CAAF decided the Army case of United States v. Nieto, 76 M.J. 101, No. 16-0301/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 21, 2017. Considering the validity of a search authorization that was primarily based on military investigators’ experience-based assertions regarding how people use portable electronic devices, CAAF finds that the authorization lacked probable cause and reverses the appellant’s conditional pleas of guilty and the summary affirmation of the Army CCA.

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

Specialist (E-4) Nieto entered conditional pleas of guilty to numerous offenses that were discovered after he was accused of using a cell phone to surreptitiously record other soldiers using the toilet at Forward Operating Base Azizullah, Kandahar Province, Afghanistan. After Nieto’s apprehension, an Army Criminal Investigation Division (CID) special agent obtained authorizations to seize and search Nieto’s cell phone and also his laptop. The allegation did not involve the laptop, but the agent sought to include the laptop in the authorization based on his experience that “Soldiers using their cell phones to photograph things . . . back those up to their laptops . . .” Slip op. at 4 (quoting record). A second agent obtained a second authorization with the additional commentary that:

About 1024, 4 Jun 13, [Appellant] admitted to using his cellular telephone to view and record Soldiers utilizing the latrine while at FOB Azi Zullah [sic], Afghanistan. [Appellant] admitted to masturbating to the images on his cellular telephone of Soldiers utilizing the latrine.

It is my [i.e., SA Dunn’s,] experience as a CID Special Agent that persons who would use a portable digital media recorder would also transfer the media from a portable device to a computer station or storage device. Persons who view and record sexual acts often times store and catalog their images and videos on larger storage devices such as a computer or hard drive.

Slip op. at 5 (quoting record) (marks in original). Incriminating evidence was found on the laptop (leading to additional charges) but the cell phone “revealed nothing relevant to CID’s investigation.” Slip op. at 5 (marks omitted).

At trial Nieto unsuccessfully challenged the search authorizations as lacking probable cause to search the laptop, and his conditional pleas preserved his right to continue that challenge on appeal. The Army CCA summarily affirmed. CAAF then granted review of one issue:

Whether the military judge erred in denying Appellant’s motion to suppress the evidence seized from Appellant’s laptop computer

Today’s opinion finds no probable cause to seize the laptop based on “an insufficient nexus between Appellant’s cell phone and his laptop that can be inferred based on the particular facts presented to the military magistrate.” Slip op at 10 n.4. This conclusion echoes the conclusion in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), where a unanimous CAAF rejected the adequacy of an asserted intuitive relationship between a child enticement offense and the possession of child pornography as a basis for probable cause. But Judge Stucky, who was the author of CAAF’s opinion in Hoffman, dissents from today’s opinion and decries it as “a constellation of shortcomings with regard to the law of probable cause, the facts of this case, and the application of law to fact.” Diss. op. at 10.

Read more »

Audio of today’s arguments at CAAF is available at the following links:

United States v. Nieto, No. 16-0301/AR (CAAFlog case page): Oral argument audio.

Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page): Oral argument audio.

CAAF will hear the first oral argument of the October 2016 Term in the Army case of United States v. Nieto, No. 16-0301/AR (CAAFlog case page), on Tuesday, October 11, 2016, at 9:30 a.m. The case challenges a military judge’s ruling on a suppression motion that led to conditional pleas of guilty, with the following granted issue:

Whether the military judge erred in denying Appellant’s motion to suppress the evidence seized from Appellant’s laptop computer

Specialist (E-4) Nieto entered conditional pleas of guilty to numerous offenses related to an allegation that he used his cell phone to surreptitiously record other soldiers using the toilet. When the allegation was made against him, an Army Criminal Investigation Division (CID) special agent “sought an authorization to seize [Nieto]’s ‘cellular telephone(s) and Laptop computer (White Samsung Galaxy cellular Telephone and the personal laptop computer the cellular telephone syncs with to upload and download data).'” Gov’t Br. at 3 (quoting record). While the allegations against Nieto did not involve his laptop computer, the CID agent asserted that there was probable cause to seize and search the laptop (in addition to the phone) because of:

his “knowledge in reference to Soldiers using their cell phones to photograph things, … and that those phones are normally downloaded, the photos that they take, … they’ll back those up to their laptops so that when they get to the-a place where they can get Internet, they can post those or send those home to family or whatever.”

Gov’t Br. at 3-4 (omissions in original) (quoting record).

This conclusion is remarkably similar to the intuitive relationship between acts such as enticement or child molestation and the possession of child pornography that CAAF rejected earlier this year in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page). CAAF granted review in Nieto one month after it issued its opinion in Hoffmann.

And, significantly, the granted issue was raised personally by Nieto in accordance with United States v. Grostefon, 12 M.J. 431, 436-437 (C.M.A. 1982), in which the court held that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous.

Read more »

Yesterday CAAF granted review of a Grostefon issue in an Army case:

No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S LAPTOP COMPUTER.

Briefs will be filed under Rule 25.

(emphasis added). This is the second Grostefon issue granted this term, the first being in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).

The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to zack@caaflog.com

Additionally, yesterday CAAF denied the latest writ-appeal from Sergant Bergdahl:

No. 16-0339/AR. Robert B. Bergdahl v. United States. CCA 20160073.  On consideration of Appellant’s writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings and Appellant’s motion for an order requiring Appellee to file and serve a transcript, it is ordered that said writ-appeal is denied and said motion is denied as moot.

This was the fourth fifth trip to Judiciary Square by the Bergdahl defense team. The first, second, and third were all also unsuccessful.