United States v. Poole ( 2019 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39308
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UNITED STATES
Appellee
v.
Dustin C. POOLE
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 15 May 2019
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Military Judge: Patricia A. Gruen.
Approved sentence: Dishonorable discharge, confinement for 43
months, reduction to E-1, and a reprimand. Sentence adjudged 21
April 2017 by GCM convened at Yokota Air Base, Japan.
For Appellant: Major Meghan R. Glines-Barney, USAF.
For Appellee: Colonel Julie L. Pitvorec, USAF; Lieutenant Colonel Jo-
seph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF;
Mary Ellen Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judge
HUYGEN joined. Judge POSCH filed a separate opinion concurring in
the result.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
MINK, Judge:
A general court-martial comprised of a military judge alone convicted Ap-
pellant, contrary to his pleas, of one specification of indecent visual recording
United States v. Poole, No. ACM 39308
on divers occasions in violation of Article 120c, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 920c. The military judge sentenced Appellant to a
dishonorable discharge, confinement for 43 months, reduction to the grade of
E-1, and a reprimand. The convening authority approved the adjudged sen-
tence but waived the mandatory forfeiture of pay and allowances for a period
of no more than six months, Appellant’s release from confinement, or Appel-
lant’s expiration of term of service, whichever was sooner, for the benefit of
Appellant’s spouse and dependent children.
Appellant raises three issues on appeal: (1) whether the military judge
erred by denying Appellant’s motion to suppress the evidence obtained from
the 23 October 2016 search authorization, which lacked probable cause; (2)
whether the military judge erred by denying Appellant’s motion to suppress
all statements made by Appellant on 23 October 2016 and any derivative evi-
dence gathered as violative of Article 31, UCMJ, 10 U.S.C. § 831; and (3)
whether the military judge erred by admitting into evidence without suffi-
cient authentication Prosecution Exhibit 4, 1 a disc containing videos purport-
edly recorded by Appellant. 2 Appellant filed a supplemental assignment of
error asserting unreasonable delay in the post-trial processing of his case. We
find no prejudicial error and we affirm the findings and sentence.
I. BACKGROUND
Appellant recorded 14 videos of his stepdaughter, TN, while she was na-
ked in the bathroom of the family’s residence on Yokota Air Base (AB), Ja-
pan, when TN was approximately 15 years old. Without TN’s knowledge that
he was doing so, Appellant recorded the videos on his cell phone from the
hallway outside of the bathroom through slats in the bathroom door, which
1 The disc identified as Prosecution Exhibit 4, containing 14 videos, had been placed
in the original record of trial at the location designated for Prosecution Exhibit 12.
Prosecution Exhibit 12, also a disc but containing still images from the 14 videos, had
been placed in the record at the location designated for Prosecution Exhibit 4. Having
reviewed the contents of both discs, we are satisfied that this was an administrative
error and that we have reviewed the actual Prosecution Exhibit 4 to resolve this as-
signment of error.
2 Numerous exhibits, portions of the trial transcript, and the portions of Appellant’s
brief addressing the first and third assignments of error were sealed. These portions
of the record and brief remain sealed. Any discussion of sealed material in this opin-
ion is limited to that which is necessary for our analysis. See Rule for Courts-Martial
1103A(b)(4).
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was closed. On 23 October 2016, Appellant’s wife, LP, contacted law enforce-
ment officials at Yokota AB and reported having found a video of TN naked
on Appellant’s cell phone. Based on the information provided by LP, the Air
Force Office of Special Investigations (AFOSI) initiated an investigation that
led to the seizure of Appellant’s cell phone and discovery of the 14 videos of
TN. The videos constituted the primary evidence upon which Appellant was
convicted.
II. DISCUSSION
A. Search Authorization
On appeal, as at trial, Appellant challenges the sufficiency of the search
authorization issued by the military magistrate that led to the seizure of Ap-
pellant’s cell phone. At trial, Appellant asserted that, based on the totality of
the circumstances, the search authorization was not supported by probable
cause. The military judge denied Appellant’s motion to suppress the evidence
from his cell phone and found that the search authorization was valid. The
military judge further found that, even if the authorization was defective, the
AFOSI agents who seized the cell phone had acted in “good faith.” On appeal,
Appellant argues that the military judge erred by finding probable cause ex-
isted to support the search authorization and that the good faith exception
does not apply in this case. We disagree.
1. Law
The Fourth Amendment to the United States Constitution provides as fol-
lows:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the per-
sons or things to be seized.
U.S. CONST. amend. IV.
Searches conducted pursuant to either a warrant or an authorization
based on probable cause are presumed reasonable. United States v. Hoff-
mann, 75 M.J. 120, 123–24 (C.A.A.F. 2016) (quoting United States v. Wicks,
73 M.J. 93, 99 (C.A.A.F. 2014)).
We review a military judge’s ruling on a motion to suppress for an abuse
of discretion, viewing the evidence in the light most favorable to the prevail-
ing party. Id. at 124 (citing United States v. Keefauver, 74 M.J. 230, 233
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(C.A.A.F. 2015)). The military judge’s findings of fact are reviewed for clear
error while conclusions of law are reviewed de novo. Id.
When reviewing a military magistrate’s issuance of a search authoriza-
tion, we “do not review [the military magistrate’s] probable cause determina-
tion de novo.” Id. at 125. Instead, we examine whether a “magistrate had a
substantial basis for concluding that probable cause existed.” United States v.
Rogers, 67 M.J. 162, 164–65 (C.A.A.F. 2009) (citing United States v. Bethea,
61 M.J. 184, 187 (C.A.A.F. 2005)). We give “great deference” to the magis-
trate’s probable cause determination because of “the Fourth Amendment’s
strong preference for searches conducted pursuant to a warrant.” United
States v. Nieto, 76 M.J. 101, 105 (C.A.A.F. 2017) (citation omitted). However,
this deference is “not boundless,” and a reviewing court may conclude that
“the magistrate’s probable-cause determination reflected an improper analy-
sis of the totality of the circumstances.” Id. (citing United States v. Leon, 468
U.S. 897, 915 (1984)). “Sufficient information must be presented to the mag-
istrate to allow that official to determine probable cause; his action cannot be
a mere ratification of the bare conclusions of others.” Illinois v. Gates, 462
U.S. 213, 239 (1983); see United States v. Gallo, 55 M.J. 418, 424 (C.A.A.F.
2001). However, if a military magistrate has “a substantial basis to find
probable cause, a military judge [does] not abuse his discretion in denying a
motion to suppress.” United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007).
A substantial basis exists “when, based on the totality of the circumstances, a
common-sense judgment would lead to the conclusion that there is a fair
probability that evidence of a crime will be found at the identified location.”
Rogers, 67 M.J. at 165 (citations omitted).
The United States Court of Appeals for the Armed Forces (CAAF) has ad-
dressed the issue of substantial basis for probable cause to search for and
seize evidence stored on electronic media in several cases, including Nieto. In
Nieto, the CAAF reviewed whether a search authorization for the appellant’s
computer was supported by probable cause based on the investigator’s “gen-
eralized profile about how servicemembers ‘normally’ store images” on their
computers. 76 M.J. at 107. The CAAF held that such information did not pro-
vide the military magistrate with a substantial basis to find probable cause
existed that the appellant’s computer would contain evidence of a crime when
the appellant had used a cell phone to make an indecent visual recording.
The CAAF found that the appellant’s “cell phone, by itself, had the ability to
serve as both the instrumentality of the crime and as a storage device for the
fruit of that crime” and because the investigator’s generalized profile was
“technically outdated,” there was insufficient information to link Appellant’s
computer to the suspected crime. Id.
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Military Rule of Evidence 311 3 generally requires the exclusion of any ev-
idence obtained as result of an unlawful search or seizure made by law en-
forcement. The good faith exception to this general rule of exclusion is con-
tained in Mil. R. Evid. 311(c)(3). For the good faith exception to apply in a
case where a search authorization is defective for some reason, the Govern-
ment must establish that law enforcement’s reliance on the defective authori-
zation was objectively reasonable. Hoffmann, 75 M.J. at 127. The Govern-
ment has the burden of establishing by a preponderance of the evidence the
following: (1) the seizure resulted from a search authorization issued by a
proper search authority, such as a magistrate; (2) the magistrate had a sub-
stantial basis for determining probable cause existed; and (3) law enforce-
ment reasonably and in good faith relied on the authorization. Mil. R. Evid.
311(c)(3), 311(d)(5)(A); Nieto, 76 M.J. at 107; see also United States v. Carter,
54 M.J. 414, 420 (C.A.A.F. 2001) (citation omitted).
2. Additional Background
The military judge made extensive findings of fact, in writing, in her rul-
ing on the motion to suppress. Those findings were not clearly erroneous and
were supported by the evidence presented at trial, and we adopt them.
On 23 October 2016, Appellant’s wife, LP, contacted law enforcement offi-
cials at Yokota AB. LP spoke with AFOSI Special Agent (SA) JH and told him
that she believed Appellant possessed “child pornography.” LP had moved
with her two children, including TN, to the state of Washington, while Appel-
lant remained at Yokota AB to await his separation from the Air Force in
November 2016. LP told SA JH that, sometime in 2015, she was reviewing
Appellant’s cell phone, an Apple iPhone 5, when she found a video recording
of TN naked, who was then 15 years old. LP stated that Appellant’s iPhone 5
later broke, that she did not know where it was, and that Appellant was now
using an Apple iPhone 6 Plus. LP further stated that, when she confronted
Appellant about the video of TN, Appellant said something to the effect that
“it was a one time thing.” According to LP, TN had told LP that TN had
heard some noise like a recording device when she was in the bathroom of
their residence on Yokota AB, but did not specify a date when she heard such
a noise. LP also told SA JH that she believed TN had been recorded as re-
cently as the time shortly before 1 October 2016 when they left Japan.
Based on the information received from LP, SA JH contacted the military
magistrate for authorization to search for cell phones or other electronic stor-
3All references in this opinion to the Rules for Courts-Martial and Military Rules of
Evidence are to the Manual for Courts-Martial, United States (2016 ed.) (MCM).
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age devices at Appellant’s residence on Yokota AB. After consulting with a
judge advocate who advised that probable cause existed, the military magis-
trate, knowing of iPhone and other Apple device capabilities to upload and
download data from Apple’s servers and thus share data among a user’s Ap-
ple devices, via applications, such as iCloud Backup, concluded that there
was probable cause to believe evidence of a crime would be found on Appel-
lant’s iPhones or other devices. The military magistrate then verbally author-
ized a search of Appellant’s residence for any Apple brand electronic devices,
including cell phones, tablets, and any external storage devices.
Later on that same day—23 October 2016—AFOSI agents executed the
search authorization and seized Appellant’s iPhone 6 Plus.
On 2 November 2016, SA JH received notice from Apple that Appellant’s
iCloud account did not utilize Backup or any similar service.
3. Analysis
Denying the motion to suppress, the military judge reviewed the infor-
mation that AFOSI agents supplied to the magistrate. The military judge
then concluded:
These details provide not only a nexus between the alleged
crime and the specific item(s) to be seized, but provide[d] a sub-
stantial basis for determining probable cause existed to believe
that evidence of a crime would be found in the place specified to
be searched and items to be seized if found. Specifically, [Ap-
pellant’s] residence on Yokota AB and Apple iPhones 5 and/or
6-Plus.
Having reviewed the evidence available to the military judge, we find that
the record also amply supports the military judge’s conclusions of law, specif-
ically, that there was a substantial basis that probable cause existed in this
case. Contrary to Appellant’s argument that the holding in Nieto compels a
conclusion that there was no probable cause, we distinguish Nieto from Ap-
pellant’s case. The information provided by LP indicated that a video of TN
was on one of Appellant’s iPhones, and the military magistrate applied his
own knowledge to determine that the video could be found on Appellant’s
other Apple devices.
Further, the military judge found that, even if there was no probable
cause to search for and seize Appellant’s cell phone, the good faith exception
applied because the AFOSI agents “reasonably and in good faith” relied on
the military magistrate’s search authorization. We agree.
The search authorization was issued by the military magistrate after an
AFOSI agent provided information to justify the search and a judge advocate
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advised that there was probable cause. AFOSI agents then relied on the
search authorization to seize Appellant’s iPhone. In doing so, the agents act-
ed reasonably and in good faith.
We find that the military magistrate who issued the search authorization
had a substantial basis to determine that probable cause existed to search
Appellant’s cell phone and that the good faith exception applied in this case
even if the search authorization was defective. Thus, we conclude the military
judge did not abuse her discretion by denying the motion to suppress the evi-
dence obtained from Appellant’s cell phone.
B. Article 31, UCMJ, Rights Advisement
At trial, Appellant moved to suppress his statements and testimonial
acts, along with any evidence derived therefrom, made at the time of the
search on 23 October 2016 because the AFOSI agents executing the search
authorization did not advise Appellant of his rights pursuant to Article 31(b),
UCMJ. Specifically, Appellant moved to suppress his answer to the agent’s
question of whether he had a cell phone, his act of turning over his cell phone
to the agents, and his act of inputting his passcode into the cell phone at the
request of one of the agents, as well as the evidence obtained from the cell
phone.
The military judge denied the motion to suppress, finding that the agents
were not required to advise Appellant of his Article 31, UCMJ, rights under
the circumstances and that the agents did not request or direct Appellant to
unlock his password-protected cell phone. On appeal, Appellant claims that
the military judge erred in admitting Appellant’s statements and derivative
evidence from the cell phone. He argues that the AFOSI agents asked Appel-
lant questions that elicited self-incriminating statements about the location
and ownership of the cell phone and also directed Appellant to unlock his cell
phone, which he did, thereby providing self-incriminating evidence, all with-
out first advising him of his Article 31(b), UCMJ, rights. We disagree that the
military judge erred in denying Appellant’s motion to suppress, and we con-
clude that, under the circumstances, the AFOSI agents were not required to
advise Appellant of his rights under Article 31, UCMJ.
1. Law
We review a military judge’s ruling on a motion to suppress for an abuse
of discretion. United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (cita-
tion omitted). “When there is a motion to suppress a statement on the ground
that rights’ warnings were not given, we review the military judge’s findings
of fact on a clearly-erroneous standard, and we review the conclusions of law
de novo.” Id. (quoting United States v. Swift, 53 M.J. 439, 446 (C.A.A.F.
2000)). “The abuse of discretion standard is a strict one, calling for more than
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a mere difference of opinion.” Id. (quoting United States v. McElhaney, 54
M.J. 120, 130 (C.A.A.F. 2000)); see also United States v. Flesher, 73 M.J. 303
(C.A.A.F. 2014) (quoting United States v. Miller, 66 M.J. 306, 307 (C.A.A.F.
2008)) (an abuse of discretion occurs when a “military judge’s decision on the
issue at hand is outside the range of choices reasonably arising from the ap-
plicable facts and the law.”).
The CAAF has held that Article 31(b), UCMJ, requires a rights advise-
ment if “(1) the person being interrogated is a suspect at the time of question-
ing, and (2) the person conducting the questioning is participating in an offi-
cial law enforcement or disciplinary investigation or inquiry.” United States
v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000); see also Jones, 73 M.J. at 361. We
examine the totality of the circumstances to evaluate this issue. United
States v. Ramos, 76 M.J. 372, 376 (C.A.A.F. 2017).
Military Rule of Evidence 305(b)(2) defines “interrogation” as “any formal
or informal questioning in which an incriminating response either is sought
or is a reasonable consequence of such questioning.”
2. Additional Background
The military judge made extensive findings of fact in her written ruling
on the motion to suppress. The military judge’s findings of fact were not
clearly erroneous and were supported by the evidence presented at trial, and
we adopt them.
On 23 October 2016, AFOSI Special Agents DB, RR, and AH arrived at
Appellant’s residence on Yokota AB to execute the search authorization. Alt-
hough SA JH, who had obtained the search authorization, was not with them,
SA DB and SA RR knew that there was a search authorization and that they
were searching for Apple iPhones. When Appellant answered the door, the
agents identified themselves and told Appellant that they had verbal author-
ization to search his residence. SA DB and SA RR then accompanied Appel-
lant inside the residence and an individual who was visiting Appellant was
escorted outside. At that point, according to SA DB’s testimony at the hearing
on the motion to suppress, SA DB asked Appellant if he had a cell phone as
Appellant was picking up his cell phone from a table. SA DB recalled that
Appellant began pressing the touchscreen of the cell phone with his thumbs
and SA DB could see photographs on the cell phone’s touchscreen. SA DB
then placed his hand over the screen and asked Appellant to give the cell
phone to him and Appellant complied.
SA RR testified that when SA DB asked Appellant if he had a cell phone,
Appellant then walked over and picked up his cell phone from the table and
began pressing on the touchscreen with both of his thumbs. SA RR said that
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United States v. Poole, No. ACM 39308
SA DB then placed his hand over the screen of the phone and asked Appel-
lant to give him the cell phone and Appellant complied.
Both SA DB and SA RR stated that they did not advise Appellant of his
rights pursuant to Article 31(b), UCMJ, prior to SA DB asking Appellant if he
had a cell phone. Both agents also testified that neither of them asked Appel-
lant for his passcode to unlock the cell phone or asked Appellant to unlock the
cell phone, but that the cell phone was unlocked when Appellant handed the
phone to SA DB. Once Appellant handed the unlocked cell phone to SA DB,
SA DB gave the cell phone to SA RR, who then placed the cell phone in “Air-
plane Mode” to cut off any Internet connection and disabled the auto-lock fea-
ture. AFOSI agents later extracted from Appellant’s cell phone the 14 videos
of TN used to prove the offense.
Appellant, who testified for the limited purpose of the motion to suppress,
stated that one of the agents asked if he had a cell phone and Appellant re-
plied that he did. Appellant then walked over and picked up his cell phone
from the table. As he was handing the cell phone to the agent, the agent
asked Appellant if he could input the passcode for the device, and he said
that he could. Appellant then entered the passcode. Appellant also testified
that, after unlocking the phone, he began deleting certain photographs, in-
cluding photographs of himself naked and of his wife that he did not want
others to see.
Among the military judge’s findings were that Appellant’s testimony on
the motion was not credible and the testimony of the AFOSI agents was cred-
ible.
3. Analysis
The fundamental question presented is whether the AFOSI agents were
required to advise Appellant of his rights under Article 31(b), UCMJ, prior to
asking him if he had a cell phone. It is undisputed that the AFOSI agents did
not advise Appellant of his Article 31(b), UCMJ, rights prior to asking Appel-
lant if he had a phone. As the military judge pointed out in her written ruling
on the motion:
While the version of events provided by SA [DB] and SA [RR]
vary in small details, they are mostly consistent and credible
and corroborate each other’s versions of events. Both agents
testified that they did not read Article 31 rights because they
had no intention of interviewing the [Appellant]. In other
words, they were not there to interrogate or request any state-
ment regarding any specific alleged offense.
The question SA DB asked Appellant—do you have a cell phone?—was
designed to assist in the execution of the search warrant and not to elicit an
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United States v. Poole, No. ACM 39308
incriminating response. We find the rationale of our sister service court ap-
plicable in this case that certain preliminary questions to assist in the execu-
tion of a search authorization do not require rights advisement where the
questions were “mere preliminary vocal aids to the ongoing legal search.”
United States v. Bradley, 50 C.M.R. 608, 621 (N.C.M.R. 1975) (finding that no
Article 31, UCMJ, rights warning was required before law enforcement asked
a sailor subject to a lawful search if he had any money and then directed him
to take the money out of his wallet and count it). See also United States v.
Neely, 47 C.M.R. 780, 782 (A.F.C.M.R. 1973) (where an airman was advised
of his rights and invoked his right to counsel, after which law enforcement
agents executing a search authorization asked him for his locker key and to
identify his locker, the court found that the identification “was only prelimi-
nary assistance in the search, which defined and limited its area, and which
could have been readily defined and localized without his assistance. . . . [The
identification] was not within the protection of Article 31 . . . .”). We deter-
mine the question—do you have a cell phone?—was such a preliminary, ad-
ministrative question designed to aid in the execution of a valid search au-
thorization and no rights advisement was required. 4
Not only was the question—do you have a cell phone?—not designed to
elicit an incriminating response, but Appellant’s response indicating that he
had a cell phone was not itself incriminating. In fact, the agents already
knew that Appellant had a cell phone from the information provided by LP,
but they did not know whether the cell phone was located on Appellant’s per-
son or somewhere in Appellant’s residence. Appellant’s response merely as-
sisted the AFOSI agents in locating the cell phone for which they had a valid
search authorization. Additionally, the location of Appellant’s cell phone
would have been readily established during the authorized search of Appel-
lant’s residence. The cell phone was lying in plain view on a table in the room
where Appellant and the agents were standing. Additionally, because Appel-
4 The present case is distinguishable from United States v. Mitchell, 76 M.J. 413
(C.A.A.F. 2017), in which the CAAF affirmed the lower court’s suppression of the con-
tents of the appellant’s cell phone. In Mitchell, the appellant’s cell phone had been
seized pursuant to a valid search authorization. However, after being advised of his
rights, the appellant, who was being subjected to custodial interrogation, invoked his
right to counsel. Law enforcement officials then asked the appellant to input his
passcode to unlock his cell phone. The CAAF concluded that asking the appellant to
input his passcode after he had invoked his right to counsel violated his Fifth
Amendment right to counsel and necessitated suppression of the contents of the cell
phone but not the cell phone itself. Appellant’s case did not involve custodial interro-
gation or the invocation of rights.
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lant was the only person then residing in the residence, Appellant’s owner-
ship of the cell phone could have been easily established.
The more significant issue for Appellant stems from the access to the in-
criminating evidence on Appellant’s cell phone that resulted from Appellant
unlocking the phone before he handed it to SA DB. The military judge found,
based on the evidence presented on the motion, that the cell phone was un-
locked not as a result of SA DB asking Appellant whether he had a cell phone
but instead as a result of Appellant’s own decision to unlock the cell phone
and start deleting pictures from it prior to handing it to SA DB. In ruling on
the motion to suppress, the military judge made lengthy findings of fact and
legal conclusions. Among those findings of fact was the determination that
Appellant’s testimony that he was asked to input the passcode was not credi-
ble and was contradicted by his own admission that he was attempting to de-
lete embarrassing photographs prior to turning over his cell phone to the
AFOSI agents. The record amply supports the military judge’s factual find-
ings regarding what the AFOSI agents did and did not ask Appellant before
he unlocked his phone and gave it to them, and, again, we find no clear error
with regard to those findings.
The record also supports the military judge’s legal conclusion that the
AFOSI agents executing the search authorization on 23 October 2016 were
not required to render an Article 31(b), UCMJ, rights advisement to Appel-
lant prior to asking him the preliminary question of whether he had a cell
phone. As a result, the military judge did not abuse her discretion in denying
the motion to suppress.
C. Authentication of Video Evidence
Appellant next claims that the video evidence admitted by the military
judge, specifically Prosecution Exhibit 4, did not satisfy the authentication
requirement of Mil. R. Evid. 901. Prosecution Exhibit 4 is a disc containing
copies of the 14 videos of TN extracted from Appellant’s cell phone. In partic-
ular, Appellant points to the fact that no witness “was able to testify that the
recording[s are] authentic or correct; that no changes, additional [sic], or de-
letions were made to the recording[s]; the true location or [sic] the filming;
the mindset of the individual portrayed on the video[s]; or was present at the
time of the filming.” We instead conclude that the military judge did not err
by admitting Prosecution Exhibit 4.
1. Law
In order to preserve a claim of error resulting from a military judge’s deci-
sion to admit evidence, Mil. R. Evid. 103(a)(1) generally requires a party to
make a timely objection and state the specific ground for the objection unless
it is apparent from the context. If the party fails to preserve such a claim, it is
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forfeited and the ruling is reviewed for plain error. United States v. Reynoso,
66 M.J. 208, 210 (C.A.A.F. 2008) (citation omitted). By contrast, the rul-
ing is reviewed for abuse of discretion if the party preserves the claim. Unit-
ed States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013) (citing United States v.
Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)).
The requirement of authentication is satisfied by “evidence sufficient to
support a finding that the item is what the proponent claims it is.” Mil. R.
Evid. 901(a). The proponent of evidence “needs only to make a prima facie
showing” for the item to be admitted as authenticated, and any “flaws in the
authentication . . . go to the weight of the evidence instead of its admissibil-
ity.” Lubich, 72 M.J. at 174 (citation omitted).
2. Analysis
At trial, the Defense objected to the admission of Prosecution Exhibit 4,
claiming that statements made by TN and heard on the videos constituted
inadmissible hearsay. After hearing the arguments of counsel, the military
judge overruled the hearsay objection and admitted Prosecution Exhibit 4 as
non-hearsay. At no time did the Defense claim at trial that the exhibit failed
to satisfy the authentication requirement of Mil. R. Evid. 901. Because the
Defense objected to the admission of Prosecution Exhibit 4 on the basis of
hearsay, not authentication, and because authentication was not an apparent
basis for the objection, we consider Appellant’s instant claim forfeited. Ac-
cordingly, we review the military judge’s ruling to admit Prosecution Exhibit
4 for plain error.
As noted above, the 14 videos contained on Prosecution Exhibit 4 consti-
tuted the primary evidence against Appellant. SA JH testified that he re-
viewed the data extracted from Appellant’s cell phone, reviewed each of the
videos in Prosecution Exhibit 4, and described them as a “fair and accurate
depiction of the videos” found on Appellant’s cell phone. He also testified that
he was able to identify the naked female appearing in the videos as TN, the
location depicted in the videos as the bathroom of Appellant’s on-base resi-
dence, and the person recording the videos as at times wearing an Airman
Battle Uniform and having a Celtic tattoo on his right hand that matched the
tattoo on Appellant’s right hand. That testimony satisfied the requirements
of Mil. R. Evid. 901.
We conclude there was no error, much less plain error, in the military
judge’s ruling to admit Prosecution Exhibit 4. Even if we assume arguendo
that Appellant’s issue was preserved, we find no abuse of discretion in the
military judge’s decision to admit the exhibit, particularly in light of its rele-
vance under Mil. R. Evid. 401 and significant probative value under Mil. R.
Evid. 403.
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D. Timeliness of Appellate Review
Lastly, Appellant asserts that the unreasonable post-trial delay from the
date the case was first docketed with this court in August 2017 until the date
of this opinion warrants relief. Appellant does not allege prejudice but avers
that relief is warranted “[i]n light of the sheer length of time and the fact that
Appellant is out of confinement.” As a remedy, Appellant requests that we
decline to affirm the dishonorable discharge. We deny Appellant’s request.
1. Law
We review de novo whether an appellant has been denied the right to due
process and a speedy post-trial review and appeal. United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). A presumption of unrea-
sonable delay arises when appellate review is not completed and a decision is
not rendered within 18 months of the case being docketed before the court.
Id. at 142. When a case is not completed within 18 months, such a delay is
presumptively unreasonable and triggers an analysis of the four factors laid
out in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay;
(2) the reasons for the delay; (3) the appellant’s assertion of the right to time-
ly review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (citations
omitted). Moreno identified three types of cognizable prejudice arising from
post-trial processing delay: (1) oppressive incarceration; (2) anxiety and con-
cern; and (3) impairment of ability to present a defense at a rehearing. Id.
138–39.
“We analyze each factor and make a determination as to whether that
factor favors the Government or [Appellant].” Id. at 136 (citation omitted).
Then, we balance our analysis of the factors to determine whether a due pro-
cess violation occurred. Id.; see also Barker, 407 U.S. at 533 (“[C]ourts must
still engage in a difficult and sensitive balancing process.”). “No single factor
is required for finding a due process violation and the absence of a given fac-
tor will not prevent such a finding.” Moreno, 63 M.J. at 136 (citation omitted).
However, where an appellant has not shown prejudice from the delay, there
is no due process violation unless the delay is so egregious as to “adversely
affect the public’s perception of the fairness and integrity of the military jus-
tice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
2. Analysis
Appellant’s case was originally docketed with this court on 18 August
2017. The delay in rendering this decision after 18 February 2019 is pre-
sumptively unreasonable. However, we determine there has been no violation
of Appellant’s right to due process and a speedy post-trial review and appeal.
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United States v. Poole, No. ACM 39308
The court is affirming the findings and sentence in this case. Appellant,
who is no longer in confinement, has not pointed to any prejudice resulting
from the presumptively unreasonable delay, and we find none.
Finding no Barker prejudice, we also find the delay—contrary to Appel-
lant’s assertion—is not so egregious that it adversely affects the public’s per-
ception of the fairness and integrity of the military justice system. As a re-
sult, there is no due process violation. See Toohey, 63 M.J. at 362. In addition,
we determine that, even in the absence of a due process violation, the delay
does not merit relief. See United States v. Tardif, 57 M.J. 219, 223–24
(C.A.A.F. 2002). Applying the factors articulated in United States v. Gay, 74
M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016),
we conclude that the time taken to review Appellant’s case is not unreasona-
ble and relief based on the delay is unwarranted.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016). According-
ly, the findings and sentence are AFFIRMED.
POSCH, Judge (concurring in the result):
I concur with my esteemed colleagues that the military judge did not
abuse her discretion in denying the motion to suppress the evidence obtained
from Appellant’s cell phone. However, I reach this conclusion on the basis of
inevitable discovery and error that was harmless beyond a reasonable doubt
because I find under the circumstances of this case that the AFOSI agents
executing the search authorization for Appellant’s cell phone were required to
advise Appellant of Article 31(b), UCMJ, rights prior to asking him if he had
a cell phone when they were inside his home to seize it.
As found by the military judge, a military magistrate provided verbal au-
thorization to search Appellant’s residence and seize his cell phone, which
authorization AFOSI agents executed the same day. When they arrived, Ap-
pellant answered his door and the AFOSI agents followed Appellant into his
home. One asked Appellant if he had a phone and Appellant replied, “Yes,
over here,” as Appellant walked to a table, picked up a phone, and eventually
handed it to an agent.
I agree with the majority’s deference to the military judge’s finding that
the AFOSI agents neither designed the question nor intended it to elicit an
incriminating response by asking Appellant, “Do you have a cell phone?” I
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United States v. Poole, No. ACM 39308
nonetheless conclude that Appellant’s response, “Yes, over here,” was a natu-
ral and “reasonable consequence” of the agent’s question, Mil. R. Evid.
305(b)(2), which necessitated a rights advisement under Article 31(b),
UCMJ—a matter that was not addressed by the military judge in her ruling. 1
The AFOSI agents in Neely were similarly executing a search authoriza-
tion when they asked Airman Basic (AB) Neely for his locker key and then
which locker, of three in the room, was his, and he complied by identifying
the one at the foot of his bed. Id. at 781. In resolving the issue of AB Neely’s
statement made after he had been advised of his rights and invoked his right
to counsel, the United States Air Force Court of Military Review (AFCMR)
observed that, “[i]n cases where the suspect identifies and acknowledges
ownership of a specific item which is the object of a search, the identification
is a statement within Article 31, [UCMJ] . . . .” Id. at 782. But the court also
recognized, “in cases where the accused does no more than render prelimi-
nary assistance in the search by defining and limiting its area, the same re-
sult does not necessarily follow.” Id. (emphasis added). The court then
reached the pragmatic conclusion that “the agents would inevitably arrive at
[Neely’s] locker, which was at the foot of his bed, and discover what they did,”
and also because “abundant evidence in the record [showed] the locker was
the accused’s, and the items therein not possessions of his roommate.” Id. at
783 (emphasis added).
On the issue of inevitable discovery, the AFCMR concluded, “[u]nder
these circumstances we find the accused’s identification of the locker was on-
ly preliminary assistance in the search, which defined and limited its area,
and which could have been readily defined and localized without his assis-
tance. It was not within the protection of Article 31[, UCMJ,] or Miranda-
Tempia.”2 Id. at 782 (emphasis added) (footnote and citations omitted). How-
ever, as the AFCMR further commented, the locker was not the item for
which the agents were searching.
Unlike Neely, the AFOSI agent’s question prompted Appellant to identify
and acknowledge ownership of the specific item that was the object of their
search, i.e., his cell phone, and not merely define or limit the search area. Id.
1 “Interrogation” means any formal or informal questioning in which an incriminat-
ing response either is sought or is a reasonable consequence of such questioning.”
Mil. R. Evid. 305(b)(2). The ruling addressed the former but made no finding as to the
latter.
2 Miranda v. Arizona, 384 U.S. 436 (1966); United States v. Tempia, 37 C.M.R. 249
(C.M.A. 1967).
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United States v. Poole, No. ACM 39308
It follows that Appellant’s affirmative response went beyond the preliminary
assistance exception relied on in Neely and by my colleagues. Aside from the
exception, the AFCMR relied on the principle of inevitable discovery to reach
the result that AB Neely’s affirmative identification of his locker sought by
AFOSI agents with a valid warrant was not “within the protection” of Article
31, UCMJ. Likewise, I rely on Mil. R. Evid. 304(b) to conclude that Appel-
lant’s cell phone, and evidence obtained from it, was not derived from Appel-
lant’s affirmative response to the AFOSI agent’s question whether Appellant
had a cell phone or from Appellant’s act of picking up his cell phone and
eventually handing it to an agent. As in the case of the contents of AB Neely’s
locker, Appellant’s cell phone and evidence obtained from it would have been
inevitably obtained.
The military judge admitted evidence of Appellant’s affirmative response
that identified and acknowledged ownership of his cell phone, which I find
was required to have been preceded by an Article 31(b), UCMJ, rights ad-
visement. This was error, but harmless beyond a reasonable doubt. United
States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009); United States v. Bris-
bane, 63 M.J. 106, 116 (C.A.A.F. 2006) (reviewing Article 31(b), UCMJ, error
under the standard of harmless beyond a reasonable doubt). Trial defense
counsel plainly “concede[d] that the phone inevitably would have been dis-
covered.” I, too, find that discovery of the phone, and Appellant’s ownership
and connection to it, were inevitable. Accordingly, I find there was no reason-
able possibility that Appellant’s unwarned affirmative response might have
contributed to the finding of guilty.
For these reasons, I conclude that Appellant was not prejudiced by the
admission of Appellant’s cell phone and his affirmative response that identi-
fied and acknowledged ownership of it. Therefore, I concur in the result de-
termined by the majority.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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