CAAFlog » October 2018 Term » United States v. King

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

United States v. King, No. 18-0288/AF (CAAFlog case page): Oral argument audio

United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page): Oral argument audio

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.

Read more »

CAAF recently granted review in three cases.

The first is an Army case involving the good-faith exception to the warrant requirement (

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. 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 hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR TELEPHONE BECAUSE ACCESS TO THE CONTENTS OF THE IPHONE WOULD NOT HAVE BEEN AVAILABLE BUT FOR THE GOVERNMENT’S ILLEGAL SEARCH AND THE GOOD FAITH DOCTRINE WOULD BE INAPPLICABLE UNDER THE CIRCUMSTANCES

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DEEMING THE INSUFFICIENT NEXUS ISSUE WAIVED BECAUSE THERE WAS NO DELIBERATE DECISION NOT TO PRESENT A GROUND FOR POTENTIAL RELIEF BUT INSTEAD ONLY A FAILURE TO SUCCINCTLY ARTICULATE THE GROUNDS UPON WHICH RELIEF WAS SOUGHT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The second is also from the Army and involves a potential major change:

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. 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 hereby granted on the following issue:

WHETHER THE GOVERNMENT MADE MAJOR CHANGES TO THE TIME FRAME OF THREE OFFENSES, OVER DEFENSE OBJECTION, AND FAILED TO PREFER THEM ANEW IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 603.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The third is from the Air Force and involves the sufficiency of a conviction for wrongful possession of child pornography:

No. 18-0288/AF. U.S. v. Jeremiah L. King. CCA 39055. 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 granted on the following issue:

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?

Briefs will be filed under Rule 25.

The only opinion I can find on the Air Force CCA’s website is a merits decision from July 26, 2017, available here.