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:

Putting aside counsel’s argument, then, the unrebutted evidence was that the DFE opened the thumb drive in “picture view,” meaning that an image preview of each file was displayed on his screen. (JA 17-19).

Appellee seeks to avoid this evidence by asserting that the military judge found otherwise. (Appellee’s Br. 10). The military judge wrote, “During the course of the exam, [the DFE] . . . saw several file names of videos normally associated with child pornography … . ” (JA 167). Appellee thus relies on an unreasonable negative implication to suggest that the military judge found as a matter of fact that the DFE did not also rely on the picture view. The force of a negative implication depends on the circumstances. A sign on a storefront that reads “No Dogs Allowed” should be read to also exclude monkeys, since it is apparent that the sign’s author sought to highlight only those animals most likely to be brought inside. So too a sign that reads “No Shirt, No Shoes, No Service” should not be read to allow the service of customers wearing a shirt and shoes but not pants. See United States v. Robinson, 28 M.J. 481,483 n.* (C.M.A. 1989) (citing Sullivan v. Hudson, 490 U.S. 877 (1989)). Here, the military judge failed to consider and grapple with the evidence that the DFE used picture view. Therefore, Appellee’s desired negative implication – that because the military judge did not mention image previews, he affirmatively found that the DFE did not use image previews – is not reasonable under these circumstances.

Gov’t Div. Reply Br. at 10-11. Fundamentally, while the military judge found that the agent saw suspicious file names and then expanded the scope of the search to view the contents of the files, the Army Appellate Government Division asserts that the agent’s search involved contemporaneously viewing both the filenames and the contents. The Division also argues that the scope of the warrant properly included all of the contents of the digital media.

The Navy-Marine Corps Appellate Government Division filed an amicus curiae brief in support of the Army Appellate Government Division. The brief “joins in Appellant’s Brief of December 21, 2016, and writes to supplement Appellant’s arguments.” Amicus Br. at 2. This seems like nothing more than the Government getting a second bite at the apple, however it is expressly authorized by CAAF’s Rule 26(a). This odd arrangement – where one Appellate Government Division can purport to represent the entirety of the Government but a second Appellate Government Division can file a second brief offering complementary arguments – is part of why I made the editorial decision to stop using the term the Government to refer to the Appellate Government Divisions.

Case Links:
ACCA opinion
Appellant’s brief  (Army App. Gov’t Div.)
Appellee’s brief
Appellant’s (Army App. Gov’t Div.) reply brief
Amicus brief: N.M. App. Gov’t Div.
Blog post: Argument preview

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