Last Thursday a three-judge panel of the NMCCA issued an unpublished opinion in United States v. Nichlos, No. 201300321 (N-M. Ct. Crim. App. Sep. 18, 2014) (link to unpub. op.), reversing a conviction for possession of child pornography after finding that the evidence is legally insufficient to prove that the appellant possessed the three images of child pornography on the date charged.
The opinion – authored by Judge Jamison – is lengthy and includes a lot of facts, but the following sentences provide a good preview:
There is no question that the appellant possessed child pornography; the question is whether the appellant “knowingly possessed” child pornography on the charged date. Having concluded that the Government presented a circumstantially strong case that at some point in time while the appellant owned his laptop, he had received, downloaded, viewed, and knowingly possessed child pornography, we turn next to the Government charging decision. Although the Government’s case as to knowing possession may have been circumstantially strong, the decision to charge “on or about 16 May 2011” became the Government’s evidentiary Achilles heel.
Slip op. at 15 (emphasis in original). Citing CAAF’s decision in United States v. Navrestad, 66 M.J. 262, 267 (C.A.A.F. 2008), the CCA focuses on the fact that the three images at issue were in unallocated space on the appellant’s computer (meaning that they were deleted files), and explains that:
In this case, the Government presented no evidence that the appellant had the required forensic tools to retrieve digital files from the unallocated space of his computer. In fact, Ms. SH testified that once a digital file is in unallocated space, a user does not have the ability to access that digital file. Record at 1449. Because the appellant was unable to access any of the video files in unallocated space, he lacked the ability to exercise “dominion or control” over these files.
Slip op. at 17. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of knowingly possessing child pornography in violation of Article 134. He was sentenced to confinement for six months, reduction to E-1, and bad-conduct discharge. The CCA’s finding affects only one of the specifications (the images at issue in the other specification were not in unallocated space).
The affected specification charged the appellant with possessing the images on or about 16 May 2011, but “following extensive deliberation, the members convicted the appellant of knowing possession of the three video files except for the words ’16 May 2011′ and substituting the words ‘3 March 2011.'” Slip op. at 12. The military judge instructed the members that they could change the charged date by up to 150 days when making their findings. Id. n.7. Notably, the judge did not permit a change of approximately two years, slip op. at 18, to a date when the file sharing program LimeWire was used with search terms that were “highly indicative of child pornography,” slip op. at 14.
Judge Jamison’s opinion openly speculates about how the members reached the March 3, 2011, date in their findings:
Because the 3 March 2011 date was not argued or emphasized by either party at trial, we are left to speculate how the members arrived at that particular date. Two possibilities emerge, one more likely than the other. The only evidence discussed on the record that references 3 March 2011 is within the context that this was the date the appellant password-protected or changed the password on his laptop. Id. at 1579. The more likely scenario is the fact that 3 March 2011 is referenced in the document containing the link files to the most recently viewed video file by the appellant. See PE 5. There was no discussion in the record as to the significance of the 3 March 2011 date in PE 5 as to what particular video files were viewed. A review of the record reveals that the significance of that date was that it represented “the most recent time any file of that type (.mov or .qt) was accessed, not when the specific files in question were accessed.” See PE 6 for Identification at 12. Because there was no testimony or evidence presented regarding the 3 March 2011 date, we cannot rule out that the members may have interpreted that particular date as the date that the appellant viewed every one of those video files containing the .mov format. If that were true, this case would be a much stronger case in terms of legal and factual sufficiency. That, however, is not an accurate premise. In fact, based on PE 6 for Identification, the 3 March 2011 date could be the most recent time that the appellant accessed any video file in the .mov file format. In this regard, the 3 March 2011 date, bereft of any evidentiary or testimonial linkage, fares no better than the charged date of 16 May 2011.
With regard to the 3 March 2011 date, no evidence was presented to demonstrate: (a) when the video files were deleted; (b) when or how the videos were downloaded; (c) when they were viewed; or, (d) whether the appellant knew enough about computers to understand that when one deletes a file, it is not permanently deleted, but exists in unallocated space. Ms. SH was only able to testify that the videos had been on the computer at some point and then deleted. Neither Ms. SH nor the defense expert were able to testify with any degree of scientific certainty when the videos had been deleted from allocated space on the appellant’s laptop.
Slip op. at 19-20.
Because of these facts the CCA concludes that “the evidence was legally insufficient to prove that the appellant knowingly possessed the three charged video files on the date alleged in the charge sheet or the date that the members found the appellant guilty by exceptions and substitutions.” Slip op. at 20.
The court dismisses the affected specification and remands for a sentence rehearing.