United States v. Griffing ( 2015 )

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class DOUGLAS M. GRIFFING
United States Air Force
ACM 38443
23 March 2015
Sentence adjudged 23 May 2013 by GCM convened at Royal Air Force
Lakenheath, United Kingdom. Military Judge: Michael Coco.
Approved Sentence: Dishonorable discharge, confinement for 2 years,
forfeiture of all pay and allowances, and reduction to E-1.
Appellate Counsel for the Appellant: Captain Michael A. Schrama
Appellate Counsel for the United States: Major Daniel J. Breen;
Major Mary Ellen Payne; and Gerald R. Bruce, Esquire.
Before
ALLRED, HECKER, and TELLER
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
TELLER, Judge:
The appellant was convicted, contrary to his pleas, by a panel of officer members
of one specification of attempting to receive child pornography and one specification of
knowingly and wrongfully accessing child pornography in violation of Articles 80 and
134, UCMJ, 10 U.S.C. §§ 880, 934.1 The court sentenced him to a dishonorable
1
The appellant was acquitted of one specification of knowing and wrongful possession of child pornography in
violation of Article 134, UCMJ, 10 U.S.C. § 934.
discharge, 2 years’ confinement, and reduction to E-1. The sentence was approved, as
adjudged, on 10 September 2013.
The appellant argues that: (1) the military judge erred when he failed to suppress
evidence obtained from the search of the appellant’s electronic devices, (2) the military
judge erred by failing to include certain definitions in his instructions, (3) the military
judge erred when he admitted certain evidence under Mil. R. Evid. 404(b) over defense
objection, (4) the military judge erred when he failed to instruct the panel members on
how to consider certain evidence admitted under Mil. R. Evid. 404(b), (5) one of the
images supporting his conviction was constitutionally protected, (6) the court members
failed to follow instructions on voting, (7) trial counsel’s sentencing argument was
improper, (8) the military judge erred by failing to merge the specifications for
sentencing, and (9) the staff judge advocate’s recommendation failed to address legal
errors raised in clemency.
Finding no error that materially prejudices a substantial right of the appellant, we
affirm the findings and sentence.2
Background
On 16 March 2012, the appellant, while at a restaurant on Royal Air Force (RAF)
Lakenheath, was observed viewing images of naked children on a laptop computer. The
witness, a wing commander from an adjoining base, was at the restaurant reading and
watching college basketball while his children attended a birthday party. At some point
when he glanced up at the television, the witness saw some images on the appellant’s
laptop he initially thought might be family photos of nude children. The witness
described the photos as groups of naked children in their early teens. From his position
about six to ten feet behind the appellant, he could not see enough detail to say whether
the children’s genitals were visible. One that drew his attention was of a child floating in
a pool, with the focus of the image on the child’s bare buttocks. The witness believed the
appellant was accessing the photos from links on a web page, rather than his hard drive.
As the witness watched the appellant scroll through the photos and return to certain
images repeatedly, he began to believe that the appellant might be viewing child
pornography.
2
We note that the court-martial order does not include the original Specifications 2 and 3 of the Charge upon which
the appellant was arraigned. See Rule for Courts-Martial (R.C.M.) 1114(c)(1). It also does not note the military
judge’s dismissal of the greater offense in the version of Specification 3 that went to the panel. We direct the
promulgation of a corrected order. We note a similar deficiency in the Air Force Form 1359, Report of Result of
Trial. As a full recitation of the charges upon which the appellant was arraigned is not required in Rule for Courts-
Martial 1101, and the use of this form has been discontinued in favor of a memorandum under Air Force
Instruction 51-201, Administration of Military Justice, ¶ 9.2, (6 June 2013), we commend correction of this matter to
the appropriate administrative officer. We find that the omission of the original Specifications 2 and 3of the Charge
in the matters attached to the Staff Judge Advocate’s Recommendation did not materially prejudice a substantial
right of the appellant since they were withdrawn only after consultation with the convening authority that took
action in the case.
2 ACM 38443
After some deliberation, the witness decided to seek advice and assistance. He
discreetly stepped out of the restaurant and, after failing to reach a friend who was a
senior judge advocate with criminal law expertise, called his on-call judge advocate.
After consulting with her, he then called the on-call agent from the Air Force Office of
Special Investigations (AFOSI). The agent advised him that he would respond to the
restaurant and that the witness could call security forces if he became concerned that the
appellant would leave before the agent arrived. The witness did call security forces, and
both they and the AFOSI agent responded to the restaurant. The appellant was detained
as he tried to leave and was later taken to an interview room at the AFOSI detachment.
The interview room was equipped with video monitoring, and the recording of the
appellant at AFOSI was included in the record of trial.3
The appellant initially appeared agitated and afraid, saying he was “scared” and
often sobbed and put his hands over his head. His breathing was noticeably accelerated,
and he had a mild stutter when talking to the agents. After being advised of his rights, the
appellant asked for an attorney. AFOSI then left the appellant alone in the interview
room for approximately 23 minutes. By the end of that time, the appellant had calmed
down and was no longer sobbing. His breathing and speech appeared normal.
After the appellant invoked his right to counsel, the AFOSI agents turned to the
possibility of getting consent to search the appellant’s dormitory room. Towards the end
of the 23-minute interval, the appellant heard the agents through the door and knocked to
get their attention. When agents opened the door, the appellant told them he heard them
talking about a laptop, and, if it was his laptop they were talking about, that he might be
willing to cooperate after talking to an attorney. An agent who had been outside the door
came back into the interview room, explaining that they were discussing some paperwork
she had with her.4 She told the appellant his acting first sergeant could come over to get
him to make sure he was safe and take him home, but added, “[W]e’re going to need to
come over to your house.” She told him if he was “OK with that” then he just needed to
sign the paperwork in two places. The appellant began asking questions, including
whether he could go home without allowing them to search his room, and then asked the
agent to explain exactly what was on the form. The agent took a short break and got the
appellant some water.
When the agent returned, she told the appellant that based on their information
from the witness they now had an open investigation into child pornography, and she told
him, “[W]e’re going to have to take your computer and we’re going to have to look at it,
and in addition to that, we’re going to go to your house, and we’re going to look at your
3
Portions of the audio from the interview room are unintelligible. Where language is quoted, the recording was
sufficiently clear for the court to make a finding of fact that the quoted words were spoken. Other paraphrasing of
the exchange between the appellant and the agents indicates the court’s finding of fact that either those words or
words to that effect were spoken.
4
It is unclear from the record what paperwork she had. Evidence of her later filling out a consent form with the
appellant suggests this initial paperwork was not the same form that later was appended to the record.
3 ACM 38443
house.” The agent reaffirmed the appellant’s right not to answer any questions and
proceeded to go through an Air Force IMT 1364,5 Consent for Search and Seizure, in
detail with him. She placed the form in front of the appellant and went through the form
as he read it, pointing out several provisions in the form. She read out loud the portion
setting out his right to refuse consent and explaining the potential uses of any evidence
found. She did not read out loud the next sentence explaining that if he refused consent
they could not search without a warrant or other lawful authorization.
As they reached the end of the form, the agent made an unintelligible comment to
the appellant, and the appellant responded that he felt “very close to physically ill right
now.” When the agent asked if she could do anything to help, or if he wanted to go
outside to get some air, the appellant said, “I’m not sure how much that would help, um,
if . . . I’m not trying to shoo you out of the room or anything, but if I would be able to
have legal aid present to talk to, and possibly someone from mental services.” The agent
reassured the appellant that his first sergeant would be able to help him with those
concerns and asked if he understood that, to which he responded “yes.” She then
redirected him to the form, filling out the date and time just above the signature block.
The appellant, apparently prompted by the recollection that it was Friday, spontaneously
commented that he had really big plans for the weekend including going to London. As
he began to elaborate on what he had planned to do, he thought better of it, saying
“actually, I think I’ll just shut up.” As he was preparing to sign the form, the appellant
said in a low tone, “this is the only way I’m going home,” or words to that effect, and
then confirmed where he should sign and signed the form granting his consent.
In addition to seeking consent for a search of the appellant’s room, AFOSI also
sought a probable cause search authorization from the military magistrate. Because of
the late hour and the appellant’s likely return to his residence, AFOSI sought an
immediate verbal authorization for a search of the appellant’s residence and his backpack
containing his laptop. The agent arranged a three-way phone conference with the base
military magistrate and a judge advocate from the base legal office. During the
conference, the agent recounted for the magistrate what the witness from the restaurant
had told him. The magistrate was familiar with the witness from his official duties and
considered him to be a credible source. Neither the AFOSI agent nor the judge advocate
raised the possibility that the images constituted lawful child erotica rather than child
pornography, nor did the military magistrate ask any questions about the types of details
that might distinguish between child erotica and child pornography. During the
conference, the judge advocate did not provide additional details or analysis but did state
that he believed there was probable cause for a search of the backpack and the residence.
The magistrate found there was probable cause to search the backpack and the dormitory
room and authorized both searches.
The searches together produced all of the evidence supporting the charges in this
5
IMT, or Information Management Tool, is equivalent to a form.
4 ACM 38443
case. The search of a portable hard drive contained in the backpack uncovered images
constituting child pornography in the drive’s “recycle bin” folder. The search of a
desktop computer found in the appellant’s dormitory room disclosed link files indicating
that a user accessed certain files that contained child pornography and also disclosed
cached entries in Internet browser database files indicative of searches for child
pornography. There were also numerous image files found in unallocated space, 6 some
of which may have constituted child pornography but most of which were child erotica.
Finally, a search of the laptop uncovered a peer-to-peer file sharing program with
search terms associated with child pornography and incomplete downloads of files whose
names were indicative of child pornography. The laptop also included the swimming
pool images seen by the witness. Those files were determined not to constitute child
pornography.
The appellant was ultimately convicted of two specifications involving child
pornography. One specification alleged the appellant knowingly and wrongfully
accessed child pornography with an intent to view it. The appellant was also convicted of
attempting to knowingly and wrongfully receive child pornography. The appellant was
acquitted of knowingly and wrongfully possessing child pornography on the portable
hard drive.
Admissibility of Evidence from the Appellant’s Dormitory Room and Backpack
The appellant argues that the military judge erred when he failed to suppress all
evidence obtained as a result of the illegal search of the appellant’s electronic devices.
There are two searches at issue in this case, the search of the appellant’s dormitory room
and the search of the appellant’s backpack.
At trial, the military judge found that the search authorization was valid for the
search of the backpack (and the portable hard drive contained within it), but not for the
dormitory room. He further held that even in the absence of probable cause, the evidence
found in the backpack and dormitory room was admissible because the agents relied upon
the authorization in good faith. Finally, the military judge ruled that the fruits of the
dormitory room search would have been admissible in any event based upon the
appellant’s voluntary consent.
We review a military judge’s denial of a suppression motion under an abuse of
discretion standard and “consider the evidence ‘in the light most favorable to the’
prevailing party.” United States v. Rodriguez, 60 M.J. 239, 246–47 (C.A.A.F. 2004)
(quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)). We will find an
abuse of discretion if the military judge’s “findings of fact are clearly erroneous or his
6
The Government expert testified that data found in unallocated space generally indicates that a file with that
content was accessible at one time, but the data was no longer accessible without specialized software.
5 ACM 38443
conclusions of law are incorrect.” Id. at 246 (quoting United States v. Ayalo, 43 M.J.
296, 298 (C.A.A.F. 1995)) (internal quotation marks omitted).
1. Consent to search dormitory room
We first consider the military judge’s finding that the appellant voluntarily
consented to a search of the dormitory room since our finding on that issue will
determine the scope of our review concerning the search authorization and any potential
exceptions to the exclusionary rule.7
Our superior court recently reaffirmed the framework for our review of a consent
search in United States v. Piren, 74 M.J. 24 (C.A.A.F. 2015). A search may be
conducted “with lawful consent.” Mil. R. Evid. 314(e)(1). “Consent is a factual
determination,” and a military judge’s findings “will not be disturbed on appeal unless it
is unsupported by the evidence or clearly erroneous.” United States v. Vassar,
52 M.J. 9, 12 (C.A.A.F. 1999) (quoting United States v. Radansky, 45 M.J. 226, 229
(C.A.A.F. 1996)) (internal quotation marks omitted). Courts evaluate voluntariness with
regard to consent based on the totality of circumstances. United States v. Wallace,
66 M.J. 5, 9 (C.A.A.F. 2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-27
(1973)). Where the Government has prevailed on a motion to suppress, we review the
evidence in the light most favorable to the Government. United States v. Kitts,
43 M.J. 23, 28 (C.A.A.F. 1995).
The military judge issued a comprehensive written ruling on this aspect of the
motion to suppress. While each party’s pleading included a summary of the facts, neither
argued that any of the military judge’s findings of fact were clearly erroneous. In
particular, the appellant, while arguing that this court should find the consent involuntary,
has not asserted that any of the military judge’s findings with regard to consent are
clearly erroneous. Instead, he offers reasons why, apparently under a de novo standard of
review, this court should find the appellant’s consent involuntary.
7
We recognize that the Air Force Office of Special Investigations (AFOSI) agents interacted with the appellant
after he had invoked his right to counsel and ultimately procured his consent for law enforcement to search his
dormitory room. Although these facts bear some similarity to those in our superior court’s decision in United States
v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013), we find that decision’s ultimate holding to be inapplicable here because,
unlike the appellant in that case, the appellant did not make any incriminating responses as part of or following that
interaction with the AFOSI agent. Instead, he simply consented to the search. Hutchins does not automatically
transform a post-invocation request for consent into a constitutionally impermissible event such that the fruits of that
search are excluded. See Hutchins at 299 n.9 (noting the decision does not alter the “basic proposition” that a
request for consent to search itself does not implicate the Fifth Amendment because it is not considered
“interrogation” reasonably likely to elicit an incriminating response). Instead, the focus in Hutchins was whether the
request for consent itself, including the circumstances surrounding it, “open[ed] a more ‘generalized discussion
relating directly or indirectly to the investigation’” Id. at 298 (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045
(1983)). That is not what occurred here.
6 ACM 38443
Applying the standard of review specified under Piren and Vassar, we conclude
that the military judge’s finding of consent was not clearly erroneous.8 The findings by
the military judge that the appellant was in custody, had requested but not yet been
provided counsel, had been advised that he had a right not to consent, and had been
informed of and invoked his constitutional rights prior to agents seeking consent are not
contested.
Other aspects of the military judge’s findings are disputed by the appellant. The
appellant argues that his mental state was inconsistent with a voluntary act of consent.
The military judge found that the appellant, although crying and distraught when he was
brought in, regained his composure enough to not only invoke his rights, but catch
himself on two occasions when he began to initiate conversations with the AFOSI agents.
The military judge’s finding is supported by the interview video.
The appellant also asserts that the interview was coercive, pointing out that the
agent told him they were going to have to look at his house and arguing that appellant’s
statement that granting consent was “the only way [he was] going home” reflected his
belief that he would only be released if he gave his consent. The military judge reached a
different assessment, pointing out the short duration of detention, the fact that AFOSI
only had to ask once for consent, and that the agent who sat with him while he filled out
the consent form was patient, relaxed, and explicitly told him he had the right to refuse
consent. While the military judge’s findings are different than those suggested by the
appellant, they are not clearly erroneous. His findings are supported by the interview
video and the appellant’s consent form. They simply reflect a different assessment of the
evidence.
Finally, the appellant suggests that fatigue, as well as a lack of experience and
intelligence weigh against finding that his consent was voluntary. The military judge
found that the appellant was of above average intelligence, and “seemed to make a
calculated decision on which rights to invoke and which rights to waive.” Here again, the
military judge’s ruling is supported by at least some evidence. The prosecution admitted
the appellant’s training records which show above average performance, and the video
shows the appellant choosing when to speak and when to remain silent, including the
appellant’s re-initiation of contact with AFOSI when he heard them outside the door.
While reasonable minds could differ as to how to interpret the facts related to the
appellant’s decision to sign the form granting consent to search his room, the
8
We note that the military judge’s fact-finding was guided by factors identified in Mil. R. Evid. 314 and
Schneckloth v. Bustamonte, 412 U.S. 218 (1973), rather than the more concise list adopted by the Court of Appeals
for the Armed Forces in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008). We have examined the factors the
military judge identified and conclude that they cover at least all of the considerations identified in Wallace.
See Wallace, 66 M.J. at 9. Because the judge considered all of the elements of the Wallace factors, we need not
consider whether his finding of consent was “influenced by an erroneous view of the law.” United States v. Reister,
44 M.J. 409, 413 (C.A.A.F. 1996).
7 ACM 38443
interpretation by the military judge was not clearly erroneous, and we therefore will not
disturb it upon appeal. Vassar, 52 M.J. at 12.
2. Authorization to search the appellant’s backpack
We next turn to the validity of the authorization to search the appellant’s
backpack.
The Fourth Amendment requires that “no Warrants shall issue, but upon probable
cause.” U.S. CONST. amend. IV. “A military judge’s decision to find probable cause
existed to support a search authorization as well as to admit or exclude evidence is
reviewed for an abuse of discretion.” United States v. Cowgill, 68 M.J. 388, 390
(C.A.A.F. 2010). “[D]etermination of probable cause by a neutral and detached
magistrate is entitled to substantial deference.” United States v. Maxwell,
45 M.J. 406, 423 (C.A.A.F. 1996) (quoting United States v. Oloyede, 982 F.2d 133, 138
(4th Cir. 1993)) (internal quotation marks omitted). The military judge would not have
abused his discretion when denying the motion to suppress if the magistrate had a
“substantial basis” for determining that probable cause existed. United States v. Leedy,
65 M.J. 208, 213 (C.A.A.F. 2007) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Probable cause exists when there is sufficient information to provide the
authorizing official “a reasonable belief that the person, property, or evidence sought is
located in the place or on the person to be searched.” Mil. R. Evid. 315(f)(2).
Authorization to search may be granted by an “impartial individual,” who may be a
commander, military magistrate, or military judge, in accordance with the underlying
constitutional requirement that a search authorization be issued by a “neutral and
detached” magistrate. Mil. R. Evid 315(d); United States v. Maxwell, 45 M.J. 406, 423
(C.A.A.F. 1996). “The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit
before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
Here again, neither party has asserted that the military judge’s findings of fact
pertaining to the search authorization are clearly erroneous or unsupported by the
evidence. Our review finds them to be well supported, and we adopt them.
First, we consider whether the magistrate had a “substantial basis” for finding
probable cause. Id. Part of the difficulty in determining whether there was a substantial
basis in light of existing case law is that the circumstances of this case are somewhat
unusual. The appellant cites numerous child pornography cases in which courts have
determined that terse descriptions of images or broad generalizations are insufficient to
provide a substantial basis for a warrant. The appellant even recounts one court’s
exhortation that the judge below “should have asked to see the image.” But of course,
8 ACM 38443
that is the problem in this case—no investigator could produce the image for the
magistrate. Accordingly, we find inapplicable the many cases the appellant cites in
which our superior court analyzed what is required of an affiant who has access to a
picture to accurately convey to the magistrate how that picture depicts sexually explicit
conduct.
We find the court’s analysis in United States v. Leedy to be much more applicable
to the facts of this case. 65 M.J. 208 (C.A.A.F. 2007). In Leedy, the potential
misconduct came to light when an Airman’s roommate bumped the Airman’s computer,
disengaging the screen-saver and revealing a list of recently played file names. “One file
name that [the roommate] remember[ed] was ‘14 year old Filipino girl,’ and though [the
roommate] did not remember the name of any other files, he recalled that some
mentioned ages and some mentioned acts. [The roommate] became concerned that these
files included child pornography.” Id. at 212. The court observed that they were aware
of only one other case that upheld a search on the basis of file names alone, but
emphasized that the “file title ‘14 year old Filipino girl,’ does not appear in isolation. . . .
[N]one of these facts are abstract pieces of evidence, but rather are properly viewed in
context, through the professional lens in which they were presented to the magistrate.”
Id. at 215. In Leedy, the court considered additional contextual factors such as the
sexually suggestive nature of the other titles, the investigator’s opinion based upon
experience that the names containing ages and acts were also consistent with child
pornography, and that individuals who possess child pornography rarely voluntarily
dispose of their collections. Id. at 215–16. The file name, in that context, was enough to
constitute a substantial basis for a search authorization for the Airman’s computer.
This case is similar in that, while the individual pieces of evidence are an
insufficient basis for probable cause in isolation, the magistrate found them sufficient in
context as a whole and that determination was upheld by the military judge.
The military judge found the following facts: (1) the witness was positioned close
enough to tell that the images viewed by the appellant depicted nude children but could
not see whether genitalia were visible, (2) the witness was close enough to estimate the
ages of the children to be between 10 and 12 years old, (3) the witness discounted the
possibility that they were family photos because of the type of directory the appellant was
using to access the files and the way he scrolled through the images, (4) one of the
images depicted a child’s naked buttocks as the child floated in a pool, (5) the appellant
returned to the group photo of the naked children several times, and (6) the manner in
which the appellant scrolled through the pictures led the witness to believe that the
appellant was viewing child pornography.
In addition, the military judge found that the appellant behaved suspiciously when
he believed the witness was following him and once again when he was detained by
security forces. The military judge also found as fact that the magistrate knew the
9 ACM 38443
witness professionally, knew he was a wing commander at an adjoining installation, and
had no concerns about his credibility.
The evidence available to the magistrate, as established by the military judge’s
findings of fact, offered this magistrate much more to go on than the evidence in Leedy.
The source of the information was a known, experienced, trustworthy commander with
no personal or professional stake in the outcome of the case. The images clearly depicted
naked children, including at least one in which the focus of the photo, the child’s
buttocks, suggested a sexual rather than artistic attraction. The manner in which the
appellant viewed the photos was, at least to the impartial witness, also suggestive of a
sexual interest. This type of direct behavioral observation is rarely available in child
pornography cases. Magistrates are often unable to say whether images were actually
viewed or whether files were deliberately acquired or simply washed over the transom
with other lawful images. Indeed, in this case, the appellant argued that the Government
couldn’t show whether or how many times the images found in the portable hard drive
were viewed. In contrast, the witness here described the appellant’s behavior, lingering
over some images and returning to others repeatedly. Even after viewing the images, the
appellant’s suspicious behavior leaving the restaurant and upon being detained indicated
consciousness of guilt. Following the Leedy court’s admonition to “apply common sense
and practical considerations in reviewing probable cause determinations,” 65 M.J. at
217, we are convinced that, based solely upon the information that was available to the
magistrate at the time, there was more than a fair probability that investigators would find
child pornography in the appellant’s backpack.
Applying the standard of review applicable under existing precedent, we uphold
the military judge’s finding that the appellant voluntarily consented to the search of his
dormitory room and conclude that the search authorization for the appellant’s backpack
was valid. This assignment of error is without merit.
3. Good faith exception to the exclusionary rule
Applying the same abuse of discretion standard of review, we also uphold the
military judge’s finding that, even if the search authorization were defective, the good
faith exception to the exclusionary rule would apply to both the search of the backpack
and the search of the dormitory room.
In United States v. Leon, the Supreme Court established a good faith exception to
the exclusionary rule in cases where the official executing the warrant relied on the
magistrate’s probable cause determination and the technical sufficiency of the warrant,
and that reliance was objectively reasonable. 468 U.S. 897, 922 (1984).
The good faith exception under the Military Rules of Evidence is set out in Mil. R.
Evid. 311(b)(3):
10 ACM 38443
Evidence that was obtained as a result of an unlawful
search or seizure may be used if:
(A) The search or seizure resulted from an
authorization to search, seize or apprehend issued by an
individual competent to issue the authorization under
Mil. R. Evid. 315(d) or from a search warrant or arrest
warrant issued by competent civilian authority;
(B) The individual issuing the authorization or
warrant had a substantial basis for determining the existence
of probable cause; and
(C) The officials seeking and executing the
authorization or warrant reasonably and with good faith relied
on the issuance of the authorization or warrant. Good faith
shall be determined on an objective standard.
Notwithstanding Mil. R. Evid. 311(b)(3), the evidence may not be admitted if any
of four circumstances enumerated in Leon apply:
(1) False or reckless affidavit—Where the magistrate
“was misled by information in an affidavit that the affiant
knew was false or would have known was false except for his
reckless disregard of the truth”;
(2) Lack of judicial review—Where the magistrate
“wholly abandoned his judicial role” or was a mere rubber
stamp for the police;
(3) Facially deficient affidavit—Where the warrant
was based on an affidavit “so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable”; [or]
(4) Facially deficient warrant—Where the warrant is
“so facially deficient—i.e., in failing to particularize the place
to be searched or the things to be seized—that the executing
officers cannot reasonably presume it to be valid.
United States v. Carter, 54 M.J. 414, 419–20 (C.A.A.F. 2001) (quoting Leon,
468 U.S. at 923).
11 ACM 38443
In this case, the military judge accurately identified and applied the law, and as a
result, we uphold his ruling unless his findings of fact were clearly erroneous or
unsupported by the record.
The military judge reasonably found that the verbal information provided to the
magistrate was not false or misleading. AFOSI’s characterization of the witness’s
description accurately relayed the testimony provided by the witness during the hearing
and his stipulation offered at trial. The appellant invites us to find that the information
was misleading “because the affiant withheld a critical fact that any reasonable magistrate
would have wanted to know-namely, that Appellant was never observed looking at illegal
images.” We find that argument unconvincing on these facts because, unlike cases where
an image is available at the time of application for the warrant, there was insufficient
information to reasonably determine whether the images depicted a lascivious exhibition
of the genitals. While hindsight reveals that the images were not illegal, the military
judge’s focus on the accurate conveyance of the witness’s observations, rather than the
absence of a legal characterization of the images was reasonable.
We also find the military judge’s determination that the magistrate did not
abandon his judicial role to be supported by the evidence. The magistrate testified that he
had disagreed with the legal office on other matters in the past, and the military judge
found that testimony credible. He also noted that, when provided hypothetical facts
during the motion hearing, he testified that he would not have authorized a search under
those circumstances. Although there was testimony indicating that the magistrate did not
assertively probe the subject matter of the photos, that evidence is insufficient to find the
military judge’s conclusion to be clearly erroneous.
The judge’s determination that the verbal information provided to the magistrate
was not facially defective is also supported by the evidence. As discussed above, the
information supporting the search need not rule out the possibility that the images were
lawful child erotica. The witness’s observation of the appellant viewing images of naked
children, in combination with his description of the appellant’s behavior, were sufficient
to support the military judge’s finding on this aspect of the good faith exception.
Finally, the military judge’s determination that the search authorization itself was
not facially defective was supported by at least some evidence. The AFOSI agent
testified that, based upon his training and experience, the appellant was likely to have
similar images on media in his dormitory room. The military judge ultimately found that
there was an insufficient basis for this conclusion. However, that finding is not
inconsistent with the military judge’s determination that the agents reasonably relied on
the authorization. As the military judge observed in his ruling, the magistrate was called
upon to make a timely decision based upon information that was, due to the
circumstances, incomplete. Although in the cold light of later review he found that
decision flawed, it was still a reasonable conclusion at the time, and AFOSI’s good faith
12 ACM 38443
reliance on the flawed authorization was also reasonable. We cannot say, based upon
these facts, that the military judge’s determination was clearly erroneous or unsupported
by the record.
Since the military judge properly applied Mil. R. Evid. 311(b)(3), as informed by
Leon and Carter, and his findings of fact were not clearly erroneous, we uphold his ruling
that even in the absence of probable cause, the good faith exception to the exclusionary
rule would have applied and the evidence obtained through the search of the backpack
and dormitory room would have been admissible.
Failure to Define “Access” and “Intent to View”
The appellant contends the military judge improperly instructed the panel when he
failed to define the terms “access” and “intent to view.” These words appear in one of
the specifications which alleged the appellant “knowingly and wrongfully access[ed]
child pornography with an intent to view, to wit: visual depictions of minors engaging in
sexually explicit conduct.” Trial defense counsel did not request an instruction at trial.
Whether a panel was properly instructed is a question of law reviewed de novo.
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014). However, where counsel fails to
object to omission of an instruction at trial, we review the military judge’s instruction for
plain error. Id.; United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013);
R.C.M. 920(f).9 If plain error exists, the burden shifts to the Government to show that the
error was harmless beyond a reasonable doubt. See United States v. Brewer,
61 M.J. 425, 430 (C.A.A.F. 2005); United States v. Medina, 69 M.J. 462, 465
(C.A.A.F. 2011). The military judge has an independent duty to instruct the members
correctly and fully on all issues raised by the evidence. United States v. Thomas,
11 M.J. 315, 317 (C.M.A. 1981).
The appellant has not met his burden of demonstrating error. The appellant offers
no evidence or argument to suggest that “access” or “intent to view” are not commonly
understood terms generally, or under the specific circumstances of this case. Instead, he
argues that the military judge’s decision to provide definitions of other arguably
commonly understood terms created a duty on the part of the military judge to, despite
the lack of objection, intuit that these words should be defined as well. That argument
simply proves too much. Not every word in a specification requires definition, even
when the word is essential to an element of the offense. See United States v. Glover,
50 M.J. 476, 478 (C.A.A.F. 1999).
9
Although we recognize that the rule describes this as “waiver,” this is in fact forfeiture. See United States v. Sousa,
72 M.J. 643 (A.F. Ct. Crim. App. 2013).
13 ACM 38443
Admissibility of Other Images under Mil. R. Evid. 404(b)
The appellant also contends that the military judge erred when he admitted
Prosecution Exhibit 17 under Mil. R. Evid. 404(b) over defense objection. Prosecution
Exhibit 17 was originally comprised of 1,388 images recovered from the appellant’s
electronic devices. Most of the images were recovered using forensic tools that are not
generally available or methods that are not commonly known to the standard computer
user, but some were found in the recycle bin where they could be retrieved by a user.
Some of the images appear to be child pornography while others appear to be lawful
child erotica. The Government argued to the military judge that the images were not
offered to prove that the appellant had the propensity to commit the charged offenses, but
rather that the possession of these additional images tended to show that the appellant had
the requisite intent to possess, access or receive child pornography rather than obtaining it
by mistake. The Government maintained that theory throughout the trial. The military
judge granted the defense motion with the exception of any images found in the recycle
bin which related to one of the children depicted in Prosecution Exhibits 1 through 16
(which served as the basis for two specifications in the case). On appeal, the appellant
contends that the military judge erred by admitting those images.
We review a military judge’s evidentiary rulings for an abuse of discretion.
United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). We will not overturn a
military judge’s ruling unless it is “‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly
erroneous,’” United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (quoting
United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)), or influenced by an erroneous
view of the law. Id. (citing United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F.
2002)).
The test for admissibility of evidence showing uncharged misconduct is “whether
the evidence of the misconduct is offered for some purpose other than to demonstrate the
accused’s predisposition to crime and thereby to suggest that the factfinder infer that he is
guilty, as charged, because he is predisposed to commit similar offenses.” United States
v. Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006) (quoting United States v. Castillo,
29 M.J. 145, 150 (C.M.A. 1989)) (internal quotation marks omitted). Such permissible
purposes include proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Mil. R. Evid. 404(b).
We review the admissibility of uncharged misconduct under Mil. R. Evid. 404(b)
using the three-part test articulated in United States v. Reynolds:
1. Does the evidence reasonably support a finding by the court members
that appellant committed prior crimes, wrongs or acts?
2. What fact of consequence is made more or less probable by the existence
of this evidence?
14 ACM 38443
3. Is the probative value substantially outweighed by the danger of unfair
prejudice?
29 M.J. 105, 109 (C.M.A. 1989) (citations, quotation marks, and ellipses omitted). The
military judge applied this test in reaching his ruling below. Because the judge properly
applied the law, we review his ruling to see if it was arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.
The military judge’s determination that the evidence reasonably supported a
finding that the appellant possessed the images in the portable hard drive’s recycle bin
folder was not arbitrary, fanciful, clearly unreasonable, or clearly erroneous. Prior to
ruling on the motion, the military judge heard expert testimony to establish whether the
appellant, rather than some other user, acquired or possessed the images. The expert
testified that, while he could not exclude the possibility that someone else accessed the
computer, the review of Internet history did not indicate anyone else used the computer.
He also testified that an average user could access files found in the recycle bin folder
without specialized tools. He testified that the desktop computer found in the appellant’s
dormitory room contained link files showing that the portable hard drive was accessed
from that computer. The military judge could reasonably have found that the expert’s
testimony, in conjunction with the accused’s possession of the devices, would reasonably
support a finding that the appellant possessed the images admitted as Prosecution
Exhibit 17.
We also conclude that the military judge’s determination that the images tended to
prove a fact of consequence was not arbitrary, fanciful, clearly unreasonable, or clearly
erroneous. Our superior court has cited, with approval, a decision by the United States
Court of Appeals for the Third Circuit holding that in a prosecution for possession of
child pornography, images of “child erotica,” while legal to possess, may nonetheless be
admitted to show intent to commit the charged offense. United States v. Warner,
73 M.J. 1, 3 (C.A.A.F. 2013) (citing United States v. Vosburgh, 602 F.3d 512, 538
(3d Cir. 2010)). This court has also observed that long precedent establishes “possession
of [child erotica] can satisfy the second Reynolds prong, in that this evidence can tend to
indicate knowledge of the nature of the contraband material and negate the possibility
that the files were downloaded by accident or mistake.” United States v. Suwinski,
ACM 38424, unpub. op. at 5–6 (A.F. Ct Crim. App. Nov. 20, 2014) (citing United States
v. Sanchez, 59 M.J. 566, 570 (A.F. Ct. Crim. App. 2003) (allowing subscriptions “to
numerous e-groups described as nude teen sites” as evidence of knowing possession of
child pornography), rev’d in part on other grounds, 60 M.J. 329 (C.A.A.F. 2004);
United States v. Mann, 26 M.J. 1, 2–4 (C.M.A. 1985) (providing that possession of
magazines were admissible to prove the accused’s intent to satisfy his sexual desires);
United States v. Rhea, 29 M.J. 991, 998 (A.F.C.M.R. 1990) (providing that possession of
books describing sexual exploitation of young girls was probative of motive), set aside on
15 ACM 38443
other grounds, 33 M.J. 413 (C.M.A. 1991); United States v. Lips, 22 M.J. 679, 682
(A.F.C.M.R. 1986) (holding that possession of graphically posed photographs showing
women being sexually abused was a clear indication of the appellant’s penchant for
sexual aberration)).
Finally, we find that the military judge’s determination pursuant to
Mil. R. Evid. 403 that the probative value of the images ultimately admitted was not
substantially outweighed by the danger of unfair prejudice was not arbitrary, fanciful,
clearly unreasonable, or clearly erroneous. The military judge limited the Government to
admission of only exhibits found in the portable hard drive’s recycle bin folder that
depicted a child that was also depicted in one of the charged images. While the existence
of the other images was prejudicial, in that it increased the total number of images
presented to the members, it was not unfairly prejudicial in that it was narrowly tailored
to the charged offenses and the proper purpose under Mil. R. Evid. 404(b).
Since none of the military judge’s determinations were arbitrary, fanciful, clearly
unreasonable, or clearly erroneous, and the military judge applied the proper legal
standard, we find that the military judge did not abuse his discretion and reject this
assignment of error.
Instructions Concerning Evidence Admitted under Mil. R. Evid. 404(b)
Next, the appellant argues that the military judge erred when his instructions failed
to instruct the panel members concerning Mil. R. Evid. 404(b) and how to properly
consider Prosecution Exhibit 17. Mil. R. Evid. 105 places the burden for requesting a
limiting instruction squarely on the parties. Failure to object to the omission of an
instruction constitutes waiver of the objection, absent plain error. R.C.M. 920(f). Since
trial defense counsel did not request a limiting instruction or object to its omission, the
issue is forfeited absent plain error. See United States v. Powell, 49 M.J. 460, 463
(C.A.A.F. 1998); Sousa, 72 M.J. 643, 651 (A.F. Ct. Crim. App. 2013). We do not find
plain error.
The failure of the military judge to provide a limiting instruction was not error.
Although at one time, our case law required military judges to provide such instructions
without regard to any request by the parties, that requirement was generally limited to
circumstances where there was a weak nexus between the uncharged misconduct and the
charged offense. See United States v. Dagger, 23 M.J. 594, 597–98 (A.F.C.M.R. 1986).
Even that requirement, however, was eliminated with the adoption of Mil. R. Evid. 105.
See Drafter’s Analysis, Manual for Courts Martial, United States, A22-3 (2012 ed.)
(Stating that Mil. R. Evid. 105 overrules previous cases insofar as they require the
military judge to give limiting instructions sua sponte). Although we could envision a
case where trial counsel’s examination of a witness or argument might give rise to a duty
upon the military judge to cure any misunderstanding as to the permissible uses of
evidence admitted for a limited purpose, that is not the case here. On the contrary, trial
16 ACM 38443
counsel was exceptionally careful to make clear that Prosecution Exhibit 17 was only
being offered to show the appellant’s intent or absence of mistake. On these facts, we
find no error by the military judge in failing to give a limiting instruction.
Even if we found error, it would not have been plain error. Trial defense counsel
sometimes choose not to request a limiting instruction to avoid emphasizing the evidence
in question. See United States v. Maynard, 66 M.J. 242, 245 (C.A.A.F. 2008). In this
case, one of the primary contentions of trial defense counsel was that the Government
failed to prove the intentional possession of the images found in the appellant’s recycle
bin folder. It would be reasonable for trial defense counsel to want to avoid having the
military judge personally remind the members that they could consider Prosecution
Exhibit 17 in deciding whether the appellant had the requisite intent to commit the
offenses alleged. The existence of this reasonable basis for not wanting a limiting
instruction negates any suggestion that the need for one was plain or obvious.
Whether Prosecution Exhibit 12 Constitutes Child Pornography
The appellant asserts his convictions for possession and receipt of child
pornography must be set aside because Prosecution Exhibit 12 offered in support of the
specifications is not child pornography and is constitutionally protected. The appellant’s
assertion, without any meaningful analysis of the applicable legal factors used to
determine whether the image was constitutionally protected, is unconvincing. This issue
is without merit.
In deciding whether an image offered in support of a general verdict is
constitutionally protected, we apply the general standards of review for factual and legal
sufficiency. See United States v. Piolunek, 72 M.J. 830, 835 (A.F. Ct. Crim. App. 2013).
We review issues of legal and factual sufficiency de novo. United States v. Washington,
57 M.J. 394, 399 (C.A.A.F. 2002).
The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Moreover, “[i]n resolving legal-sufficiency questions, [we are] bound to draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991); see also United States v.
Young, 64 M.J. 404, 407 (C.A.A.F. 2007).
The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the witnesses,
[we] are [ourselves] convinced of the accused’s guilt beyond a reasonable doubt.”
Turner, 25 M.J. at 325. Review of the evidence is limited to the entire record, which
includes only the evidence admitted at trial and exposed to the crucible of
17 ACM 38443
cross-examination. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Bethea,
46 C.M.R. 223, 224–25 (C.M.A. 1973).
In this case, the appellant concedes that the image depicts the child’s genitals, so
the only question is whether the depiction is lascivious under United States v. Roderick,
62 M.J. 425, 429–30 (C.A.A.F. 2006). In Roderick, our superior court held that we
“determine whether a particular photograph contains a ‘lascivious exhibition’ by
combining a review of the [factors set out in United States v. Dost, 636 F. Supp. 828, 832
(S.D. Cal. 1986)] with an overall consideration of the totality of the circumstances.”
Roderick, 62 M.J. at 430. The Dost factors are:
(1) whether the focal point of the visual depiction is on the
child’s genitalia or pubic area;
(2) whether the setting of the visual depiction is sexually
suggestive, i.e. in a place or pose generally associated with
sexual activity;
(3) whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity;
(6) whether the visual depiction is intended or designed to
elicit a sexual response in the viewer.
Id. at 429.
Prosecution Exhibit 12 depicts a prepubescent girl, clad only in a tank top. She is
posed sitting on a couch with one knee up and her legs spread open. This composition
places the focal point of the picture on her genitals. Her head is posed such that she looks
sideways at the camera with one hand on the back of her neck. This pose, in conjunction
with her facial expression, suggests sexual coyness and is unnatural for a girl of her age.
Her lack of any garment below the waist is also inappropriate for her age. The
composition alone suggests that the image was designed to elicit a sexual response, and
that suggestion is reinforced by other charged images that were part of the same
collection. 10 Under Roderick, we consider the totality of the circumstances of the offense
along with the Dost factors. The plainly lascivious nature of the other files in the same
collection corroborates the inference that the image was intended to elicit a sexual
response. We need not, and specifically decline to consider any of the images contained
10
The prosecution computer forensic expert testified that Prosecution Exhibits 4–7 and 12–14 were found in a single
folder in the portable hard drive’s recycle bin folder and that entries in the system database on the desktop computer
indicated that the files were all obtained as a single collection.
18 ACM 38443
in Prosecution Exhibit 17, since our analysis of this depiction focuses on the intent of
those that crafted it, rather than the appellant’s state of mind.
We find that the image, when viewed in the light most favorable to the prosecution
was legally sufficient to support a finding of guilt. We also conclude beyond a
reasonable doubt, based upon our own factual sufficiency review, that the image
constitutes a lascivious exhibition of the genitals. We find no support for the assertion
that the findings should be disapproved on this basis.
Failure to Follow Reconsideration Instructions
The appellant asserts that “the court members failed to follow the military judge’s
instructions on voting procedures.” This assertion is based on a comment in an e-mail
response to trial defense counsel’s request to the members for post-trial feedback.11 One
member commented in his response “the second charge had to be revoted on in order to
be found guilty.” During the trial, the panel never reconvened in open session to discuss
reconsideration as directed by the military judge’s procedural instructions. Trial defense
counsel raised this issue to the military judge in a post-trial motion for appropriate relief.
A military judge’s decision regarding a motion for a mistrial will be reviewed for
an abuse of discretion. See United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003);
United States v. Dancy, 38 M.J. 1, 6 (C.M.A. 1993). In determining whether to
investigate or question court members about a verdict, the trial court maintains wide
discretion, and the trial court’s decision will be reviewed for an abuse of that discretion.
United States v. Lambert, 55 M.J. 293, 295–96 (C.A.A.F. 2001).
The military judge issued a well-reasoned written ruling noting, among other
things: Mil R. Evid. 923 and 606(b); applicable case law in United States v. Brooks,
42 M.J. 484 (C.A.A.F. 1995), and United States v. Bobby, 61 M.J. 750 (A.F. Ct. Crim.
App. 2005); and the important policy objective of protecting the sanctity of court-martial
deliberations even when evidence of procedural irregularities exists. For the reasons set
out in the military judge’s ruling, we find this argument to be without merit.
Government Counsel Sentencing Argument
The appellant also argues that the sentencing argument by trial counsel was
improper. We review the propriety of argument de novo. United States v. Marsh,
70 M.J. 101, 104 (C.A.A.F. 2011).
In his sentencing argument, trial counsel rhetorically asked “[a]nd why is this
particular crime so serious? Because it propagates the abuse of children, as
11
Although requests for feedback can be problematic, this particular request was coordinated with the Chief
Regional Military Judge and included appropriate reminders of members’ obligation to maintain the confidentiality
of their deliberations.
19 ACM 38443
sexual . . .”, at which point trial defense counsel objected on the basis that the argument
asserted facts not in evidence. The military judge overruled the objection, stating that the
comment was a reasonable inference. Trial counsel completed his thought, stating: “It
propagates the sexual abuse of children. That’s why this crime is serious.” Trial counsel
then proceeded to other aspects of his argument.
The legal test for improper argument is whether the argument was erroneous and
whether it materially prejudiced the substantial rights of the accused. See United States v.
Lutes, 72 M.J. 530, 535 (A.F. Ct. Crim. App. 2013); United States v. Baer,
53 M.J. 235, 237 (C.A.A.F. 2000). It is improper for trial counsel to seek unduly to
inflame the passions or prejudices of the sentencing authority. United States v. Clifton,
15 M.J. 26, 30 (C.M.A. 1983). Counsel should limit their arguments to “the evidence of
record, as well as all reasonable inferences fairly derived from such evidence.” Baer,
53 M.J. at 237. During sentencing argument “trial counsel is at liberty to strike hard, but
not foul, blows.” United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (quoting
Baer, 53 M.J. at 237) (internal quotation marks omitted). Whether or not the comments
are fair must be resolved when viewed within the context of the entire court-martial.
United States v. Gilley, 56 M.J. 113, 121 (C.A.A.F. 2001).
We are not convinced that the argument was erroneous. Deconstructing trial
counsel’s argument, it consisted of two assertions: that the appellant propagated
something, and what he propagated was the sexual abuse of children. There is no
question that the explicit sexual acts depicted in the videos and images constitute abuse
under any fair meaning of the term. There’s also no question that the abuse was sexual in
nature.
The question, therefore, turns on the meaning of propagate as used here.
Webster’s dictionary sets out two general meanings for the word propagate: to multiply
(especially as it relates to plant or animal reproduction and heredity) and to spread out or
publicize. See MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 935 (10th ed. 1999). Although
the appellant apparently attributes the first meaning to trial counsel’s argument, the
second meaning is equally valid and more apt on these facts.12 The abuse inherent in
child pornography is not just the act depicted but also the future vulnerability the victims
face by the continued proliferation of the images. See Lutes, 72 M.J. at 536 (“[T]he
children portrayed in the materials possessed by the appellant could fear their images will
be forever available for individuals like the appellant to download and possess”). The
Government’s computer expert testified about the way in which these files were
12
Courts have sustained arguments that consumption of child pornography, by its nature, creates the demand for
such images that perpetuates the abuse depicted. See United States v. Forney, NMCCA 200200462, unpub. op. at
16 (N.M. Ct. Crim. App. 19 July 2005) (sentencing argument “reflect[ed] the realities of child pornography, simply,
that so long as there is a demand for such depictions, children will continue to be abused.”); United States v. Hadley,
ACM 35930, unpub. op. at 4 (A.F. Ct. Crim. App. 16 February 2006) (“[S]uch victimization is part of the ‘black
market industry’ the appellant, through his conduct, was ‘perpetuating and feeding.’”). We need not reach this issue
since an equally valid meaning was well supported by the evidence.
20 ACM 38443
transmitted and shared over the Internet. While one could debate whether continued
dissemination of the images multiplies the abuse suffered, such dissemination clearly
spreads that abuse to a wider audience. We agree with the military judge that trial
counsel’s argument was a reasonable inference from the evidence.
Merger of Specifications for Sentencing
Next, the appellant argues that the military judge abused his discretion when he
denied the appellant’s motion to merge the specifications in his case for sentencing
purposes. We review a military judge’s decision to deny relief for unreasonable
multiplication of charges for an abuse of discretion. United States v. Campbell, 71 M.J.
19, 22 (C.A.A.F. 2012).
The specifications that were ultimately under consideration during sentencing
were substantially different from the five specifications originally referred to trial and on
which the appellant was arraigned. These five specifications included three
specifications of wrongful possession of visual depictions of minors engaging in sexually
explicit conduct. The specifications differed only in respect to the media alleged—one
concerning the portable hard drive, one concerning the desktop computer, and one
concerning the laptop computer. Prior to the entry of pleas, the convening authority
withdrew the possession specifications that related to the desktop and the laptop
computers.
The remaining three specifications were renumbered. Specification 1 alleged the
appellant knowingly and wrongfully possessed child pornography on a Hitachi external
hard drive. Specification 2 alleged that he knowingly and wrongfully accessed child
pornography with an intent to view it. Specification 3 alleged that he knowingly and
wrongfully received child pornography.
At the close of findings, the military judge determined the receipt and possession
specifications covered the same conduct and therefore dismissed the greater offense for
Specification 3 (receipt of child pornography). He concluded:
Given the way that the evidence has played out and the law
on possession and receipt of these particular images, what I
have determined is that the receipt and possession really
duplicate and go towards the same conduct. However, as trial
counsel has requested the lesser-included offense of
attempted receipt, I do find that there’s evidence that remains
that the members could in fact find attempted receipt.
The lesser included offense referred to by the military judge was based on the
existence of evidence of incomplete downloads of files distinct from those found on the
portable hard drive. The prosecution expert testified that a user of the appellant’s laptop
21 ACM 38443
initiated peer-to-peer downloads of files with names indicative of child pornography.
Those file names were also listed in Prosecution Exhibit 21. The Government offered
this theory of liability during closing argument. The revised Specification 3 alleging the
lesser included offense of attempted receipt of child pornography went to the members,
who found the appellant guilty of that offense.
In determining whether charges constitute an unreasonable multiplication of
charges, we consider five non-exhaustive factors: whether the appellant objected at trial,
whether each charge and specification is aimed at distinctly separate criminal acts,
whether the number of charges and specifications misrepresent or exaggerate the
appellant’s criminality, whether the number of charges and specifications unreasonably
increase the appellant’s punitive exposure, and whether there is any evidence of
prosecutorial overreaching or abuse in the drafting of the charges. See United States v.
Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001).
We consider whether the appellant objected at trial to determine whether the issue
is fairly brought under our Article 66(c), UCMJ, authority, not to determine whether it
was preserved in the technical sense. See id. Although much of the underlying basis for
the appellant’s pretrial motion was rendered moot by the changes discussed above, that
motion was sufficient to bring the matter under our Article 66(c) authority. Rather than
applying a strict interpretation of forfeiture and preservation of error, we assess whether,
under the circumstances, we should consider approving something less than the findings
and sentence approved by the convening authority as relief for unreasonable
multiplication of charges. In this case, the appellant’s motion for relief, as pursued
throughout the trial, is sufficient to justify our review under Article 66(c).
The changes in the specification also make clear that the misconduct alleged in the
specifications that resulted in a conviction addressed distinctly separate criminal acts.
The specification alleging accessing child pornography with an intent to view was plainly
directed at Prosecution Exhibits 1 through 16, while the specification alleging attempted
receipt was directed at the incomplete downloads indicated by Prosecution Exhibit 21.
These are unquestionably distinctly separate acts.
We also find that the specifications do not misrepresent or exaggerate the
appellant’s criminality. Had the military judge not granted the appellant’s motion with
regard to access and receipt of the same images, we would have to consider whether two
theories of liability for the same images exaggerate the appellant’s culpability for
sentencing. Those circumstances were not present in this case. The appellant invites us
to construe the appellant’s actual and attempted access to child pornography as one
continuing course of conduct. We decline to do so when, as here, the acts occurred not
only at different times, but on completely different continents. Repeated access to child
pornography on different occasions, in different locations, on different devices, is simply
not analogous to a series of blows constituting a single assault.
22 ACM 38443
While the existence of two specifications in this case increases the appellant’s
punitive exposure, it does not do so unreasonably. We first note that the specifications
were drafted to encompass misconduct on divers occasions rather than charging each
image or incomplete download separately. Generally speaking, that type of charging
strategy decreases, rather than increases punitive exposure. Campbell, 71 M.J. at 25.
Additionally, the acts at issue in the specification alleging attempted receipt of child
pornography, as narrowed by the military judge and argued by both parties, would not
have been legally sufficient to prove actual access to those files. The only way to put that
behavior before the members was to retain distinct specifications for sentencing.
Finally, we discern no evidence of prosecutorial overreaching or abuse in the
drafting of the charges. Indeed, the Government’s dismissal of two of the charges prior
to entry of pleas suggests just the opposite—that the Government pursued only those
specifications justified by the evidence.
We are convinced that the military judge did not abuse his discretion by refusing
to merge the two specifications for sentencing.
Addressing Raised Legal Error in SJAR Addendum
The appellant also argues that this court should remand the case for a new
convening authority action because the staff judge advocate’s recommendation (SJAR)
failed to discuss the alleged voting irregularity which was raised as legal error in the
appellant’s clemency submission.
Proper completion of post-trial processing is a question of law, which this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004)
(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure to timely comment
on matters in the SJAR, or matters attached to the recommendation, forfeits any later
claim of error in the absence of plain error. Rule for Courts-Martial 1106(f)(6); United
States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). “To prevail under a plain error
analysis, [the appellant bears the burden of showing] that: ‘(1) there was an error; (2) it
was plain or obvious; and (3) the error materially prejudiced a substantial right.’” Scalo,
60 M.J. at 436 (quoting Kho, 54 M.J. at 65) (internal quotation marks omitted). Although
the threshold for establishing prejudice in this context is low, the appellant must
nonetheless make at least some “colorable showing of possible prejudice in terms of how
the [perceived error] potentially affected [his] opportunity for clemency.” Id. at 437.
R.C.M. 1106(d)(4) states:
The staff judge advocate or legal officer is not required to
examine the record for legal errors. However, when the
recommendation is prepared by a staff judge advocate, the
staff judge advocate shall state whether, in the staff judge
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advocate’s opinion, corrective action on the findings or
sentence should be taken when an allegation of legal error is
raised in matters submitted under R.C.M. 1105 or when
otherwise deemed appropriate by the staff judge advocate.
The response may consist of a statement of agreement or
disagreement with the matter raised by the accused. An
analysis or rationale for the staff judge advocate’s statement,
if any, concerning legal error is not required.
Despite this plain language, the appellant argues that the addendum failed to
“properly [characterize] Appellant’s allegations of legal errors and/or [provide] analysis
of the legal errors.”
Although the addendum did not explicitly state agreement or disagreement with
the asserted legal error, it did state, “I also reviewed the attached clemency matters
submitted by the defense. I recommend you approve the findings and sentence as
adjudged.” We find no meaningful difference between “I recommend you approve the
findings and sentence as adjudged” and “in my opinion, no corrective action should be
taken.” Although more substantial explanation would not have been inappropriate, the
SJAR addendum complies with R.C.M 1106(d)(4), and we find no error, plain or
otherwise.
Even if we found the absence of further discussion constituted error, we would
find no prejudice on these facts. Based upon the staff judge advocate’s (SJA’s) ultimate
recommendation to approve the findings and sentence as adjudged, any further discussion
would have only reinforced his position that no corrective action was necessary. The
convening authority indicated in his indorsement to the addendum that he considered the
appellant’s clemency materials, which included the assertion of the voting irregularity.
The convening authority adopted the SJA’s recommendation and approved the findings
and sentence as adjudged. We find no colorable basis to conclude the convening
authority would have acted any differently had the SJA expanded upon his reasons for
recommending exactly what the convening authority ultimately did. This assertion of
error is without merit.
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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Accordingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
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