Opinion Analysis: Images in unallocated space and a cache (along with other facts) are sufficient to sustain a conviction for viewing child pornography, in United States v. King
CAAF decided the Air Force case of United States v. King, 78 M.J. __, No. 18-0288/AF (CAAFlog case page) (link to slip op.), on Friday, January 4, 2019. Emphasizing the ability of prosecutors to prove guilt with circumstantial evidence, the court finds that a conviction of viewing child pornography is legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed.
Chief Judge Stucky writes for a unanimous court.
Airman First Class (E-3) King was convicted contrary to his pleas of not guilty, 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 evidence against King included an admission by King that he searched for and looked at naked images of young girls, and it also included the results of a forensic examination of King’s electronic devices that revealed thousands of offensive images and three specific images of child pornography. Those three images were found on King’s home computer, but in hard-to-access places: two were found in a web browser’s cache (a storage location to make repeat browsing faster) and one was found in unallocated space (likely meaning that it was a deleted item). King was convicted of knowingly and wrongfully viewing those three specific images, and CAAF granted review of a single issue challenging the sufficiency of that conviction in light of the location of the images:
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?
CAAF finds the evidence legally sufficient, but Chief Judge Stucky’s opinion begins with the caveat that it does so, “given the very low threshold required to sustain a conviction for legal sufficiency.” Slip op. at 1.
The offense of viewing child pornography is punishable under Article 134 and has two elements: “(1) that the accused knowingly and wrongfully viewed child pornography; and (2) that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” Slip op. at 5-6 (citing Manual for Courts-Martial, United States pt. IV, ¶ 68b.b.(1) (2012 ed.)). The prosecution must prove both of those elements beyond a reasonable doubt, and the legal sufficiency challenge in this case questions whether any reasonable trier of fact could have found that burden met with the evidence that was presented. Chief Judge Stucky explains that the evidence presented includes circumstantial evidence and inferences:
In determining whether any rational trier of fact could have determined that the evidence at trial established guilt beyond a reasonable doubt, we are mindful that the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented. Moreover, this Court has long recognized that the government is free to meet its burden of proof with circumstantial evidence.
Slip op. at 6 (emphasis and citations omitted). Furthermore, circumstantial evidence has added importance in a case like this:
We recognize that the ability to rely on circumstantial evidence is especially important in cases, such as here, where the offense is normally committed in private. As the Government conceded at oral argument, direct evidence of the offense of viewing child pornography will be rare because the offense is usually committed in private. As a result, the government often will have to rely on circumstantial evidence in attempting to prove the offense.
Slip op. at 6.
CAAF finds that the prosecution presented a “circumstantially strong case:”
Here, the Government presented a circumstantially strong case that Appellant had sought and viewed child pornography. Appellant password-protected his electronic de-vices, including his computers, and a search of his home desktop computer revealed thousands of offensive photos. Appellant searched for images in Google and Bing using terms that are indicative of child pornography, and Appellant freely admitted he viewed “thrilling” images of nude children.
Furthermore, while the forensics failed to conclusively determine that Appellant actually saw the three charged images, they still gave rise to an inference that Appellant viewed the photos. . . .
Relying on this evidence, and drawing all inferences in favor of the prosecution, a reasonable factfinder could have reached the conclusion that Appellant knowingly viewed the three charged files.
Slip op. at 7.
In a footnote, Chief Judge Stucky explicitly recognizes the limited probative value of images found in unallocated space. That does not change the result in this case, however it “may prove important in future cases.” Slip op. at 7 n.2. The opinion also explains:
While we concede that evidence found in an area of the computer with more indicia of user control (e.g., a user-created folder) would carry more weight than evidence found in a cache or in unallocated space, we, like the United States Court of Appeals for the Eleventh Circuit, believe that “[e]vidence that a person has sought out—searched for—child pornography on the internet and has a computer containing child pornography images—whether in the hard drive, cache, or unallocated space—can count as circumstantial evidence that a person has ‘knowingly receive[d]’ [or, in this case, viewed] child pornography.” United States v. Pruitt, 638 F.3d 763, 766 (11th Cir. 2011) (second alteration in original). What weight the factfinder ascribes to that evidence is for the factfinder alone to determine. See Oliver, 70 M.J. at 68 (recognizing that the trier of fact bears the responsibility to weigh the evidence).
Slip op. at 7-8 (modifications in original).
• AFCCA decision
• Appellant’s brief
• Appellee’s (Air Force App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis