CAAFlog » Article 62 Appeals

In United States v. Bruno, No. 2017-03 (A.F. Ct. Crim. App. Aug. 23, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses a military judge’s ruling suppressing the results of a urinalysis, agreeing with the prosecution that:

Appellee’s second urinalysis was taken in accordance with a standing inspection order issued by the installation commander and minor deviations in the execution of the policy did not mandate suppression.

Slip op. at 2.

The accused – Second Lieutenant (O-1) Bruno – tested positive for methamphetamine on a random urinalysis, and then tested positive a second time on a follow-up urinalysis. The military judge suppressed the results of the second urinalysis after finding that it was the product of an interrogation by AFOSI (that was also suppressed). But the CCA finds that the second urinalysis was the product of a standing order that required follow-up urinalysis any time a member tests positive on a random urinalysis (a Bickel policy, named after United States v. Bickel, 30 M.J. 277, 287 (C.M.A. 1990), in which the court observed that “it was quite rational for Bickel’s company commander to determine whether any member of his unit who had tested positive on one occasion–and so was indicated by the test to be unfit for military duty–had corrected his substandard condition”).

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CAAF decided the certified interlocutory Army case of United States v. Mitchell, 76 M.J. 413,No. 17-0153/AR (CAAFlog case page) (link to slip op.), on August 30, 2017. Because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, CAAF finds that the contents of a cell phone must be suppressed because military investigators requested the passcode to decrypt the phone after the suspect requested an attorney. The phone itself, however, need not be suppressed. CAAF affirms (in part) the decision of the Army CCA and of the military judge suppressing the contents of the phone.

Chief Judge Stucky writes for the court joined by all but Judge Ryan, who dissents.

Sergeant (E-5) Mitchell is charged with various offenses at a general court-martial. The prosecution wants to use evidence obtained from Mitchell’s cell phone. But the military judge suppressed the contents of the phone (and the phone itself) because military investigators continued to question Mitchell after he requested an attorney. The investigators had a search authorization for the phone, and had asked Mitchell for the passcode to the device. Mitchell (after requesting counsel) refused to tell them the passcode, but he entered the code into the phone and then entered it two more times to permanently disable the security features for the investigators. The prosecution appealed the suppression ruling under Article 62, the Army Court of Criminal Appeals affirmed the military judge’s ruling, and the Judge Advocate General of the Army certified three issues to CAAF:

I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Concluding that “the Government violated [Mitchell’s] Fifth Amendment right to counsel as protected by [Miranda v. Arizona, 384 U.S. 436 (1966)] and [Edwards v. Arizona, 451 U.S. 477 (1981)],” slip op. at 5, Chief Judge Stucky and the majority apply the plain language of Mil. R. Evid. 305(c)(2) (as rewritten in 2013) to suppress the contents of the phone because it is evidence derived from the interrogation after Mitchell requested counsel.

But Judge Ryan dissents because Mitchell merely entered his passcode into the device while he “declined to state or otherwise speak his passcode to the Government. He declined. There is nothing to suppress there.” Diss. op. at 3.

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On May 20, 2016, the President signed Executive Order 13,730 (discussed here) that amended Mil. R. Evid. 311 to limit application of the exclusionary rule in the case of an unlawful search or seizure, requiring a balancing that weighs the deterrent effect of exclusion.

The prior (and longstanding) rule stated that “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused (1) makes a timely objection and (2) has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new (current) rule adds a third requirement:

exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a)(3) (2016).

In United States v. Mottino, No. 201700153 (N-M. Ct. Crim. App. Jul. 27, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants a prosecution appeal and reverses a military judge’s ruling suppressing evidence because:

the military judge’s findings of fact are not clearly erroneous, but that her analysis and application of the law do not include the balancing test required under MIL. R. EVID. 311(a)(3).

Slip op. at 2.

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In the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), CAAF is considering the impact of investigators questioning a military suspect, after he invoked his right to remain silent and requested an attorney, in order to gain access to the suspect’s cell phone for a search. The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017. It is one of just three remaining undecided cases argued during the October 2016 Term.

Back in June, in this post, I noted a pair of Air Force CCA decisions – one published and the other involving a Government appeal of a suppression ruling – that held that a “request for the passcode d[oes] not constitute interrogation in violation of the Fifth Amendment.” United States v. Robinson, 76 M.J. 663, 671, No. 38942, slip op. at 11 (A. F. Ct. Crim. App. May 15, 2017). See also United States v. Blatney, No. 2016-16, slip op. at 7 (A. F. Ct. Crim. App. May 22, 2017) (interlocutory appeal) (“In other words, whether agents or the suspect re-initiated communication only becomes relevant if the suspect ultimately communicated an incriminating statement to the agents.”).

The accused in Blatney (the interlocutory case) petitioned CAAF for review on June 14. Last Thursday CAAF granted review:

No. 17-0458/AF. U.S. v. Chad A. Blatney. CCA 2016-16. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR PHONE, WHERE LAW ENFORCEMENT REQUESTED THAT APPELLANT ENTER HIS PASSWORD TWICE TO DECRYPT THE PHONE AND DISABLE SECURITY AFTER HE INVOKED HIS RIGHT TO COUNSEL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be file.

The post-trial appellant in Robinson petitioned CAAF for review on July 12, 2017. That petition is still pending.

CAAF docketed two new cases on Monday.

First, the Judge Advocate General of the Navy certified Hale, which I discussed here. The NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The JAG wants CAAF to review the legal test employed by the CCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHAT IS THE CORRECT TEST WHEN ANALYZING AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED UPON A CONFLICT OF INTEREST NOT INVOLVING MULTIPLE REPRESENTATION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” Slip op. at 13 (emphasis added).

Second, CAAF granted review in Mangahas, which I previously discussed here. The Air Force CCA granted a Government appeal and reversed a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment. CAAF will review the CCA’s decision:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS’ FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

CAAF decided the certified Army case of United States v. Gurczynski, 76 M.J. 381, No. 17-0139/AR (CAAFlog case page) (link to slip op.) on Monday, July 24, 2017. Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior. CAAF affirms the military judge’s suppression ruling and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim. But that discovery occurred five months after Gurczynski’s guilty pleas, and nine months after the warrant was issued.

The circumstances of the search (including that the searcher did not obtain a new warrant after suspecting the presence of child pornography) led to a motion to suppress that was granted by the military judge. The prosecution appealed but the Army court affirmed. The Judge Advocate General of the Army then certified a single, straightforward issue to CAAF:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

CAAF heard oral argument on March 15, 2017 (noted here). Then it specified a different issue and ordered additional briefs:

The Fourth Amendment prohibits unreasonable searches. Was the search of [Gurczynski’]s thumb drive unreasonable, despite being executed pursuant to a facially valid warrant, in light of the facts that: 1) [Gurczynski] was convicted of the offense for which the search warrant was issued five months prior to the search; and 2) over nine months had passed between the issuance of the search warrant and the digital examination of the seized devices?

Slip op. at 5. With today’s opinion the court finds that the search was not reasonable, and that the military judge did not err, for three reasons:

First, Appellee [Gurczynski] had already been convicted of the offenses for which the warrant was issued. Second, the warrant and supporting affidavits did not mention child pornography. Third, SA JT [the searcher] nonetheless directed the DFE [digital forensic examination] to search for child pornography.

Slip op. at 5.

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Back in March the Air Force CCA granted a Government appeal under Article 62 in United States v. Pugh, No. 2016-11 (Mar. 10, 2017) (link to slip op.). The case involves an Air Force major who was convicted of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

Slip op. at 2. AFI 90-507 (available here) (link corrected) is the Military Drug Demand Reduction Program order. It prohibits, among other things, consumption of any product containing hemp seed or hemp seed oil.

Defense counsel moved to dismiss after findings, arguing that the specification failed to state an offense and that the order was unlawful. The military judge reserved ruling. The members then sentenced the Major to a dismissal and the court-martial was adjourned. Nineteen days later:

the military judge granted the defense motion to dismiss the Additional Charge and its Specification. In so doing, he issued a six-page ruling. The military judge concluded that the specification did allege an offense and gave fair notice to Appellee. However, the military judge then held that “there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” The military judge then dismissed the Additional Charge and its Specification.

Slip op. at 2-3. The military judge had the power to do this because the record had not yet been authenticated. See R.C.M. 905(f).

The prosecution appealed and the Air Force CCA reversed, concluding:

As the military judge found, as fact, that it was possible that a “false positive” could result from manufacturing process defects, purchase of hemp products overseas, or purchase of hemp products over the Internet, it was error for the military judge to conclude that there was an insufficient nexus between the military duty and the integrity and effectiveness of the drug testing program. Military jurisprudence has long recognized the “disastrous effects” of illicit drug use by members of the armed forces. Similarly, the critical nature of the drug testing program in the “military’s efforts to ferret out drug abuse and thereby insure [sic] the health and readiness of its members” as well as deter drug abuse is also well-established.

Slip op. at 6 (citations omitted) (marks in original) (emphasis added).

Yesterday CAAF granted review:

No. 17-0306/AF. U.S. v. Joseph A. Pugh. CCA 2016-11. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that the petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT AFI 90-507 SERVES NO VALID MILITARY PURPOSE AND DISMISSING THE ADDITIONAL CHARGE AND ITS SPECIFICATION.

Although ordinarily an appeal pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), does not require additional pleadings, because the granted issue differs from the assigned issue, additional briefing is necessary. See CAAF Rules 19(a)(7)(A) and 25. Accordingly, Appellant’s brief on this issue shall be filed within 20 days of the date of this order. Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief. A reply may be filed by Appellant within 5 days of Appellee’s brief. Absence extraordinary circumstances, extensions of time to file the briefs will not be granted.

Article 62 authorizes interlocutory appeals by the prosecution in a court-martial in various situations, including of:

An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

Art. 62(a)(1)(B). It’s a relatively new provision in the Code, having been added by the Military Justice Act of 1983, Pub. L. No. 98-209 (with additional grounds for appeal added in 1996).

Rule for Courts-Martial 908 details procedural steps for such an appeal, but it does not define the term (or perhaps terms) substantial proof of a fact material in the proceeding, leaving the matter up to the appellate court acting on the appeal.

The Judge Advocate General of the Army has a problem with that:

No. 17-0408/AR. United States, Appellant v. Erik P. Jacobsen, Appellee. CCA 20160786. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, and a supporting brief were filed under Rule 22, together with a motion to stay trial proceedings on this date on the following issue:

WHETHER THE TRIAL COUNSEL’S CERTIFICATION THAT EVIDENCE IS “SUBSTANTIAL PROOF OF A FACT MATERIAL IN THE PROCEEDING” IS CONCLUSIVE FOR PURPOSES OF ESTABLISHING APPELLATE JURISDICTION UNDER ARTICLE 62(a)(1)(B), UNIFORM CODE OF MILITARY JUSTICE.

Appellee will file an answer under Rule 22(b) on or before May 25, 2017.

I don’t see an opinion on the Army CCA’s website. Update: a reader forwarded the CCA’s order. It’s available here. The order states, in part:

Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en bane). In contrast, the plain language of Article 62(a)(l), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria. Although Article 62(a)(2), UCMJ, contains similar timeliness and certification requirements to 18 U.S.C. § 3731, these requirements are listed separate and apart from the jurisdictional basis. Essentially, 18 U.S.C. § 3731 vests the determination of the materiality of the excluded evidence solely with the United States attorney; in this important respect, Article 62, UCMJ, is not analogous. When Congress intends to confer the right to appeal based solely on the certification of a specified officer, it is perfectly capable of making that intention clear in statutory language. Compare 18 U.S.C. § 3731, and Article 67(a)(2), UCMJ, with Article 62(a), UCMJ.

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In United States v. Mangahas, Misc. Dkt. No. 2016-10 (A.F. Ct. Crim. App. Ap. 4., 2017) (link to slip op.), a three judge panel of the Air Force CCA grants a Government appeal and reverses a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment.

The allegation dates back to February 1997, when the accused and the alleged victim were cadets at the United States Coast Guard Academy. The charges were preferred eighteen years later, in October 2015.

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CAAF will hear oral argument in the certified Army case of United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page), on Wednesday, March 15, 2017, after the argument in Richards. A single issue continues an interlocutory Government appeal of a military judge’s ruling suppressing evidence:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim.

In his ruling suppressing the images the military judge found that:

“[SA CJP] opened item 18 – the thumb drive – and saw several file names of videos normally associated with child pornography” and “[SA CJP] immediately suspected that these video files were child pornography.” (JA 167) (emphasis added). The military judge did not find SA CJP saw an image preview indicative of child pornography, nor did he find that SA CJP’s suspicion was based on an image preview. (JA 167).

The military judge also found that “[w]ithout seeking or obtaining a new search warrant, [SA CJP] opened one file and viewed it and determined that, based upon his professional experience in such matters, the video was child pornography.” (JA 167).

Appellee’s Br. at 10. The military judge determined that this action exceeded the scope of the warrant and suppressed the resulting images. The Army CCA affirmed. Gurczynski’s brief relies heavily on the military judge’s finding of fact as a basis to affirm the suppression.

The Army Appellate Government Division, however, asserts that the military judge got the facts wrong:

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At the end of last month CAAF received a certification from the Army JAG and the court granted review in a Coast Guard case.

The certification involves a Government appeal of military judge’s ruling that suppressed the fruits of a search of the accused’s mobile phone:

No. 17-0153/AR. United States, Appellant v. Edward J. Mitchell, II, Appellee. CCA 20150776. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief under Rule 22, together with a motion to stay trial proceedings were filed on this date on the following issues:

I. WHETHER THE FIFTH AMENDMENT’S SELF-INCRIMINATION CLAUSE IS VIOLATED WHEN A SUSPECT VOLUNTARILY UNLOCKS HIS PHONE WITHOUT GIVING HIS PERSONAL IDENTIFICATION NUMBER TO INVESTIGATORS.

II. WHETHER THE EDWARDS RULE IS VIOLATED WHEN INVESTIGATORS ASK A SUSPECT, WHO HAS REQUESTED COUNSEL AND RETURNED TO HIS PLACE OF DUTY, TO UNLOCK HIS PHONE INCIDENT TO A VALID SEARCH AUTHORIZATION.

III. WHETHER, ASSUMING INVESTIGATORS VIOLATED APPELLANT’S FIFTH AMENDMENT PRIVILEGE OR THE EDWARDS RULE, THE MILITARY JUDGE ERRED BY SUPPRESSING THE EVIDENCE.

The Army CCA affirmed the military judge’s ruling in a short opinion available here.

The grant involves a specification under Article 120b that was changed during the trial to allege a different specific sexual act, and a specification under Article 134 that lacked words of criminality such as wrongfully:

No. 17-0028/CG. U.S. v. Shane E. Reese. CCA 1422. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION AFTER THE COMPLAINING WITNESS’S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED.

II. WHETHER THE SPECIFICATION OF THE ADDITIONAL CHARGE FAILS TO STATE AN OFFENSE WHERE THE TERMINAL ELEMENT FAILED TO ALLEGE WORDS OF CRIMINALITY AND WHERE THE ALLEGED CONDUCT FELL WITHIN A LISTED OFFENSE OF ARTICLE 134, UCMJ.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here. The CCA rejected both issues concluding that the amended specification alleged an act that was essentially included in the original act alleged, and also that words of criminality are not necessarily required (in accordance with United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016) (discussed here)). However, one judge dissented and would have dismissed the Article 134 specification due to the omission of words of criminality.

Right on the heels of CAAF’s grant in Richards (discussed here) comes this certification by the Judge Advocate General of the Army yesterday:

No. 17-0139/AR. United States, Appellant v. Justin M. Gurczyski, Appellee. CCA 20160402. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING EVIDENCE OF CHILD PORNOGRAPHY A DIGITAL FORENSIC EXAMINER DISCOVERED DURING A SEARCH FOR APPELLEE’S COMMUNICATIONS WITH A CHILD VICTIM.

The Army CCA’s opinion is available here.

The accused is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to the accused’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on a flash drive and a hard drive seized from the accused pursuant to a warrant in connection with those other charges but not actually searched until after the guilty pleas. The warrant authorized a search for evidence that the accused communicated with his child victim. During the search, however:

[W]hen SA CP opened the thumb drive during the DFE, he saw several file names of videos normally associated with child pornography, as well as a photo of the appellant. SA CP, suspecting the video files contained child pornography, and without obtaining a new or expanded search warrant, opened one of the files and concluded, based on his professional experience, that it was child pornography. After that, SA CP searched other media seized from appellant’s home and found additional child pornography on a computer hard drive.

Slip op. at 3. “Based on these facts, the military judge concluded CID exceeded the scope of the warrant in searching the thumb drive and granted appellant’s motion to suppress the child pornography found on the thumb drive and computer hard drive.” Slip op. at 3. The CCA affirmed.

Having solved CAAF’s dismissal of the petition for review in Rivera, we can now speculate about this denial of an extension of time for the Judge Advocate General of the Navy to certify a Government appeal, from Friday’s daily journal:

No. 17-0034/NA. U.S. v. Richard A. Latour. CCA 201600114. Notice is hereby given that a motion for an enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and motion to stay the trial proceedings were filed under Rule 30 on this 21st day of October, 2016. On consideration thereof, it is ordered that said motions are hereby denied.

In United States v. Latour, 75 M.J. 723 (N.M. Ct. Crim. App, Jul 12, 2016) (discussed here), a three-judge panel of the NMCCA rejected a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.

In a published decision in United States v. Latour, 75 M.J. 723, No. 201600114 (N.M. Ct. Crim. App, Jul 12, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.

Confessions, and the corroboration rule (Mil. R. Evid. 304(c)), were our #10 Military Justice Story of 2015, and the corroboration rule was changed (significantly relaxed) in this year’s amendments to the Manual for Courts-Martial. However, Latour involves the old rule because the accused was arraigned before the change.

The accused is charged with four specification of sexual assault. Two of those specification allege that he penetrated the alleged victim’s vulva with his penis and with his finger, both while she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance.

The admissions requiring corroboration are the accused’s statement to the Naval Criminal Investigative Service in which he admitted to the penetrations but asserted that they were consensual, and the accused’s text message to the alleged victim that, “[w]e made whoopy lol.” Slip op. at 2-3 (marks in original).

However, “no witness, including [the alleged victim], testified to observations, physical sensations, or injuries that corroborated sexual activity. Investigators found no physical evidence of sexual activity, whether DNA or a condom wrapper.” Slip op. at 13. Accordingly, the military judge prohibited the prosecution from introducing the admissions, leading to the appeal.

In affirming the military judge’s ruling, the CCA rejects three arguments advanced by the Government.

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In United States v. Buford, No. 2016-04 (A.F. Ct. Crim. App. Jun. 9, 2016) (link to slip op.), a three-judge panel of the Air Force CCA grants a Government appeal under Article 62 and reverses the suppression of the accused’s statement to criminal investigators, concluding that the military judge made incomplete findings of fact regarding the accused’s invocation of his right to a lawyer. Writing for the panel, Judge Brown vacates the suppression remands and remands the case for further proceedings. However, one member of the panel, Judge Dubriske, dissents in part, and would hold that that the military judge’s findings were clearly erroneous and that any request the accused made for an attorney was ambiguous.