United States v. Lee

UNITED STATES, Appellee
v.
Joseph W. LEE, Airman
U.S. Air Force, Appellant
No. 03-0071
Crim. App. No. S29894
United States Court of Appeals for the Armed Forces
Argued October 16, 2006
Decided December 27, 2006
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain John N. Page III (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Major Matthew Ward, (argued); Colonel Gary F.
Spencer, Lieutenant Colonel Robert V. Combs, and Captain Kimani
R. Eason (on brief); Colonel Gerald R. Bruce.
Military Judge: James L. Flanary
This opinion is subject to revision before final publication.
United States v. Lee, No. 03-0071/AF
Judge ERDMANN delivered the opinion of the court.
Airman Joseph W. Lee was convicted at a contested special
court-martial of violating Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934 (2000), by possessing one or
more images of child pornography in violation of 18 U.S.C. §
2252A (2000). A military judge sentenced Lee to a bad-conduct
discharge, confinement for seventy-five days, and reduction to
airman basic. The convening authority approved the sentence and
the United States Air Force Court of Criminal Appeals affirmed
the findings and sentence. United States v. Lee, 57 M.J. 659,
664 (A.F. Ct. Crim. App. 2002).
On January 20, 2004, this court set Lee’s conviction aside
in light of our decision in United States v. O’Connor, 58 M.J.
450 (C.A.A.F. 2003), and authorized a rehearing. United States
v. Lee, 59 M.J. 261 (C.A.A.F. 2004) (summary disposition). At a
rehearing before a military judge, Lee was again convicted of
possessing child pornography in violation 18 U.S.C. § 2252A.
Lee was sentenced to a bad-conduct discharge, confinement for
seventy-five days, and reduction to the lowest enlisted grade.
Again, the convening authority approved the sentence and the
Court of Criminal Appeals affirmed the findings and sentence.
United States v. Lee, No. ACM S29894 (A.F. Ct. Crim. App. July
28, 2005). We granted review of a single issue questioning
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whether Lee should have been afforded the assistance of an
expert consultant to assist in the preparation of his defense.1
In trials by courts-martial, the accused is afforded equal
access to witnesses and evidence, including a right to the
assistance of necessary experts without regard to his ability to
pay for those expert services. Article 46, UCMJ, 10 U.S.C. §
846 (2000); United States v. Garries, 22 M.J. 288, 290 (C.M.A.),
cert. denied, 479 U.S. 985 (1986). Lee contends that he was
wrongly denied the assistance of an expert consultant in
forensic computer examination in order to prepare to meet the
charge against him and to cross-examine the Government’s expert
in computer forensics. Lee argues that an expert consultant was
necessary to the defense in order to understand the scientific
techniques used to review and analyze computer graphic images
and to determine whether such images were real or computer-
generated. We conclude that under the circumstances of this
case, Lee was denied his right to expert assistance for the
preparation and presentation of his defense.
1
On March 29, 2006, we granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
DENIED THE DEFENSE REQUEST FOR AN EXPERT CONSULTANT IN
THE FIELD OF FORENSIC COMPUTER EXAMINATION.
62 M.J. 197 (C.A.A.F. 2006).
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Background
Prior to the rehearing, Lee’s defense counsel was provided
a Government witness list. Among the listed witnesses was Mr.
Michael Buratowski, a forensic expert from the Defense Computer
Forensics Laboratory who had prepared a “Media Analysis Report”
based upon his examination of graphic images seized from Lee’s
laptop computer. Mr. Buratowski would offer expert testimony
that the images taken from Lee’s computer were real photos.
After reviewing the report and interviewing Mr. Buratowski,
defense counsel requested the employment, at Government expense,
of Mr. Marcus Lawson as a confidential expert consultant. In
support of this request defense counsel noted:
7. Defense interviewed Mr. Burtowski [sic] on 13 Aug
04. During this interview, Mr. Burtowski [sic] stated
that the media analysis used to analyze the images is a
fairly new process, approximately one year old. He also
stated that he had never testified before using this
type of picture analysis, that it is not nationally
certified, that each forensic lab has different ways of
analyzing pictures, and that the picture analysis of
this nature is an evolving process.
8. The defense does not have the necessary
qualifications to prepare adequately for this case,
especially for evidence provided to the defense a week
before trial. The defense requires an expert to analyze
the report, do its own analysis of the pictures, analyze
the hard drive and help formulate possible defenses.
9. The world of forensic computer analysis, the
underlying science and anything else associated with
those subjects, is a very large area of knowledge. It
takes someone with specialized knowledge in that field
to understand that world, and this expertise is
something the defense lacks at this time. Without this
knowledge, we cannot adequately assist AB Lee in his
defense. Furthermore, we are hamstrung by new forensic
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evidence that was provided a week before trial. Without
this knowledge, we are forced to take testimony from the
government’s forensic examiner at face value. We do not
have the expertise to cross-examine or otherwise
challenge witness testimony or conclusions about the
results of this media analysis. This inadequacy will
result in a violation of AB Lee’s right to present a
defense if it is not remedied.
Defense counsel’s request indicated that the expert would be of
assistance to the defense both in preparing for trial and as a
potential expert witness at trial. The Government did not
provide an expert consultant to the defense prior to trial.
At trial, Lee’s counsel made a motion to compel appointment
of an expert consultant. The following discussion between the
military judge and defense counsel transpired during the hearing
on that motion:
DC: Your Honor, on 9 August 2004, the defense was
presented with a forensic analysis report or, as it is
termed on the report, a Media Analysis Report. It was
given to the defense approximately a week and a half
before trial. The defense had no notice that this
report was being given, that it was even being
analyzed, and the prosecution is offering it to prove
up the charge in Article -– under 18 U.S.C. 2252(a).
The defense has not had an opportunity or the
knowledge to adequately prepare for this trial due to
our lack of expertise in media analysis. And, I’d
like to proffer that the expert witness will say that
it is a fairly new technology that has been developed
since U.S. v. Ashcroft [sic] to prove that the images
are real. The expert witness will opine that these
images are real. And, the defense would request an
expert, number one, to analyze the report either in
forensic computer examination or, more precisely,
media analysis. We would request an expert to analyze
the report and help us develop any potential cross-
examination. And, without an expert to even analyze
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the veracity of the report, we are burdened at trial.
Thank you, Your Honor.
MJ: Okay. Counsel, let me ask you this before I take
trial counsel’s response to this. You say you found
out about the result of the test about a week and a
half ago?
DC: Yes, Your Honor.
MJ: And, at that time, did you have access to where
you could either talk in person or telephone the
government witness involved the case?
DC: We received the contact information for the
witness on the 9th, that is the first notice we had of
the witness.
MJ: Okay. And, today’s the 19th?
DC: Yes, Your Honor.
MJ: So you’ve had the contact information for about
ten days?
DC: Yes, Your Honor.
MJ: And you did, in fact, call and contact this
particular witness?
DC: Yes, Your Honor.
MJ: Okay. And did you have a chance to discuss this
with him?
DC: Yes, Your Honor.
MJ: And did you -– you did, in fact, conduct an
interview with him about the test itself, is that
correct?
DC: Yes, Your Honor.
MJ: Okay. And, after that, if you’d have chosen to,
did you have access to senior attorneys, other than
yourself, in your chain of command to discuss the
issue with?
DC: Yes, Your Honor.
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MJ: And, did you, in fact, discuss this issue with
them also?
DC: Yes, Your Honor.
MJ: Okay. And did you discuss the analysis
techniques that were being used?
DC: Yes, Your Honor.
MJ: Okay. And, other than what you’ve got in your
motion, was there any other defect or any other
problem with the testing process other than what
you’ve stated in your motion here?
DC: There was no, to our knowledge, no defect in the
testing process; however, we do not have the expertise
to even know if there is a defect.
MJ: Okay. Well, when you were talking to the
government witness, was he aware of any defects that
were in the testing process?
DC: No, Your Honor.
MJ: All right. Did he appear to be confident with
the testing results?
DC: Yes, Your Honor.
MJ: Okay. Did he give you anything, at all, other
than just the fact that it was a new technique that
would make you think that this is an invalid process
based on the science of it?
DC: No, Your Honor.
Government counsel argued that the subject matter did not
necessitate a defense expert and that the defense had had
adequate time to prepare on the key issue of whether the graphic
images were or were not actual. The military judge denied the
defense motion stating:
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United States v. Lee, No. 03-0071/AF
[The court finds], by preponderance, that the defense
did, in fact, contact the expert, had an opportunity
to interrogate him, to ask him specific questions
about the programming, about the process, that based
upon the proffer given and the questions from the
court of the defense, the expert did not know of any
glaring -– not glaring -– but any defects in the
process or the science that was behind the imaging
process, and that there [were] no apparent defects in
that process based on the limited evidence received by
the court so far. As a result of that, the court
finds that there is no relevant and necessary
requirement for an expert based upon this, based upon
what the defense has proffered, the court finds,
therefore, that the motion for the request is denied.
Mr. Buratowski was recognized as an expert in computer
forensic and digital photo analysis and testified at the trial.
He demonstrated the qualitative and quantitative analysis
examination process for computer images and he discussed
relevant concepts and tools such as: pixilation and
randomization of colors within images; the bas relief filter;
the glowing edges filter; the sharpen more filter; the
solarization filter; and the four channels that make up a
digital image (red, green, blue, and luminosity). Mr.
Buratowski related information about his examination of five
graphic images taken from Lee’s laptop computer as well as his
expert opinion that the five images were real as opposed to
virtual.
Discussion
At a court-martial, the parties and the court “shall have
equal opportunity to obtain witnesses and other evidence.”
Article 46, UCMJ. Prior to trial, the defense must submit a
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request for employment of an expert to the convening authority
supported, in part, by a “statement of reasons why the
employment of the expert is necessary.” Rule for Courts-Martial
703(d). If the request is denied by the convening authority,
that request may be renewed at trial before the military judge.
Id. On appeal, we review the military judge’s ruling on a
request for expert assistance for abuse of discretion. United
States v. Gunkle, 55 M.J. 26, 32 (C.A.A.F. 2001).
An accused’s entitlement to expert assistance is not
limited to actual expert testimony at trial. The entitlement to
that expertise is available “before trial to aid in the
preparation of his defense upon a demonstration of necessity.”
United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005);
see also United States v. Kreutzer, 61 M.J. 293, 305 (C.A.A.F.
2005). To demonstrate that necessity, “[t]he accused must show
that a reasonable probability exists ‘both that an expert would
be of assistance to the defense and that denial of expert
assistance would result in a fundamentally unfair trial.’”
Bresnahan, 62 M.J. at 143 (quoting Gunkle, 55 M.J. at 31). To
test the adequacy of this showing of necessity, we apply a
three-part test: “[t]he defense must show: (1) why the expert
assistance is needed; (2) what the expert assistance would
accomplish for the accused; and (3) why the defense counsel were
unable to gather and present the evidence that the expert
assistance would be able to develop.” Id. (footnotes omitted)
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(citing United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A.
1994); United States v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F.
1996)). On the facts of this case, we conclude that the defense
made an adequate showing of necessity.
Whether the alleged images of child pornography were real
or virtual was, as defense counsel asserted, a critical issue in
this case. The Government’s witness list revealed that it would
rely on forensic testing and expert testimony to demonstrate
that the images were real. Defense counsel requested Mr.
Lawson’s expertise to assist in reviewing the Government’s Media
Analysis Report, to analyze the relatively novel methods used to
generate that report, to conduct an independent analysis of the
images from Lee’s computer, and to assist the defense in
preparing to meet Mr. Buratowski’s expert testimony. This
assistance would provide the basis upon which defense counsel
could cross-examine the Government expert and possibly challenge
the actual or real nature of the graphic images. Defense
counsel demonstrated that this expert assistance was necessary
to defend against key evidence of guilt to be presented by the
Government.
We also agree with the defense counsel’s assertion that the
defense did not have the qualifications or expertise to deal
with forensic image analysis as presented by the Government’s
expert witness. Defense counsel’s assertion that the scientific
discipline involved was novel, evolving, and varied from lab to
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United States v. Lee, No. 03-0071/AF
lab is supported by Mr. Buratowski’s testimony. The image
analysis process used on the images from Lee’s computer was
created just over a year before the rehearing. Mr. Buratowski
was one of only three individuals in the Department of Defense
qualified to do digital media analysis and even he had not
testified in court as an expert in that discipline. It is not
reasonable to expect that defense counsel could learn an
entirely new scientific discipline, test the Government’s
analytical report, and prepare cross-examination, particularly
given the very short time before this rehearing was scheduled.
In concluding that the defense met its burden of
establishing necessity, we are concerned with the manner in
which the military judge responded to this request. The
military judge’s questioning of defense counsel reflects that
the military judge found that since the defense counsel had the
opportunity to discuss the images with the Government’s expert,
there was no need for a separate defense expert. Aside from the
common-sense conclusion that Mr. Buratowski would be unlikely to
cast a critical eye upon his own expertise, his analytical
methods, or his professional conclusions, making a selected
Government expert available for interview prior to trial does
not properly respond to a defense showing of necessity for
expert assistance.
In United States v. Warner, 62 M.J. 114, 120 (C.A.A.F.
2005), we commented that “Article 46 is a clear statement of
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congressional intent against Government exploitation of its
opportunity to obtain an expert vastly superior to the
defense’s.” As this case demonstrates, the playing field at
trial is rendered even more uneven when the Government benefits
from scientific evidence and expert testimony while the defense
is wholly denied a necessary expert to prepare for and respond
to the Government’s expert. Denying Lee the expert assistance
of a defense consultant was an abuse of discretion.
Before we reverse this case for an abuse of discretion, we
must determine that the error materially prejudiced Lee’s
substantial rights. Article 59(a), UCMJ, 10 U.S.C. § 859(a)
(2000). In this case, the Government met a critical element of
its burden of proof by showing the graphic images to be real
through scientific analysis and expert testimony. Lee, on the
other hand, was denied the asset necessary for him to challenge
that Government evidence and prepare a defense. Denying Lee the
resources necessary to prepare and present a defense was
prejudicial error.
In coming to this conclusion we are cognizant of our recent
decision in United States v. Cendejas, 62 M.J. 334 (C.A.A.F.
2006), which was issued after the trial and the Court of
Criminal Appeal’s decision in this case. Cendejas also dealt
with graphic images of alleged child pornography and we held
“that a factfinder can make a determination as to whether actual
children were used to produce the images based upon a review of
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the images alone.” Id. at 338. Arguably then, Lee was not
prejudiced because the factfinder, in this case the military
judge, had before him the graphic images from which he could
draw his own conclusion that they were actual. However, in
Cendejas we specifically stated that our holding did “not
prevent a defendant from having the opportunity to challenge the
images on the basis that they do not depict an actual child.”
Id. Here, the Government clearly relied upon more than just the
images themselves and Lee did not have the opportunity to
prepare a challenge to the Government’s evidence or to the
images alone.
We are also aware that the military judge made special
findings in which he said that his findings were “bolstered by
the testimony of . . . Mr. Buratowski.” The military judge
further stated: “Finally, upon reviewing the images in
Prosecution Exhibits 2 through 5, and applying the court’s
commonsense, knowledge of human nature and the ways of the
world, the court is independently convinced, beyond a
reasonable[] doubt[,] that the images are of real children
ranging in ages from six to ten years.” Nonetheless, we cannot
be confident in the fairness of the result of this trial where
Lee was deprived of the opportunity to have expert assistance
that could have undermined the military judge’s conclusion.
Courts-martial must not only be just, they must be
perceived as just. The requirement of Article 46, UCMJ, for
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equal access to witnesses and evidence secures that just result
and enhances the perception of fairness in military justice.
Where the Government has found it necessary to grant itself an
expert and present expert forensic analysis often involving
novel or complex scientific disciplines, fundamental fairness
compels the military judge to be vigilant to ensure that an
accused is not disadvantaged by a lack of resources and denied
necessary expert assistance in the preparation or presentation
of his defense.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is reversed and the findings and sentence are
set aside. The record of trial is returned to the Judge
Advocate General of the Air Force. A rehearing may be ordered.
14