Back in April, in this post, I discussed the Air Force CCA’s decision on a Government interlocutory appeal in United States v. Buford, No. 2013-26 (A.F.Ct.Crim.App. Apr. 4, 2014) (link to order).

The appeal involved the suppression of evidence discovered on both the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The military judge found that a security forces member was acting in an official capacity when, at request of the accused’s spouse, he viewed and collected evidence from the accused’s Facebook account, e-mail account, and thumb drive, and that he violated the accused’s reasonable expectation of privacy.

The CCA found that the accused’s wife gave valid consent for a search of the laptop and thumb drive, but not for a search of the third-party internet sources utilizing the laptop, and partially affirmed the judge’s ruling suppressing the third-party sources, writing:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted).

At the time of the post, I predicted that the Air Force would certify the case to CAAF. A few weeks later I identified an overall appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Yesterday, the Air Force certified Buford:

No. 14-6010/AF.  U.S. v. Aaron M. BUFORD. CCA 2013-26. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

I’ll be interested to see facts that explain why the Air Force is pursuing this litigation rather than just serving a subpoena on Facebook and the email provider (based on the information provided by the accused’s wife prior to the search).

12 Responses to “The Air Force certifies Buford”

  1. J says:

    From personal experience, it’s because most internet “providers” don’t view military courts as having the ability to subpoena them.

  2. RKincaid 3 (RK3PO) says:

    Your identified “appearance of bias” in the certification process remains 100% spot-on.  One wonders why it is not obvious to our friends in the AF.

  3. stewie says:

    Really? Because I’ve never seen or heard of any issues in subpoena’s being responded to by internet providers to TCs (or MJs).

  4. Phil Cave says:

    FB will not respond even to an MJ order.  I believe that is actually in the statute, not just policy.
    You need a federal magistrate warrant.  Same goes for other ISP’s.
    Been there done that.

  5. J says:

    Mr. Cave nails it. It’s been a while since I’ve dealt with this (or any other trial) issue, but I do believe it’s a statutory issue.

  6. Zachary D Spilman says:

    Are there not other agencies within the executive branch that the DoD could turn to for help in a situation like this? Is there not some sort of lawmaking branch of government that could provide any necessary statutory relief?

  7. Phil Cave says:

    A recent FB respons to a TC in a case of mine earlier this year.
     
    “We are in receipt of your request. Federal law prohibits service providers from disclosing the contents of communications (e.g., messages, comments, photos) without a search warrant. See 18 U.S.C. § 2702.  Your request seeks only content and we are therefore unable to provide any responsive data.  
    Thank you,
    Law Enforcement Response Team”
    This then lead the TC to get the AUSA to get a federal warrant.  Interestingly, the warrant was more narrow than either I or the TC wanted and needed for the appropriate discovery.

  8. The Silver Fox says:

    I love the repeated monday-morning quarterbacking done on this blog by individuals that have no idea what the complete facts are in the cases they opine about.  Maybe the government is not pursuing the FB and e-mail material because the crucial evidence needed to prosecute is not located there.  Maybe the issue certified indicates more accurately where the evidence needed to prosecute is located. 

  9. The Silver Fox says:

    P.S., WRT to abusing the certification process, you should maybe check to see if the defense requested review in the case you are up-in-arms about, as well.  They did so in Buford.  Or, so I’ve heard.

  10. Zachary D Spilman says:

    Well, The Silver Fox, the AFCCA’s conclusion was:

    We hold the military judge did not err in granting the motion to suppress the evidence derived from the appellee’s Facebook account, e-mail account, and HP laptop. The military judge made detailed findings of facts supported by the record, accurately described the applicable law, and reasonably concluded the Government had not met its burden on the admissibility of those items of evidence. As such, with regards to the evidence derived from the appellee’s Facebook account, e-mail account, and HP laptop, the military judge did not abuse her discretion. 

    We hold that the military judge erred when granting the motion to suppress the evidence contained on the Dell laptop and the Centon thumb drive. 

    Order at 8 (emphases added). This appears to create five areas of suppression: (1) Facebook, (2) email, (3) HP laptop, (4) Dell laptop, (5) Centon drive. Notably, the CCA found the search of the HP laptop to be derivative of the searches of the Facebook and email accounts. Order at 7.

    The certified issue asks:

    Whether the military judge abused her discretion by suppressing evidence from the Dell laptop, Hewlett-Packard laptop, and Centron hard drive.

    Perhaps the certified issue abandons any effort to overrule the judge on the suppression of the Facebook and email evidence. Or perhaps the Air Force JAG doesn’t agree with the five-part delineation. We’ll find out when the briefs are posted.

    But the certified issue appears clearly prosecution-friendly. A defense-friendly issue would be limited to only the Dell laptop and Centon drive (the two things the CCA found should not have been suppressed).

    And I think the apparent bias in favor of the prosecution in the other certifications is well-documented in my April post. As I wrote:

    [T]hese eleven Air Force cases have something in common (besides the fact that TJAG felt it necessary to seek civilian review at CAAF of the decisions of his own hand-selected subordinates at the CCA). The certifications are almost exclusively to the benefit of the prosecution. Subtracting the two cases with cross-certifications (where TJAG certified issues only after CAAF granted review of the service members’ petitions), seven of the remaining nine cases involve CCA decisions that favored the service member. The other two are Wilson and McPherson, with practically-identical Article 12 issues certified to CAAF. But in Wilson, the appellant asserted an 8th Amendment violation for 23-hour/day administrative segregation (and specifically rejected the argument that Article 12 was violated), and in McPherson the appellant raised the Article 12 issue in the context of a claim of ineffective assistance of counsel (along with other issues). The certifications in these two cases might benefit the service member in the long run, but they’re not the main issues that were pursued on automatic appeal at the CCA. And none of the certifications is a clear effort in support of the service member and against the prosecution (though the opposite is certainly true).

  11. The Silver Fox says:

    I’d argue the fact the government appealed the whole kit and caboodle (including the evidence the CCA said was go to go) shows the lack of any bias here.
    And, if you look at the CCA’s opinion, the “cloud” evidence is really only important in this case to determine whether the other evidence (HP & Dell laptop, Centon hard drive)–obtained with search authorizations and consent –is fruit of the poisonous tree.  I imagine the issue is framed the way it is because 1) the military judge’s order technically only supresses the physical evidence, and 2) the prosecution only seeks to admit the forensic evidence captured from the three pieces of electronic media.  But, I’m just spitballing.

  12. Zachary D Spilman says:

    I’d tend to agree, except that:

    When reviewing a decision of a Court of Criminal Appeals on a military judge’s discretionary ruling, “we typically have pierced through that intermediate level” and examined the military judge’s ruling. See United States v. Siroky, 44 M.J. 394, 399 (C.A.A.F.1996).

    United States v. Feltham, 58 M.J. 470, 473 (C.A.A.F. 2003).

    Of course I’d be thrilled to learn that this certification is indeed a joint effort of the prosecution and the defense.