United States v. Staff Sergeant BRUCE L. KELLY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, YOB, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant BRUCE L. KELLY
United States Army, Appellant
ARMY 20090809
Headquarters, Fort Drum
Andrew Glass, Military Judge
Lieutenant Colonel David M. Ward, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Michael O. Lacey, Staff Judge Advocate (post-trial)
For Appellant: Captain A. Jason Nef, JA (argued); Colonel Mark Tellitocci, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Captain Jason Nef, JA (on brief).
For Appellee: Captain Edward J. Whitford, JA (argued); Major Ellen S. Jennings,
JA; Major Amber J. Williams, JA; Captain Edward J. Whitford, JA (on brief).
27 March 2012
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
KERN, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his conditional pleas, 1 under Rule for Courts-Martial [hereinafter
R.C.M.] 910(a)(2) of disobeying a general order and possession of child
pornography, in violation of Articles 92 and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 892, 934 (2006) [hereinafter UCMJ]. The military judge also
convicted appellant, pursuant to his unconditional pleas, of additional charges of
attempted larceny, larceny, and fraudulent claims, in violation of Articles 80, 121,
1
R.C.M. 910(a)(2). “Conditional pleas. With the approval of the military judge and
the consent of the Government, an accused may enter a conditional plea of guilty,
reserving the right, on further review or appeal, to review of the adverse
determination of any specified pretrial motion. If the accused prevails on further
review or appeal, the accused shall be allowed to withdraw the plea of guilty….”
KELLY—ARMY 20090809
and 132, UCMJ. 2 The military judge sentenced appellant to a bad-conduct
discharge, confinement for eighteen months, and reduction to E-1. The convening
authority approved a bad-conduct discharge, confinement for seventeen months, and
reduction to E-1. Appellant’s case is now before this court for review under Article
66, UCMJ. 3
FACTS
In April 2007, appellant was wounded in Iraq by a roadside bomb. Appellant
received initial medical treatment at a combat support hospital in Baghdad, Iraq and
that same day was moved to Balad, Iraq and then transported to Landstuhl, Germany
for further treatment. Appellant later moved to Fort Bragg, North Carolina for
additional medical treatment and eventually returned to duty at Fort Drum, New
York, where his court-martial took place.
Following appellant’s medical evacuation out of Iraq, an officer was
appointed as a summary court-martial officer [hereinafter SCMO] in order to process
and transport appellant’s personal effects, including a Compaq Presario laptop
computer, back to a person eligible to receive effects [hereinafter PERE]. The
SCMO’s appointment and the procedures he followed were pursuant to an All Army
Activities Message [hereinafter ALARACT] from Headquarters, Department of
Army. The procedures included shipping appellant’s personal effects from Iraq to
the Joint Personnel Effects Depot [hereinafter JPED] located in the United States at
the Aberdeen Proving Ground military base in Maryland. Prior to the ALARACT,
only the personal effects of dead or missing soldiers, not wounded personnel, were
sent to the JPED. Following standard operating procedures, 4 JPED personnel
inspected appellant’s computer for classified material and material that could be the
source of embarrassment to a recipient of the computer. This latter inspection was
conducted under the search terms: “gore, porn, and inappropriate,” and child
pornography and adult pornography were discovered on the computer. The computer
was then turned over to law enforcement personnel who obtained a search
authorization and conducted a thorough search of the laptop computer and collected
2
The misconduct for these additional charges occurred while appellant was pending
court-martial for possession of child pornography and was assigned duties as the
unit travel clerk. In this capacity, he created false travel orders and submitted false
travel vouchers to steal money from the U.S. Government. These charges are
unrelated to the suppression motion at issue in this opinion.
3
Oral argument in this case was heard in Washington, D.C. on 15 February 2012 at
The George Washington University Law School as part of the “Outreach Program”
of the United States Army Court of Criminal Appeals.
4
The JPED Process Manual provides an inventory process which includes screening
for and removing classified material and items that may cause embarrassment or
added sorrow if forwarded to an eligible recipient.
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KELLY—ARMY 20090809
evidence forming the basis for Charges I and II, possession of child pornography and
violation of a lawful general order.
At trial, appellant moved to suppress the evidence found on his laptop
computer as an unlawful search and seizure in violation of his Fourth Amendment
right to privacy. The military judge denied appellant’s motion to suppress the
evidence. Subsequently, appellant entered a conditional guilty plea to Charges I and
II. On appeal, appellant raises a single assignment of error pertaining to the military
judge’s denial of the suppression motion.
LAW AND DISCUSSION
We review the military judge’s ruling on a suppression motion under an
“abuse of discretion” standard. United States v. Gallagher, 66 M.J. 250, 253
(C.A.A.F. 2008). An “abuse of discretion” occurs when the military judge’s
findings of fact are clearly erroneous or if the military judge erroneously applies the
law. United States v. Rader, 65 M.J. 30, 32-33 (C.A.A.F. 2007). In this case, the
military judge set out detailed findings in his denial of the motion to suppress.
Upon our review of the record, we accept the military judge’s factual findings, and
with minor exception, his legal conclusions as well. The discrepancy we have with
the military judge’s legal conclusion is in his finding that the ALARACT
incorporated its provisions in Army Reg. 638-2, Care and Disposition of Remains
and Disposition of Personal Effects [hereinafter AR 638-2] (22 December 2000),
Joint Publication 4-06, Mortuary Affairs in Joint Operations (5 June 2006), and
several other publications. This is an error because there is a separate regulatory
restriction against disseminating policy and procedure revisions by electronic
message. 5 Moreover, it is questionable whether an Army message would have
authority to change a Joint publication. However, these errors are inconsequential,
because we find the military judge applied the law correctly in his separate finding,
that the ALARACT defined the SCMO’s duties as consistent with AR 638-2:
7. ALARACT Message 139/2006 mandated that PE [personal effects]
collection, inventory, safeguarding, and disposition were a command
responsibility and adopted the procedures used in AR 638-2 for the
processing of PE for medically evacuated Service Members. In
particular, the message required that the processing of PE for medically
5
See Army Reg. 25-30, The Army Publishing Program [hereinafter AR 25-30], para.
2-3 (27 March 2006): “An electronic message will not be used to disseminate new or
revised DA, agency, or command policy or procedures. Electronic messages may be
used to notify commands and agencies of impending new policy and procedures,
changes, or revisions when it is immediately necessary to maintain national security,
ensure the safety or well being of the soldiers, or to avoid legal action against the
DOD.” See also AR 25-30, para. 3-5, and Dep’t of Army, Pam. 25-40, Army
Publishing: Action Officer Guide, para. 12-5 (7 November 2006).
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KELLY—ARMY 20090809
evacuated individuals include inventory of PE by a SCMO in theater.
The message stated that AR 638-2 defined the SMCO’s duties.
(App. Ex. XXVII, para. 7).
It is clear that the intent of the ALARACT was to provide guidance to
commanders in deployed theaters on how to process and transport personal effects of
those soldiers who were medically evacuated out of theater. The ALARACT also
plainly authorized inventories of the personal effects of medically evacuated
soldiers. In addition, by citing AR 638-2 as a reference, it is also evident that the
ALARACT intended the use of the procedures already in place for deceased and
missing soldiers. These procedures involved appointment of a SCMO and sending
the personal effects to the JPED. Although the applicability of AR 638-2 was
technically only for processing the personal effects of deceased and missing
soldiers, we find no prohibition against the Department of the Army mandating that
those same procedures be utilized to process the personal effects of wounded
soldiers. In fact, in the context of the type of injuries commonly sustained in the
current deployed environments it made perfect sense to do so. It is well known that
many injuries in the current conflicts are caused by roadside bombs resulting in
traumatic brain injuries and loss of limbs. These injuries oftentimes render victims
unconscious and require lengthy hospital stays and rehabilitation. Therefore, it is
certainly reasonable and serves a legitimate purpose for the Army to inventory and
process the personal effects of medically evacuated soldiers with the likelihood that
those effects will go to PERE instead of directly back to the injured soldiers.
Moreover, we agree with the military judge that the legal underpinning for the
eventual seizure of the criminal evidence against the appellant was under Military
Rule of Evidence 313(c). As such, the seizure was lawful as long as the inventory
was conducted reasonably, and its primary purpose was administrative and not with
the primary purpose of obtaining evidence for use in a court-martial or in other
disciplinary proceedings. That is precisely the case here. As the military judge
properly found:
14. The initial review of the accused’s Compaq Presario computer was
conducted by the JPED under its established administrative procedure
at that time. The primary purpose for the search of the accused’s
computer was to remove classified material, if any, and to discover any
items which might cause the recipient of the accused’s PE additional
embarrassment or sorrow so that they might be removed before
forwarding the accused’s PE. I find that the search of the computer
was an attempt to accomplish this reasonable government purpose and
was conducted in a reasonable manner.
15. At the time of JPED’s review of the accused’s computer, there is
no evidence that any one in the chain of command, CID, the JPED, or
any other government actor suspected the accused had any illegal items
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KELLY—ARMY 20090809
in any of his PE. The inventory of the accused’s PE and, specifically,
his personal computer, was conducted to accomplish JPED’s
administrative purpose and was not intended to discover any illegal
activity or for the purpose of obtaining evidence for use in a trial by
court-martial or in other disciplinary proceedings.
(App. Ex. XXVII, paras. 14 and 15).
We reject appellant’s argument that in this particular case the inventory,
which included a secondary search for pornographic material, was unreasonable
because it was not conducted for any legitimate government purpose. Appellant
argues that because the government knew the personal effects were going back to the
appellant, there was no reason to conduct a search in order to remove items that
might cause sorrow or embarrassment to the recipient. Under our review, however,
we do not find in the record that the government knew for certain that the personal
effects, including the laptop computer, would be going directly to appellant, thus
avoiding the question of whether or not the appellant could be embarrassed by his
own possessions. Although there is some evidence that the government was rushing
the case in order to get the effects back to appellant, we do not find that it was clear
that the personal effects would be going to him directly or to him through a PERE.
The test used to assess the conduct of the inventory is whether it was reasonable
under all the circumstances, and we concur with the military judge in this case that
the inventory was conducted reasonably. United States v. Jasper, 20 M.J. 112(C.M.A. 1985). In fact, only if it was absolutely clear that personal effects would
be going directly to appellant could we get to an issue over whether the secondary
search might not have been reasonable. It is doubtful, however, that this scenario
could ever occur unless an injured soldier actually appeared at the doors of the
JPED, and that is not the case here.
We further disagree with appellant’s contention that a medical services
regulation, Army Reg. 40-400, Patient Administration (23 October 2006), precluded
appellant’s personal effects from being processed in accordance with Army Reg.
638-2. In our review of that medical services regulation, we find that it only covers
the processing of personal effects that accompany a soldier in the medical treatment
facility, not the personal effects that are left back in his sleeping quarters.
For all of the aforementioned reasons, we find that the military judge did not
abuse his discretion in denying appellant’s suppression motion.
CONCLUSION
On consideration of the entire record, we hold the findings of guilty and
sentence approved by the convening authority correct in law and fact. Accordingly,
the findings of guilty and the sentence are AFFIRMED.
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KELLY—ARMY 20090809
Judge YOB and Judge ALDYKIEWICZ concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM
Clerk of Court H. SQUIRES, JR.
Clerk of Court
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