Argument Preview: Are images in unallocated space and a cache (along with admissions to law enforcement) sufficient to sustain a conviction for wrongfully viewing child pornography, in United States v. King
CAAF will hear oral argument in the Air Force case of United States v. King, No. 18-0288/AF (CAAFlog case page), on Tuesday, November 6, 2018, at 9:30 a.m. A single granted issue challenges the sufficiency of the evidence to prove that King wrongfully viewed child pornography:
The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?
Unallocated space is a computer storage term that refers to unused space on the storage device (hard drive, thumb drive, etc.). Though unused, the space can nevertheless contain data. Deleted items, for example, are in unallocated space (because the process of deleting a file is more synonymous with forgetting than with removing).
A cache is a storage area for data. Applications (like web browsers) often use cache files to speed up the browsing process. A cache is created on a user’s device when a user accesses data that is stored somewhere else. When the user wants to access the data again, some of the content is provided by the local cache (rather than re-downloaded from the remote site).
Contrary to his pleas of not guilty, Airman First Class (E-3) King was convicted by a general court-martial composed of a military judge alone of one specification of attempting to view child pornography, one specification of viewing child pornography, and one specification of violating a general regulation. He was sentenced to confinement for nine months, reduction to E-1, and a dishonorable discharge. The Air Force CCA summarily affirmed the convictions.
The prosecution of King began when Photobucket – an image-sharing website – notified authorities of a suspected image of child pornography uploaded to the service by an account linked to King’s military email address. King was questioned by Air Force criminal investigators, and he seemingly confessed to searching for and viewing child pornography on his government computer.
But King’s primary brief doesn’t address that apparent confession, and it offers only a passing reference to his statements to investigators. See App. Br. at 37. Instead, King’s brief focuses on the fact that of the images introduced into evidence by the prosecution, the military judge found that only three were actually child pornography. All three were found on King’s personal computer; two in a Google cache and one in unallocated space. The military judge convicted King of wrongfully viewing those three images of child pornography.
The granted issue and King’s brief question whether that conviction can be sustained based only on the images found in the cache and unallocated space. It’s a good question. But CAAF is almost certainly going to be more interested in King’s admissions to military investigators, whether those admissions amount to a confession to wrongfully viewing child pornography, and whether the images (or something else) provide adequate corroboration.
The Air Force Appellate Government Division’s brief provides a damning summary of King’s admissions to military investigators. See Gov’t Div. Br. at 3-6. King apparently “admitted to looking at sexually explicit anime [cartoons] of children, images of children, images of nude children, and hardcore child pornography.” Gov’t Div. Br. at 3 (citing recorded statement). He also apparently “explained he found nude children sexually thrilling because he was going through sexual changes that created new cravings and ideas.” Gov’t Div. Br. at 4 (citing recorded statement).
Confessions – and the rule that a confession must be corroborated by independent evidence – were our #10 Military Justice Story of 2015 because that year CAAF breathed new life into the corroboration rule with its decision in United States v. Adams, 74 M.J. 137 (C.A.A.F. 2015) (CAAFlog case page), but then Congress ordered the President to review the rule and President Obama amended the Manual for Courts-Martial to relax its requirements (noted here). But King was tried in March of 2016 – before the new rule took effect – and so his statements must be evaluated under the old corroboration rule. In Adams CAAF explained that the old rule required fact-by-fact corroboration:
[I]f sufficient corroborating evidence of an essential fact is not provided, then the uncorroborated fact is not admissible and the military judge must excise it from the confession.
Adams, 74 M.J. at 140. CAAF found insufficient corroboration in Adams and it reversed the conviction and authorized a rehearing. The legal sufficiency challenge posed by the granted issue in King, however, is a very different approach that seemingly ignores any confession and would require CAAF to dismiss the affected charge(s) with prejudice.
It’s hard to imagine that CAAF granted review without realizing that this case involves a confession, and so I think it’s likely that the oral argument will begin with some questions for King’s counsel about whether this is a sufficiency case or a corroboration case. Furthermore, if the Government Division’s summary of King’s admissions to military investigators is even remotely accurate (and one would think it better be, considering the source), then CAAF will likely also question King’s counsel about the other evidence – separate from the three images – that might provide the necessary corroboration. The Government Division’s brief describes, for example, “sexually explicit images of real and anime children, sexually suggestive images of children, search terms indicative of child pornography, web addresses, and captioned visual content joking about child pornography and child erotica (‘memes’),” as supporting the conviction for wrongfully viewing child pornography. Gov’t Div. Br. at 8.
Curiously, there’s no mention in the briefs of any trial-stage litigation about corroboration. Adams was a case with preserved error (the defense objected on corroboration grounds at trial), and since then CAAF has applied a strict procedural waiver rule to objections to confessions and admissions. See United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page). So if this case is really a corroboration case and the corroboration issue was waived by the failure to raise it at trial, CAAF can presume that King’s admissions were corroborated and use them to sustain his conviction.
But there seem to be some serious factual disputes about the actual substance of King’s admissions to law enforcement that CAAF will almost certainly have to resolve. For example, the Government Division’s brief describes King’s admissions to law enforcement as including:
Regarding images of nude children, Appellant admitted he “looked at underage girls in nude poses” and “was a little bit thrilled.” (J.A. at 459 at 14:11:10.) Appellant knew these were children because they were small and did not look like adult women. (J.A. at 459 at 14:03:37.) Appellant saw the girls’ buttocks, nipples, and in at least one image, vagina. (J.A. at 459 at 14:14:58.) Appellant saw these images on Google or Photobucket. (J.A. at 459 at 14:11:35.)
After finding images of an underage girl, Appellant “wondered what other girls would look like, so out of curiosity I looked for others, and I should not have.” (J.A. at 459 at 14:28:11.) As he found images of children, Appellant decided “I’m going to save that, and I looked at other ones . . . and I was just like wow, these are really different, these are a whole new aspect of the female body I’ve never seen before, and I kept them so I could continue to look at them.” (J.A. at 459 at 15:51:25.)
Appellant admitted to searching for images of “preteen girls” and “little girls” on Photobucket. (J.A. at 459 at 14:37:45, 14:40:15.) Appellant said he also searched for images of children using the phrase “d[******]y.” (J.A. at 459 at 14:29:05, 15:35:09.) Appellant searched “d[******]y” after finding the term in the caption of an underage girl’s picture. (J.A. at 459 at 459 at 15:35:09.) By searching “d[******]y,” Appellant received images of 12 to 13-year-old nude girls. (J.A. at 459 at 15:36:10.) Appellant found these images sexually thrilling. (J.A. at 459 at 15:44:38.)
Gov’t Div. Br. at 3-4. King’s reply brief, however, asserts that:
First, contrary to what the government claims, A1C King did not search for child pornography. A1C King told law enforcement that he likes anime pornography and that is what he most often searched for. JA at 459 at 14:07:30. Additionally, A1C King admitted that he would search for “hardcore pornography” that depicted women 18 years old and older. Id. at 15:38:00. However, he vehemently denied ever searching for underage pornography. Id. at 15:38:00, 15:39:00, 16:14:00. In fact, A1C King told law enforcement that the first time he saw photos of children posing in bathing suits and the like was when he was searching for anime pornography. Id. at 14:28:00, 16:14:00.
Reply Br. at 7.
It’s hard to see how both can be correct.