CAAFlog » September 2014 Term » United States v. Buford

CAAF decided the interlocutory Air Force case of United States v. Buford, 74 M.J. 98, No. 14-6010/AF (CAAFlog case page) (link to slip op.), on Monday, March 24, 2015. A divided court finds that the military judge was wrong when she concluded that an active duty Air Force Security Forces member was acting as a Government agent when he collected evidence related to the case. CAAF therefore summarily reverses the military judge’s ruling that suppressed the evidence, and the decision of the Air Force CCA that partially affirmed that ruling.

Judge Ohlson writes for the court, joined by Chief Judge Baker and Judge Ryan. Judge Erdmann dissents, joined by Judge Stucky.

Appellee is pending trial by general court-martial on charges that he committed an indecent act with a minor in violation of Article 120, and six specifications relating to child pornography, in violation of Article 134. On October 5, 2013, the military judge granted a Defense motion to suppress evidence discovered on three electronic devices. The Government appealed, and the AFCCA partially affirmed. The Judge Advocate General of the Air Force then certified one issue to CAAF, and the court granted review of a second issue:

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.

Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

These devices were discovered after Appellee’s wife learned of sexually explicit communications between Appellee and other females, and the wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow.  A1C Marlow was an active duty Air Force Security Forces member, and he searched Facebook and email accounts connected to Appellee, preserving screenshots of sexually explicit matters. He also encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C Marlow was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. In a dense decision, the CCA affirmed that ruling in part. But Judge Ohlson’s majority opinion for CAAF reverses the ruling with a relatively-simple holding:

[T]he fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case.

Slip op. at 7.

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

United States v. Buford, No. 14-6010/AF (CAAFlog case page): Oral argument audio.

United States v. Gutierrez, No. 13-0522/AF (CAAFlog case page): Oral argument audio.

Additionally, audio of the December 3, 2014, oral argument at the NMCCA in United States v. Henderson (TWIMJ post) is available here.

CAAF will hear oral argument in the interlocutory Air Force case of United States v. Buford, No. 14-6010/AF (CAAFlog case page), on Tuesday, December 9, 2014. The case involves a Government appeal of a military judge’s ruling that suppressed evidence discovered on the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The Air Force CCA affirmed the military judge’s ruling in part and reversed it in part. The Judge Advocate General of the Air Force then certified the case to CAAF, and the court granted a second issue:

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.

Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

The procedural posture puts the Government in the position of Appellant and Cross-Appellee, while the accused is Appellee and Cross-Appellant. I will refer to the parties as the Government and Appellee.

Appellee is charged with committing an indecent act with a minor in violation of Article 120, and six specifications relating to receipt receipt, possession (on three separate devices: a Dell laptop, a Hewlett-Packard (HP) laptop, and a Centon flash drive), access, and distribution of child pornography, in violation of Article 134, UCMJ. On October 5, 2013, the military judge granted a Defense motion to suppress evidence contained on the three electronic devices. After granting a Government motion for reconsideration and hearing additional argument, the military judge affirmed the suppression ruling. The Government then appealed to the AFCCA, which reversed the military judge in part. The Judge Advocate General of the Air Force then certified the case to CAAF, and CAAF subsequently granted a separate petition for review filed by Appellee.

The facts of the case involve the discovery by Appellee’s wife of evidence of sexually explicit communications between Appellee and other females. Appellee’s wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow, who was also an active duty Air Force Security Forces member. A1C Marlow preserved screenshots of sexually explicit matters and encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators, resulting in the search and seizure of various electronic media.

The case presents a dense and complex web of legal issues, including private searches, consent to search, inevitable discovery, the validity of a search authorization, the applicability of law enforcement’s good faith reliance on the search authorization, and the appropriateness of the application of the exclusionary rule. A number of these issues have received significant recent attention from CAAF. For instance, the court considered private searches in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page), and I discussed the court’s ongoing debate about the application of the exclusionary rule in this post.

It’s hard to predict what CAAF will focus on in this week’s oral argument, but I think the question that has the greatest significance is whether A1C Marlow was acting as a Government agent during his early involvement in the case.

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A few weeks ago, in this post, I wrote about the Army case of Private Hernandez in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the accused of sexual assault of a child and sexual abuse of a child in violation of Article 120b (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125. At issue is CAAF’s divided opinion in United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), where the court found that the affirmative defense of mistake of fact as to age does not apply in a prosecution for non-forcible sodomy in violation of Article 125. Private Hernandez asserted that affirmative defense and the military judge found that it existed, but did not acquit Private Hernandez outright because of Wilson.

So, the Government sought extraordinary relief from the Army CCA in the form of a writ forcing the military judge to make a finding. A three-judge panel rejected the Government effort, but then the court en banc granted the Government a writ of prohibition. Last week Private Hernandez appealed that decision to CAAF:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.  Notice is hereby given that a writ-appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b).

Additionally, on Thursday of last week CAAF granted review of an issue in the certified Air Force case of United States v. Buford. This case is an interlocutory appeal of a military judge’s ruling suppressing the fruits of searches of electronic devices owned by the accused, who is charged with indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134. The military judge suppressed evidence discovered on the accused’s electronic devices (a laptop and a thumb drive) and on external accounts (a Facebook page and an email account) accessed through one of those electronic devices. The CCA affirmed suppression of only the third-party sources, reversing the suppression of evidence discovered on the laptop and thumb drive. I discussed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

I discussed the certification in this post. While the certified issue questions the military judge’s ruling, CAAF’s grant focuses on the decision of the Air Force CCA that partially reversed the judge’s ruling:

No. 14-6010/AF.  United States, Appellant and Cross-Appellee v. Aaron M. BUFORD, Appellee and Cross-Appellant.  CCA 2013-26.  On consideration of the cross-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 for grant of review is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ERRED BY FINDING A.B. CONSENTED TO LAW ENFORCEMENT’S SEARCH OF THE CENTON THUMB DRIVE AND THE DELL LAPTOP.

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedures, no further pleadings will be filed.

Back in April, in this post, I discussed the Air Force CCA’s decision on a Government interlocutory appeal in United States v. Buford, No. 2013-26 (A.F.Ct.Crim.App. Apr. 4, 2014) (link to order).

The appeal involved the suppression of evidence discovered on both the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The military judge found that a security forces member was acting in an official capacity when, at request of the accused’s spouse, he viewed and collected evidence from the accused’s Facebook account, e-mail account, and thumb drive, and that he violated the accused’s reasonable expectation of privacy.

The CCA found that the accused’s wife gave valid consent for a search of the laptop and thumb drive, but not for a search of the third-party internet sources utilizing the laptop, and partially affirmed the judge’s ruling suppressing the third-party sources, writing:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted).

At the time of the post, I predicted that the Air Force would certify the case to CAAF. A few weeks later I identified an overall appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Yesterday, the Air Force certified Buford:

No. 14-6010/AF.  U.S. v. Aaron M. BUFORD. CCA 2013-26. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

I’ll be interested to see facts that explain why the Air Force is pursuing this litigation rather than just serving a subpoena on Facebook and the email provider (based on the information provided by the accused’s wife prior to the search).

Earlier this term, CAAF decided the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page), reversing the Air Force CCA’s decision on an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone.

The issue in Wicks was whether the Government met its burden to show that a law enforcement search subsequent to a private search did not exceed the scope of the private search. But now the AFCCA considers another trial-stage suppression issue involving a similar question, in United States v. Buford, No. 2013-26 (A.F.Cr.Crim.App. Apr. 4, 2014) (link to order).

In Buford, the accused’s wife “found a ‘fake’ Facebook account that was associated with [his] e-mail address. [She] identified the page as a ‘fake’ account because the name and photo associated with the account were not of the [accused], but the e-mail address belonged to him. She became curious and logged onto [his] e-mail account.” Order at 2. Eventually, she shared the information with Airman First Class  (A1C) “RM,” a male friend of hers who was also an active duty Security Forces member. A1C RM then searched the Facebook account and an email account, preserving screenshots of sexually explicit matters. A1C RM then encouraged the accused’s wife to make a report to law enforcement, and during subsequent searches “A1C RM acted as a ‘conduit’ between [the wife] and the AFOSI agents because ‘he was a cop and he could relate to them.'” Order at 3. Eventually, various electronic media was searched and seized, and the accused was charged with wrongfully committing indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134, UCMJ.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C RM was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. The CCA affirms this ruling in part.

Notably, the judge and the CCA make a critical distinction between the electronic devices themselves and the online accounts accessed by the devices:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted) (emphasis added).

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Audio of last week’s oral argument of two cases at the Air Force CCA is available at the following links:

United States v. Yarber, argued on Wednesday, January 15, 2014

United States v. Buford, argued on Thursday, January 16, 2014

No additional case information is posted on the CCA’s website.