On Thursday CAAF granted review in the Air Force case of United States v. Yanez:

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here and reveals that a marital privilege issue was initially raised personally by the appellant, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of possessing child pornography in violation of Article 134. He was also convicted in accordance with his pleas of guilty of violating a lawful general order by wrongfully possessing sexually explicit material in the United States Central Command Area of Responsibility in violation of Article 92. He was sentenced to confinement for one year and a dishonorable discharge.

All of the images were discovered when another airman, who had the appellant’s permission to use the appellant’s computer, discovered sexually explicit photos of the appellant’s wife and child pornography in a folder named “Forbidden” on the computer. At trial the appellant moved to suppress the photos of his wife, arguing that they were confidential marital communications. The military judge denied the motion. The appellant also presented a defense that someone else downloaded the child pornography to his computer. Then, in closing argument, the trial counsel tied the two sets of images together with an argument that:

[T]he members could find the appellant’s knowing possession of child pornography because he stored the images of children in the same “forbidden” folder – the “private stash” where he stored “the naked pictures of his wife.”

United States v. Yanez, No. 38181 (A.F.Ct.Crim.App. Dec. 17, 2013) (link to slip op.). Rejecting an asserted error in the admission of the photos of the appellant’s wife the CCA concluded:

Assuming we were to find error, [Footnote: We leave for another day whether we do so on these facts.] a military judge’s erroneous admission of a confidential marital communication is reviewed to determine whether any prejudice arising from such admission was harmless. . . . [W]e find no prejudice. The strength of the Government’s case was considerable. . . By comparison, the defense’s case was based on the strained theory that someone other  than the appellant could have downloaded the child pornography to his computer. . . . The trial counsel’s argument that the colocation of the child pornography and the photos of the appellant’s wife was a sound one; the materiality and quality of the evidence – i.e., that a husband could reasonably be expected to privately store sexually explicit photos of his wife – was persuasive. Nevertheless, on balance and in light of the overwhelming strength of the Government’s case even absent those photos, we find any error occasioned by the admission of such photos to be harmless.

Id., slip op. at 7.

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