United States v. Ramirez ( 2021 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
Misc. Dkt. No. 2021-05
________________________
UNITED STATES
Appellant
v.
Godric A. RAMIREZ
Technical Sergeant (E-6), U.S. Air Force, Appellee
________________________
Appeal by the United States Pursuant to Article 62, UCMJ
Decided 30 December 2021 1
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Military Judge: Wesley A. Braun.
GCM convened at: Robins Air Force Base, Georgia.
For Appellant: Major Alex B. Coberly, USAF (argued); Colonel Naomi P.
Dennis, USAF; Lieutenant Colonel Matthew J. Neil, USAF; Mary Ellen
Payne, Esquire.
For Appellee: Major Sara J. Hickmon, USAF (argued); Mark C.
Bruegger, Esquire.
Before LEWIS, ANNEXSTAD and OWEN, Appellate Military Judges.
Judge OWEN delivered the opinion of the court, in which Senior Judge
LEWIS and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
1 The court heard oral argument in this case on 21 October 2021.
United States v. Ramirez, Misc. Dkt. No. 2021-05
OWEN, Judge:
This case arises out of an interlocutory appeal under Article 62, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 862,2 in a pending court-martial.
At trial, the military judge abated the proceedings against Appellee, pur-
suant to Rule for Courts-Martial (R.C.M.) 703(e)(2), citing as the basis for his
ruling the Government’s failure to preserve forensic extractions of the contents
of electronic devices seized from Appellee by civilian law enforcement.
The Government now appeals the military judge’s ruling on the grounds
that he erred in finding the destroyed forensic extractions of Appellee’s elec-
tronic devices were of central importance to a fair trial.3 We agree.
I. BACKGROUND
A. Factual Background4
On 27 February 2019, local civilian law enforcement with the Houston
County Sheriff’s Office (HCSO), in Georgia, opened an investigation into the
upload of possible child pornography on the social media site Tumblr. The in-
vestigation began after Tumblr reported the possible child pornography to the
National Center for Missing and Exploited Children (NCMEC), which in turn
forwarded the information via a cyber tip to Georgia law enforcement officials.
The information forwarded from Tumblr included two GIFs5 and one still
JPEG image of suspected child pornography. Law enforcement used the Inter-
net Protocol (IP) address associated with the account that made the Tumblr
upload to identify Appellee’s residence as the source of the upload.
On 30 April 2019, Sergeant BL and other members of HCSO executed a
search warrant on the residence of Appellee and Appellee’s roommate, Staff
2 Unless otherwise specified, references to the UCMJ, the Military Rules of Evidence,
and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2019 ed.).
3 The Government also argues on appeal that the military judge erred in concluding
the destruction of the forensic extractions of Appellee’s electronic devices was not the
fault of Appellee. We decline to address this argument.
4 The facts in this section are drawn from the military judge’s written findings of fact.
5 A GIF is an image file that can be either still or animated. The record appears to
indicate that a single GIF file was involved, but that it was “reblogged” on two separate
occasions. Reblogging occurs when a Tumblr user finds a blog post located on another
user’s Tumblr blog and then chooses to share that other user’s post as content on his
or her own blog. This opinion will continue to use the phrase “the GIFs” to account for
the reblogging.
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United States v. Ramirez, Misc. Dkt. No. 2021-05
Sergeant (SSgt) JW. Two agents with the Air Force Office of Special Investiga-
tions (AFOSI) were present during the execution of the search warrant. HCSO
investigators spoke with Appellee and SSgt JW, who both voluntarily provided
passwords and locations of electronic devices in the residence. HCSO seized
the following devices: one MacBook, one Dell laptop, one red Western Digital
drive, three iPads, one Seagate USB drive, one Canon camera, two Samsung
cell phones, three iPhones, one iPod, two Windows tablets, eighteen CDs, one
Trooper computer, three hard drives, and two HTC cell phones.
Sergeant BL reviewed the data on the devices. Sergeant BL’s review took
months to complete because the seized devices contained more than 10,000
pornographic images and videos; however, Sergeant BL ultimately did not lo-
cate the still JPEG image or the GIFs provided by Tumblr. Furthermore, Ser-
geant BL concluded the pornographic images and videos on the seized devices
appeared to have been downloaded from commercial websites and did not in-
clude child pornography.
Sergeant BL subsequently met with Appellee and SSgt JW, and informed
them that the investigation was being closed with no further action because no
child pornography was discovered on their devices. Sergeant BL returned the
electronic devices to Appellee and SSgt JW,6 except for one laptop; this laptop
was inadvertently retained by HCSO and eventually turned over to a paralegal
in the Robins Air Force Base legal office. Sergeant BL also showed Appellee
the alleged child pornography—two GIFs and a still JPEG image from the
Tumblr cyber tip—that were the genesis of Sergeant BL’s investigation into
Appellee. Appellee and SSgt JW later reviewed the devices HCSO returned to
them and Appellee found the still JPEG image in question on his cell phone.
Appellee and SSgt JW then decided to destroy all of the devices they received
back from HCSO.
After HCSO notified AFOSI that it was closing its investigation into Appel-
lee, AFOSI continued its own investigation. On 27 November 2019, AFOSI In-
vestigator (Inv) CL interviewed Appellee after the latter waived his rights un-
der Article 31, UCMJ, 10 U.S.C. § 831. Appellee disclosed to Inv CL that after
receiving his devices from HSCO, he found the still JPEG image of potential
child pornography—the same one shown to him by HCSO—on his phone, and
that he and SSgt JW subsequently destroyed their devices over concerns about
the security of their home network. SSgt JW explained to investigators that
6 Sergeant BL testified that the electronic devices were not all returned at once. Ra-
ther, Sergeant BL periodically returned devices back to Appellee and SSgt JW after
Sergeant BL finished reviewing them. However, AFOSI—which had been monitoring
the progress of Sergeant BL’s investigation—was unaware until after the fact that Ap-
pellee’s devices had been returned to him.
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United States v. Ramirez, Misc. Dkt. No. 2021-05
after he and Appellee found the image shown to them by Sergeant BL on Ap-
pellee’s returned cell phone, they thought their devices “were hacked into” so
they decided to destroy all of their devices and start over with new ones.
AFOSI also served a search warrant on Tumblr for Appellee’s account, re-
sulting in production of information related to the still JPEG image and the
GIFs. In addition, Tumblr produced information on a video file of suspected
child pornography that was not part of the original cyber tip. The information
returned by Tumblr indicated that the still JPEG image included in the origi-
nal cyber tip—the same image Appellee saw on his phone after Sergeant BL
informed him HCSO was closing their investigation—was uploaded to Appel-
lee’s Tumblr account from Appellee’s home IP address. However, the GIFs and
video file associated with Appellee’s Tumblr account were neither uploaded nor
downloaded. Rather, they were “reblogged” using Appellee’s account and his
home IP address. The still JPEG image, the GIFs, and the video file provided
by Tumblr form the basis of the charge and specification against Appellee.
B. Procedural History
On 22 September 2020, a single charge and specification were preferred
against Appellee, for wrongful possession of child pornography between on or
about 16 February 2018 and on or about 13 August 2018, in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C § 934, Manual for
Courts-Martial, United States (2016 ed.). On 6 December 2020, following a pre-
liminary hearing conducted pursuant to Article 32, UCMJ, 10 U.S.C. § 832, the
Charge and its Specification were referred to trial by general court-martial.
Appellee was arraigned on 21 January 2021. From 22 to 24 March 2021, the
parties litigated pretrial motions.
On 22 March 2021, Appellee moved to dismiss the Charge and Specifica-
tion, or in the alternative, abate the proceedings, due to the destruction of evi-
dence in the case—namely, forensic extractions of the devices seized from Ap-
pellee that HCSO made during the course of its investigation. On 23 March
2021, the military judge conducted an Article 39(a), UCMJ, 10 U.S.C. § 839(a),
session, in which the parties offered additional testimony and evidence rele-
vant to the motion to dismiss the charge or abate proceedings.
C. Appellee’s Motion to Abate the Proceedings
During motion practice, Sergeant BL testified that as part of HCSO’s in-
vestigation, forensic extractions were made of Appellee’s devices. However,
Sergeant BL further testified that when HCSO determined the devices did not
contain any evidence of child pornography, and that no charges would result,
it was standard practice to destroy the forensic extractions.
Trial defense counsel then called Mr. BJ as a defense expert in digital fo-
rensics. Mr. BJ testified that the still JPEG image uploaded to Tumblr was—
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United States v. Ramirez, Misc. Dkt. No. 2021-05
in accordance with Tumblr’s protocols and consistent with practices on other
social media sites—stripped of metadata. Thus, the still JPEG image uploaded
to Tumblr would not show the image’s source, whether or how often the user
looked at it, the length of time on the device, or similar information.
Mr. BJ then testified extensively about what he might have been able to
ascertain regarding Appellee’s involvement with child pornography, if he had
access to the destroyed forensic extractions of Appellee’s devices. Mr. BJ told
the court:
[I]f we have the best forensic data available, you know you might
be able to track directly from the website when it was down-
loaded, what folder it was put into, [ ] whether it was moved from
one folder to the next, and whether it was put onto a USB drive.
Also whether -- how it got on the phone and then sent from there.
Mr. BJ confirmed to the military judge that the data from Tumblr indicated
the GIFs and video file were neither uploaded to Tumblr from Appellee’s de-
vices nor were they downloaded to Appellee’s devices from Tumblr. Instead,
they were “reblogged” by Appellee’s Tumblr account “from one area of the cloud
to be linked to another area of the cloud.”7 Mr. BJ testified that he believed
forensic extractions of Appellee’s devices would let him confirm “whether or
not the files were downloaded,” whether “there was any interaction with the
video file,” whether there was other information on the devices related to the
video, and whether a device’s search history or the search terms used would
tend to indicate an intent to seek out child pornography.
Mr. BJ further testified that with forensic extractions of Appellee’s devices,
he could “look across multiple devices in order to determine” Appellee’s device
usage during the time of the upload, including whether he was multitasking,
e.g., watching a movie at the same time he was uploading a file to Tumblr. Mr.
BJ also indicated he would have looked at the forensic extractions to see “if
there were other messages” on Tumblr involving images of underage individu-
als and, if so, whether Appellee might have replied. He further noted that, “if
[Appellee] used other social media there might [ ] also be other messages . . .
talking about whether or not he was interested in young.”8
Mr. BJ stated that some of the specific examples he proffered to the court
regarding what the devices would show, as stated above, involved “conjecturing
7 Mr. BJ explained the “cloud” was a reference to a backup stored on a “server some-
where else” which was separate from a backup on a local device.
8 Based on our review of the entire record, we interpret “whether or not he was inter-
ested in young” as Mr. BJ’s assessment of whether or not Appellee was interested in
pornography depicting young males.
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United States v. Ramirez, Misc. Dkt. No. 2021-05
what [he] would find because [he did not] have the devices.” For example, he
indicated he could have determined the version and functionality of the Tumblr
application that was on Appellee’s device “assuming [Appellee used] one of his
mobile devices” to reblog the GIFs. He also told the military judge that a review
of the forensic extractions had the potential to produce inculpatory evidence,
such as showing that Appellee “could have re-blogged [a file] and then down-
loaded it so he would keep it. And if we saw behavior like that then we would
know that there was an intentionality to, to view it and keep it for later viewing
as well.” Mr. BJ stated that “the devices[9] would make it possible to assess
either way.”
D. The Military Judge’s Ruling to Abate the Proceedings
On 24 March 2021, the military judge issued a written ruling denying the
motion to dismiss but granting the motion to abate proceedings. On 26 March
2021, the Government filed a motion requesting the military judge reconsider
his ruling. On 31 March 2021, Appellee filed his opposition to the Government’s
motion. On 10 May 2021, the court held an Article 39(a), UCMJ, session to
hear argument on the reconsideration motion. On 18 June 2021, the military
judge issued a ruling denying the Government’s motion for reconsideration.10
In his ruling, the military judge found that the Government had not acted
in bad faith with respect to the destroyed forensic extractions, and thus found
that dismissal with prejudice was not warranted. However, he agreed with Ap-
pellee’s assertion that “the forensic extractions of [Appellee’s] electronic de-
vices would be critical to the Defense’s ability to present a defense in this case.”
He expanded on this conclusion by noting a “forensic extraction of the evidence,
particularly, the phone which contained the [still JPEG] image at issue in this
court-martial would be incredibly relevant to the Defense.” The metadata from
that still JPEG image, for example, “would show the time the file was down-
loaded, how often the file was viewed, and whether the file was edited.”
The military judge made specific findings about what the forensic extrac-
tion of Appellee’s devices would have shown:
As it relates to the files[11] uploaded to Tumblr, a forensic extrac-
tion would have assisted the [D]efense in identifying the source
9 Before us, the parties agree that the destroyed evidence is the forensic extractions of
the devices.
10 In his ruling on reconsideration, the military judge made minor corrections to the
law he cited in his original ruling.
11 The evidence in the record indicates only a single still JPEG image was uploaded to
Tumblr.
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of the files uploaded. It would have also shown the extent of any
interaction [Appellee] had with the GIF and video which he re-
blogged. Finally, it would have assisted the [D]efense in deter-
mining whether the image downloaded and then posted to Tum-
blr was intentionally downloaded by [Appellee] onto his personal
device and possessed by [Appellee] as alleged by the Govern-
ment.
Quoting from the Military Judge’s Benchbook instructions on wrongful pos-
session of child pornography, the military judge noted that matters such as
“the name of a computer file or folder, the name of the host website from which
a visual depiction was viewed or received, search terms used, and the number
of images possessed” would typically be considered when determining whether
the Government proved the alleged offense. See Military Judges’ Benchbook,
Dept. of the Army Pamphlet 27-9, ¶ 3-68B-1 (10 Sep. 2014). As part of the mil-
itary judge’s conclusion that the forensic extractions were of central im-
portance to a fair trial, he noted that Appellee could no longer challenge these
issues due to the destruction of the forensic extractions.
The military judge found there was no adequate substitute for the de-
stroyed forensic extractions, noting in particular that “[a] forensic extraction
is the preferred standard in criminal investigations involving digital evidence.”
The military judge also found that Appellee was not at fault for the destruction
of the evidence. He noted that Sergeant BL “made the sole decision to destroy
this evidence and made that determination after consulting with Inv [CL] and
a local judge advocate.”
II. DISCUSSION
A. Law
1. Jurisdiction and Standard of Review
This court has jurisdiction to hear this appeal under Article 62(a)(1)(A),
UCMJ, 10 U.S.C. § 862(a)(1)(A), which authorizes the Government to appeal
“[a]n order or ruling of the military judge which terminates the proceedings
with respect to a charge or specification.”
When the Government appeals a ruling under Article 62, UCMJ, this court
reviews the military judge’s decision “directly and reviews the evidence in the
light most favorable to the party which prevailed at trial.” United States v.
Lewis, 78 M.J. 447, 453 (C.A.A.F. 2019) (quoting United States v. Pugh, 77 M.J.
1, 3 (C.A.A.F. 2017)). Because this issue is before us pursuant to a government
appeal, we “may act only with respect to matters of law.” Article 62(b), UCMJ,
10 U.S.C. § 862(b). We are limited to determining whether the military judge’s
factual findings are clearly erroneous or unsupported by the record. United
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States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). “A reviewing court may not
‘find its own facts or substitute its own interpretation of the facts.’” United
States v. Becker, ___ M.J. ___, No. 21-0236, 2021 CAAF LEXIS 844, at *16
(C.A.A.F. 14 Sep. 2021) (quoting United States v. Cossio, 64 M.J. 254, 256
(C.A.A.F. 2007)).
We review a military judge’s ruling on whether to abate proceedings under
R.C.M. 703(e)(2)12 for an abuse of discretion. United States v. Simmermacher,
74 M.J. 196, 199 (C.A.A.F. 2015); United States v. Ivey, 55 M.J. 251, 256
(C.A.A.F. 2001); United States v. Wright, 75 M.J. 501, 509 (A.F. Ct. Crim. App.
2015).
A military judge abuses his discretion when: (1) he predicates
his ruling on findings of fact that are not supported by the evi-
dence of record; (2) he uses incorrect legal principles; (3) he ap-
plies correct legal principles to the facts in a way that is clearly
unreasonable[;] or (4) he fails to consider important facts.
United States v. Commisso, 76 M.J. 315, 321 (C.A.A.F. 2017) (citations omit-
ted). Put another way: “[a]n abuse of discretion occurs when a military judge
either erroneously applies the law or clearly errs in making his or her findings
of fact.” Becker, 2021 CAAF LEXIS 844, at *13 (quoting United States v. Don-
aldson, 58 M.J. 477, 482 (C.A.A.F. 2003)). This standard applies to Article 62,
UCMJ, appeals. Id. (citing United States v. Mitchell, 76 M.J. 413, 417 (C.A.A.F.
2017)); see also United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (“A
military judge abuses his discretion when: (1) the findings of fact upon which
he predicates his ruling are not supported by the evidence of record; (2) if in-
correct legal principles were used; or (3) if his application of the correct legal
principles to the facts is clearly unreasonable.”).
“A finding of fact is clearly erroneous when there is no evidence to support
the finding, or when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Criswell, 78 M.J. 136, 141
(C.A.A.F. 2018) (internal quotation marks and citations omitted).
2. Lost or Destroyed Evidence
In cases where evidence is lost or destroyed but where there is no constitu-
tional duty or Due Process Clause13 violation, R.C.M. 703(e) provides the fol-
lowing:
12 Formerly R.C.M. 703(f)(2), Manual for Courts-Martial, United States (2016 ed.).
13 U.S. CONST. amend. V.
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United States v. Ramirez, Misc. Dkt. No. 2021-05
(1) In general. Each party is entitled to the production of evi-
dence which is relevant and necessary.
(2) Unavailable evidence. Notwithstanding paragraph (e)(1), a
party is not entitled to the production of evidence which is de-
stroyed, lost, or otherwise not subject to compulsory process.
However, if such evidence is of such central importance to an
issue that it is essential to a fair trial, and if there is no adequate
substitute for such evidence, the military judge shall grant a con-
tinuance or other relief in order to attempt to produce the evi-
dence or shall abate the proceedings, unless the unavailability
of the evidence is the fault of or could have been prevented by
the requesting party.
To be entitled to relief under R.C.M. 703(e)(2), the moving party must es-
tablish: (1) the lost or destroyed evidence is of central importance to a fair trial,
(2) there is no adequate substitute for the lost or destroyed evidence, and (3)
the moving party is not at fault for the destroyed or lost evidence. Simmerma-
cher, 74 M.J. at 201. “If a continuance or other relief cannot produce the miss-
ing evidence, the remaining remedy for a violation of R.C.M. [703(e)(2)] is
abatement of the proceedings.” Id.B. Analysis
As an initial matter, we find the military judge’s findings of fact were
clearly erroneous in that the evidentiary value he placed on the destroyed fo-
rensic extractions of Appellee’s devices is unsupported by the evidence of rec-
ord.
1. The Evidence of Record
The military judge relied heavily, if not exclusively, on the testimony pro-
vided by Mr. BJ to reach his findings of fact regarding the evidentiary value of
the forensic extractions. With regard to the still JPEG image uploaded to Tum-
blr, the military judge found that a forensic extraction would have assisted the
Defense in identifying the source of the file uploaded and would have assisted
the Defense in determining whether it was intentionally downloaded by Ap-
pellee onto his personal device. The military judge also found that a forensic
extraction would have shown the extent of any interaction Appellee had with
the GIFs and video which he reblogged. In arriving at his findings of fact, the
military judge ignored the qualified nature of Mr. BJ’s testimony with regard
to speculation about what, if anything, the destroyed forensic extractions
would have shown. Since Mr. BJ never saw the forensic extractions, his testi-
mony was not tailored to the case at hand, but instead he testified in generic
terms about what information a forensic extraction can provide and even pref-
aced his testimony at one point on the condition of “hav[ing] the best forensic
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United States v. Ramirez, Misc. Dkt. No. 2021-05
data available.” As a result, the military judge’s findings of fact are not sup-
ported by the evidence and are clearly erroneous.
The evidence of record establishes that, had the “best” forensic extractions
of Appellee’s devices been available, the defense expert, Mr. BJ, would have
examined them in an effort to confirm “whether or not the files were down-
loaded,” whether “there was any interaction with the video file” by Appellee,
whether there was other information on the devices related to the video, and
whether a device’s search history or the search terms used would tend to indi-
cate an intent by Appellee to seek out child pornography. Mr. BJ also testified
that, “if [Appellee] used other social media there might [ ] also be other mes-
sages . . . talking about whether or not he was interested in young.”
Significantly, Mr. BJ also testified that a review of the forensic extractions
had the potential to produce inculpatory as well as exculpatory evidence—such
as showing that Appellee “could have re-blogged [the GIF] and then down-
loaded it so he would keep it.” He also acknowledged that some of the specific
examples he provided—regarding what a forensic extraction of the devices
would show—involved “conjecturing what [he] would find.”
We acknowledge there was evidence presented that Appellee accessed the
still JPEG image using one of the phones seized by HCSO after it was returned
to him. SSgt JW testified he saw the still JPEG image on a phone after Appel-
lee accessed it; however, SSgt JW did not describe the process used by Appellee
to access it. Moreover, as Appellee did not testify on the motion, the record also
does not demonstrate which seized devices, if any, Appellee used to access
Tumblr during the charged timeframe or what settings those devices utilized
regarding Tumblr content. Furthermore, it is unclear from the record exactly
what type of forensic extractions were originally created by HCSO or what data
was actually captured.
Such details, if presented as evidence during the motion, may have permit-
ted the military judge to find by a preponderance of the evidence that HCSO’s
forensic extraction of one of Appellee’s phones would have captured some of the
information the Defense sought for the still JPEG image. Ultimately, although
Mr. BJ could definitively testify as to what analysis he would have performed
with the forensic extractions if he had access to them, he is only able to specu-
late as to what such an analysis might discover. As a result, without additional
evidence, the military judge’s findings regarding the still JPEG image are un-
supported by the record and clearly erroneous.
2. Central Importance to a Fair Trial
Based on these findings, the military judge concluded that the destroyed
evidence was of central importance to a fair trial due to the fact it “would be
incredibly relevant to the Defense.” The military judge believed the metadata
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United States v. Ramirez, Misc. Dkt. No. 2021-05
from the forensic extraction of the cell phone containing the still JPEG image
would “likely provide other information [which] would assist the [D]efense in
determining the source of the image,” and in gaining additional information
about how Appellee interacted with the image that was uploaded to Tumblr.
The Government argues that Mr. BJ’s testimony regarding what a forensic ex-
traction, using the best forensic data available, might have been able to show
was too speculative in nature to support the military judge’s conclusion that
the destroyed forensic extractions were of central importance to an issue es-
sential to a fair trial. We agree with the Government.
3. Speculative Evidentiary Value
This court previously opined on the relative importance of evidence of spec-
ulative exculpatory value in United States v. Terry, 66 M.J. 514, 518 (A.F. Ct.
Crim. App. 2008). In Terry, a law enforcement agent investigating a sexual
assault alleged to have occurred inside a hospital viewed several hours of hall-
way surveillance photos and ultimately determined the photos were of no evi-
dentiary value. Id. at 516. The photos were later lost. Id. The defense argued
that the photos might have captured images of the victim or the accused that
could have been helpful at trial; however, the court noted it was just as likely
the images could have been inculpatory, neither inculpatory nor exculpatory,
or of no evidentiary value at all. Id. at 518. The court concluded that “[t]he
possibility that potentially exculpatory images could have been found on the
surveillance photos is simply too speculative to conclude that the missing pho-
tos were ‘of central importance to an issue that is essential to a fair trial.’” Id.Appellee claims in his brief that the destroyed forensic extractions “con-
tained the sole evidence” of the charged offense in the case against Appellee.
He thus analogizes his case to that of Simmermacher, 74 M.J. 196, and claims
that the destruction of the “sole evidence” in the case should weigh in favor of
the lost evidence being considered of central importance to an issue that is es-
sential to a fair trial. In Simmermacher, the Government brought a charge of
wrongful use of cocaine against the appellant based solely on the result of a
positive urinalysis test. Id. at 198. After referral of the charge but before the
defense could request a retest of the urine specimen, the Government notified
trial defense counsel that the remainder of the specimen had been destroyed.
Id. Trial defense counsel subsequently motioned the court to suppress the uri-
nalysis test results under R.C.M. 703, but the military judge denied the motion
in part because the appellant failed to show that the urine specimen possessed
an exculpatory value that should have been apparent to the Government before
it was destroyed. Id. Our court concurred. Id. However, the United States
Court of Appeals for the Armed Forces reversed, following its earlier precedent
in holding the urine specimen was of such central importance that it was es-
sential to a fair trial, with emphasis on the fact the destroyed urine specimen
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was the sole evidence of drug use. Id. at 201 (citing United States v. Manuel,
43 M.J. 282, 287–88 (C.A.A.F. 1995)).
The facts of this case are distinguishable from Simmermacher. Unlike in
Simmermacher, where the destroyed urine specimen constituted the totality of
the Government’s evidence in the case, in the present case, the Government’s
evidence against Appellee consists of a still JPEG image, the GIFs, and a video
file from the Tumblr social media site. An analysis of Appellee’s devices by
Sergeant BL failed to discover any evidence of child pornography on those de-
vices. As a result, the destroyed forensic extractions are not the sole evidence
in the case and the facts in Appellee’s case are more akin to the photos in Terry
than to the urine specimen in Simmermacher. Similarly, other cases cited fa-
vorably by Appellee involved fact patterns in which the court was aware of the
exact contents of the lost or destroyed evidence and, based on that knowledge,
was able to determine whether the lost or destroyed evidence was of such cen-
tral importance to an issue that it was essential to a fair trial. See United States
v. Rothe, No. ACM 39817, 2021 CCA LEXIS 117 (A.F. Ct. Crim. App. 24 Mar.
2021) (unpub. op.); United States v. Seton, Misc. Dkt. No. 2013-27, 2014 CCA
LEXIS 103 (A.F. Ct. Crim. App. 24 Feb. 2014) (unpub. op.). In the present case,
the speculative nature of what information may or may not have been con-
tained in the destroyed forensic extractions, especially with regard to the GIFs
and video file which were never uploaded to Tumblr by Appellee, makes such
a determination near-impossible.14 As a result, we conclude the military judge
predicated his ruling to abate proceedings on findings of fact that are not sup-
ported by the evidence of record and therefore abused his discretion.
III. CONCLUSION
The appeal of the United States under Article 62, UCMJ, 10 U.S.C. § 862,
is GRANTED. The military judge’s ruling to abate the trial proceedings is RE-
VERSED.
The record is returned to The Judge Advocate General for remand to the
14 We note that even if Appellee had access to the destroyed forensic extractions, the
most helpful expert conclusion for Appellee would have been that there is no evidence
he ever had actual possession of the contraband in question—the exact testimony pro-
vided by Sergeant BL regarding the search of Appellee’s devices, which produced no
evidence of child pornography and located none of the Tumblr files that initiated the
cyber tip.
12
United States v. Ramirez, Misc. Dkt. No. 2021-05
Chief Trial Judge, Air Force Trial Judiciary, for action consistent with this
opinion.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
13