United States v. Linton

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39229
________________________
UNITED STATES
Appellee
v.
Nicholas V. LINTON
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 12 October 2018
________________________
Military Judge: Tiffany M. Wagner.
Approved sentence: Dishonorable discharge, confinement for 5 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 10 January 2017 by GCM convened at Vandenberg Air Force
Base, California.
For Appellant: Major Patrick A. Clary, USAF; Captain Dustin J.
Weisman, USAF; Tami L. Mitchell, Esquire; David P. Sheldon, Es-
quire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Pe-
ter F. Kellett, USAF; Mary Ellen Payne, Esquire; Justin P. Kenyon,
Legal Extern. 1
Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.
Judge HUYGEN delivered the opinion of the court, in which Judge
POSCH joined. Senior Judge HARDING filed a separate opinion con-
curring in the result.
1Mr. Kenyon was a law student extern with the Air Force Legal Operations Agency
and was at all times supervised by attorneys admitted to practice before this court.
United States v. Linton, No. ACM 39229
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
HUYGEN, Judge:
Appellant, pursuant to a pretrial agreement (PTA), pleaded and was
found guilty of one specification of possession of child pornography, in viola-
tion of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
934, by a military judge sitting as a general court-martial. Pursuant to the
PTA, Appellant waived all waivable motions except a motion to suppress the
evidence from the search and seizure of his computers, which preserved the
issue for appellate review. Appellant pleaded not guilty to one specification of
distribution of child pornography, in violation of Article 134, UCMJ, and, af-
ter litigation, the military judge found Appellant not guilty of child pornogra-
phy distribution. The military judge sentenced Appellant to a dishonorable
discharge, confinement for five years, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority approved the sen-
tence as adjudged.
Appellant raises on appeal eight assignments of error: (1) whether the
military judge abused her discretion by denying Appellant’s motion to sup-
press evidence searched and seized in violation of his Fourth Amendment 2
rights; (2) whether the “patently unreasonable” stipulation of fact with at-
tached victim impact statements was an unlawful condition of the PTA; (3)
whether there is a substantial basis in law, fact, or both to question the prov-
idence of Appellant’s guilty plea because of the PTA, stipulation of fact, and
attached victim impact statements; (4) whether the military judge abused her
discretion by allowing testimony about the “Blue Pillow” victim as aggrava-
tion evidence; (5) whether Appellant is entitled to credit for violation of Arti-
cle 13, UCMJ, 10 U.S.C. § 813, Article 55, UCMJ, 10 U.S.C. § 855, and the
Eighth Amendment 3 for being required to stipulate to victim impact state-
ments as fact; (6) whether trial defense counsel were ineffective for failing to
2 U.S. CONST. amend. IV.
3 U.S. CONST. amend. VIII.
2
United States v. Linton, No. ACM 39229
request a Franks v. Delaware 4 hearing to challenge affidavits involving the
search and seizure of Appellant’s computers and for advising Appellant to
enter into a “patently unreasonable” stipulation of fact with attached victim
impact statements; (7) whether Appellant’s sentence, including confinement
for five years and a dishonorable discharge, was inappropriately severe; and
(8) whether the conditions of Appellant’s post-trial confinement violate the
Eighth Amendment and Article 55, UCMJ. 5 We also reviewed the issue of
appellate delay. We find prejudicial error resulting from the admission of the
victim impact statements attached to the stipulation of fact, reassess the sen-
tence, and otherwise affirm the findings and the sentence as reassessed.
I. BACKGROUND
Appellant pleaded guilty to possession of child pornography from Novem-
ber 2012 to November 2015. He obtained it by searching on the Internet and
downloading it using peer-to-peer (P2P) software, which allows one user or
peer to download data directly from another peer’s computer without an in-
termediate step of the data residing on a server accessible by both peers. Ap-
pellant admitted to possessing 1,323 pictures and 322 videos of child pornog-
raphy on two computers.
II. DISCUSSION
Appellant submitted eight assignments of error, six of which involve the
search and seizure of the computers he used to store the child pornography
he possessed, the victim impact statements attached to the stipulation of fact
he signed pursuant to the PTA, or both. We separately address the search
and seizure, the victim impact statements, the remaining assignments of er-
ror of the evidence in aggravation and the conditions of post-trial confine-
ment, and appellate delay below.
A. Search and Seizure
1. Additional Background
Investigator JE, an experienced investigator with the Santa Barbara (Cal-
ifornia) District Attorney’s Office Bureau of Investigations, was alerted that
4 438 U.S. 154 (1978) (holding that a criminal defendant may be entitled to a hearing
to challenge the veracity of an affidavit used to issue a search warrant after the war-
rant has been executed). See Mil. R. Evid. 311(d)(4)(B).
5Appellant raises the eighth issue pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
3
United States v. Linton, No. ACM 39229
someone using an Internet Protocol (IP) address in Santa Barbara County
had downloaded potential child pornography. He established a P2P connec-
tion with the user of the IP address and downloaded three files, which he con-
firmed contained child pornography as they depicted children engaged in
sexual acts. He obtained a warrant for user information from the company
that owned the IP address. The company referred him to the Internet Service
Provider (ISP) for the IP address, and the ISP identified Vandenberg Air
Force Base (AFB), California, as the location of the user associated with the
address. Investigator JE then turned over the investigation to the Air Force
Office of Special Investigations (AFOSI).
Special Agent DK, a new AFOSI agent, was assigned to lead the investi-
gation, which he worked in conjunction with Investigator JE. The ISP for-
warded to Special Agent DK the information that identified Appellant as the
user of the IP address. Special Agent DK coordinated with a lawyer in the
wing legal office at Vandenberg AFB and scheduled a face-to-face meeting
with Colonel TS, a military magistrate. At the end of the meeting, which oc-
curred on 3 November 2015, Colonel TS determined there existed probable
cause to conduct a search and seizure, specifically, a search of Appellant and
his on-base dormitory room and the seizure of his media devices, including
his computers.
The search of Appellant’s room occurred on 4 November 2015. During the
search, Special Agent DK clicked to open the P2P software’s “currently down-
loading” window on one of Appellant’s computers, and Investigator JE ran a
program on the computers to search for evidence of child pornography.
Pursuant to the PTA, Appellant waived all waivable motions except for
the motion to suppress the evidence from the search and seizure of his com-
puters. Thus, his guilty plea was conditioned on the search and seizure sur-
viving appellate scrutiny. 6
2. Law
The Fourth Amendment provides as follows:
6 See Rule for Courts-Martial (R.C.M.) 910(a)(2) (describing the process for a condi-
tional guilty plea); see also United States v. Monroe, 50 M.J. 550 (A.F. Ct. Crim. App.
1999); Air Force Instruction 51-201, Administration of Military Justice, ¶ 8.3 (6 Jun.
2013, as amended by AFGM 2016—01, 3 Aug. 2016). While the “letter” of R.C.M.
910(a)(2) was not completely followed in Appellant’s case, we find there was sufficient
adherence to the “spirit” of the rule to conclude the parties intended and the military
judge accepted a conditional guilty plea by Appellant.
4
United States v. Linton, No. ACM 39229
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 either to a warrant or to 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) (citation omitted).
We review a military judge’s ruling on a motion to suppress evidence for
an abuse of discretion. United States v. Lutcza, 76 M.J. 698, 701 (A.F. Ct.
Crim. App. 2017), rev. denied, 76 M.J. 402 (C.A.A.F. 2017) (citing United
States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)). The military judge’s
findings of fact are reviewed for clear error, while the conclusions of law are
reviewed de novo. Id. (citing United States v. Keefauver, 74 M.J. 230, 233
(C.A.A.F. 2015)). “[A] military judge abuses his discretion when his findings
of fact are clearly erroneous, when he is incorrect about the applicable law, or
when he improperly applies the law.” Id. (quoting United States v. Roberts, 59
M.J. 323, 326 (C.A.A.F. 2004)). When reviewing a motion to suppress, we
consider the evidence in the light most favorable to the prevailing party. Id.
3. Analysis
a. Lawful Search and Seizure
We find no error—much less clear error—in the military judge’s findings
of fact and adopt them as our own. Having reviewed de novo the judge’s con-
clusions of law, not only do we find no abuse of discretion, but we specifically
concur with the judge’s determination that the military magistrate’s search
authorization was based on probable cause. While we echo the judge’s senti-
ment “that neither [Special Agent DK’s] affidavit nor the search authoriza-
tion is a model of clarity,” we agree that both were sufficient to conclude the
search and seizure of Appellant’s computers was lawful.
We make three additional determinations about the search and seizure
relevant to our conclusion that it was lawful. First, we do not share Appel-
lant’s concern that the computers’ hard drives were searched when the com-
puters, not their internal drives, were specified in the written search authori-
zation, or Air Force Form 1176, Authority to Search and Seize, (Jun. 1988)
[AF IMT 1176]. Colonel TS was informed that Special Agent DK was investi-
gating Appellant for the offense of possession of child pornography and seek-
ing authorization to search and seize Appellant’s media devices. The only log-
ical conclusion for the military magistrate—and then the military judge and
5
United States v. Linton, No. ACM 39229
now us—was that the computers were going to be not only seized, but also
then searched for evidence of the offense being investigated. Such evidence
was not going to be the computer itself; it was going to be the data stored on
the computer.
Second, we find differently than Appellant contends or the military judge
found; we find the search of Appellant’s computers was timely. Appellant con-
tends that the search of the computers was not timely because the AF IMT
1176 allotted “three days from 04 November 2015” and the forensic analysis
was not requested until 17 November 2015, not started until 30 November
2015, not completed until 18 December 2015, and not reported until 6 March
2016. The military judge agreed the search of the computers was not timely,
but found the time was not unreasonable. See United States v. Cote, 72 M.J.
41, 44 (C.A.A.F. 2013) (citation omitted) (noting that “courts have considered
seizure of electronic materials and later off-site analysis and review of them
to be a constitutionally reasonable ‘necessity of the digital era.’”). Applying
the balancing test of Mil. R. Evid. 311(a)(3), 7 the judge did not exclude the
evidence from the search.
Although we also conclude the evidence was admissible, we find the
search was timely. Appellant would have us strictly apply the language of the
AF IMT 1176, but ignore its specific words. The form reads, “No search con-
ducted pursuant to the authority herein granted shall be initiated later than
three days from 04 November 2015 . . . .” (Emphasis added). The search of
Appellant’s room occurred on 4 November 2015, which means it was initiated
no later than 7 November 2015, and thus was timely. Even considering the
specific search of the computers, we find the search to have been initiated on
4 November 2015 when Special Agent DK clicked to open the P2P software’s
“currently downloading” window and Investigator JE ran a program on the
computers to search for evidence of child pornography.
Third, while we agree with Appellant that the search documents omitted
some information, we disagree that those omissions render the search unlaw-
ful. Appellant’s argument that the search and seizure was unlawful rests on
the documents involved, primarily Special Agent DK’s affidavit and the AF
IMT 1176. It overlooks Mil. R. Evid. 315, which allows a search authorization
to be written or oral and a probable cause determination to be based on writ-
7 “Evidence obtained as a result of an unlawful search or seizure . . . is inadmissible
against the accused if: . . . exclusion of the evidence results in appreciable deterrence
of future unlawful searches or seizures and the benefits of such deterrence outweigh
the costs to the justice system.”
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United States v. Linton, No. ACM 39229
ten or oral statements communicated to the search authority. Mil. R. Evid.
315(b)(1), (f)(2). We acknowledge what Appellant points to: that Special
Agent DK’s affidavit did not include all of the information he communicated
to Colonel TS during their in-person meeting on 3 November 2015 and that
the AF IMT 1176 did not describe every aspect of the search and seizure
Colonel TS authorized. However, the deficiencies in memorializing the oral
statement to the search authority and the search authorization do not render
unlawful the search and seizure of Appellant’s computers, which was based
on probable cause, reasonable, and lawful.
Having determined the search and seizure of Appellant’s computers was
lawful, we resolve Appellant’s first assignment of error (AOE I) and conclude
the military judge did not abuse her discretion in denying Appellant’s motion
to suppress the evidence from the search.
b. Effective Assistance of Counsel
We next address Appellant’s claim that his trial defense counsel were in-
effective (AOE VI) insofar as they did not request a Franks hearing to chal-
lenge the affidavits of Investigator JE and Special Agent DK. 8 Investigator
JE produced an affidavit to support the request for a warrant to obtain user
information from the company that owned the IP address ultimately associ-
ated with Appellant and used by Appellant to download child pornography.
Special Agent DK produced an affidavit to support the request for authority
to search Appellant and his on-base dormitory room and seize his media de-
vices, including his computers.
“The Sixth Amendment guarantees the right to effective assistance of
counsel.” U.S. CONST. amend. VI; United States v. Gilley, 56 M.J. 113, 124
(C.A.A.F. 2001). In assessing the effectiveness of counsel, we apply the stand-
ard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) (citation
omitted), and begin with the presumption of competence announced in United
States v. Cronic, 466 U.S. 648, 658 (1984) (citation and footnote omitted).
We review allegations of ineffective of counsel de novo. United States v.
Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citation omitted). We utilize the fol-
lowing three-part test to determine whether the presumption of competence
has been overcome:
1. Are appellant’s allegations true; if so, “is there a reasonable
explanation for counsel’s actions”?
8 Appellant also lists the affidavit of Special Agent AC but does not discuss it.
7
United States v. Linton, No. ACM 39229
2. If the allegations are true, did defense counsel’s level of ad-
vocacy “fall measurably below the performance . . . [ordinarily
expected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable
probability that, absent the errors,” there would have been a
different result?
Id. (alteration in original) (quoting United States v. Polk, 32 M.J. 150, 153
(C.M.A. 1991)).
It is true that Appellant’s trial defense counsel did not request a Franks
hearing to challenge the affidavits of Investigator JE and Special Agent DK.
But not requesting such a hearing was not a failure by counsel and their per-
formance did not fall below that ordinarily expected. Mil. R. Evid.
311(d)(4)(B) 9 incorporates the Franks decision in the procedure to challenge
probable cause, specifically, for a false statement made to a search authority.
Appellant’s trial defense counsel, having reviewed the affidavits of Investiga-
tor JE and Special Agent DK and interviewed both affiants, had no reason to
believe that either included in his affidavit “a false statement knowingly and
intentionally or with reckless disregard for the truth. . . .” Mil. R. Evid.
311(d)(4)(B). Correspondingly, counsel would not have been able to make “a
substantial preliminary showing” of such a false statement to be entitled to a
Franks hearing. Id. Even if a hearing had occurred, the challenge of probable
cause would have failed for the reasons explained above. Thus, we conclude
Appellant’s trial defense counsel were not ineffective insofar as they did not
request a Franks hearing to challenge the affidavits of Investigator JE and
Special Agent DK.
B. Victim Impact Statements
1. Additional Background
In December 2016, after the August 2016 arraignment and motions hear-
ing and October 2016 motions hearing and continuance, the Senior Trial
Counsel (STC) who represented the Government at Appellant’s trial provided
to the Defense 58 pages of victim impact statements and indicated that the
Government intended to offer all of the statements during Appellant’s sen-
tencing proceeding as evidence in aggravation. All victim names and any in-
formation that could identify the victim associated with each statement, such
as the title of the child-pornography series, was redacted from the statements
9Mil. R. Evid. 311(d)(4)(B) was previously numbered and is cited in Appellant’s brief
as Mil. R. Evid. 311(g)(2).
8
United States v. Linton, No. ACM 39229
provided to the Defense. The STC refused the Defense request to identify the
victims and instead “provided contact information for law enforcement offic-
ers or attorneys assigned to the individual victims.” When the Defense again
requested information about the victims referenced in the statements, the
STC refused the request.
On 30 December 2016, the Defense moved for relief and asked that the
statements’ authors be identified and produced for trial and that the state-
ments be suppressed because it could not be determined if the statements
were made by victims of Appellant’s charged offenses. The Government did
not make a written response to the motion and the military judge did not rule
on it. On 6 January 2017, the parties completed a PTA in which Appellant
agreed, inter alia, to enter into a reasonable stipulation of fact. On 7 January
2017, the parties signed the stipulation of fact, which was admitted as Prose-
cution Exhibit 1 at trial.
The stipulation of fact has two attachments. Attachment 1 is a DVD con-
taining a “sampling” of the pictures and videos of child pornography that Ap-
pellant downloaded and stored on his two computers. The DVD has 25 pic-
tures and 10 videos; the pictures are only numbered but the videos have file
names. Attachment 2 is 37 pages of “victim impact statements” from an un-
known number of child pornography victims and their family members. Par-
agraph 16 of the stipulation of fact explains Attachment 2 as follows:
Ultimately, the images and videos possessed by the Accused
were of children victimized between the approximate ages of
four and fifteen years old in more than twenty states and ten
foreign countries. Many of these children and their families
wrote “victim impact statements,” attached as “Attachment 2.”
These victim impact statements are admissible for the purpose
of determining an appropriate sentence for the Accused.
The victims’ names and identifying information constitute the only redac-
tions from the victim impact statements in Attachment 2. As a result, the 37
pages include information other than victim impact, such as sentence rec-
ommendations for unlawful punishment. Notably, one “school-aged child” vic-
tim, when asked about the sentence she would “like a judge to order for
someone caught sending, receiving or possessing sexually explicit pictures of
you,” handwrote her answer: “humped to de[a]th by a horse and make them
get aids and die.”
During the trial on 9–10 January 2017, the military judge reviewed the
PTA and stipulation of fact with Appellant. Appellant acknowledged his un-
derstanding that, pursuant to the PTA, he was waiving all waivable motions,
including the motion for relief regarding the redactions from the victim im-
9
United States v. Linton, No. ACM 39229
pact statements attached to the stipulation of fact. However, the military
judge did not review with Appellant paragraph 16 of the stipulation of fact
and thus did not have Appellant articulate his understanding of the para-
graph’s meaning and effect.
When the Government presented its sentencing case, the Defense objected
to the admission of evidence in aggravation under Rule for Courts-Martial
(R.C.M.) 1001(b)(4), specifically, testimony from Mr. KP, a Government wit-
ness who in 2009 investigated the production of a child pornography series
referred to as the “Blue Pillow” series. Appellant possessed one image of the
“Blue Pillow” victim, and the image was included in Attachment 1 to the
stipulation of fact. Overruling the objection, the military judge stated,
I will also note that I understand that [Appellant] did not cause
or actually create the child pornography [he possessed] or actu-
ally cause the specific harm to the victim, however, the crime
that he has been convicted of, possession of child pornography,
which included this victim in the images that he possessed,
still is within the evidence as to how it meets the definition of
being evidence in aggravation.
And this Court understands that his actions of viewing, the
possession of the child pornography is not the same as causing
the actual abuse, however, I will allow this testimony, and if it
goes beyond what this Court finds is admissible under R.C.M.
1001, I will stop trial counsel at that point . . . .
The judge made no similar statement regarding the victim impact statements
in Attachment 2.
Mr. KP testified that the “Blue Pillow” victim was 12 years old at the time
the series was produced and 21 at the time Appellant was tried. She had suf-
fered psychological trauma, was still in counseling, the financial cost of which
caused her mother’s bankruptcy, and to date had received over 7,500 notifica-
tions of criminal investigations involving her images. Mr. KP then made the
only identification of a victim in the statements attached to the stipulation of
fact: page two of Attachment 2 was written by the mother of the “Blue Pillow”
victim.
The STC began his sentencing argument with a lengthy quotation from
the victim impact statement at page four of Attachment 2 but did not identify
the victim or indicate whether her image was included in Attachment 1. The
quotation ended with the STC reading to the female military judge,
Imagine how you would feel if someone took your child, your
sisters or even your photo and masturbated to it. Would it
bother you to know that people you don’t know are fantasizing
10
United States v. Linton, No. ACM 39229
about you sexually? Especially as a child who is supposed to be
protected and innocent. 10
The Government recommended a sentence that included seven years of
confinement; the Defense argued for three; the military judge decided on
five. 11 After trial, the Defense requested clemency in the form of a bad-
conduct discharge instead of a dishonorable discharge and three years of con-
finement instead of five. The convening authority approved the sentence as
adjudged.
2. Law
During sentencing proceedings, evidence of impact on a victim of an of-
fense of which an accused has been found guilty can be offered either by the
Government as evidence in aggravation pursuant to R.C.M. 1001(b)(4) 12 or by
the victim as “victim impact” pursuant to R.C.M. 1001A. 13 United States v.
Barker, 77 M.J. 377, 382 (C.A.A.F. 2018) (citation omitted). If the latter, the
Military Rules of Evidence do not apply. United States v. Hamilton, 77 M.J.
579, 586 (A.F. Ct. Crim. App. 2017), rev. granted, 77 M.J. 368 (C.A.A.F.
2018). Unlike R.C.M. 1001(b)(4), R.C.M. 1001A specifically allows a victim or
victim’s designee to make an unsworn statement, which may be oral, written,
or both, and to do so without being subject to cross-examination. R.C.M.
1001A(e). “A victim’s unsworn statement should not exceed what is permitted
under R.C.M. 1001A(c) and may not include a recommendation of a specific
sentence.” R.C.M. 1001A, Discussion.
If victim impact is offered as evidence in aggravation pursuant to R.C.M.
1001(b)(4), the Military Rules of Evidence apply. Hamilton, 77 M.J. at 586.
10Because of format and punctuation, the trial transcript does not reflect that this
was a continuation of the quotation from the victim impact statement at page four of
Attachment 2. We presume that was obvious to the parties at trial as there was no
objection to this otherwise clearly objectionable argument.
11 Pursuant to the PTA, Appellant pleaded guilty only to possession of child pornog-
raphy, not to distribution. The PTA set one confinement “cap” of 96 months, or eight
years, and made no reference to a lower “cap” should Appellant be found guilty only
of possession, which turned out to be the case.
12 “Evidence in aggravation includes, but is not limited to, evidence of financial, so-
cial, psychological, and medical impact on or cost to any person or entity who was the
victim of an offense committed by the accused . . .” R.C.M. 1001(b)(4).
13 “For the purposes of this rule, ‘victim impact’ includes any financial, social, psycho-
logical, or medical impact on the victim directly relating to or arising from the offense
of which the accused has been found guilty.” R.C.M. 1001A(b)(2).
11
United States v. Linton, No. ACM 39229
Mil. R. Evid. 403 sets out a balancing test for the exclusion of relevant evi-
dence “if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
members, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Mil. R. Evid. 403.
The United States Court of Appeals for the Armed Forces has held that
Evidence that otherwise would be inadmissible under the Mili-
tary Rules of Evidence may sometimes be admitted at trial
through a stipulation, if the parties expressly agree, if there is
no overreaching on the part of the Government in obtaining the
agreement, and if the military judge finds no reason to reject
the stipulation “in the interest of justice.”
United States v. Clark, 53 M.J. 280, 281–82 (C.A.A.F. 2000) (quoting United
States v. Glazier, 26 M.J. 268, 270 (C.M.A. 1988)).
3. Analysis
Had all identifying information not been redacted from the victim impact
statements that comprised Attachment 2 to the stipulation of fact and had
the Government not refused to provide the information to the Defense, the
statements may have been admissible, at least in part and through some pro-
cess, whether by R.C.M. 1001(b)(4) or R.C.M. 1001A. That some of the state-
ments contained information inadmissible under any rule, e.g., the sentence
recommendations for unlawful punishment, did not necessarily mean that
the statements could not be attached to the stipulation of fact, as even wholly
inadmissible evidence may be admitted through a stipulation. Clark, 53 M.J.
at 281–82. However, all identifying information was redacted from the victim
impact statements, thereby making it impossible for anyone—Appellant, mil-
itary judge, or convening authority—to determine whether any of the victims
referenced in the statements were depicted in the child pornography pos-
sessed by Appellant or included in Attachment 1. 14 The redactions thus ren-
dered the statements nearly irrelevant to Appellant’s case. When the Gov-
ernment produced victim impact statements with all identifying information
redacted and then refused the Defense’s request to provide the information,
the Government overreached.
14 As previously explained, only one victim referenced in one statement was ever
identified during Appellant’s trial when Mr. KP identified the mother of the victim
depicted in photograph “Number 16” of Attachment 1 as the author of page two of
Attachment 2.
12
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a. Attachment to Stipulation of Fact
Applying the plain error analysis set out in Clark, we find that it was
clear error for the military judge to admit the victim impact statements of
Attachment 2. Pursuant to the PTA, Appellant stipulated, inter alia, to the
“fact” that the statements were written by children depicted in the child por-
nography he possessed and their family members. Other than the Govern-
ment’s assertion, Appellant did not know that to be true because the Gov-
ernment withheld the identifying information that would have correlated the
victims referenced in the statements to the victims depicted in the child por-
nography Appellant possessed. Furthermore, the military judge was well
aware of the Government’s withholding because of the Defense’s motion for
relief on the matter. While the military judge confirmed Appellant’s under-
standing that, pursuant to the PTA, he was waiving the motion that may
have provided him the identifying information, the judge failed to confirm
Appellant’s understanding that he was stipulating that the victim impact
statements were made by victims of his offense. Moreover, the withholding of
all identifying information from the victim impact statements left the mili-
tary judge ignorant of the statements’ relevance to determining an appropri-
ate sentence for Appellant other than as general information about the im-
pact on victims of child pornography possession. Thus, we find the military
judge erred by admitting the victim impact statements attached to the stipu-
lation of fact.
Nevertheless, we find that the victim impact statements attached to the
stipulation of fact did not render the stipulation of fact itself unreasonable,
that the PTA requirement for a “reasonable” stipulation of fact was satisfied,
and that Appellant’s guilty plea was provident. We so find because, as dis-
cussed further below, Appellant stipulated to the fact that the attached
statements were made by victims of his offense and their family members. He
did not stipulate to the assertions in the attached statements as facts. More
importantly, the stipulation explicitly limited the purpose of attaching the
statements to “determining an appropriate sentence for the Accused.” The
statements were not used by the military judge to accept Appellant’s guilty
plea or to find Appellant guilty. Cf. Clark, 53 M.J. at 282–83 (holding that the
military judge erred by admitting a stipulation that included inadmissible
evidence relating to polygraph testing, but the appellant suffered no preju-
dice because the judge did not rely on the evidence to accept the guilty plea).
Thus, we resolve AOE II and III and conclude that, despite the erroneous
admission of the victim impact statements attached to the stipulation of fact,
the stipulation of fact itself was neither an unreasonable stipulation nor an
unlawful condition of the PTA. There is no basis to question the providence of
Appellant’s guilty plea.
13
United States v. Linton, No. ACM 39229
We also dispose of AOE VI and Appellant’s claim that his trial defense
counsel were ineffective insofar as they advised Appellant to enter into the
stipulation of fact with the victim impact statements attached to it. The stip-
ulation was not unreasonable. Appellant’s trial defense counsel first moved
for relief on the issue of the victim impact statements and then ensured Ap-
pellant’s understanding that he was waiving the motion pursuant to the PTA.
Appellant and his trial defense counsel negotiated the stipulation and the
PTA, which provided Appellant the benefits of capping confinement, preserv-
ing the motion to suppress the evidence from the search and seizure of his
computers, and litigating the charged distribution of child pornography, of
which he was found not guilty.
b. Not Unlawful Punishment
We next consider Appellant’s contention that the victim impact state-
ments attached to the stipulation of fact entitle him to credit for violation of
Article 13, UCMJ, Article 55, UCMJ, and the Eighth Amendment (AOE V).
Article 13, UCMJ, prohibits unlawful pretrial punishment while Article 55,
UCMJ, and the Eighth Amendment prohibit cruel and unusual post-trial
punishment. Appellant asserts that he was required to stipulate to the con-
tents of the victim impact statements as facts and that being forced to admit
he deserved, inter alia, to “get aids and die” constitutes unlawful and cruel
and unusual punishment. We disagree.
Paragraph 16 of the stipulation of fact is clear: Appellant was stipulating
to the fact that the statements attached to the stipulation were made by vic-
tims of his offense. Appellant was not required to stipulate to the contents of
the victim impact statements as facts; he was not forced to admit that he de-
served punishment not authorized by the UCMJ; and thus he was not subject
to unlawful or cruel and unusual punishment, even if we assume that such
an admission constitutes unlawful or cruel and unusual punishment.
c. Sentence Appropriateness
Lastly, we look at the victim impact statements in the context of sentence
appropriateness (AOE VII). This court “may affirm only such findings of
guilty and the sentence or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis of the entire record,
should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We review sen-
tence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F.
2006) (footnote omitted). “We assess sentence appropriateness by considering
the particular appellant, the nature and seriousness of the offense, the appel-
lant’s record of service, and all matters contained in the record of trial.” Unit-
ed States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citations
omitted). While we have great discretion in determining whether a particular
14
United States v. Linton, No. ACM 39229
sentence is appropriate, we are not authorized to engage in exercises of clem-
ency. United States v. Nerad, 69 M.J. 138, 144–48 (C.A.A.F. 2010).
“A finding or sentence of court-martial may not be held incorrect on the
ground of an error of law unless the error materially prejudices the substan-
tial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a).
[W]hen a [Court of Criminal Appeals (CCA)] reassesses a sen-
tence because of prejudicial error, its task differs from that
which it performs in the ordinary review of a case. . . . [N]ot on-
ly must the [CCA] assure that the sentence is appropriate in
relation to the affirmed findings of guilty, but also it must as-
sure that the sentence is no greater than that which would
have been imposed if the prejudicial error had not been com-
mitted. . . .
Thus, if the court can determine to its satisfaction that, absent
any error, the sentence adjudged would have been of at least a
certain severity, then a sentence of that severity or less will be
free of the prejudicial effects of error; and the demands of Arti-
cle 59(a) will be met. Of course, even within this limit, the
[CCA] will determine that a sentence it proposes to affirm will
be “appropriate,” as required by Article 66(c). . . .
United States v. Sales, 22 M.J. 305, 307–08 (C.M.A. 1986) (citations omitted).
As explained above, we find that the military judge erred when she ad-
mitted the victim impact statements attached to the stipulation of fact and
considered them, even if only to determine Appellant’s sentence, not his guilt.
While we still find the stipulation itself to be reasonable and the guilty plea
provident, we account for the error by negating its effect, employing the rem-
edy suggested by Clark, and “striking” the statements attached to the stipu-
lation. See Clark, 53 M.J. at 283 (noting that if the PTA requirement for a
“reasonable” stipulation of fact was interpreted to require appellant to stipu-
late to the polygraph evidence banned by Mil. R. Evid. 707, the “appropriate
remedy” would be to “strike the reference to the polygraph from the stipula-
tion[,]” which would not affect the providence of the plea).
The victim impact statements were attached to the stipulation of fact for
the sole purpose of determining an appropriate sentence for Appellant. When
there is error in the admission of sentencing evidence, including victim im-
pact statements, we test for prejudice by assessing “whether the error sub-
stantially influenced the adjudged sentence” and consider four factors: “(1)
the strength of the Government’s case; (2) the strength of the defense case; (3)
the materiality of the evidence in question; and (4) the quality of the evidence
in question.” Barker, 77 M.J. at 384 (citations omitted).
15
United States v. Linton, No. ACM 39229
This court tested for prejudice in United States v. Machen, No. 39295,
2018 CCA LEXIS 419 (A.F. Ct. Crim. App. 29 Aug. 2018) (unpub. op.). In Ma-
chen, the appellant pleaded guilty to receiving, possessing, and viewing child
pornography. On appeal, the appellant claimed that the military judge
abused his discretion when he admitted for sentencing three written unsworn
victim impact statements offered by the Government. This court held that, in
light of Barker, the judge abused his discretion by admitting the statements.
This court went on to find that the Government’s case was strong, the De-
fense’s case was weak, and “the materiality of the statements was slight.”
Machen, unpub. op. at *13. The court found the last because the case was
tried before a military judge presumed to know the law, the judge referenced
the “settled law as to the lasting impacts of child pornography on its victims,”
and the judge stated he would limit his use of the statements to the recog-
nized considerations. Id. at *12–13. Thus, this court concluded that the error
did not result in prejudice to the appellant.
Comparing Machen to the case before us, we find similarly that the Gov-
ernment’s case against Appellant was strong: Appellant pleaded guilty to
possessing over 1,300 pictures and 300 videos of child pornography. The De-
fense’s case was weak and consisted of character letters, awards and recogni-
tion from Appellant’s four-plus years of military service, and his academic
credentials.
Unlike in Machen, the materiality of the 37 pages of victim impact state-
ments in Appellant’s case was not slight. The record, particularly the STC’s
argument, makes clear that the Government was employing the statements
as evidence in aggravation under R.C.M. 1001(b)(4), not as written unsworn
statements under R.C.M. 1001A. Appellant was tried and sentenced by a mil-
itary judge presumed to know the law, but the judge did not reference the
“settled law” on the victim impact of child pornography and did not
acknowledge the limited use of the victim impact statements of Attachment
2, even though she acknowledged the limited use of Mr. KP’s testimony ad-
mitted as evidence in aggravation. Furthermore, the statements were nu-
merous, but their quality was low in part because of the STC’s refusal to pro-
vide identifying information, which prevented the sentencing authority from
correlating the statements with the victims of Appellant’s offense and ren-
dered the statements nearly irrelevant to Appellant’s case. More significant-
ly, the quality of the statements was low because of the Government’s failure
to redact highly prejudicial and otherwise inadmissible content, such as the
sentence recommendations for unlawful punishment, and the STC’s use of
such content in sentencing argument. As a result, we conclude the military
judge’s error of admitting and considering without limitation the victim im-
pact statements of Attachment 2 substantially influenced the adjudged sen-
tence and resulted in prejudice to Appellant.
16
United States v. Linton, No. ACM 39229
With this conclusion of error and prejudice, we cannot affirm the ad-
judged and approved sentence in its entirety because we do not find it wholly
correct in law and fact. Instead, we exercise our authority under Articles
59(a) and 66(c), UCMJ, to reassess the sentence.
We opt to reassess the sentence—not order a sentence rehearing—
because the error that prejudiced Appellant had no impact on his sole convic-
tion of the specification of child pornography possession. In addition, Appel-
lant chose sentencing by a military judge alone, and this court has the expe-
rience and familiarity with Appellant’s offense to determine reliably what
sentence would have been imposed by the judge absent the error. United
States v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013).
We have broad discretion when reassessing sentences. Id. at 12. Reas-
sessing Appellant’s sentence, we do not consider the victim impact state-
ments attached to the stipulation of fact as their admission constituted prej-
udicial error. We do consider Appellant, the nature and seriousness of his of-
fense of possessing more than 1,600 files of child pornography depicting the
rape of children as young as four years old, Appellant’s four-year record of
service, and all matters contained in the record of trial. Appellant was sen-
tenced to a dishonorable discharge, confinement for five years, forfeiture of
all pay and allowances, and reduction to E-1. We reassess a sentence—
purged of prejudicial error and appropriate for Appellant’s offense—of a dis-
honorable discharge, confinement for 54 months, forfeiture of all pay and al-
lowances, and reduction to E-1.
C. Remaining Assignments of Error
Appellant also requests relief based on the improper admission of evi-
dence in aggravation, specifically, Mr. KP’s sentencing testimony regarding
the “Blue Pillow” victim (AOE IV), and the conditions of post-trial confine-
ment (AOE VIII). We decline to grant relief on either basis. First, we find the
military judge did not abuse her discretion when she allowed as evidence in
aggravation under R.C.M. 1001(b)(4) Mr. KP’s testimony about the impact on
the “Blue Pillow” victim. The victim was identified as a victim of Appellant’s
offense in that he possessed one image of her that was included in Attach-
ment 1 to the stipulation of fact. Mr. KP testified about the financial and psy-
chological impact resulting from the child pornography depicting the victim
and thus relating to Appellant’s offense.
Second, Appellant cites in his request for relief two particular conditions
of confinement: allegedly dangerous work details and demeaning comments
by confinement officials. We reviewed Appellant’s claim and find it to be
without merit, as “we are not a clearing house for post-trial confinement
complaints . . . .” United States v. Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim.
17
United States v. Linton, No. ACM 39229
Ohio App. 2017) (citation omitted), rev. denied, 77 M.J. 277 (C.A.A.F. 2018). These
remaining issues neither require further discussion nor warrant relief. See
United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
D. Timely Appellate Review
We review de novo whether an appellant has been denied the due process
right to a speedy post-trial review and appeal. A presumption of unreasona-
ble 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. Unit-
ed States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). 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), and Moreno: “(1) the length of the delay; (2) the reasons for
the delay; (3) the appellant’s assertion of the right to timely review and ap-
peal; and (4) prejudice.” Moreno, 63 M.J. at 135.
Appellant’s case was originally docketed with the court on 6 April 2017.
The delay in rendering this decision is presumptively unreasonable. Howev-
er, we determine no violation of Appellant’s right to due process and a speedy
post-trial review and appeal.
Analyzing the Barker factors, we find the length of the delay—one week—
is short. The reasons for the delay include the time required for Appellant to
file his 80-page brief on 29 June 2018, the Government to file its 96-page an-
swer on 8 August 2018, and Appellant to reply on 15 August 2018. The court
is issuing its opinion within two months of Appellant’s reply.
On 23 August 2018, Appellant asserted his right to speedy appellate re-
view “so as to avoid serving additional unlawful confinement.” Appellant be-
gan his five years of confinement on 10 January 2017. The court is reas-
sessing a sentence that includes 54 months of confinement. We find no preju-
dice to Appellant resulting from the delay for the court to complete its review
of his case. We also find the delay is not so egregious that it adversely affects
the public’s perception of the fairness and integrity of the military justice sys-
tem. United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
We also determine that Appellant is not due relief even in the absence of
a due process violation. 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 find the delay in completing appellate review justified and relief for Ap-
pellant unwarranted.
18
United States v. Linton, No. ACM 39229
III. CONCLUSION
The approved findings and sentence as reassessed are correct in law and
fact, and no other error materially prejudicial to the substantial rights of Ap-
pellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the findings and sentence as reassessed are AFFIRMED. 15
HARDING, Senior Judge (concurring in the result):
I concur with my colleagues in their conclusion that the Government
overreached in offering and the military judge erred in admitting the victim
impact statements of Attachment 2 to the stipulation of fact and the result. I
write separately for two reasons.
First, as stated in my dissent in United States v. Hamilton, 77 M.J. 579,
586 (A.F. Ct. Crim. App. 2017), rev. granted, 77 M.J. 368 (C.A.A.F. 2018), I do
not agree with the majority of this court that the Military Rules of Evidence
do not apply to victim impact statements presented under R.C.M. 1001A.
Second, I write to emphasize that, while parties may expressly and volun-
tarily agree to stipulate to matters that would otherwise be inadmissible un-
der the Military Rules of Evidence, the military judge retains the authority to
“reject the stipulation in the interests of justice.” Clark, 53 M.J. at 282 (citing
United States v. Glazier, 26 M.J. 268, 270 (C.M.A. 1988)). In my view, the
military judge, upon becoming aware of the victim impact statement contain-
ing the “humped to de[a]th by a horse and make them get aids and die” lan-
guage, should have queried the trial counsel about it. Specifically, the mili-
tary judge should have asked the trial counsel whether such language could
ever be admissible, whether the military judge should consider such language
in determining the sentence for Appellant, and how such language was con-
sistent with maintaining the dignity and decorum required in a United
15 The Department of Defense Form, Confinement Order (Mar. 2013), dated 10 Janu-
ary 2017, incorrectly lists Specification 2: Distribution of Child Pornography as an
offense of which Appellant was found guilty. He was not. The form and any data en-
tries made in reliance on it must be corrected, and we again remind Air Force per-
sonnel, whose responsibilities include post-trial processing, to exercise care in the
execution of their duties.
19
United States v. Linton, No. ACM 39229
States Air Force courtroom. In the interests of justice, the military judge
should have emphatically rejected this language. The military judge did not. I
do.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
20