CAAFlog » Courts of Criminal Appeals » CCA Opinions

In a recent published opinion in United States v. Dean, __ M.J. __, No. 20140058 (A. Ct. Crim. App. Feb. 10, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the convening authority erred in summarily denying the appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade, but that the appellant failed to show an entitlement to relief.

Judge Lind writes for the panel.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of possession of child pornography in violation of Article 134. He was sentenced to confinement for seven months, reduction to E-1, and a bad-conduct discharge. After sentencing, the appellant submitted a request for deferment of the imposition of automatic forfeitures of pay and adjudged reduction in rank (both of which occur automatically, 14 days after adjudged). The convening authority (CA) did not explicitly act on the appellant’s request for deferment, but the convening authority did approve the entire sentence as adjudged.

Judge Lind finds that the circumstances of the convening authority’s action on the sentence “sufficiently reflects [that] the CA reviewed, considered, and acted on appellant’s [deferment request].” Slip op. at 4. However, by not separately acting on the deferment request, “the CA summarily denied appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade. This was error.” Slip op. at 5.

Yet the appellant gets no relief because the CCA finds that the appellant must present “credible evidence that the CA’s denial was for unlawful or improper reasons” and further that the appellant “must make a colorable showing of possible prejudice that the CA would have granted the deferment absent consideration of the unlawful or improper reason.” Slip op. at 5 (marks omitted) (citing United States v. Zimmer, 56 M.J. 869 (A. Ct. Crim. App. 2002); United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

This is an awfully high burden. When, as in Dean, there are no identifiable factors that the convening authority considered before improperly denying a deferment request without stating the reasons why, it’s hard to imagine how any appellant could ever show that the denial was for an unlawful or improper reason and that the convening authority would have granted the request absent that unlawful or improper reason.

But what’s more interesting about this opinion (and perhaps the reason it’s a published decision) is that this burden seems to be a novel interpretation that was made by the Army CCA in Zimmer (where the appellant was granted relief). Because of this, I think Dean deserves review by CAAF.

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In United States v. Smith, No. 201400400 (N-M. Ct. Crim. App. Feb. 10, 2015) (per curiam) (link to slip op.), the NMCCA grants a Government interlocutory appeal of a military judge’s ruling that dismissed some of the charges with prejudice as a remedy for the Government’s loss of an apparently exculpatory surveillance video recordings of the following alleged incidents:

The appellee was a military police patrol supervisor. Lance Corporal (LCpl) JK4 was one of his subordinates and stood watch in the lobby of a secure law enforcement facility known as MDIA. On 28 October 2013, the appellee stopped at the lobby while LCpl JK, Cpl Pelligrino, and Cpl Toner were on duty. While there, the appellee is alleged to have approached the front desk, picked up a bottle of hand sanitizer, pointed it at LCpl JK and squirted some of the contents onto her shoulder, stating “Oops, just splooged on you.” This allegation, in part, formed the basis for sexual harassment and maltreatment charges against the appellee.

On 11 November 2013, the appellee arrived to conduct his rounds at the MDIA lobby. In the presence of Cpl Toner and LCpl JK, the appellee is alleged to have been unable to properly open a door and to have fallen asleep on the desk. This conduct forms the basis of a dereliction of duty charge against the appellee.

Slip op. at 2-3. The facility in which the appellee worked was under video surveillance. The video was reviewed by personnel who stated that the video “is not showing that someone approaching the front desk squirted hand sanitizer on any of the officers” and that the reviewer “did not see the appellee have difficulty opening the door.” Slip op. at 3. However, the video recordings were not preserved, and were destroyed after 30 days.

Independently of the video evidence, the appellee was interrogated and “admitted that he had ‘accidentally squirted’ hand sanitizer on JK and said ‘oops, just splooged on you.'” Slip op. at 4.

The defense moved to dismiss because of the Government’s failure to preserve the video recordings. The military judge found that the lost video recordings were “relevant, necessary, and essential to a fair trial” both for factual and impeachment purposes. Slip op. at 4. Then, in a ruling reminiscent of the Air Force case of United States v. Seton, Misc. Dkt. No. 2013-27 (A.F. Ct. Crim. App. Feb. 24, 2014) (discussed here), aff’d, 73 M.J. 346 (C.A.A.F. May 12, 2014) (summary disposition) (discussed here), the military judge dismissed the affected charges with prejudice. The Government appealed.

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In an unpublished opinion in United States v. Hinojos, No. 201300305 (N-M. Ct. Crim. App. Jan. 27, 2015) (per curiam) (link to slip op.), a three-judge panel of the NMCCA reverses the appellant’s convictions for aggravated sexual assault of a child and abusive sexual contact of a child, both in violation of Article 120 (2006), after concluding that the Government’s DNA expert improperly testified that DNA contained on a buccal swab matched the DNA found in the victim’s underwear. The court concludes that this testimony was improper because:

The buccal swab itself was never offered as evidence and there was no evidence presented to establish that this buccal swab was actually obtained from the appellant.

Slip op. at 5. Further, the court finds:

In the appellant’s case, the Government failed to provide authenticity evidence for the buccal swab allegedly belonging to the appellant. The source and authenticity of the buccal swab was required before the expert could offer an opinion as to a DNA match involving that swab. Accordingly, we hold that the military judge, without such foundation evidence, abused his discretion in allowing the expert to testify that he tested the DNA found in HC’s underwear to the DNA from the buccal swab purportedly belonging to the appellant and that there was a match.

Slip op. at 6. The CCA then considers whether this error was prejudicial, concluding that it was prejudicial because appellant’s identity as the perpetrator was a hotly-contested issue in the case:

The record of trial depicts a case in which forensic evidence served as significant proof that a crime occurred and identified the appellant as the perpetrator. The Government has not met its burden of demonstrating that judicial error in admitting expert testimony without the underlying foundation did not have “a substantial influence on the findings.” McCollum, 58 M.J. at 342. Accordingly, the findings of guilty to the charge and two specifications are set aside.

Slip op. at 8. Notably, the appellant’s counsel objected to the expert’s testimony as lacking foundation. This objection preserved the issue and placed the burden on the Government to prove lack of prejudice. Had counsel failed to object, the appellant would have had the burden to prove prejudice under the plain error standard (as discussed here).

The CCA authorizes a rehearing.

It’s hard to decide whether to laugh or cry when reading United States v. Adams, __ M.J. __, No. 20140377 (A. Ct. Crim. App. Jan. 26, 2015) (link to slip op.). But the case is a novelty for sure.

The appellant twice absented himself from his unit, one time for about 3 months and the other time for about 3 years. For these absences he was charged with desertion; an offense that requires intent to remain away permanently. But the appellant maintained that he always intended to return, and at a general court-martial composed of a military judge alone he pleaded not guilty to the charged desertions, but guilty to the lesser included offense of unauthorized absence.

The Government then proceeded to trial on the greater offense of desertion for both absences. Yet the trial counsel gave no opening statement, presented no evidence, and immediately rested. The Defense case consisted solely of the appellant testifying in his own defense, mainly by asserting that “he never entertained the intent to remain away permanently.” Slip op. at 3. The Defense then rested, and the Government presented no case in rebuttal.

The judge deliberated for 12 minutes before convicting the appellant of desertion for both absences. The adjudged sentence was confinement for 140 days, reduction to E-1, and a bad-conduct discharge.

The case was submitted to the Army CCA pro forma, or “on the merits,” meaning that the appellant submitted the case without any assignment of error and made no request for relief. Nevertheless, in a decision authored by Judge Krauss, the Army CCA reverses the desertion convictions.

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Other commitments force me to put further analysis of this case onto my to-do list, but I want to alert you to the Army CCA’s recent published opinion in United States v. Gifford, __ M.J. __, No. 20120545  (A. Ct. Crim. App. Jan. 22, 2015) (link to slip op.). The appellant was convicted of numerous offenses contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation. Among those offenses was failure to obey a general order in violation of Article 92 for providing alcohol to fellow soldiers who were under the age of 21. Such action was contrary to a 2d Infantry Division policy letter.

On appeal the appellant asserted that his convictions for violating the order must be reversed because “there was no evidence presented that appellant actually knew the distributees were not of legal drinking age.” Slip op. at 2. The CCA notes that the military judge instructed the members that “an element of the Article 92, UCMJ, offenses was that ‘the accused knew that the person named in the specification was under 21 years of age.'” Slip op. at 3. But the CCA rejects the existence of such a knowledge element.

In an opinion written by Judge Haight, the court concludes:

The general order at issue simply prohibits “giv[ing] alcohol to anyone under 21 years of age for the purpose of consumption.” While the purpose behind the distribution is specified, the act of “giving” is not otherwise limited, qualified, or conditioned in any way. Cf. Morissette v. United States, 342 U.S. 246, 270 (1952) (Appellant was indicted on a charge that he did “unlawfully, wilfully and knowingly” convert property.); United States v. Stapp, 60 M.J. 795, 799 (Army Ct. Crim. App. 2004) (In absence of the actual language of the general order alleged to have been disobeyed, this court assumed a knowledge of age requirement, based at least partially on the specification’s use of the word “wrongfully.”).

We readily acknowledge that not only does the law disfavor interpretations that dispense with a mens rea requirement but also that absence alone of such language does not necessarily indicate the proponent intended to eliminate a mens rea element. See Staples v. United States, 511 U.S. 600, 606 (1994). However, we determine that a provision in a military general order which regulates the distribution of alcohol to underage recipients is analogous to a “public welfare offense.” Id. at 607. As such, under these circumstances and given the specific language of this particular general order, we conclude the offense of which appellant was convicted did not include a knowledge of age requirement.

Slip op. at 4-5.

As an initial thought, Judge Haight’s finding that this orders violation is analogous to a public welfare offense makes me wonder if merely furnishing alcohol to a minor is really so very dangerous as to justify such strict regulations. It also reminds me of something that Chief Judge Baker wrote a few years ago:

Notably, Justice Stevens rightly observes that the term “strict liability” may be inaccurate, as in the case of public welfare offenses, because even those offenses require knowledge that one is dealing with an inherently dangerous substance or activity, although they may not require actual knowledge of all the facts. Staples v. United States, 511 U.S. 600, 628 n.9 (1994) (Stevens, J, dissenting).

United States v. Thomas, 65 M.J. 132, 137 (C.A.A.F. 2007) (Baker, J. dissenting).

The Air Force CCA has issued a published en banc decision in the interlocutory case of United States v. Wright, __ M.J. __, No. 2014-10 (A.F. Ct. Crim. App. Jan. 13, 2015) (link to slip op.).

The opinion appears to be jointly authored by Senior Judge Hecker and Judge Weber.

We’ve covered the Wright case sporadically (I summarized our past coverage in this post). It is a sexual assault case that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims.

The CCA’s opinion provides additional facts that I haven’t seen in print anywhere else:

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As I noted in my write-up on the number four story in our top ten list for 2014, the NMCCA recently set aside another sentence in a case from Parris Island, based on the military judge’s PME to law student interns. The accused in United States v. Arnold, No. 201200382 (N-M.C.C.A. Dec. 23 2014) was convicted, pursuant to his pleas, of larceny, providing false information to a police officer, driving with a suspended license, stealing a license plate, counterfeiting currency, and altering a base decal, all in violation of Articles 121 and 134, UCMJ.

The appellant was sentenced to 12 months confinement, forfeiture of $950.00 pay per month for 12 months, reduction to E-1 and a bad conduct discharge. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of 30 days pursuant to a pretrial agreement. This sentencing occurred approximately four weeks prior to the military judge’s PME to Marine law students at Parris Island. In his original assignment of error, the appellant alleged the military judge was disqualified because he showed an inflexible attitude about sentencing and allowed his perceptions about the expectations of the Commandant of the Marine Corps and Congress to enter his deliberations. The NMCCA affirmed the findings and sentence as approved; however, the case was remanded by CAAF following its decision in United States v. Kish.

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The completeness of a member’s response to questions during voir dire is the central issue in United States v. Robinson, No. 20120993 (A. Ct. Crim. App. Dec. 23, 2014) (link to slip op.).

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of aggravated sexual assault and two specifications of adultery, in violation of Articles 120 and 134. The sexual assault conviction involved an allegation that the appellant used force to engage in sexual activity with another soldier.

Chief Warrant Officer 4 (CW4) DD was a member of the panel for the appellant’s trial. During voir dire, CW4 DD denied that anyone in his family had been the victim of an offense similar to the allegations against the appellant, and he denied knowledge of “anything that might raise a substantial question concerning whether [he] should participate as a court-martial member.” Slip op. at 3. Neither side challenged the inclusion of CW4 DD as a member of the panel.

After the appellant’s trial, CW4 DD served as a member in another court-martial also involving a sexual assault allegation. In that case, “CW4 DD revealed that his daughter had been sexually assaulted when she was a young child.” Slip op. at 3. A post-trial hearing was held in the appellant’s case to consider whether CW4 DD should have been disqualified, during which CW4 DD explained that “he did not reveal this information when asked questions during voir dire in appellant’s case because at that time he thought the questions were tied to the charges in appellant’s case and he did not believe they were similar to what happened to his daughter.” Slip op. at 3. The military judge denied the appellant’s post-trial challenge of CW4 DD, finding that “CW4 DD testified convincingly on this matter that the incident involving his young daughter did not cross his mind when he was asked those questions because he knew he owed it to both parties to be fair and was sure that he could be.” Slip op. at 3.

The Army CCA affirms. Senior Judge Tozzi writes for a majority of a three-judge panel of the court, while Judge Celtnieks dissents.

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Writing for the majority of a three-judge panel in United States v. McCormick, __ M.J. __, No. 20120029 (A. Ct. Crim. App. Dec. 19, 2014) (link to slip op.), Chief Judge Pede finds that “appellant’s intent and the timing of that intent,” slip op. at 7, permit the court to affirm convictions for both being an accessory after the fact to attempted unpremeditated murder and for being a principle (by aiding and abetting) to aggravated assault related to the same attempted murder.

The facts are:

[A]ppellant was the driver (but not the shooter) in a drive-by-shooting targeting another occupied vehicle. As the driver, appellant aided and abetted the shooter, precipitating appellant’s convictions for aggravated assault. The shooter himself, however, ultimately fired thirteen rounds into the targeted vehicle, evidencing the shooter’s intent to commit murder. Appellant then drove away from the scene and helped cover up the shooting, arguably making appellant an accessory after the fact to the shooter’s attempted murder of the targeted vehicle’s occupants.

Slip op. at 5. For these actions the appellant was charged with attempted premeditated murder and with aggravated assault, both as a principle actor to the shooting by aiding and abetting the actual shooter, and also with accessory after the fact to attempted premeditated murder for helping to cover up the shooting. A general court-martial composed of a military judge alone acquitted the appellant of the attempted premeditated murder charge, but convicted him of the aggravated assault and accessory after the fact charges.

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In United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page), CAAF reversed a conviction for an adultery specification that failed to state a terminal element, even though the accused did not challenge that deficiency at trial, on the basis that “there was nothing during its case-in-chief that reasonably placed Appellee on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated.” 71 M.J. at 217.

While the terminal element issue made Humphries a famous (or infamous) case, there was a second issue that the majority did not resolve: Whether the Air Force CCA had the authority to practically force the convening authority to suspend an adjudged punitive discharge by concluding that a sentence that includes an unsuspended punitive discharge is inappropriately severe.

Chief Judge Baker and Judge Stucky, who both dissented from the majority’s decision on the terminal element issue, would have resolved this other issue against the CCA. Both were blunt. Chief Judge Baker wrote, “If the Court of Criminal Appeals was seeking to accomplish an appropriateness end to which it did not itself have the authority to reach— suspension of a bad-conduct discharge— then it was acting beyond its legal authority.” 71 M.J. at 219. Judge Stucky wrote, “In this case, the CCA thought the bad-conduct discharge that the convening authority approved should be suspended. Apparently recognizing that they did not have the power to suspend the bad-conduct discharge, they remanded the case to the convening authority for a new action, basically giving him two options— either approve a sentence that did not include an unsuspended bad-conduct discharge or the CCA would set aside the bad-conduct discharge. The CCA was without authority to take such action.” 71 M.J. at 223-224.

Recently, while reading decisions from the Navy-Marine Corps CCA, I was reminded of this issue. In particular, two cases decided by per curiam decisions from a three-judge panel of that court (the same panel in both cases), purport to suspend portions of adjudged confinement. The CCA’s action in each case resolves the failure of each convening authority to abide by the terms of pretrial agreements that required suspension of confinement in excess of a certain number of months.

The cases are United States v. Fairley, No. 201400268 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.), and United States v. Moss, No. 201400286 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.). The CCA’s action in Moss also purports to waive automatic forfeitures for the benefit of the appellant’s dependent.

Notably, the opinions indicate that neither appellant suffered additional confinement because of the each convening authority’s breach of the pretrial agreements, and that in Moss the appellant’s dependent actually received the automatically forfeited monies.

These cases present an interesting potpourri of issues. The CCA’s action is certainly practical – since neither appellant is suffering actual prejudice, one can understand not sending the case back to each convening authority for correction. But even if a CCA can force a suspension as a matter of sentence appropriateness (the issue in Humphries), a CCA can’t actually suspend a sentence, or waive automatic forfeitures, itself. Moreover, since the convening authority in each case (both of which are general court-martial convening authorities) approved and ordered executed in full the confinement, and the convening authority in Moss did not waive the automatic forfeitures, what of obedience to those orders?

Ironically, the appellant in Moss pleaded guilty to offenses that included four specifications of violating a general order or regulation.

Article 10 was our #10 military justice story of 2013. “CAAF blotted the ink from Article 10’s obituary [in 2013],” I wrote, and “the possibility that Article 10 will rise from the dead [in 2014] is slim.”

But in the final days of 2014 the Coast Guard CCA issued an opinion in United States v. Cooley, No. 1389 (C. G. Ct. Crim. App. Dec. 24, 2014) (link to slip op.) dismissing numerous charges for violation of the appellant’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court.

Pursuant to a pretrial agreement the appellant conditionally pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

In July 2012 the appellant confessed to soliciting sexually explicit photographs from minor children. He was then subjected to a series of pretrial restraints, until he was eventually ordered into pretrial confinement (for the second time) on December 20, 2012, where he remained until his guilty plea on October 4, 2013. Many things happened in those 289 days: charges were dismissed without prejudice for violation of the regulatory speedy trial RCM 707, new charges were added, and two Article 32 pretrial investigations were conducted.

This creates a complicated case history from which I draw the following important dates:

  • December 20, 2012: The appellant was placed into pretrial confinement;
  • February 29, 2013: Charges preferred;
  • May 23, 2013: Charges dismissed without prejudice, for violation of the 120-day time limit of RCM 707;
  • May 23, 2013: Original charges re-preferred;
  • Unknown date: Charges dismissed;
  • June 14, 2013: Original charges preferred for third time, along with two new specifications;
  • September 10, 2013: The appellant was arraigned, military judge denied motion to dismiss on speedy trial grounds;
  • October 4, 2013: The appellant entered conditional pleas of guilty.

The CCA’s decision dismisses the original charges with prejudice (for violation of Article 10), and the two additional specifications without prejudice (for violation of RCM 707). And so it seems that Article 10 has risen from the dead! But I’m not so sure…

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The current version of Article 120 includes the following definition

(2) Sexual contact.—The term “sexual contact” means—

(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

UCMJ art. 120(g)(2), 10 U.S.C. § 920(g)(2) (2012). If an accused touches an alleged victim with a stethoscope (while pretending to conduct a medical examination, perhaps), can that touching constitute sexual contact?

Yes it can, finds Judge Haight, writing for a three-judge panel of the Army CCA and granting a Government interlocutory appeal in United States v. Schloff, No. 20140708 (A. Ct. Crim. App. Dec. 16, 2014) (link to slip op.).

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Last year, in this post, I noted the Army CCA’s decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan 30, 2014), where a panel of the court considered instructions about the definition of a competent person for the purpose of consenting to sexual activity with another. The victim in Long was very intoxicated, but the CCA concluded that “the evidence in this case establishes that SB was competent; that she did not consent; and that she both verbally and physically resisted appellant’s sexual conduct.” 73 M.J. at 546.

Then, in this post, I analyzed a decision by a panel of the Army court in United States v. Gardner, No. 20120193 (A. Ct. Crim. App. Aug. 28, 2014), pet. for rev. filed, 73 M.J. 480 (C.A.A.F. Sep. 18, 2014). There the CCA noted:

It is important to repeat that one need not be totally incapacitated to be the victim of an aggravated sexual assault under Article 120, UCMJ. In addition, one need not be substantially incapacitated by alcohol or any singular thing or condition to be a victim of an aggravated sexual assault. One might be substantially incapacitated by any number of things or combination of things including alcohol, sleep, fear, panic, and any number of mental or physical infirmities by whatever cause.

Gardner, slip op. at 5. Notably, Judge Krauss wrote for the CCA in both Long and Gardner.

A different panel of the Army court revisited the definition of a competent person in United States v. Brown, No. 20130177 (A. Ct. Crim. App. Nov. 21, 2014) (link to slip op.). The victim in Brown was intoxicated (like the victims in Long and Gardner). However the victim in Brown did not resist (victim in Long resisted, the victim in Gardner did not). Rather, the victim in Brown testified that “she was unable to resist, and that ‘she could see what was happening but couldn’t do anything.'” Slip op. at 2.

Brown was charged with and convicted of aggravated sexual assault of a person who was substantially incapacitated, in violation of Article 120(c) (2006). But the definition of the term “substantially incapacitated” was an issue at trial. The term was not defined in the 2006 statute, and the Defense asked the military judge to modify the standard Benchbook definition as follows:

“Substantially incapacitated” and “substantially incapable” mean that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim an individual unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions or to decline participation in the sexual act.

Slip op. at 2-3 (formatting in original). The military judge refused to give the modified instruction requested by the Defense.

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In a recently published opinion, United States v. Hoffman, No. 201400067 (11 Dec 2014), the NMCCA held that allegations of child enticement offenses coupled with a law enforcement officer’s training and experience could establish probable cause for a search authorization of a suspect’s computer for child pornography.

The appellant was convicted, contrary to his pleas, of one specification each of attempted sodomy with a child, indecent liberties with a child, child enticement, and possession of child pornography, in violation of Articles 80, 120, and 134, UCMJ. The appellant is alleged to have attempted to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. On two occasions, the appellant was alleged to have repeatedly driven by two different underage boys, made hand motions indicating oral sex at them, and asked them if they wanted to go for a ride. However, at trial the appellant was acquitted of the specifications related to these two incidents. He was convicted of the specifications for a third incident, where he drove by yet another boy several times and asked him multiple times if he wanted a “quickie.”

Following one of the alleged incidents of which the appellant was acquitted, the appellant was apprehended by CID at Camp Lejeune and he consented to a search of his barracks room. However, once the investigating agent began searching the appellant’s desk, the appellant revoked his consent. Nevertheless, the agent still seized several items from the room that had already been discovered, including the appellant’s laptop. Nothing was done with this computer until over four months later, when NCIS sought and received a search authorization to examine the computer for evidence of child pornography. This search led to the discovery of eighteen images and two videos of child pornography, which were the basis for the appellant’s child pornography convictions.

On appeal, the appellant challenged, among other things, the validity of the search authorization for child pornography. The Court also, sua sponte, raised the issue of the validity of the seizure of the laptop after the appellant revoked his consent to search. However, in its opinion, the Court does not address the issue of whether the laptop was seized prior to the appellant’s revocation of consent, but finds that the laptop would have been inevitably seized. The Court arrives at this conclusion by relying on the testimony of the CID agent, who conducted the search. At the suppression hearing, that agent testified that, had the appellant refused to give consent for the search, the agent would have sought a search authorization. Slip Op. at 5. The Court then finds that had the CID agent sought a search authorization, there would have been probable cause for him to get one. Slip op. at 7. The Court bases this finding on the fact that:

[the Agent’s] training and experience led him to what we believe is a conclusion supported by “common-sense,” namely that those who attempt to locate and then engage in sexual activity with children frequently first conduct some type of computer-based research. Under these facts, where the appellant was accused of multiple brazen attempts to engage in sexual activity with several different boys in several different locations, it is entirely reasonable to conclude that the appellant’s laptop would contain evidence of the alleged crimes, such as evidence of internet searches regarding the location of schools, school release times, or base housing maps. Therefore, under these circumstances, we conclude that probable cause to seize the appellant’s laptop existed and that Agent Rivera would have obtained a command authorization to search and seize the laptop.

Id. Although it is not clear why from the opinion, the Appellant’s laptop was not searched for approximately four months. At that time, the case had been taken over by NCIS and the investigating agent sought a search authorization to search the computer, not for evidence of the alleged crimes described above, but for child pornography. As an aside, it seems like it would cut against the Court’s inevitable discovery holding that apparently no one ever searched the laptop for the evidence that would have given probable cause to seize the laptop. The reason for the request to search for child pornography, as stated in the NCIS agent’s affidavit for the search authorization, was that:

[the agent knew] from training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may be a logical precursor to physical interaction with a child and an individual who is sexually interested in children is likely to be predisposed to searching for and receiving child pornography. Additionally, individuals sexually interested in children frequently use child pornography to reduce the inhibitions of those children. Computers have revolutionized the way in which those sources and users interact. Computers and Internet connections are readily available and are tools of the trade for individuals wishing to exploit children and have greatly changed and added to the way in which child pornography is disseminated, collected, and viewed. The relative ease with which child pornography may be obtained on the Internet might make it a simpler and less detectable way of satisfying pedophilic desires.

Slip op. at 9. The affidavit also included detailed information about the NCIS agent’s training and qualification, which showed that she had numerous relevant investigative credentials, an educational background in psychology and forensic psychology, and extensive experience investigating child exploitation cases. Id. The agent also had a lengthy conversation with the commanding officer who issued the search authorization, during which he testified the agent:

helped him “draw a direct line” between “someone who has solicited children . . . to child pornography. She built a nexus for me that it’s a precursor, it’s an enabler. . . . [t]hat it desensitizes the target. . . . She provided me background on predators that indicated that child pornography is a precursor to solicitation.”

Slip op. at 10. At trial and on appeal, the appellant attacked the ensuing search authorization on the basis that:

…probable cause was lacking since the “intuitive relationship” between child enticement and possession of child pornography is nothing more than bare suspicion.

Id.

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In a published opinion issued last month in United States v. Hanks, __ M.J. __, No. 20120597 (A. Ct. Crim. App. Nov. 25, 2014) (link to slip op.), a three judge panel of the Army CCA holds that convictions for maiming, in violation of Article 124, and aggravated assault in which grievous bodily harm is intentionally inflicted, in violation of Article 128, that are based on the same underlying act, are neither multiplicious nor an unreasonable multiplication of charges. Judge Campanella writes for the panel.

The decision creates a split between the Army CCA and the Navy-Marine Corps CCA, which has found that “assault intentionally inflicting grievous bodily harm is a lesser-included offense of the more serious crime of maiming.” United States v. Allen, 59 M.J. 515, 531 (N-M. Ct. Crim. App. 2003).

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