The AFCCA has issued two interesting unpublished opinions of note:  United States v. Newsom, and United States v. McIntyre (UCMJ art. 62 appeal).

United States v. Newsom (BLUF):

 We hold that the military judge did not err in failing to suppress the confession.  We caution against any overly broad reading of our holding.  We are deeply troubled by the investigator’s decision to tell the appellant, after an Article 31, UCMJ, rights advisement, that not answering questions is lying by omission and could result in his being sent to jail.  This is an incorrect statement of the law. Even more troubling, under different facts such conduct could very well result in a clear violation of Article 31, UCMJ.

“In his short Air Force career, the appellant engaged in numerous criminal acts which eventually led to his court-martial.” On 23 August appellant was questioned by OSI after waiving his UCMJ art. 31, rights about these acts.  He admitted to quite a bit of misconduct.

After these admissions, the appellant was asked who provided the alcohol. The appellant hesitated in responding. The investigator told that appellant that not telling what he knew was “lying by omission” and could get him put in jail. The appellant then identified the persons who had provided the alcohol.

More admissions followed, and appellant was re-interrogated several times for more admissions.  The military judge denied a motion to suppress all admissions and derivative evidence obtained after the “lying by omission,” question.  The government did not offer any of the offending admissions at trial (mooting the issue somewhat), but did call a witness partly identified through those admissions (leaving the derivative issue).

The government wins the issue based on the totality of the circumstances, and probably rightly so – on the facts.  But there is a cautionary tale.  OSI in particular, but it is not limited to them, have a habit of engaging with an accused who exercises their right to counsel, in such a way as to encourage a change of heart.  Their patter is a subtle approach, and this case is representative of a meme to encourage a change of heart in declining to talk with military law enforcement.

United States v. McIntyre (BLUF):

 We hold the military judge did not err in granting the motion to suppress the appellee’s oral and written statements for lack of corroboration. The military judge made detailed findings of facts supported by the record, accurately described the applicable law, and reasonably concluded that the Government had not sufficiently corroborated the appellee’s confessions.

This is a CP case.

 [The appellant] vacillates on his culpability but ultimately admits to viewing child pornography on his personal computer laptop while on active duty and possessing child pornography on a “Mac-only” external hard drive.  The appellee explained that the Macbook computer he used to access the external hard drive had crashed prior to him coming on active duty.

Seizure and searches of appellant’s computers and media followed.  I will rehearse most of the facts here.

 On the Macbook, DCFL found 24 images of suspected child pornography and 1 confirmed National Center for Missing and Exploited Children (NCMEC) picture; however, the images were in unallocated storage space, which does not attribute user information or original date/time.  No child pornography images were found on the Dell computers.  The appellee told the agents during his interview that he no longer downloaded and saved images, and that he regularly cleared his internet history to avoid confrontation with his wife. Consequently, DCFL did not find actual video files of adult pornography or child pornography on the Dell computer.

The military judge . . . considered whether or not there was a hard drive in the possession of the appellee during the charged time frame and what corroboration existed to support the appellee’s statement that there actually were images of minors engaged in sexually explicit conduct on the external hard drive. Ultimately, the judge determined the Government had not provided any independent evidence the appellee had possessed the hard drive while on active duty, and there was no evidence to connect the images in unallocated space to what was on the missing hard drive. Specifically, the military judge identified that DCFL was unable to determine when the images were first accessed or deleted on the Macbook and whether any of them were transferred to the external hard drive.

With regards to viewing child pornography, the military judge considered the partial internet history recovered from the Dell laptop, the Bing search engine the appellee said he had used for searches of child pornography, the lack of the content searched for or viewed, and the search terminology used. The judge stated that while the appellee’s statement was vague, it did indicate the appellee continued to search the internet using the Bing search engine for images of males and females as young as 13 years of age. However, he determined no corroboration existed because the DCFL report did not reflect the actual content of searched or viewed items, and the search terms recovered by DCFL for the appellee’s Bing searches were not indicative of child pornography. The judge did not discuss the Macbook unallocated pictures in his analysis of the viewing charge.

The Law:

 The corroborative evidence must include “substantial independent evidence” that the crime has been committed. Id. at 156. The corroborating evidence does not have to prove the crime beyond a reasonable doubt, nor does it have to meet a preponderance. Id.  The independent evidence only needs to raise the inference of truth of the facts stated in the admission or confession. Mil. R. Evid. 304(g)(1). It is “sufficient if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged.” Smith, 348 U.S. at 156. “[O]ne available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense ‘through’ the statements of the accused.” Id. Not every element of an offense to which the confession pertains needs to have independent evidence in order to satisfy the corroboration requirement. See United States v. Maio, 34 M.J. 215, 218 (C.M.A. 1992).  However, the “reliability of the essential facts must be established.” United States v.  Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997).

Here is where I think the court goes off track, but ultimately comes to the right result – as did the military judge.

 Our superior court has described the quantum of evidence necessary for corroboration as “slight” or “very slight.” United States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987) (characterizing the amount of required corroboration as “slight”); United States v. Grant, 56 M.J. 410, 416 (C.A.A.F. 2002) (required corroboration “may be very slight”).

I realize I likely stand along on this, but I do not believe CAAF’s “slight” or “very slight” quantum is consistent with Opper.

Independent evidence is evidence that is not based on or derived from the accused’s extra-judicial statements.  Opper v. United States, 348 U.S. 84, 93 (1954).  Opper requires substantial independent evidence; whereas the military appellate courts have diminished that important requirement to “slight” evidence.  Opper is an opinion delivered by Justice Reed.  Justice Douglas concurred in the result, believing that Forte stated the better requirement of how much corroboration was needed.  Id., at 95.

     The American Heritage Dictionary variously defines substantial as: True or real; not imaginary, Solidly built; strong, Ample; sustaining: a substantial breakfast; Considerable in importance, value, degree, amount, or extent: won by a substantial margin.  That same dictionary defines slight as: Small in size, degree, or amount: a slight tilt; a slight surplus; Lacking strength, substance, or solidity; frail: a slight foundation; slight evidence; Of small importance or consideration; trifling: slight matters; Small and slender in build or construction; delicate.  An alternative dictionary defines slight as:  having little substance or significance; “a flimsy excuse”; “slight evidence”; “a tenuous argument”; “a thin plot” [syn: flimsy] almost no or (with ‘a’) at least some; very little; “there’s slight chance that it will work”; “there’s a slight chance it will work.”  See WordNet® 2.1, © 2005 Princeton University.

In United States v. Yeoman, 21 M.J. 1, 4 (C.M.A. 1987), the Court of Military Appeals, stated that “the quantum of evidence” needed to raise such an inference is “slight.”  The court cited to Opper, and then some string cites to several federal Circuit Court of Appeals cases, as a basis for its opinion.  I think that was not the quantum of evidence found and required to be proper in Opper.  In Opper it was “substantial” independent evidence.  In my view, an erroneous reading of Opper has continued through a series of military appellate cases.  In effect, the military appellate cases have created the functional equivalent of an exception to the rule – an exception that eviscerates and swallows the rule.  See e.g. United States v. Maio, 34 M.J. 215 (C.M.A. 1992).  The court in Maio, stated that the “characterization [of slight corroboration] reflects our understanding that it need not establish beyond a reasonable doubt or by a preponderance of the evidence the truth of the essential facts stated in the confession.”  Id. at 218.  This understanding is flawed.  It is flawed because it is impossible to rationalize the military quantum requirement of “slight” with the Supreme Court’s quantum of “substantial” independent evidence.

Judge Cox, makes the point.

 Over the years since Smith and Opper, courts have tended to minimize, in their verbal formulations, the degree of corroboration necessary to receive statements of an accused and to sustain convictions based thereon. Still I know of no conviction that has been sustained in which, apart from the words of the accused, there was no evidence whatever that a crime occurred.  Looking beyond mere verbiage, the cases convince me that, in America, we do not allow someone to be convicted unless there is some level of external evidence that a crime has occurred, no matter how many times or ways the accused has admitted it outside a courtroom. Whether this policy is based on due process or some other constitutional value is not specified.

United States v. Maio, 34 M.J. at 221 (Cox, J., concurring).

Here the military judge got it right because he was, in my view, applying a higher quantum than “slight” or “very slight.”  I expect the AF will want to appeal.

 Another case.  Check out United States v. Yammine. 69 M.J. 70 (C.A.A.F. 2010) and United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009), a useful case to read in context.  Yammine and now McIntyre, among other cases, illustrate the complexity of CP and computer crime cases and why the litigate-to-mitigate strategy may be better than a quick guilty plea.

5 Responses to “In the AFCCA”

  1. Dew_Process says:

    Only the AF CCA could “forget” the holding in Miranda. That is of course if any of the panel ever actually read the complete decision, which most lawyers and judges have not.

  2. Anonymous Air Force Senior Defense Counsel with initials NM says:

    I don’t understand this statement in the Newsom opinion:  “Even more troubling, under different facts such conduct could very well result in a clear violation of Article 31, UCMJ.”  I’m confused as to why, the investigator saying he could be prosecuted for remaining silent could result in a clear violation.  Either it does or it doesn’t, no?
    Am I reading this wrong?

  3. TM says:

    Anon NM:  Agreed.  I believe the Court meant to say that the Accused was not prejudiced by the violation because the STC wisely decided not to use the subsequent confession.  This, despite the DC’s clever argument that the main Gov’t witness’s testimony was derivative of the confession because he only spilled the beans in his interview when confronted with the Accused’s confession.  Disclosure:  I was the aforementioned DC with the clever but unsuccessful argument along with another clever DC, with the initials BB.

  4. Anonymous Air Force Senior Defense Counsel with initials NM says:

    Ah yes.  Good old BB… I hope you guys at least made it to the Sip n Dip.  BB would’ve loved it.

  5. AF Capt says:

    I recall a few good evenings at Sip n Dip and Steinhouse with both those ADCs.