundation by identifying the out‐of‐court statement and showing it was inconsistent with trial testimony. He failed to do so; the reporters’ transcript recorded “[n]o audible response,” and no clear inconsistency existed. Limiting further inquiry did not violate his Sixth Amendment rights.

e. Summaries of ESI Under Rule 1006

The government used charts summarizing roughly 90 pages of Skype chats to highlight Flaming’s threats and cover-up efforts. Under Rule 1006, a summary of voluminous writings is admissible if the underlying data are themselves admissible, voluminous (i.e., impractical to introduce in full), and the summary accurately reflects them. The sources—Flaming’s own Skype messages—were party admissions (Rule 801(d)(2)(A)). The summaries were faithful to the data, and the originals were available for inspection. No abuse of discretion occurred.

3. Impact

United States v. Flaming clarifies several important points:

• MEJA prosecutions may rest on circumstantial proof of non-host-nation nationality; defense of foreign nationality must be timely raised if it is an affirmative defense.
• Circumstantial evidence tying downloads of child pornography to a defendant’s personal computer and accounts will support convictions under §§ 1466A and related statutes.
• “Placing in fear” under § 2242(1) encompasses implicit threats inherent in sexual abuse contexts, especially where prior abuse has occurred.
• Defense counsel must lay a clear factual foundation before impeaching a witness with prior inconsistent statements; mere speculation or inaudible record not enough.
• Summaries of voluminous ESI are routinely admissible under Rule 1006 when underlying data are admissible, voluminous, available for inspection, and accurately summarized.

Complex Concepts Simplified

• MEJA: A federal statute handing U.S. courts jurisdiction over certain crimes by U.S. military personnel or dependents committed abroad, except when the accused is a national of the host country.
• Circumstantial Evidence: Indirect evidence that allows a jury to infer a fact (e.g., nationality, receipt of files) rather than directly observing it.
• Element vs. Affirmative Defense: An element must be proved by the prosecution; an affirmative defense is raised by the defendant and can be waived if not timely asserted.
• Receipt of Child Pornography: Downloading or accessing a prohibited image counts as “receipt,” even without proof of an in-person exchange.
• § 2242(1) “Fear” Element: Includes both explicit threats and implicit threats of bodily harm; no specific threat of death or severe injury is required.
• Confrontation Clause Limits: Courts may curtail repetitive or unfounded impeachment questions; the defendant must show an actual prior inconsistency.
• Rule 1006 Summaries: When documents or data are too lengthy to admit directly, a concise chart or summary is allowed—so long as it is accurate and the source is available.

Conclusion

United States v. Flaming affirms that MEJA prosecutions may proceed on circumstantial proof of non-host-nation status and confirms established standards for sufficiency of evidence in child‐pornography and sexual‐abuse cases. It underscores the trial‐court’s discretion in cross‐examination limits under the Confrontation Clause and validates the use of summaries for voluminous ESI. Future MEJA defendants and federal prosecutors will look to this decision in structuring evidence of nationality, digital‐evidence summaries, and impeachment strategies.