Petition for Writ of Certiorari — Jason M. Blackburn, Petitioner v. United States

No. _____

IN THE

Supreme Court of the United States

__________

JASON M. BLACKBURN,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

Court of Appeals for the Armed Forces

__________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

__________

MEGHAN R. GLINES-BARNEY

Counsel of Record

JENNA M. ARROYO

Appellate Defense Counsel

Air Force Judiciary

United States Air Force

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

Counsel for Petitioner

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TABLE OF CONTENTS

United States Court of Appeals for the Armed Forces, Opinion (July 24, 2020)…...…3a

United States Air Force Court of Criminal Appeals, Opinion (August 22, 2019)…...27a

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UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellant

v.

Jason M. BLACKBURN, Staff Sergeant

United States Air Force, Appellee

No. 20-0071

Crim. App. No. 39397

Argued June 3, 2020—July 24, 2020

Military Judge: Christopher M. Schumann

For Appellant: Captain Peter F. Kellett (argued); Colonel

Shaun S. Speranza, Lieutenant Colonel Brian C. Mason,

and Mary Ellen Payne, Esq. (on brief).

For Appellee: Major Meghan R. Glines-Barney (argued).

Judge RYAN delivered the opinion of the Court, in

which Chief Judge STUCKY, and Judges OHLSON and

SPARKS, joined. Judge MAGGS filed a separate opinion

concurring in the judgment.

_______________

Judge RYAN delivered the opinion of the Court.

A general court-martial convicted Appellee, contrary to

his pleas, of one charge and specification of sexual abuse of a

child and one charge and specification of indecent recording

in violation of Articles 120b and 120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b, 920c (2012). The

panel sentenced Appellee to a bad-conduct discharge, confinement for five years, forfeiture of all pay and allowances,

and reduction to E-1. The convening authority approved all

but the adjudged forfeitures, deferring the mandatory forfeiture of pay in the amount of $728.00 until the date of action

and waiving the mandatory forfeiture of pay and allowances

for six months, release from confinement, or expiration of

term of service, whichever was sooner.

The United States Air Force Court of Criminal Appeals

(AFCCA) affirmed one charge and specification of sexual

abuse of a child but set aside one charge and specification of

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indecent recording and the sentence and authorized a rehearing. United States v. Blackburn, No. ACM 39397, 2019

CCA LEXIS 336, at *54, 2019 WL 3980730, at *18 (A.F. Ct.

Crim. App. Aug. 22, 2019).

The Judge Advocate General of the Air Force then certified the following issues pursuant to Article 67(a)(2), UCMJ,

10 U.S.C. § 867(a)(2) (2018):

I. Whether under Military Rule of Evidence

311(d)(2)(A), Appellee waived a basis for suppression that he did not raise at trial?

II. Whether the Air Force Court of Criminal Appeals erred in finding the military judge abused

his discretion when he denied the motion to

suppress digital evidence pursuant to the good

faith exception?

III. Whether the military judge properly denied the

motion to suppress digital evidence pursuant to

Military Rule of Evidence 311(a)(3), a determination not reviewed by the Air Force Court of

Criminal Appeals?

The first question we answer in the negative. Answering the

second question in the affirmative, we need not reach the

third issue. We therefore remand to the AFCCA for further

review under Article 66, UCMJ, 10 U.S.C. § 866 (2018).

I. Background

On April 20, 2016, while undressing to shower, Appellee’s twelve-year-old stepdaughter, ES, found a camcorder in

the bathroom. The camcorder was partially covered, but the

lens was exposed, aimed at the shower, and a red light indicated the device was recording. On the device, she found an

eleven-minute video of her in the bathroom, as well as another video she could not access. Appellee entered the bathroom, saw ES reviewing the video, apologized, and claimed it

was a prank. ES then told her stepmother, LS, and her father, JS, that she found Appellee’s camcorder recording her

in the bathroom, and LS contacted the Air Force Office of

Special Investigations (AFOSI).

AFOSI immediately responded with “an all hands on

deck” mentality and assembled an investigative team that

included then special agent Technical Sergeant D (TSgt D).

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After speaking with LS, security forces apprehended Appellee due to the risk that evidence might be tampered with or

destroyed.

AFOSI then interviewed ES, and TSgt D listened in. She

said Appellee often came into the bathroom while she showered, but only on nights when her biological mother MB,

Appellee’s wife, was not home. On one such occasion, Appellee aimed a camera over the curtain rod but later claimed he

was only joking. He showed the camera to ES afterward and

said it was not recording. Appellee had previously asked ES

to send him pictures of her in a recently purchased shirt,

and she complied. He also once asked ES for nude pictures

before deploying, but ES declined.

AFOSI interviewed MB, LS, and JS. MB said Appellee

was “tech savvy” and had multiple computers in their home

that they used regularly. LS said ES told her Appellee slept

in her bed at least once and frequently texted her asking for

pictures of herself and if she was alone. No one stated that

Appellee backed up media to his computers or connected his

camcorder to any of his devices.

In accordance with AFOSI practices, TSgt D then briefed

the military magistrate over the phone, with a judge advocate on the line, regarding the case. TSgt D later prepared a

written affidavit reflecting the conversation and submitted it

within the required time frame.1 The affidavit closed with

“[b]ased on my experience, training and the facts listed

above, I believe evidence proving [Appellee]’s intent to manufacture child pornography is located within his residence.”

TSgt D requested and received authorization to search and

seize “any and all cameras or electronic media to include

hard drives, SD cards, compact discs, computers and tablet

computers that could contain evidence of child pornography

within [Appellee]’s residence.” Upon executing the search

authorization, AFOSI seized approximately 300 items, including Appellee’s computer. A search of this computer

found “several videos of [ES] in the bathroom.”

1 The written search authorization was approved by the mili-

tary magistrate on April 23, 2016.

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Appellee moved to suppress evidence obtained pursuant

to the search authorization, “particularly videos found on a

personal desktop computer.” Relying heavily on United

States v. Nieto, 76 M.J. 101 (C.A.A.F. 2017), he argued that

the search authorization was neither supported by probable

cause nor covered by the good faith exception, as the affidavit failed to show a “particularized nexus” between the camcorder and the other electronics.

In the written motion to suppress, Appellee highlighted

that when the search authorization was requested, “there

was no showing [that Appellee] actually downloaded images

from the camcorder to his computer . . . . In fact, the affidavit did not even mention the existence of a computer. In this

sense, the affidavit clearly lacked sufficient information to

tie the camcorder to the other seized electronics.” Furthermore, the “agents knew they had no evidence connecting

[Appellee]’s camcorder to his computer, yet they sought a

search authorization for it anyway.”

TSgt D testified at the suppression hearing that he requested authorization to search and seize electronics other

than the camcorder because people typically transfer camcorder footage to other devices, but he did not recall relaying

this specific point to the magistrate. The magistrate testified

that she thought inclusion of the other devices was warranted because there were multiple instances of Appellee asking

ES for pictures and recording ES in the bathroom. She found

these occurrences evidenced a possible pattern of behavior

that, when coupled with the commonsense understanding

that people tend to transfer camcorder videos onto other devices for subsequent viewing, warranted a broader scope of

authorization. She “absolutely” felt that Appellee may have

backed up some of his media. The magistrate could not recall whether, on the phone, TSgt D said Appellee ever connected the camcorder to another device, possessed child pornography, or visited such websites.

Appellee countered with Nieto, arguing that a showing

was needed “linking the computer to the instrumentality of

the crime,” and “that particularized nexus is missing here

because the . . . camcorder[] had no connection to the computer that [AF]OSI or the magistrate knew about at the

time that she granted the search authorization.” TSgt D did

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not brief the magistrate on the camcorder’s specifications,

nor did he know if the files on the device were transferrable

to a computer. Further, there was no evidence Appellee produced or disseminated child pornography, nor did TSgt D

tell the magistrate he believed that there was child pornography on Appellee’s computer.

The military judge denied the motion to suppress. Acknowledging his decision was a “very close call,” he agreed

that the search authorization lacked probable cause under

Nieto but found the good faith exception applied.

The military judge found none of the four bars to the

good faith exception under United States v. Leon, 468 U.S.

897, 923 (1984), applied, stating, as relevant here, that the

magistrate was not misled by the affidavit nor did TSgt D

give false information or recklessly disregard the truth.

The military judge then found each element of the exception satisfied. First, the magistrate was competent. Second,

the agents would be objectively reasonable in believing the

magistrate had a “substantial basis” for probable cause: The

search request “was not a ‘bare bones’ affidavit,” TSgt D did

not “intentionally or recklessly omit[] or misstate[] any information,” and the magistrate had a “common sense belief

and understanding regarding the likelihood of an individual

transferring data from a camcorder to another media device

when she approved the request for a search authorization.”

Third, the magistrate did not rubber-stamp the request; she

testified that her conversation with TSgt D was consistent

with the contents of the written affidavit and a judge advocate participated in the discussion.

On appeal, the AFCCA agreed that the absence of a nexus between the camcorder and other electronic devices foreclosed a finding of probable cause. 2019 CCA LEXIS 336, at

*43–44, 2019 WL 3980730, at *15.

However, the AFCCA found that the military judge erred

in applying the good faith exception to the exclusionary rule

and thus abused his discretion in denying the motion to

dismiss. 2019 CCA LEXIS 336, at *43–44, 2019 WL

3980730, at *15. The Court disagreed that “TSgt D[] did not

recklessly omit or misstate any information” because “[n]one

of the information available to the AFOSI agents supported

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a conclusion that the images captured on the camcorder depicted ES naked.” 2019 CCA LEXIS 336, at *46, 2019 WL

3980730, at *16. Furthermore, “the search authorization in

this case was premised on the search for child pornography”

but Appellee’s charge was for indecent recording, which does

not require sexually explicit images. 2019 CCA LEXIS 336,

at *47, 2019 WL 3980730, at *16. The AFCCA further noted

that “[i]njecting a reference to child pornography into the

request for search authorization at best skewed the facts

that were known at the time, and at worst amounted to a

reckless misstatement of those facts.” 2019 CCA LEXIS 336,

at *47, 2019 WL 3980730, at *16. The compilation of this

conduct, according to the AFCCA, amounted to “recklessly

omitting or misstating the information to obtain the authorization,” which foreclosed the application of the good faith

exception. 2019 CCA LEXIS 336, at *50, 2019 WL 3980730,

at *17.

II. Discussion

A. Waiver

The Government first argues the lower court erred by reversing the military judge’s denial of the motion to suppress

on a ground not preserved by Appellee: TSgt D recklessly

omitted or misstated information to obtain the authorization. While a close call, we find no waiver here.

This Court reviews de novo whether an accused has

waived an issue. United States v. Ahern, 76 M.J. 194, 197

(C.A.A.F. 2017). Suppression arguments not raised at trial

are waived under Military Rule of Evidence (M.R.E.)

311(d)(2)(A). See United States v. Perkins, 78 M.J. 381, 389–

90 (C.A.A.F. 2019). Preservation requires a “particularized

objection.” Id. at 390 (internal quotation marks omitted) (citation omitted).2 When constitutional rights are at issue, we

have applied a presumption against finding waiver. United

States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018). In Perkins,

we found that the appellant waived the argument that the

2 This requirement ensures the government has the opportuni-

ty to present relevant evidence and develop a full record for review

on appeal. 78 M.J. at 390 (citing United States v. Stringer, 37 M.J.

120, 132 (C.M.A. 1993) (Wiss, J., concurring in the result)).

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evidence must be suppressed3 because the issuing authority

rubber-stamped the request, where the argument at trial

was that “the search authorization was unconstitutionally

vague, was lacking in probable cause, and failed to meet the

particularity requirement of the Fourth Amendment.” 78

M.J. at 389–90 (internal quotation marks omitted) (citation

omitted). This fell far short of the “particularized objection”

required to preserve the “rubber-stamp” issue. Id. (internal

quotation marks omitted) (citations omitted).

The situation is more nuanced here. The good faith exception is unavailable when the magistrate “was misled by

information in an affidavit that the affiant knew was false or

would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923 (citing Franks v.

Delaware, 438 U.S. 154 (1978)). Though definitions of “reckless disregard” in this context range from sheltering “obvious reasons to doubt the veracity of the allegations,” United

States v. Cowgill, 68 M.J. 388, 392 (C.A.A.F. 2010) (internal

quotation marks omitted) (quoting United States v. Jones,

208 F.3d 603, 607 (7th Cir. 2000)), to “withhold[ing] a

fact . . . that any reasonable person would have known . . .

was the kind of thing the judge would wish to know,” id. (internal quotation marks omitted) (quoting Wilson v. Russo,

212 F.3d 781, 788 (3d Cir. 2000)), “reckless disregard” must

refer to “something more than negligence,” id.

The Government argues that “[a]t no point did Appellee

argue that the good faith exception could not apply because

law enforcement provided the magistrate with an affidavit

that ‘recklessly omitted or misstated information,’ as

AFCCA found.” Brief for Appellant at 15–16, United States

v. Blackburn, No. 20-0071 (C.A.A.F. Jan. 16, 2020). It further complains that the lack of “allegation at trial or on appeal that a deliberately false or reckless statement was presented to a military magistrate” deprived the Government of

the opportunity to respond to particularized objections. Id.

3 See id. at 390 n.13 (rubber-stamping is not “merely an excep-

tion to the good faith exception,” and is a basis to invalidate a

search authorization “the accused can argue in the first instance”).

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at 13–14. We disagree. While a particularized objection must

be made, and the talismanic words “false” or “reckless disregard of the truth” were not used, the record shows Appellee

in fact alleged that the Government provided false information to the magistrate.

In his written motion, Appellee argued the probable

cause affidavit was “completely absent” of any nexus between the camcorder and other devices; the affidavit “clearly

lacked sufficient information” of any connection; and the

agents “knew they had no evidence connecting [Appellee]’s

camcorder to his computer, yet they sought a search authorization for it anyway.” At the suppression hearing, Appellee

also argued that TSgt D never gave the magistrate evidence

that Appellee produced or disseminated child pornography

or said whether any child pornography was believed to reside on Appellee’s computer. Further, while TSgt D’s search

authorization request noted his belief that “evidence proving . . . intent to manufacture child pornography is located

within [Appellee’s] residence,” and trial counsel argued before the military judge that AFOSI “acted in good faith” because the circumstances reasonably led them to believe Appellee was manufacturing child pornography,4 Appellee

complained that nothing in the affidavit evidenced “sexually

explicit conduct that would merit child pornography,” and

the “mere fact that [AFOSI] decides to slap that on an affidavit does not make this a child pornography case.” Though

somewhat subtle, this theory was inherent to the defense

argument, and the defense’s arguments as a whole demonstrate an accusation of at least recklessness in the search

authorization request, which adequately preserved this issue on appeal.

4 More bluntly, trial counsel stated at the suppression hearing:

I know there’s been some back and forth about

whether [ES] was nude or not, but the ground hitting, no kidding truth is the allegation that came to

[AFOSI] was [Appellee] had been filming his 12

year old daughter while she was undressed, while

she was nude, and that gives them rise to say,

“Hey, it looks like he could be manufacturing child

pornography.”

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Moreover, the military judge addressed this point directly, finding no evidence that TSgt D provided false information or recklessly disregarded the truth. This, combined

with Appellee’s arguments in the written motion and at the

hearing—which mirror his arguments here on appeal—both

distinguishes the present case from Perkins and illustrates

that Appellant was not deprived of the opportunity to respond to the allegation of recklessness.

B. The AFCCA erred in finding the military judge

abused his discretion in applying the

good faith exception

This Court reviews a military judge’s denial of a motion

to suppress evidence for abuse of discretion. United States v.

Leedy, 65 M.J. 208, 212 (C.A.A.F. 2007). An abuse of discretion occurs when a military judge’s “findings of fact are

clearly erroneous or his conclusions of law are incorrect.”

United States v. Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017)

(internal quotation marks omitted) (quoting United States v.

Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)). When reviewing a

lower court’s decision on a military judge’s ruling, we “typically have pierced through that intermediate level and examined the military judge’s ruling, then decided whether the

Court of Criminal Appeals was right or wrong in its examination of the military judge’s ruling.” United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006) (internal quotation

marks omitted) (citation omitted).

In reviewing a ruling on a motion to suppress, the evidence is considered in the light most favorable to the party

that prevailed on the motion. See, e.g., Leedy, 65 M.J. at 213.

The question whether TSgt D provided evidence that was

intentionally false or with a reckless disregard for the truth

is a question of fact, which we review for clear error. United

States v. Allen, 53 M.J. 402, 408 (C.A.A.F. 2000). “A deferential standard of review is appropriate to further the Fourth

Amendment’s strong preference for searches conducted pursuant to a warrant.” Massachusetts v. Upton, 466 U.S. 727,

733 (1984).

The Fourth Amendment safeguards “[t]he right of the

people to be secure in their persons, houses, papers, and effects.” U.S. Const. amend. IV. This protects against “unrea-

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sonable searches and seizures” and requires warrants to be

supported by probable cause. Id. Absent probable cause, this

Court typically applies the exclusionary rule. See M.R.E.

311(a)(3); Nieto, 76 M.J. at 106.

However, under the good faith exception in M.R.E.

311(c)(3), the results of a search authorization in fact unsupported by probable cause will not require exclusion if: (1)

the magistrate had authority to grant the request; (2) the

magistrate had a substantial basis for finding probable

cause; and (3) law enforcement reasonably and in good faith

relied on the authorization.5 Nieto, 76 M.J. at 107. The second prong is met when the agents have an objectively reasonable belief that the magistrate had a substantial basis for

probable cause. Perkins, 78 M.J. at 387–88. As discussed supra Part II.A., the exception is unavailable where the magistrate was “misled by information” law enforcement “knew

was false or would have known was false except for [their]

reckless disregard of the truth.” Leon, 468 U.S. 897 at 923.6

We disagree with the AFCCA’s finding of recklessness.

First, the lower court failed to demonstrate that the military

judge’s finding of fact on this point was clearly erroneous or

to consider that it was bound to consider the evidence in the

light most favorable to the party that prevailed on the motion at trial.

Second, though AFOSI had no direct evidence of child

pornography, they did have ES saying that Appellee surreptitiously recorded her preparing to shower, often entered the

room while she showered, and asked her for naked pictures.

5 United States v. Carter describes this third element as turn-

ing on whether the search authorization was facially defective or

whether the police knew the magistrate simply rubber-stamped it.

54 M.J. 414, 421 (C.A.A.F. 2001).

6 The Supreme Court in Franks, on which Leon built its “reck-

less disregard” exception, explained that “[b]ecause it is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon his

authority if a warrant affidavit, revealed after the fact to contain a

deliberately or reckless false statement, were to stand beyond impeachment.” 438 U.S. at 165 (citations omitted).

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While AFOSI’s use of the phrase “child pornography” may

have constituted negligence, we agree that it did not “rise to

the level of a reckless disregard for the truth.” 2019 CCA

LEXIS 336, at *57–58, 2019 WL 3980730, at *20 (Lewis, J.,

concurring in part and dissenting in part and in the result).7

Third, MB told AFOSI that Appellee was “tech savvy”

and had multiple computers at home that were regularly

used. Along with TSgt D’s understanding that people tend to

transfer camcorder videos to other devices, this further

counsels against a finding of recklessness. See Nieto, 76 M.J.

at 106 (officer’s experience may be useful in establishing

nexus); cf. Leedy, 65 M.J. at 213 (probable cause looks at

“practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (internal

quotation marks omitted) (citation omitted)).

Fourth, legal counsel was on the call between TSgt D and

the magistrate, and the record reveals no objections from

him. See Perkins, 78 M.J. at 388 (agent’s reliance on lawyers’

advice “most significant[]” in determining objectively reasonable belief in substantial basis for probable cause under

M.R.E 311(c)(3)(B)).

7 Indeed, indecent recording—with which Appellee ultimately

was charged—and child pornography are offenses that might easily cover the same acts. Compare Manual for Courts-Martial, United States pt. IV, para. 45c.a.(a)(2) (2012 ed.) (prohibiting “knowingly . . . record[ing] . . . the private area of another person,

without that other person’s consent and under circumstances in

which that other person has a reasonable expectation of privacy”),

and para. 45c.a.(c)(2) (defining “ ‘private area’ ” as “the naked or

underwear-clad genitalia, anus, buttocks, or female areola or nipple”), with para. 68b.b.(4)(a) (prohibiting “knowingly and wrongfully produc[ing] child pornography”), and para. 68b.c.(1) (defining

“ ‘[c]hild pornography’ ” as “material that contains either an obscene visual depiction of a minor engaging in sexually explicit

conduct or a visual depiction of an actual minor engaging in sexually explicit conduct”). The affidavit might simply reflect “a poor

understanding of when a depiction of a 12-year-old girl in some

state of undressing or depicted showering would meet the legal

definition of sexually explicit conduct.” 2019 CCA LEXIS 336, at

*58, 2019 WL 3980730, at *20 (Lewis, J., concurring in part and

dissenting in part and in the result).

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Lastly, we agree with the AFCCA separate opinion that

the magistrate’s testimony counters the conclusion that she

was misled by the child pornography references. 2019 CCA

LEXIS 336, at *58–59, 2019 WL 3980730, at *20 (Lewis, J.,

concurring in part and dissenting in part and in the result).

The magistrate took into consideration the “seriousness of

the allegation,” the seeming pattern of behavior involving

recording devices, the request for naked pictures, and her

independent understanding that camcorder videos are typically transferred to other electronic devices.

Even if there were not a sufficient nexus for probable

cause, AFOSI’s belief that the magistrate had a substantial

basis for probable cause was reasonable. Nieto is distinguishable. There, the appellant confessed to recording occupants of latrines on his cell phone, and a search authorization was issued for both that device and a laptop despite the

agent “not know[ing] whether the files on the cell phone

were transferrable to the laptop,” and despite the fact that

videos taken on a cell phone are generally viewed on that

same device. 76 M.J. at 104, 108. Here, TSgt D and the magistrate’s commonsense understanding of camcorders supported their independent conclusions that the recordings

were transferable to computers. This understanding was not

“technologically outdated” as the agent’s understanding of

cell phones was in Nieto. Id. at 107. Furthermore, in Nieto,

the appellant was deployed and his “ownership of the laptop

in question was predicated on suspect information and credited to an unknown source,” id. at 108, whereas here Appellee was a noncommissioned officer stationed with his family

at an Air Force base within the continental United States, so

it was certainly reasonable for the magistrate to assume

that the family had a computer that Appellee used, and then

for AFOSI to reasonably conclude that the magistrate found

a connection between the camcorder and a family computer.

The requisites for application of the good faith exception

are satisfied here. The magistrate was competent, AFOSI’s

belief in her substantial basis for probable cause was

reasonable, and she did not rubber-stamp the request. The

AFCCA erred in finding the military judge abused his

discretion.

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III. Decision

The judgment of the United States Air Force Court of

Criminal Appeals is affirmed as to the Specification of

Charge I for sexual abuse of a child. It is reversed as to setting aside the finding of guilty for the Specification of

Charge II for indecent recording and reversed as to setting

aside the sentence. The record is returned to the Judge Advocate General of the Air Force for remand to the AFCCA for

further review under Article 66, UCMJ, 10 U.S.C. § 866

(2018).8

8 In light of the judgment of this Court, Appellee’s motion for

appropriate relief is denied as moot. Appellee’s Motion for Appropriate Relief at 1, United States v. Blackburn, No. 20-0071

(C.A.A.F. Mar. 3, 2020).

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Judge MAGGS, concurring in the judgment.

Certified Issue I is “[w]hether under Military Rule of Evidence 311(d)(2)(A), Appellee waived a basis for suppression

that he did not raise at trial.” The asserted basis for suppression is that the Government recklessly misstated or

omitted information in its application for a search authorization and therefore cannot rely on the good faith exception

to the exclusionary rule in Military Rule of Evidence

(M.R.E.) 311(a). The Court answers Certified Issue I in the

negative. I respectfully disagree. A review of the record

shows that Appellee waived the basis for suppression at issue. Despite our disagreement on this point, I concur in the

Court’s judgment that the case should be reversed and remanded to the United States Air Force Court of Criminal

Appeals (AFCCA) for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866

(2018).

I. Certified Issue I

Before trial, Appellee asked the military judge to suppress all evidence resulting from the search and seizure of

his electronics, including videos found on his personal desktop computer. Appellee made several arguments in support

of his request. One of these arguments concerned the good

faith exception to the exclusionary rule. Appellee contended

that an agent of the Air Force Office of Special Investigations (AFOSI) could not have relied in good faith on a search

authorization because the military magistrate who issued

the search authorization did not have a substantial basis for

determining the existence of probable cause. Appellee did

not make the distinct argument, upon which he now relies,

that the AFOSI agent failed to act in good faith because he

recklessly misstated or omitted information when seeking a

search authorization from the military magistrate. Accordingly, Appellee waived this basis for suppression and cannot

raise it on appeal.

A. The Good Faith Exception and Waiver

An accused might raise a variety of objections when the

government asserts the good faith exception to the exclusionary rule. Depending on the facts, the accused might argue that the government has not established one or more of

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the elements of the good faith exception as listed in M.R.E.

311(c)(3) and interpreted by this Court. This rule provides:

Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(A) the search or seizure resulted from an

authorization to search, seize or apprehend issued

by an individual competent to issue the

authorization under Mil. R. Evid. 315(d) or from a

search warrant or arrest warrant issued by

competent civilian authority;

(B) the individual issuing the authorization or

warrant had a substantial basis for determining

the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good

faith relied on the issuance of the authorization or

warrant. Good faith is to be determined using an

objective standard.1

Id. Additionally, again depending on the facts, the accused

might argue that the good faith exception does not apply for

any of four reasons that this Court identified in United

States v. Lopez, 35 M.J. 35 (C.M.A. 1992), based on the Supreme Court’s interpretation of the Fourth Amendment in

United States v. Leon, 468 U.S. 897 (1984). The Court in

Lopez stated:

[1] [T]he good-faith exception will not apply when

part of the information given to the authorizing official is intentionally false or given with “reckless

disregard for the truth.” [2] It will also not apply

where “no reasonably well trained officer should rely on the warrant.” [3] The exception also will not

apply when the “affidavit [is] ‘so lacking in indicia

of probable cause as to render official belief in its

existence entirely unreasonable.’ ” [4] Finally, it

1 We have interpreted M.R.E. 311(c)(3)(B) to require that the

law enforcement official claiming to have acted in good faith had

to have an “objectively reasonable belief that the magistrate [issuing the search authorization] had a ‘substantial basis’ for determining the existence of probable cause.” United States v. Perkins,

78 M.J. 381, 387 (C.A.A.F. 2019) (quoting United States v. Carter,

54 M.J. 414, 422 (C.A.A.F. 2001)).

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will not apply when the authorization “may be so

facially deficient—i.e., in failing to particularize the

place to be searched or the things to be seized—

that the executing officers cannot reasonably presume it to be valid.”2

35 M.J. at 41–42 (fifth alteration in original) (quoting Leon,

468 U.S. at 923).

The AFCCA determined that the good faith exception did

not apply because this case fell within the first circumstance

identified in Lopez for when the good faith exception cannot

apply. Specifically, the AFCCA concluded that the Government did “recklessly omit or misstate the information [submitted] to obtain a search authorization.” United States v.

Blackburn, No. ACM 39397, 2019 CCA LEXIS 336, at *50,

2019 WL 3980730, at *17 (A.F. Ct. Crim. App. Aug. 22,

2019) (unpublished). Certified Issue I turns on whether Appellee raised this particular objection at trial. If Appellee did

not raise it, then he waived it under M.R.E. 311(d)(2)(A),

which provides: “When evidence has been disclosed prior to

arraignment . . . the defense must make any motion to suppress or objection under this rule prior to submission of a

plea. . . . Failure to so move or object constitutes a waiver of

the motion or objection.” Applying M.R.E. 311(d)(2)(A), this

Court has held that an accused must make a “particularized

objection” to the admission of evidence to preserve the objection. Perkins, 78 M.J. at 390 (internal quotation marks omitted) (quoting United States v. Robinson, 77 M.J. 303, 307 &

n.6 (C.A.A.F. 2018); United States v. Stringer, 37 M.J. 120,

125 (C.M.A. 1993)). My review of the record leads me to conclude that Appellee did not make the particularized objection upon which he now relies in either his written suppression motion or during oral argument on the motion.

B. Appellee’s Written Suppression Motion

In his written motion to suppress the evidence obtained

during the authorized search, Appellee made four particularized arguments, which he summarized as follows:

2 The third reason identified in Lopez overlaps with M.R.E.

311(c)(3)(B) as that provision has been interpreted by this Court.

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[1] The digital evidence found on [Appellee’s] computer should be suppressed because the search was

not supported by probable cause and the search authorization was overbroad. [2] The good-faith exception does not apply because, under [United

States v. Nieto, 76 M.J. 101 (C.A.A.F. 2017)], the

military magistrate did not have a substantial basis for determining probable cause existed. [3] Further, the inevitable discovery rule does not apply

because investigators had no information and were

pursuing no leads which would have led them to

videos on [Appellee’s] desktop. [4] Finally, the exclusion of this evidence results in appreciable deterrence of future unlawful searches and the benefits of such deterrence would outweigh the costs to

the justice system.

In making these four arguments, Appellee nowhere asserted—either explicitly or implicitly—that the Government

recklessly misstated or omitted information in its submission to the military magistrate. Of Appellee’s four arguments, only the second concerned the good faith exception to

the exclusionary rule.3 This argument addressed only the

requirements of M.R.E. 311(c)(3)(B) and the third circumstance identified in Lopez in which the good faith exception

cannot apply. Specifically, Appellee asserted that the military magistrate did not have a substantial basis for determining probable cause because “the military magistrate had

no facts to draw a nexus between [Appellee’s] camcorder and

his desktop computer.” Appellee added: “On even better facts

for the government, [the United States Court of Appeals for

the Armed Forces] ruled in Nieto that the good faith exception did not apply because the military magistrate had no

substantial basis for determining probable cause existed.”

3 The first argument addressed M.R.E. 311(a)(2), which pro-

vides for the exclusion of evidence from an unlawful search, including a search made without probable cause. The third argument concerned M.R.E. 311(c)(2), which creates an exception to

the exclusionary rule in M.R.E. 311(a). The fourth argument concerned M.R.E. 311(a)(3), which provides that evidence is to be excluded only if the benefits of deterring unlawful searches outweigh

the costs to the justice system.

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In United States v. Nieto, two soldiers alleged that the

appellant had used his cell phone to record them in the latrine, and investigators then sought and received authorization from a military magistrate to search and seize the appellant’s cell phone and laptop. 76 M.J. at 103–04. This

Court held that there was no probable cause to search the

laptop and that the evidence obtained from the laptop

should have been suppressed under the exclusionary rule in

M.R.E. 311(a). Id. at 107–08. The Court held that the good

faith exception to the exclusionary rule did not apply because the requirement in M.R.E. 311(c)(3) was not met. Id.

at 108. The Court reasoned that “the military magistrate

was not provided with substantive oral information linking

[Appellee’s] misconduct to the laptop.” Id. There was no allegation in Nieto, and no allegation in Appellee’s written motion in this case, that the investigators in either case had

intentionally or recklessly provided false information to the

military magistrate.

C. Oral Argument on Appellee’s Motion

During oral argument on the suppression motion, defense counsel generally adhered to the contentions in Appellee’s written motion. Addressing the good faith exception to

the exclusionary rule, defense counsel asserted:

Why am I asking you to suppress this [sic] electronics? No probable cause and that search authorization was overbroad. And so with that in my mind,

we next fail—or we move on to the other saving

graces here, the good faith exception. Sir, I can dispense with this one pretty quickly—that was

brought up in Nieto as well—you can’t use the good

faith exception if the magistrate didn’t have a substantial basis for probable cause. That is a required

finding in order to use the good faith exception.

In this passage, defense counsel was again addressing the

requirements of M.R.E. 311(c)(3)(B) and the third circumstance identified in Lopez in which the good faith exception

cannot apply. Defense counsel was asserting that the AFOSI

agents could not have acted in good faith because the military magistrate did not have a substantial basis for conclud-

20a

ing that there was probable cause.4 Defense counsel did not

contend that the investigators had recklessly omitted or

misstated information in their submission to the military

magistrate.

Because defense counsel never made such an argument,

trial counsel also did not address the question of whether

the investigators misled the military magistrate when trial

counsel discussed the issue of good faith. Instead, trial counsel simply responded to Appellee’s argument under M.R.E.

311(c)(3)(B) by asserting that the investigators had a reasonable belief that the military magistrate had a substantial

basis to issue the search authorization. Trial counsel argued:

They acted in good faith, they acted on what they

thought was a valid search authorization given by

the magistrate . . . . I know there’s been some back

and forth about whether she was nude or not, but

the ground hitting, no kidding truth is the allegation that came to them was Sergeant Blackburn

had been filming his 12 year old daughter while she

was undressed, while she was nude, and that gives

them rise to say, “Hey, it looks like he could be

manufacturing child pornography.” Additionally,

he’s requesting these nude photos of her as well. So

in their minds they’re thinking, “Okay, this is what

we need to take,” so they’re acting in good faith, acting on what they believe was reasonable when they

went and did that seizure.

Emphasis added.

Appellee, however, asserts on appeal that his defense

counsel did raise the objection at issue at two other points

during oral argument on the motion. First, he contends that

defense counsel argued that “the identification of child pornography as the alleged crime was inflammatory and the

4 As explained above, we have interpreted M.R.E. 311(c)(3)(B)

not to require the military magistrate to have a substantial basis

for search authorization but for the law enforcement agent seeking

the search authorization to have a reasonable belief that the military magistrate had a substantial basis to issue the search authorization. Perkins, 78 M.J. at 387.

21a

agents were not aware of any information which met the elements of the offense.” In support of this position, Appellee

cites the following passage from the oral argument:

The government did not charge possession,

viewing, or production of child pornography. And,

sir, if you look at that evidence, you look at what’s

in the affidavit, none of that is sexually explicit

conduct that would merit child pornography, that

label. The mere fact that OSI decides to slap that

on an affidavit does not make this a child

pornography case . . . .

I do not believe that the quoted passage shows that Appellee raised his current objection that the Government had

recklessly misstated or omitted information in its submission to the military magistrate. Instead, the quoted passage

concerned an argument about which precedents to follow on

the issue of probable cause.

An examination of the record reveals the following sequence of events. In Appellee’s written motion to suppress

the evidence, as noted above, Appellee argued that the military judge should follow Nieto and conclude that there was

no probable cause for the military magistrate to authorize

the search of Appellee’s computers. In the Government’s

written response, the Government attempted to distinguish

Nieto and to liken Appellee’s case to three other cases in

which this Court or other courts had upheld authorizations

to search an accused’s computer for child pornography.5 During subsequent oral argument, defense counsel attempted to

distinguish those three cases by arguing that they involved

child pornography while this case did not. Defense counsel

asserted: “This is not a child pornography case.” The quoted

passage above then immediately followed. Defense counsel

afterward asserted:

And Your Honor can leave it at that and we are

right back to where we started with Nieto. Howev5 The three decisions cited by the Government were United

States v. Lancina, No. NMCCA 201600242, 2017 CCA LEXIS 436,

2017 WL 2829303 (N-M. Ct. Crim. App. 2017), United States v.

Clayton, 68 M.J. 419 (C.A.A.F. 2010), and United States v. Allen,

53 M.J. 402 (C.A.A.F. 2000).

22a

er, if you consider that at all, if you look at any of

the cases cited in the government’s motion, I just

want you to know that they are distinguishable

from this case.

The record further shows that the military judge understood the question was whether Nieto was distinguishable

on this issue of probable cause. The military judge stated:

“To me the issue is probable cause, nexus. What’s specifically charged, criminally, is not as critical as . . . what we’re

talking about here as far as nexus and probable cause.” Accordingly, the passage quoted by Appellee had nothing to do

with the objection that Appellee now asserts. Instead, Appellee’s point in that passage that this case is not about child

pornography despite the assertion in the affidavit was a

counterargument to the Government’s attempt to distinguish

Nieto by citing three cases that did involve child pornography; it was not the independent argument that Appellee is

now advancing that the Government recklessly omitted or

misstated information.

Second, Appellee argues that his counsel preserved his

current objection when he argued that the Government

failed to prove “the technical specifications of the camcorder,

and specifically if files could be transferred from the camcorder to other electronic devices.” I disagree. A review of

the record shows the following sequence of arguments and

counterarguments. As described previously, Appellee argued

in his written motion that the evidence should be suppressed

because there was no probable cause based on Nieto. In response, in addition to citing the three cases mentioned

above, the Government also asserted that Nieto was distinguishable because the recording device used in this case was

not a cell phone (as in Nieto) but instead “a camera, something with typically low storage, leaving people to transfer

the data taken to computers.”

During oral argument, defense counsel disputed the distinction between a cell phone and the camcorder, asserting

that the AFOSI agent “didn’t know the storage capacity of

this camcorder” and that the camcorder at issue in fact “had

an eight gigabyte storage.” Defense counsel added: “That’s a

lot of storage. Many cell phones have a similar amount of

storage.” Defense counsel concluded by asserting: “The gov-

23a

ernment’s entire case hangs on this supposition that people

just back up things [from] their camcorder. That’s it, sir, and

that’s not good enough in light of recent case law.” Again,

the entire argument concerned probable cause and the application of the Nieto precedent. The argument was not that

the AFOSI agent had acted other than in good faith because

he recklessly omitted or misstated information.

D. The Military Judge’s Ruling

The military judge denied the motion to suppress the evidence. He agreed with Appellee that the Government had

failed to show probable cause based on Nieto because the

AFOSI agent “did not provide a particularized nexus between the camcorder and the accused’s laptop or other electronic media devices.” But the military judge agreed with

the Government that the evidence was admissible under the

good faith exception to the exclusionary rule. In reaching

this conclusion, the military judge considered all of the requirements of M.R.E. 311(c)(3). The military judge also addressed the four circumstances that this Court identified in

Lopez for when the good faith exception cannot apply, asserting that “[t]hose circumstances are not applicable in this

case.” Cursorily addressing the first circumstance, the military judge stated from the bench: “There is no evidence that

the magistrate was ‘misled by information in the affidavit’ or

that [the AFOSI agent] provided false information or showed

a reckless disregard for the truth.” The military judge repeated this statement with essentially the same words in his

written opinion.

Appellee argues that the objection he now asserts was

not waived because the military judge made the quoted

statements. I disagree. Under M.R.E. 311(d)(2)(A), as interpreted in Perkins, the accused waives a basis for suppression

unless the accused makes a particularized objection. The

military judge’s comments do not indicate that Appellee

made the particularized objection that the good faith exception to the exclusionary rule could not apply because an

AFOSI agent had recklessly omitted or misstated information. On the contrary, the military judge’s comments

merely confirm that this objection was “not applicable in this

case” and that Appellee had presented “no evidence” in sup-

24a

port of such an objection. These conclusions are consistent

with the rest of the record, which, as discussed above, shows

Appellee did not make the objection that he now makes. A

contrary interpretation of the military judge’s comments

would negate this Court’s holding in Perkins that the accused must make a particularized objection. It would suggest that any time a military judge concluded that all of the

requirements for the good faith exception to the exclusionary

rule had been met, the accused could challenge the military

judge’s ruling on any ground on appeal by asserting (even

for the first time) that one of the requirements was not met.

E. Conclusion

Under M.R.E. 311(d)(2)(A), as described above, objections

to the admission of evidence must be made with particularity at trial and, if they are not made at trial, they are waived.

As shown above, Appellee never argued at trial that the

good faith exception could not apply because the AFOSI

agent in this case recklessly omitted or misstated information in his submission to the military magistrate. The argument therefore was waived.6 The AFCCA therefore erred

in its reasoning.

The requirement that a party raise an objection at trial

serves an important purpose. In Perkins, we explained that

the accused must make specific objections at trial so that the

government has the opportunity to present evidence in contesting them. This case illustrates this point well. At oral

argument before this Court, the Government offered concrete examples of the kind of evidence that it would have

sought to produce if Appellee had argued at trial that the

AFOSI agent had recklessly omitted or misstated information to the magistrate. Counsel for the Government explained that trial counsel could have asked the AFOSI agent

why he used the phrase “child pornography” instead of “indecent recording.” And trial counsel could have asked the

magistrate whether the AFOSI agent recklessly or inten6 Perhaps recognizing that the argument was waived, appel-

late defense counsel did not raise the argument on appeal to the

AFCCA.

25a

tionally attempted to mislead her and whether she was misled. The answers to these questions would be highly relevant

if Appellee had raised the objection that he now asserts.

II. Certified Issues II and III

Certified Issue II is “[w]hether the Air Force Court of

Criminal Appeals erred in finding the military judge abused

his discretion when he denied the motion to suppress digital

evidence pursuant to the good faith exception.” Because the

AFCCA relied on grounds that were waived by Appellee, I

answer this question in the affirmative. I would reverse the

AFCCA and remand the case to allow the AFCCA to complete its review under Article 66, UCMJ, considering in the

first instance any arguments with respect to the exclusionary rule that were not waived and not already addressed.

Certified Issue III is “[w]hether the military judge

properly denied the motion to suppress digital evidence

pursuant to Military Rule of Evidence 311(a)(3), a

determination not reviewed by the Air Force Court of

Criminal Appeals.” I do not reach this question. Deciding

this issue is only necessary if the good faith exception does

not apply, which is a question that the AFCCA must

determine on remand when it considers any arguments that

have not been waived.

26a

U NITED S TATES AIR F ORCE

C OURT OF C RIMINAL APPEALS

________________________

No. ACM 39397

________________________

UNITED STATES

Appellee

v.

Jason M. BLACKBURN

Staff Sergeant (E-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 22 August 2019

________________________

Military Judge: Christopher M. Schumann.

Approved sentence: Bad-conduct discharge, confinement for 5 years, and

reduction to E-1. Sentence adjudged 2 September 2017 by GCM convened at Keesler Air Force Base, Mississippi.

For Appellant: Major Meghan R. Glines-Barney, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Peter F. Kellett, USAF; Mary Ellen Payne, Esquire.

Before MAYBERRY, MINK, and LEWIS, Appellate Military Judges.

Chief Judge MAYBERRY delivered the opinion of the court, in which

Senior Judge MINK joined. Judge LEWIS filed a separate opinion dissenting in part and in the result.

________________________

This is an unpublished opinion and, as such, does not serve as

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

MAYBERRY, Chief Judge:

A general court-martial composed of officer members convicted Appellant,

contrary to his pleas, of one charge and specification of sexual abuse of a child

27a

(requesting nude photos) and one charge and specification of indecent recording in violation of Articles 120(b) and 120(c), Uniform Code of Military Justice

(UCMJ),1 10 U.S.C. §§ 920(b), 920(c).2 The panel sentenced Appellant to a badconduct discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the

adjudged sentence but disapproved the adjudged forfeitures, deferred the mandatory forfeiture of pay in the amount of $728.00 until the date of action, and

waived the mandatory forfeiture of pay and allowances for six months, release

from confinement or expiration of term of service, whichever was sooner.

Appellant asserts eight assignments of error (AOEs):3 (1) whether trial defense counsel was ineffective for failing to file a speedy trial motion pursuant

to Rule for Courts-Martial (R.C.M.) 707; (2) whether the military judge erred

in failing to perform an in camera review of mental health records pursuant to

Mil. R. Evid. 513;4 (3) whether the military judge erred in applying the good

faith exception to the exclusionary rule after finding no probable cause for a

search authorization; (4) whether the military judge erred in allowing expert

witness testimony; (5) whether the military judge erred by admitting improper

sentencing evidence; (6) whether the convening authority improperly denied

Appellant’s request to defer his reduction in rank; (7) whether the staff judge

advocate recommendation (SJAR) and SJAR addendum failed to address Appellant’s deferral request; and (8) whether Appellant’s sentence was too severe.5 Additionally, we address the post-trial processing delay. We find the military judge erred in applying the good faith exception to the exclusionary rule

and set aside the findings and sentence.6

1 Unless otherwise indicated, all references in this opinion to the Uniform Code of Mil-

itary Justice (UCMJ), Rules for Courts-Martial, and Mil. R. Evid. are to the versions

found in the Manual for Courts-Martial, United States (2012 ed.).

2 Appellant was found not guilty of one charge and one specification of knowingly en-

ticing a minor to engage in sexually explicit conduct in violation of Article 134, UCMJ,

10 U.S.C. § 934.

3 The assignments of error were reordered by the court.

4 This issue was filed under seal and the discussion, supra, only reveals that which is

necessary to resolve the issue.

5 This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982).

6 In light of our finding as to the admission of the evidence from Appellant’s computer,

we do not address AOEs (4) through (8).

28a

I. BACKGROUND

Appellant was convicted of sexually abusing his 12-year-old stepdaughter,

ES, by requesting she send nude pictures of herself to him, and for using a

camcorder, on divers occasions, to record ES’s private area while she was in

the bathroom.

Appellant was married and stationed at Keesler Air Force Base (AFB), Mississippi. He lived on base with his wife MB and her daughter ES, and their two

biological children. MB attended classes at night. Appellant’s brother, his

brother’s wife and their two children were staying at the house. As a result of

the living arrangements, Appellant, MB, and their children used the bathroom

in the master bedroom.

On the night of 20 April 2016, ES was in the family bathroom preparing to

take a shower. After she had removed only her pants, she saw a camcorder on

the bathroom floor with a red light on. She went over and picked the camcorder

up, saw that there were two videos on it, only one of which she could view, and

it showed her in the bathroom without her pants on. ES walked out of the

bathroom, upset. Appellant told her a short time later that “he was trying to

make it look like a trick and that he was just kidding.” ES wanted to call her

father, but Appellant took the phone from her. Approximately five minutes

later, Appellant returned the phone to ES who called her father and left a

voicemail.

ES’s biological father JS and her stepmother LS were in the process of moving from Texas to Arkansas. JS testified at trial and described the evening of

20 April 2016. He was having dinner with his wife at a restaurant and saw

that he had missed calls from ES and had a voicemail from her. He described

the voicemail as ES “barely able to talk. It sounded like she was having a hard

time breathing, just telling me to call her back as soon as I can.” JS called his

daughter back and she sounded scared, initially asking to come live with him.

JS testified that ES then told him about finding the camcorder in the bathroom. JS informed his wife of the nature of the phone call and she called the

Biloxi (Mississippi) police. Eventually, she also called the security forces at

Keesler AFB.

ES was taken to the Air Force Office of Special Investigations (AFOSI) and

interviewed in the early morning hours of 21 April 2016. In addition to describing the events of the previous night, ES indicated this was not the first time

Appellant had a camcorder in the bathroom. She stated that a few weeks prior,

Appellant came into the bathroom while she was in the shower and held the

camera over the shower curtain. On that occasion Appellant told her it was not

recording and it was just a joke. ES also told AFOSI that one night when Appellant was tucking her into bed, he talked about his upcoming deployment

29a

and asked her to send him photos of her naked because he was going to miss

her.

After ES’s interview, AFOSI sought authorization to search. TSgt DD, an

AFOSI agent at the time of the investigation but not at the time of trial, had

listened when ES was being interviewed by other AFOSI agents and he had

contacted the military magistrate seeking search authorization. The affidavit

to support the search authorization stated “[b]ased on [TSgt DD’s] experience,

training and the facts listed above, I believe evidence proving [Appellant’s] intent to manufacture child pornography is located within his residence” and requested “authorization to search and seize any and all cameras or electronic

media to include hard drives, SD cards, compact discs, computers and tablet

computers that could contain evidence of child pornography within” Appellant’s house. During the search of Appellant’s home, two camcorders, one external hard drive, seven hard drives, three digital cameras, one thumb drive,

three laptop computers, one tablet, one SD card, two tower computers, and a

bag with sixteen screws and a rechargeable battery were found and seized from

the residence. No nude photos of ES were found on any of the devices. Video

files were found in the temp folder on one of the tower computers, all depicting

ES in various stages of undress in the bathroom. AFOSI sent six videos found

on Appellant’s computer to the Department of Defense Computers Forensics

Laboratory (DCFL) for analysis.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Appellant asserts that his trial defense counsel, Maj ZW, failed to file a

motion to dismiss the charges and specifications for a speedy trial violation

under R.C.M. 707 and that this failure amounts to ineffective assistance of

counsel. At the Government’s request, the court ordered Maj ZW to submit a

declaration addressing Appellant’s claims. Maj ZW’s declaration generally

does not contradict Appellant’s assertions of fact but rather explains the strategic and tactical decisions made before and during the trial by the Defense.

We disagree that trial defense counsel provided ineffective assistance based on

our assessment that the trial defense counsel made an objectively reasonable

choice in strategy from the available alternatives.

1. Additional Facts

Charges were preferred on 15 March 2017. During docketing discussions,

trial defense counsel and the Government agreed to an exclusion of 56 days for

R.C.M. 707 computation purposes. This 56 day period was from the Government’s proposed ready date for trial, 3 July 2017, through 28 August 2017, the

day Appellant was arraigned. On 16 June 2017, the military judge issued a

30a

scheduling order for the parties, excluding 10 July 2017 through 20 August

2017 (34 days), from the speedy trial calculation.

Trial defense counsel recognized the military judge’s omissions from the

confirmation memorandum and “believed the [military judge] mistakenly entered the dates on the confirmation memo and failed to exclude Defense delay,

depriving the Government of an additional 15 days [he] [had] previously

agreed” should have been excluded. Based on this mistake, trial defense counsel believed the “true speedy trial date” to be 7 September 2017. Further, trial

defense counsel believed an additional 30 days of time would have been found

to be excludable due to his lack of immediate availability for the Article 32,

UCMJ, preliminary hearing.

Trial defense counsel considered a speedy trial motion under R.C.M. 707,

but did not file one for two reasons. First, he believed that he could not credibly

oppose a Government request to exclude additional time when he had previously “agreed in the docketing memo the Government should receive 56 days

of excludable delay” and that “there was likely an additional 30 days of excludable delay” due to his unavailability for the preliminary hearing.

Second, trial defense counsel also had a strategic reason not to do so. Based

on information from trial counsel, Appellant’s ex-wife, and a subsequent Government motion to permit remote live testimony that was filed two days before

trial, it became apparent to Appellant and trial defense counsel that the victim,

ES, may refuse to appear at trial and testify. As a result, Appellant decided

that it was in his best interest to continue to trial in the hopes that a submitted

request to be discharged in lieu of trial would be approved “while ES was wavering.”

Based on these circumstances, trial defense counsel believed that Appellant’s “only tactical advantage was the combination of [a] motion to suppress

potentially succeeding and ES’s wavering participation.” As a result, the Defense “decided our best strategy was to pursue that tactical advantage and see

if it could result in an even better bargaining position for a PTA or Chapter 4

request.” In his declaration, trial defense counsel ultimately summarized why

a motion under R.C.M. 707 was not filed:

Filing a motion to dismiss under R.C.M. 707 would have given

up this tactical advantage for no clear benefit. Even if the R.C.M.

707 motion to dismiss was successful, the military judge would

have dismissed the case without prejudice. This would have

given the Government time to reprefer and convince ES to testify

in the second court-martial. Further, the Government would

have had more time to resubmit [Appellant’s] electronics for additional forensic analysis, something the [Senior Trial Counsel]

31a

threatened but the legal office ultimately declined to pursue because their SJA was pushing to finish the case quickly. However,

with the benefit of additional time, a motivated legal office may

have been willing to search for new evidence and bring additional charges. I would not have wanted to expose [Appellant] to

that risk. In short, I would not have filed the R.C.M. 707 motion

and ceded the only tactical advantage the Defense was likely to

have to give the Government further time to convince ES to testify and perfect its case against [Appellant].

2. Law

We review claims of ineffective assistance of counsel de novo. United States

v. Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008). Pursuant to Strickland v.

Washington, 466 U.S. 668, 687 (1984), Appellant has the burden of demonstrating: (1) a deficiency in counsel’s performance that is “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth

Amendment”; and (2) that the deficient performance prejudiced the defense

through errors “so serious as to deprive the defendant of a fair trial.” Appellant

has the burden to demonstrate both deficient performance and prejudice.

Reviewing courts “do not measure deficiency based on the success of a trial

defense counsel’s strategy, but instead examine ‘whether counsel made an objectively reasonable choice in strategy’ from the available alternatives.” United

States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (quoting United States v.

Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001)). For this reason, counsel receives

“wide latitude . . . in making tactical decisions.” Cullen v. Pinholster, 563 U.S.

170, 195 (2011) (quoting Strickland, 466 U.S. at 689). In making this determination, courts must be “highly deferential” to trial defense counsel and make

“every effort. . . to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate conduct

from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

An accused must be brought to trial within 120 days after preferral of

charges. R.C.M. 707(a). The “date of preferral of charges” shall not count, but

the date on which the accused is arraigned under R.C.M. 904 shall count.

R.C.M. 707(b). Pretrial delays approved by a military judge or convening authority are excluded from the 120 day limit and may be based on “time requested by the defense . . . or additional time for other good cause.” R.C.M.

707(c)(1) and its Discussion. “[A]ny interval of time between events is a ‘delay’

and, if approved by the appropriate authority, is excluded from the government’s accountable time under R.C.M. 707(a).” United States v. Nichols, 42

M.J. 715, 721 (A.F. Ct. Crim. App. 1995).

32a

The appropriate remedy for a violation of R.C.M. 707 is dismissal with or

without prejudice. R.C.M. 707(d)(1). Dismissal with prejudice is determined

after considering the following factors: (1) the seriousness of the offense; (2) the

facts and circumstances of the case that lead to dismissal; (3) the impact of a

re-prosecution on the administration of justice; and (4) any prejudice to the

accused resulting from the denial of a speedy trial. Id. Dismissal with prejudice

is generally only appropriate for a constitutional violation of an accused’s right

to speedy trial. Manual for Courts-Martial, United States (2016 ed.), App. 21,

at A21–41.

3. Analysis

Trial defense counsel provided a reasonable explanation for why a motion

to dismiss the charges for speedy trial was not raised. First, he believed he had

agreed to excludable delay that led him to believe the “true” speedy trial date

was 7 September 2017, 10 days after Appellant was arraigned. Second and

perhaps most importantly, trial defense counsel believed that ES was reluctant

to testify and knew that the most likely outcome of a successful motion would

have been dismissal of the charges without prejudice. Counsel, with Appellant’s concurrence, made the tactical decision to press to trial rather than allow

the Government more time to find more evidence and or convince ES to testify.

Appellant relies solely on the prospect that a successful R.C.M. 707 motion

would result in dismissal and therefore concludes the outcome would have been

significantly different. However, Appellant provided no evidence of any constitutional violation of his right to speedy trial that would support dismissal with

prejudice. Only under those circumstances would Appellant’s conclusion be

persuasive.

Appellant has not met his burden to show his counsel’s tactical actions were

unreasonable, or that trial defense counsel’s level of advocacy fell measurably

below the performance expected. Even assuming arguendo we found trial defense counsel’s decision not to file an R.C.M. 707 speedy trial motion was not

tactically reasonable, under the facts of this case, dismissal with prejudice was

not a reasonable possibility. Therefore Appellant has also failed to show a “reasonable probability that absent the error, there would have been a different

result.” Gooch, 69 M.J. at 323. Appellant’s trial defense counsel effectively represented Appellant throughout the trial and post-trial and therefore no relief

is warranted.

B. Failure to Conduct In Camera Review of Mental Health Records

Appellant asserts the military judge erred in denying the request to perform an in camera review of ES’s mental health records which were not in the

possession of the Government or definitively determined to exist. We disagree.

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1. Additional Facts

Two days prior to trial, the Government filed a motion requesting ES testify

remotely and the Defense objected. One basis for the request was a statement

by LS, ES’s stepmother, that ES was so fearful of Appellant she would likely

be unable to testify in his presence. At the motions hearing on the first day of

trial, the Government called Dr. BE, a forensic psychologist, in support of their

request for remote live testimony. Dr. BE stated that he met with ES and her

parents the day before, and conducted an interview with ES alone that lasted

approximately 40 minutes. Dr. BE also met with LS, JS, and MB, ES’s biological mother, individually. Dr. BE testified that “one of ES’s parents told him

that ES had been told for months she would not have to testify at trial.” Dr.

BE further stated that ES thought she could testify in front of a small group if

she were outside the courtroom but preferred not to testify at all. Based on

these meetings, Dr. BE testified that it was his expert opinion that if ES were

“required to appear in open court and testify in front of [Appellant] that it

would cause severe psychological harm or severe psychological trauma.” Dr.

BE was aware that ES had received counseling but did not rely on that in

forming his opinion.

After receiving the Government’s motion, the Defense interviewed ES’s

mother, father, and stepmother the day before trial and learned that ES had

received counseling from a civilian provider shortly after the allegations giving

rise to the charges and specifications. The counseling “lasted approximately

seven weeks, no diagnosis was made, and the counseling ended because ES did

not require further treatment.” As a result of this interview, the Defense made

a verbal request on the record that the military judge compel records pertaining to ES’s counseling, contending the information was necessary to be able to

effectively cross-examine Dr. BE, and possibly ES, looking for any evidence of

“documentary evidence regarding trauma,” and possibly to rebut sentencing

evidence. The Defense did not call any witness or offer any documentary evidence in support of their motion. The Defense interpreted the exception contained in Mil. R. Evid. 513(d)(2) as removing the privilege whenever the communication is evidence of child abuse or neglect when one spouse is charged

with a crime against the child of either spouse.

The military judge denied the motion to compel ES’s records, even for an in

camera review, stating he did not interpret Mil. R. Evid. 513(d)(2) the same

way the Defense did and they had not met their burden that the communications would reveal admissible evidence but granted the Government’s motion

to allow ES to testify remotely unless Appellant elected to absent himself from

the courtroom. As a result of the ruling allowing remote testimony, the Defense

asked the military judge to reconsider his ruling denying an in camera review

of ES’s counseling records, specifically asking for any discussion of testifying.

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The Defense asserted that in a case where (1) the patient is a victim of an

alleged offense by their parent or spouse of a parent, (2) there is a request for

remote testimony, and (3) the defense satisfies their burden to establish that

the counseling records would provide admissible evidence to cross-examine either the victim or the expert who is offering an opinion that non-remote testimony would cause trauma, no privilege applies and the records should be released. The trial defense counsel further argued “we are not going to know

what she said to the counselor unless we see the records, and we’ll never see

the records unless we exactly know what she said to the counselor” and therefore there was only a requirement to establish a “reasonable likelihood” to satisfy the standard for an in camera review—“because you never know what you

don’t know.” The military judge denied the reconsideration as to the remote

testimony ruling, but left open the Mil. R. Evid. 513 motion regarding crossexamination of ES and sentence rebuttal until they were ripe.7

Later that same day, the military judge indicated that he continued to assess the Mil. R. Evid. 513 issue and had advised the Government to make efforts to see if records exist. He also alerted the parties that he had preliminarily reviewed, but not yet fully analyzed LK v. Acosta, 76 M.J. 611 (A. Ct. Crim.

App. 2017), and found one bit of language he thought was instructive, which

stated that the purpose of Mil. R. Evid. 513(d)(2) is not to turn over every alleged child victim’s mental health records to an alleged abuser. The following

afternoon, the military judge provided a “follow up ruling” on the Mil. R. Evid.

513 issue which included:

In analyzing the issue, the court first looks to see whether or not

there is an exception to MRE 513 that would be applicable in the

case based on the defense’s proffer. Assuming an exception may

apply, the court would then need to examine the records in camera to determine if, in fact, production is warranted, but only if

the defense is able to show by a preponderance of the evidence

that “a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence

admissible under an exception to the privilege.”

....

First, I’ll just note the only evidence that [ES], in fact, even

sought counseling after the alleged offense comes in the form of,

essentially, proffers from counsel, as well as a reference during

Doctor [BE]’s testimony concerning a comment made by a family

7 Ultimately, Appellant chose to voluntarily absent himself from the courtroom during

ES’s testimony.

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member. This, in and of itself, doesn’t amount to a likelihood

that any such records would yield evidence admissible under an

exception to the privilege. Before an in camera review can be

even conducted that standard has to be met.

Second, assuming the defense were able to show a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under

an exception to the privilege, the court may examine those records to determine if, in fact, and [sic] exception even applies that

would warrant production. The defense has indicated that the

records are being requested to rebut the testimony of Doctor

[BE] on whether [ES] is, in fact, fearful of the accused, but even

if such evidence existed, it’s arguable to as even whether or not

that type of evidence would amount to evidence of “child abuse

or neglect” as required by the exception vice evidence of fear or

lack of fear of an absence of the accused.

But in any event, the second portion of the exception states “or

in a proceeding in which one spouse is charged with a crime

against a child of either spouse.” A plain reading of this language

suggests that in any court proceeding where an accused is

charged with a crime against his child, that child’s mental

health records would not be protected by the privilege under

MRE 513. It’s this court’s belief that such an interpretation

would produce an essentially absurd result. It would gut the

privilege under MRE 513 protecting mental health records of an

alleged child victim who is the victim of an alleged accused who

happens to be a parent, thereby exposing that alleged victim’s

mental health record to her alleged parent abuser.

This court adopts the interpretation of the Army Court of Criminal Appeals in a case L.K. v. Acosta, 76 M.J. 611 . . . . “We interpret any proceeding to mean in the proceeding in question. MRE

1101(a) lists the proceedings applicable to the rules of evidence,

that is, it is an exception to the evidentiary privilege, not an exception to the disclosure of privileged information. It is an exception that prevents the assertion of the privilege at trial regarding the admission of evidence. It is not an exception that allows

the disclosure of privileged information.” And the court goes on

to state, “In cases of child witnesses, it is the parent or guardian

who generally may assert a privilege on behalf of the child. The

exception in question thus operates to prevent one spouse from

asserting the psychotherapist privilege to prevent the admission

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of statements of child abuse against themselves or their spouse.”

This interpretation is consistent with the drafter’s intent. The

purpose of the exceptions to MRE 513 were to ensure the psychotherapist communications could be transmitted to military

commanders without fear of violating the privilege contained in

the rule, that is a military psychiatrist can inform a military

commander of allegations of child abuse without violating the

privilege. And this is the Army court’s language, but the purpose

of the exception was not to turn over every alleged child victim’s

mental records to the alleged abuser,

Therefore, this court finds that the defense has failed to articulate a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence

admissible under an exception to the privilege justifying in camera review to determine whether production is even appropriate

or that the exception would apply based on the basis for their

request.

The court’s previous ruling stands. The defense request for the

production of mental health records of [ES] is denied.

2. Law

We review a military judge’s rulings under Mil. R. Evid. 513 for abuse of

discretion. United States v. Chisum, 77 M.J. 176, 179 (C.A.A.F. 2018).

“Construction of a military rule of evidence, as well as the interpretation of

statutes, the UCMJ, and the [Rules for Courts-Martial], are questions of law

reviewed de novo.” LRM v. Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013) (citations omitted). Interpretation of a rule begins with the rule’s plain language. United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007). The plain language of the rule controls unless use of the plain language would yield an absurd result. Id. The fact a party deems a result undesired does not render the

result absurd. A result is not absurd merely because it is uncommon, unanticipated, or represents an imperfect realization of the drafter’s intent. See United States v. Fontaine, 697 F.3d 221, 228 (3d Cir. 2012).

Mil. R. Evid. 513(a) addresses the psychotherapist privilege and states:

A patient has a privilege to refuse to disclose and to prevent any

other person from disclosing a confidential communication made

between the patient and a psychotherapist or an assistant to the

psychotherapist, in a case arising under the Uniform Code of

Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental

or emotional condition.

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The privilege has a number of exceptions found in subsection (d):

(2) when the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a

crime against a child of either spouse;

...

(6) when necessary to ensure the safety and security of military

personnel, military dependents, military property, classified information, or accomplishment of a military mission.

Whether an exception applies is a fact-specific determination for a military

judge to consider. See United States v. Jenkins, 63 M.J. 426, 430 (C.A.A.F.

2008). A military judge must conduct a hearing to determine if the privilege

exists. Mil. R. Evid. 513(e)(2). A military judge “may examine the evidence or

a proffer thereof in camera, if such examination is necessary to rule on the

production or admissibility of protected records or communications.” Mil. R.

Evid. 513(e)(3). Before a military judge may do an in camera review, the judge

must find by a preponderance of evidence that the moving party showed:

(A) a specific factual basis demonstrating a reasonable likelihood

that the records or communications would yield evidence admissible under an exception to the privilege;

(B) that the requested information meets one of the enumerated

exceptions under subsection (d) of this rule;

(C) that the information sought is not merely cumulative of other

information available; and

(D) that the party made reasonable efforts to obtain the same or

substantially similar information through non-privileged

sources.

Mil. R. Evid. 513(e)(3).

In United States v. Morales, No. ACM 39018, 2017 CCA LEXIS 612 (A.F.

Ct. Crim. App. 13 Sep. 2017) (unpub. op.), we held the military judge did not

abuse his discretion in denying a motion to compel mental health records when

trial defense counsel frankly conceded he had “no way of knowing” and could

“merely speculate” as to the contents of the records. Morales, unpub. op. at *27.

The Army Court of Criminal Appeals (ACCA) held the second clause of Mil.

R. Evid. 513(d)(2) is independent of the first, as the two are separated by a

comma and the disjunctive “or.” Acosta, 76 M.J. at 617. The words “in a proceeding” indicate the second clause only applies to the admissibility of evidence, not the production or disclosure of evidence. Id. at 618–19. By contrast,

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the first clause applies to production, disclosure, and admissibility of otherwise

privileged communications.

In AJ v. Cook, ARMY MISC 20180441, 2018 CCA LEXIS 611 (A. Ct. Crim.

App. 7 Dec. 2018) (unpub. op.), trial counsel breached the victim’s privacy by

obtaining her mental health records. The case involved the admissibility of evidence, not the disclosure of evidence because the trial counsel sought out and

procured petitioner’s mental health records on his own initiative, and thereby

rendered any questions about whether those records could have been compelled moot. Id. at *8. The court held the military judge did not abuse his discretion in admitting the records because the second clause of Mil. R. Evid.

513(d)(2) states the psychotherapist-patient privilege does not apply “in a proceeding in which one spouse is charged with a crime against a child of either

spouse.”

The right to confront witnesses does not include the right to discover information to use in confrontation. Pennsylvania v. Ritchie, 480 U.S. 39, 52

(1987) (“If we were to accept this broad interpretation . . . the effect would be

to transform the Confrontation Clause into a constitutionally-compelled rule

of pretrial discovery. Nothing in the case law supports such a view.”).

3. Analysis

There “is no general constitutional right to discovery in a criminal

case.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Rather, constitutional

“discovery” is usually delineated by the contours of the seminal case of Brady

v. Maryland, 371 U.S. 812 (1962). As the mental health records in question

here were not in the possession of the prosecution, they do not fall under the

ambit of Brady. With no other constitutional right to disclosure at play, the

disclosure of the mental health records in this case is not “constitutionally required.”

Here, Appellant sought information to challenge the evidence used to justify remote live testimony, to include cross-examination of Dr. BE and ES if

she testified, and asked the military judge to do an in camera review of the

records. The military judge did not perform the in camera review. Our review

of the evidence supports the military judge’s determination that Appellant did

not show there was a reasonable likelihood that the records would yield admissible evidence under an exception to the Mil. R. Evid. 513 privilege or that the

requested information met one of the enumerated exceptions in Mil. R. Evid.

513(d).

First and foremost, we hold the military judge did not abuse his discretion

in finding Appellant offered no evidence regarding the contents of the records

he sought, nullifying any reasonable likelihood they would reveal admissible

evidence. Appellant instead relies on the position that the likelihood need only

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be “reasonable” due to the difficulties in articulating the content of records

without knowing the content. Although our analysis could end here, we address the second prong of the test for in camera review as it applies to mental

health records since this issue is one we see on a regular basis.

We disagree with Appellant’s interpretation of Mil. R. Evid. 513(d)(2) that

mental health records lose their privileged status when the accused is charged

with an offense under the UCMJ involving a child victim who is their own child

or the child of their spouse. Applying the standard set out by the CAAF in

United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007) regarding the principles

of statutory construction as applied to rules of evidence, we agree with the

analysis of our sister service court in Acosta; Mil. R. Evid. 513 (d)(2) has two

distinct clauses. The first exception would apply if the privileged communications were evidence of child abuse or neglect and allows disclosure to commanders. Here, Appellant was seeking communications involving testifying in general, not statements regarding the offenses themselves. As such, the clause one

exception does not apply in Appellant’s case.

While Appellant asserts that the second clause “removes” the privilege

whenever the victim is the child of the accused or his spouse and therefore

allows disclosure of the privileged information, we do not agree with this broad

interpretation. As the ACCA stated in Acosta, the second clause of Mil. R. Evid.

513(d)(2) only pertains to the admission of evidence, not the disclosure of evidence, and does not apply in this case. Assuming arguendo the evidence sought

was admissible, this exception would prevent ES’s parent or guardian from

asserting the privilege to prevent the admission of ES’s statements.

In asserting prejudice, Appellant again combines the impact of the military judge’s decision to allow remote testimony and the failure to compel disclosure of ES’s mental health records.8 Appellant ultimately chose to voluntarily absent himself from the courtroom during ES’s testimony, so the remote

live testimony became a non-issue. Similarly, we are not persuaded the mental

health records would have been effective in rebutting ES’s unsworn statement

in pre-sentencing that “sixteen months ago her life changed forever,” as that

statement was based not only on the offenses committed that night, but on the

overall upheaval of her life as she knew it—moving away from her young siblings, taking their father away from them, and leaving her friends to name a

8 We do not address Appellant’s allegation that the instruction given led the members

to believe that Appellant’s physical presence would be damaging to ES, which in turn

suggested she would only be so harmed if Appellant was guilty. This instruction was

given at the request of the Defense and as such, the issue was waived. See United

States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008).

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few. The failure to disclose ES’s mental health records did not prejudice Appellant.

C. Applicability of the Good Faith Exception to the Exclusionary Rule

Appellant alleges that the military judge erred in finding the good faith

exception to the exclusionary rule applied after determining the military magistrate did not have a sufficient basis to find probable cause. We agree. We find

the evidence provided to the military magistrate was facially deficient, in that

it failed to establish a nexus between Appellant’s use of a camcorder and downloading files to a computer. We set aside the finding of guilty as to the indecent

recording offense and authorize a rehearing.

1. Additional Facts

On 14 August 2017, the Defense submitted a motion to suppress the evidence obtained during the search of Appellant’s home. Both AFOSI Special

Agent (SA) MD and TSgt DD testified, as did the magistrate. ES did not testify

at the motions hearing.

SA MD was the AFOSI case agent for Appellant’s investigation. SA MD did

not conduct the interview of ES, but listened to the majority of that interview.9

SA MD’s testimony at the suppression hearing provided a description of the

allegations made. ES had found a small handheld camcorder in the bathroom,

on the floor covered by clothing to conceal its location. ES retrieved the camcorder, saw it was recording and said there was an 11 minute video of herself

in the bathroom. She also indicated that approximately a month earlier, Appellant had come in the bathroom while she was showering and placed a camcorder over the shower curtain, she saw it, and Appellant later told her it was

not recording. Finally, SA MD testified that ES told AFOSI that Appellant had

requested she send nude photographs of herself to him. SA MD did not recall

that ES said she was nude in the video. SA MD also testified that he had attended an Internet Crimes Against Children course and was taught some of

the characteristics of people that manufacture and collect child pornography,

to include that they do not typically delete files of child pornography, but rather

organize and maintain them, which was one of the reasons AFOSI wanted to

request search authorization for additional media. SA MD was in the room

when TSgt DD called the magistrate.

TSgt DD’s testimony at the motions hearing essentially mirrored that of

SA MD with regard to the allegations made by ES. He confirmed that there

was no evidence that ES was captured nude on the recording that night.

9 Although the interview was recorded, there is no audio as the equipment was not

functioning properly.

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TSgt DD testified as to the normal process to obtain search authorization—

call the on-call JAG, patch through with the military magistrate, explain the

facts and circumstances of the case, and the magistrate gives search authorization, typically. TSgt DD testified that he called the military magistrate, Colonel (Col) SA, and briefed her on the reasons why a search should be authorized.

TSgt DD did not have the camcorder at the time of this request, but testified

that the search authorization request included additional media because “typically with devices such as that people don’t use them to watch what they recorded, for purposes of maybe reviewing to make sure they captured the actual

image. Typically, in [his] own personal experience with a camera like that, it

would be uploaded to a computer.” TSgt DD testified that he believed all the

information he verbally shared with Col SA was included in a written affidavit

that he provided a few days later to Col SA.

TSgt DD did not brief Col SA regarding any technical specifications of the

video camcorder ES described, to include the memory capacity of the camcorder

or whether there were any files on the camcorder, or whether files on the camcorder were transferable to a computer or that Appellant had actually connected that camcorder to a computer. TSgt DD did not brief Col SA as to

whether any child pornography was known to be on Appellant’s computer, or

whether he had visited any child pornography websites. Finally, TSgt DD did

not recall mentioning to Col SA his belief that traditionally individuals do not

watch videos on camcorders, or that files on camcorders can be transferred to

computers.

Col SA also testified at the suppression hearing. Col SA agreed that the

affidavit contained all the information that TSgt DD verbally briefed her on.

Col SA further testified she authorized the broad scope of electronic devices

due to her understanding Appellant had asked for photos in the past and held

a camcorder over the shower curtain. Col SA also believed that it seemed reasonable that someone would back up their data. However, Col SA acknowledged she did not have any specific technical communications training with

regard to the backing up or transferring of files.

The military judge denied the motion, finding that while the magistrate did

not have a substantial basis for finding probable cause, all of the elements of

the good faith exception to the exclusionary rule were met. The military judge

made findings of fact which inter alia, included:

TSgt [DD] testified that he requested authority to seize additional digital media devices because in his experience camcorders were not typically used to watch videos, and therefore he believed the accused may have transferred videos onto other media

devices. He did not specifically relay this belief to the magistrate.

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The search authorization ([Air Force Form] 1176) and affidavit

are before the court as attachments to Appellate Exhibit IX. In

the affidavit, TSgt [DD] requests authority to seize “any cameras

or electronic media to include hard drives, SD cards, compact

discs, computer and tablet computers that could contain evidence of child pornography.”. . . The affidavit did not directly tie

the camcorder to any other digital media belonging to [Appellant], nor was there evidence presented to the magistrate to suggest [Appellant] was involved in the viewing or transmitting of

child pornography beyond the allegation that he may have videotaped his 12 year old step daughter while she was naked in the

bathroom. . . . Tech Sergeant [DD] stated that he had no specialized training in matters relating to child crimes investigations

beyond the initial training he received at the Federal Law Enforcement Training Center (FLETC).

. . . Col [SA] stated that she could not remember verbatim the

discussion she had with TSgt [DD] at the time she granted the

search authorization due to the time that had passed, but she

did have an opportunity to review the search authorization and

affidavit prior to providing her testimony. She testified that

while she could not recall the verbal discussion verbatim, the

written authorization was consistent with her recollection of the

discussion. She recalled having a conversation with OSI and JA

and that she was informed that [ES] had alleged that she found

a camera recording her while she was in the bathroom for a

shower that was placed there by [Appellant], that in a previous

incident [Appellant] held the camera over the shower curtain

while [ES] was in the shower, and that in the past [Appellant]

had requested nude photos of [ES]. Specifically, Col [SA] testified that when discussing the scope of the search authorization,

she agreed to include other digital media including computers

based on the fact that there were multiple instances involving a

camcorder and because [Appellant] had asked for naked pictures

of [ES]. It was Col [SA]’s impression that this behavior spanned

a period of time, and given the fact that there was more than one

instance involving the camcorder, she believed [Appellant] had

likely backed up the video from the camera onto other devices.

Col [SA] testified that backing up such material seemed reasonable to her, and that these factors were all taken into consideration by her when she was considering whether to grant the

search authorization. . . . In response to questions posed by the

Court, Col [SA] stated that she did not recall talking about the

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specific nature of camcorders with the OSI agent, but based on

her own personal knowledge of camcorders, she would expect

that individuals would back them up to other media devices.

In his conclusions of law, the military judge found that

(1) the facts in Appellant’s case were “very similar” to those in

United States v. Nieto, 76 M.J. 101 (C.A.A.F. 2017) due to the

lack of a “particularized nexus between the camcorder and

the accused’s laptop or other electronic media devices”;

(2) the affidavit in Appellant’s case “provided even less of a generalized profile than the agent in the Nieto case”;

(3) “the military magistrate had no substantial basis for finding

probable cause even after according the military magistrate

great deference”; and

(4) “the inevitable discovery doctrine does not apply in this

case.”

However, the military judge found that “all of the elements of the good faith

exception have been satisfied”10 and concluded his ruling as follows:

Finally, the court notes that this was a very close call, and recognizes that the court’s ruling may appear inconsistent with the

holding of the CAAF in Nieto. However, given the Supreme

Court’s favorable approach to the deference provided to magistrates and the warrant process, and the fact that this court has

found no bad faith or illegality on the part or actions of the participants involved in the search authorization process that would

justify the deterrent remedy of exclusion, the good faith exception to the exclusionary rule justifies greater consideration and

analysis.

2. Law

Appellate courts “review a military judge’s [denial of] a motion to suppress

. . . for an abuse of discretion.” United States v. Hoffmann, 75 M.J. 120, 124

(C.A.A.F. 2016). When reviewing a military magistrate’s issuance of a search

authorization, we do not review the probable cause determination de novo. Id.

at 125. An abuse of discretion occurs when the military judge’s findings of fact

10 The military judge noted that the Nieto decision had been decided approximately

two months prior to this case and then later mistakenly indicated the decision was

only published approximately two months prior to the execution of this search.

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are clearly erroneous or he misapprehends the law. See United States v. Clayton, 68 M.J. 419, 423 (C.A.A.F. 2010) (citations omitted). In doing so, we examine whether a military magistrate had a substantial basis for concluding that

probable cause existed. Nieto, 76 M.J. at 105 (quoting United States v. Rogers,

67 M.J. 162, 164–65 (C.A.A.F. 2009)). A substantial basis exists when, under

the totality of the circumstances, “there is a fair probability that evidence of a

crime will be found at the identified location.” Rogers, 67 M.J. at 165 (citing

Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Leedy, 65 M.J. 208,

213 (C.A.A.F. 2007)). Great deference is given to the magistrate’s probable

cause determination due to the Fourth Amendment’s strong preference for

searches conducted pursuant to a warrant. Gates, 462 U.S. at 236. However,

as the Supreme Court held in United States v. Leon, 468 U.S. 897, 914 (1984),

the deference is “not boundless.” If the military magistrate did not have a substantial basis for concluding that probable cause existed, “the Government has

the burden of establishing both [the good faith and inevitable discovery] doctrines by a preponderance of the evidence.” Nieto, 76 M.J. at 108.

The Fourth Amendment11 protects individuals from unreasonable governmental intrusion into an individual’s reasonable expectation of privacy. The

Fourth Amendment protection against unreasonable searches and seizures applies to military members. United States v. Ezell, 6 M.J. 307 (C.M.A. 1979).

The Supreme Court in Riley v. California reiterated that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” 573 U.S. 373, 381 (2014).

The question of whether an expectation of privacy exists is resolved by examining whether there is a subjective expectation of privacy that is objectively

reasonable. United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014). Searches

“conducted pursuant to a warrant [are] presumptively reasonable whereas

warrantless searches are presumptively unreasonable unless they fall within

‘a few specifically established and well-delineated exceptions.’” Id. at 99.

Mil. R. Evid. 315(f) provides that “[a] search authorization issued under

this rule must be based upon probable cause,” which “exists when there is a

reasonable belief that the person, property, or evidence sought is located in the

place or on the person to be searched.” Mil. R. Evid. 315(e)(2) provides, “[t]he

execution of a search warrant affects admissibility only insofar as exclusion of

evidence is required by the Constitution of the United States or any applicable

Act of Congress.”

“[T]he good-faith doctrine applies if: (1) the seizure resulted from a search

and seizure authorization issued, in relevant part, by a military magistrate;

(2) the military magistrate had a substantial basis for determining probable

11 U.S. CONST. amend. IV.

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cause existed; and (3) law enforcement reasonably and in good faith relied on

the authorization.” Nieto, 76 M.J. at 107 (citations omitted).

In Leon, the Supreme Court listed four circumstances where the “good

faith” exception would not apply: (1) where the magistrate “was misled by information in an affidavit that the affiant knew was false or would have known

was false”; (2) where the magistrate “wholly abandoned his judicial role”; (3)

where the warrant was based on an affidavit “so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable”; and (4)

where the warrant is so “facially deficient . . . in failing to particularize the

place to be searched or the things to be seized . . . that the executing officers

cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923.

In the military, the good faith exception is enumerated in Mil. R. Evid.

311(c)(3), which provides:

Evidence that was obtained as a result of an unlawful search or

seizure may be used if:

(A) The search or seizure resulted from an authorization to

search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or

from a search warrant or arrest warrant issued by competent civilian authority;

(B) The individual issuing the authorization or warrant had

a substantial basis for determining the existence of probable

cause; and

(C) The officials seeking and executing the authorization or

warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith shall be determined on an objective standard.

The United States Court of Appeals for the Armed Forces (CAAF) recently

analyzed their decisions concerning the applicability of the good faith exception

and acknowledged “tension between [its] discussion of the good-faith doctrine”

in its case law interpreting Mil. R. Evid. 311(c). Nieto, 76 M.J. at 108 n.6 (citing

Hoffmann, 75 M.J. at 127–28; United States v. Carter, 54 M.J. 414, 419–22

(N.M. Ct. Crim. App. 2018)). Our sister court sought to harmonize the holdings

in Hoffmann and Carter as follows:

In Hoffmann, the CAAF applied the plain language of Mil. R.

Evid. 311(c)(3) to determine if otherwise excludable evidence

qualified for the good faith exception. . . . Applying the plain language of the rule to this case as the CAAF did in Hoffman [sic] is

straightforward. Subsection (B) of the rule requires the person

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who authorized the search to have had a substantial basis for

finding probable cause.

....

Carter purports to apply the Supreme Court’s seminal good faith

case, United States v. Leon, to courts-martial.

....

. . . Leon listed four circumstances in which the good faith excep-

tion was not available to the government . . . .

. . . [T]he CAAF attempted to reconcile Mil. R. Evid. 311(c)(3)’s

three-pronged good faith test with Leon. But this is not easily

done. In order for a search to qualify for the good faith exception

under the plain language of the rule’s second prong, the person

issuing the authorization must have had a substantial basis for

finding probable cause. This is inconsistent with Leon, which

held that a search might qualify for the good faith exception even

if the magistrate did not have a substantial basis for his determination, so long as the police executing the warrant themselves

acted in good faith.

The difference could not be elegantly harmonized. To make it

work, the Carter court recast the rule’s second prong. Where the

rule asks whether the person issuing the authorization had a

substantial basis for finding probable cause, Carter changes the

question to ask whether the police executing the search reasonably believed that the magistrate had a substantial basis for finding probable cause.

United States v. Perkins, 78 M.J. 550, 559–60 (N.M. Ct. Crim. App. 2018).

In Perkins, the Navy-Marine Corps Court of Criminal Appeals (NMCCA)

found the different standards resulted in different results as to the existence

of a substantial basis to find probable cause. NMCCA assessed that Carter was

inconsistent with the plain language of Mil. R. Evid. 311(c), yet Hoffmann’s

plain-language approach was inconsistent with Carter. Additionally, Hoffmann was the more recent decision, yet the CAAF had favorably cited Carter

and not Hoffmann in United States v. Darnall, 76 M.J. 326, 332 (C.A.A.F.

2017). The NMCCA determined that Carter was binding precedent and ultimately ruled that although the military judge erred in determining the magistrate had a substantial basis for his probable cause determination, the agent

executing the search reasonably and with good faith relied on the issuance of

the authorization. Perkins, 78 M.J. at 561.

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In light of the “tension” between Carter and Hoffmann, and the CAAF’s

recognition without resolution of said “tension” in Nieto, the NMCCA “respectfully suggest[ed] that the CAAF resolve the tension between Carter and Hoffmann in favor of Hoffmann and the plain language of Mil. R. Evid. 311(c)(3).”

Id. at 565. The Navy Judge Advocate General certified the case and the CAAF

issued its opinion approximately three months ago. United States v. Perkins

(Perkins II), 78 M.J. 381 (C.A.A.F. 2019).

The CAAF concluded that the NMCCA properly followed the Carter decision, and affirmed the NMCCA decision that the military judge did not abuse

his discretion in denying the motion to suppress evidence obtained from the

search of Perkins’ home. Id. at 383.

Explaining the decision in Hoffmann, the CAAF stated “[t]he opinion did

not address the possibility, recognized in Carter, that the good faith exception

could be satisfied if the agents executing the search had an objectively reasonable belief that the magistrate had a substantial basis for determining the existence of probable cause, even if the magistrate did not have such a basis.”

Furthermore, the opinion states:

The most sensible understanding of Hoffmann is that the Court

simply did not consider the reasonable beliefs of the agents executing the search. In their briefs in Hoffmann, the parties neither cited Carter nor addressed the law enforcement agents’ beliefs. The Court’s opinion in Hoffmann likewise did not

cite Carter or consider Carter’s interpretation of M.R.E.

311(c)(3)(B). The Hoffmann opinion also did not recognize or address the interpretive problem, explained above, that reading

M.R.E. 311(c)(3)(B) literally would render the provision a nullity

and eliminate the good faith exception as a practical matter.

To be sure, when precedents conflict, we typically follow the

more recent decision. See United States v. Hardy, 77 M.J. 438,

441 n.5 (C.A.A.F. 2018). But in this case, we see strong reasons

to adhere to Carter. Carter contains a thorough consideration of

a complicated issue, giving effect to all parts of [Mil. R. Evid.]

311. Hoffmann does not. In addition, Carter is a longstanding

precedent, while Hoffmann is not. We have recognized that

“[w]e will not overturn ‘precedent . . . [that] has been treated as

authoritative for a long time . . . unless the most cogent reasons

and inescapable logic require it.’” United States v. Andrews, 77

M.J. 393, 399 (C.A.A.F. 2018) (alterations in original) (citation

omitted). Accordingly, we disapprove the decision in Hoffmann to the extent that it differs from Carter.

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Perkins II, 78 M.J. at *388 (alterations in original).

3. Analysis

Unlike the prediction made in Judge Ohlson’s dissent in Perkins II, this

court does not conclude that a commander’s probable cause determination—no

matter how meritless—is, for all intents and purposes, immune from appellate

review. See Perkins II, 78 M.J. at *395. We agree with the military judge’s

finding that there was no substantial basis to establish probable cause. We

understand that the military judge struggled with the analysis of the good faith

exception after Nieto, and acknowledged it was a “very close call.” We do not

agree with the military judge’s finding that all of the elements of the good faith

exception to the exclusionary rule were met. Consequently, we find the military judge abused his discretion in denying the motion to suppress.

The military judge appropriately determined that TSgt DD provided sufficient detail regarding ES’s allegation to support the search and seizure of the

camcorder. However, as was the case in Nieto, TSgt DD did not provide a particularized nexus between his request to seize and search more than just the

device used to record, in this case the camcorder, and a computer or other electronic device. The failure to provide the necessary nexus was not inadvertent

considering the fact that TSgt DD had no knowledge of whether Appellant

owned any computers or other electronic devices.

Having determined there was no substantial basis for probable cause, we

must address whether there was any exception to the exclusionary rule which

would support the decision not to suppress the evidence found on Appellant’s

computer. Again, we agree with the military judge’s determination that the

inevitable discovery exception did not apply in this case. There was no evidence

that the AFOSI agents possessed or were actively pursuing evidence or leads

that would have inevitably led to the discovery of the computer. In addition to

the basic fact that AFOSI had no knowledge of whether Appellant owned a

computer, they had no evidence that if he did, Appellant routinely connected

the camcorder to the computer or could have linked the camcorder or any SD

card found in the camcorder to Appellant’s computer.

We find the facts of this case do not establish all of the elements of the good

faith exception to the exclusionary rule. Starting with Mil. R. Evid. 311, we

agree that the magistrate had the authority to issue the search authorization.

Having already determined the magistrate had no substantial basis for probable cause, we are left with the third element contained within Mil. R. Evid.

311, whether “the officials seeking and executing the authorization or warrant

reasonably and with good faith relied on the issuance of the authorization” or

the restatement of this element adopted initially in Carter and reaffirmed in

Perkins II, whether the “magistrate authorizing the search had a substantial

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basis, in ‘the eyes of a reasonable law enforcement official executing the search

authorization.’” We find the evidence does not establish this element.

The military judge found that TSgt DD did not recklessly omit or misstate

any information. We disagree because the search authorization in this case

was based on an assertion that under the facts and circumstances it was reasonable to believe evidence of child pornography would be found in Appellant’s

home. None of the information available to the AFOSI agents supported a conclusion that the images captured on the camcorder depicted ES naked. The

record also establishes that the AFOSI agents asked ES whether she ever sent

any naked photos of herself to Appellant and she responded she did not. The

record is clear that at trial, ES testified that she never sent any nude photos

and no nude photos were found. Article 134 of the UCMJ defines child pornography as “material that contains either an obscene visual depiction of a minor

engaging in sexually explicit conduct or a visual depiction of an actual minor

engaging in sexually explicit conduct.” Article 134, UCMJ, 10 U.S.C. § 934. The

offense for which Appellant was charged and convicted involves indecent recording, which does not require sexually explicit images (pornography), but

images of naked or underwear clad genitalia, anus, buttock, or female areola

or nipple. We find the distinction significant, and the fact that the search authorization in this case was premised on the search for child pornography impacts our analysis.

Injecting a reference to child pornography into the request for search authorization at best skewed the facts that were known at the time, and at worst

amounted to a reckless misstatement of those facts. Under these circumstances, it is not objectively reasonable for those same law enforcement agents

who mischaracterized the predicate evidence, together with others who were

briefed that search authorization had been granted, to then reasonably and

with good faith rely on the issuance of the search authorization (Mil. R. Evid.

311), or could reasonably believe the magistrate had a substantial basis to authorize the search when she had been misled about the nature of the evidence

(Carter/Perkins II). We believe that the facts of this case fall squarely within

the elements of Leon that would exclude the application of the good faith exception based on reckless or facially deficient affidavits used to establish probable cause.

Appellant made this same argument at trial, asserting that the offense

charged was not child pornography and the affidavit did not mention any evidence of sexually explicit conduct. The military judge stated:

[t]o me the issue is probable cause, nexus. What’s specifically

charged, criminally, is not as critical as . . . what we’re talking

about here as far as nexus and probable cause. And factually,

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the act of recording someone in a way that they shouldn’t be recorded is similar enough that I’m – again, you [don’t] need to

spend – any time on that.

While we agree that indecent recording, as charged, is a crime, application of

the nexus requirement is directly related to the evidence of the crime presented

to the magistrate and the likelihood of Appellant acting in conformance with

others who commit that type of crime. The case law concedes that a law enforcement officer’s professional experience may be useful in establishing such

a nexus—such as profiles of how those engaged in child pornography generally

do not delete files, they maintain them—as SA MD testified and TSgt DD explicitly included in his affidavit. See Leedy, 65 M.J. at 215–16; United States v.

Macomber, 67 M.J. 214, 220 (C.A.A.F. 2009) (profile alone without specific

nexus to the person concerned cannot provide the sort of articulable facts necessary to find probable cause to search or seize).

In Nieto, the accused was reported to be using his cell phone to film or take

pictures of individuals in bathroom stalls and the SA informed the magistrate

that Soldiers generally download their photos to their laptops so that when

they get to a place with Internet capability they can post them or share them.

Additionally, the SA informed the magistrate as to the specific model of phone

Nieto owned. There was no mention of Nieto owning a laptop. The CAAF held

that a generalized profile without—at a minimum—evidence that Nieto actually downloaded images, illicit or otherwise, from his cell phone to his laptop

provided no basis, substantial or otherwise, for the magistrate to conclude that

probable cause existed to seize the laptop. Nieto, 76 M.J. at 707.

Here, TSgt DD had no knowledge that Appellant owned any computers,

had ever downloaded anything from the camcorder ES reported seeing onto

another device, knew any details as to the capacity of the camcorder, knew

what type of media it relied on to store images, or if or how those images could

be downloaded. Moreover, TSgt DD had no evidence that any images on the

camcorder depicted ES naked, let alone engaged in sexually explicit conduct.

Nevertheless, TSgt DD discussed with and later provided a written affidavit to

the magistrate asserting that he believed evidence of Appellant’s intent to

manufacture child pornography was located in his residence.

Despite the absence of any direct evidence, TSgt DD sought search authorization for not just “the” camcorder, but any camera or electronic media that

could contain evidence of child pornography. This conduct embodies the very

language of Leon establishing where the good faith exception would not apply—recklessly omitting or misstating the information to obtain the authorization. It cannot be objectively reasonable for a law enforcement official to recklessly omit or misstate the information to obtain a search authorization, and

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then reasonably and with good faith rely on the issuance of that search authorization or belief the magistrate had a substantial basis to authorize the search

authorization. The dissent relies on the fact that both TSgt DD and the magistrate reasonably inferred that Appellant would download videos from his camcorder onto another device. That reasonable inference would require

knowledge that Appellant had a device to download the camcorder to and there

was no such evidence at the time the search authorization was sought and approved. Without any knowledge that Appellant possessed a computer, the inference that he was manufacturing child pornography was unreasonable. Under Mil. R. Evid. 311 and Carter/Perkins II, the elements of the good faith

exception to the exclusionary rule are not met in this case and the evidence

should have been suppressed.

Having found the military judge abused his discretion in denying the defense motion to suppress, Appellant is entitled to relief only if he can show

material prejudice to a substantial right. Article 59(a), UCMJ, 10 U.S.C. §

859(a).

The error here is of a “constitutional dimension.” Hoffmann, 75 M.J. at

128. Constitutional error is harmless only when “it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. (quoting Mitchell v. Esparza, 540 U.S. 12, 17–18 (2003)). The burden is on the Government to prove the constitutional error was harmless. See Hoffmann, 75 M.J. at 128. An error that “did not contribute to the

verdict” is one which was “unimportant in relation to everything else the jury

considered on the issue in question, as revealed in the record.” Id. (quoting Yates v. Evatt, 500 U.S. 391 (1991)).

The search of Appellant’s home yielded evidence that the Government used

to establish Appellant’s guilt to the indecent recording charge and specification. Based on the testimony of ES, she never saw a recording when Appellant

was alleged to have held the camcorder over the shower curtain and knew that

a video was on the camcorder on 20 April 2016. Accordingly, we find that the

erroneous admission of evidence prejudiced Appellant with regard to the indecent recording charge and its specification.

D. Post-Trial Processing Delay

1. Additional Facts

Appellant’s court-martial concluded on 2 September 2017. The convening

authority took action on 27 December 2017 and the case was docketed with the

court on 29 January 2018.

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2. Law

In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), the CAAF

established a presumption of a facially unreasonable delay when “the record of

trial is not docketed by the service Court of Criminal Appeals within thirty

days of the convening authority’s action[,]” and when “appellate review is not

completed and a decision is not rendered within eighteen months of docketing

the case before the Court of Criminal Appeals.”

Where there is such a delay, we examine the four factors set forth in Barker

v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons

for the delay; (3) the appellant’s assertion of his right to a timely review and

appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (citations omitted). “No single factor is required for finding a due process violation and the absence of a

given factor will not prevent such a finding.” Id. at 136 (citing Barker, 407 U.S.

at 533).

In Moreno, the CAAF identified three types of cognizable prejudice arising

from post-trial processing delay: (1) oppressive incarceration; (2) anxiety and

concern; and (3) impairment of the appellant’s ability to present a defense at a

rehearing. 63 M.J. at 138–40 (citations omitted).

In United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002), the CAAF recognized this court has the de novo power and responsibility to disapprove any

portion of a sentence that it determines, on the basis of the entire record,

should not be approved, even absent any actual prejudice.

3. Analysis

In this case there was a facially unreasonable delay of three days from action to docketing and three weeks from docketing to our decision. Appellant did

not raise the action to docketing delay and as such asserts no prejudice and we

find none. Appellant has also not asserted his right to speedy appellate review.

We are mindful of the delay in issuing our opinion. As the CAAF themselves

noted in Nieto, there was “tension” created by the Hoffmann and Carter opinions, and Perkins II, decided only three months ago, greatly impacted the completion of our appellate review. In light of the fact that further review will be

required, we do not address the prejudice aspect at this time.

III. CONCLUSION

The finding of guilty to the Specification of Charge I and to Charge I is

AFFIRMED. The finding of guilty to the Specification of Charge II and to

Charge II is SET ASIDE. The sentence is SET ASIDE and the case is returned to the Judge Advocate General for further processing consistent with

this opinion. A rehearing is authorized. Article 66(e), UCMJ, 10 U.S.C. § 866(e).

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LEWIS, Judge (concurring in part and dissenting in part and in the result):

I agree with my esteemed colleagues that (1) Appellant’s trial defense counsel team effectively represented him when they elected not to file a speedy trial

motion pursuant to Rule for Courts-Martial (R.C.M.) 707; (2) the military judge

committed no error when he declined to perform an in camera review pursuant

to Mil. R. Evid. 513; and (3) Appellant was not prejudiced and his due process

rights were not violated by a facially unreasonable delay in the docketing of

his case with this court.

Contrary to the majority opinion, I conclude the military judge did not

abuse his discretion when he denied the Defense motion to suppress under the

Fourth Amendment.1 I find the military judge properly applied the good faith

exception and permitted the Prosecution to introduce into evidence videos recovered from Appellant’s computer that showed Appellant indecently recorded

his 12-year-old stepdaughter, ES, on divers occasions.

Before the military judge denied the motion to suppress, he made extensive

findings of fact in his 10-page written ruling. His ruling was also orally read

into the record. His findings of fact are well supported by the record and not

clearly erroneous. See United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007)

(citations omitted). I would adopt them in total. The majority opinion disagrees

with the military judge’s conclusion that there was “no evidence” that TSgt DD

recklessly omitted or misstated any information in the affidavit. I believe the

military judge did not misapprehend the law on the good faith exception when

he determined that TSgt DD did not recklessly omit or misstate any information in his affidavit.

In my view, the military judge’s ruling carefully considered the applicability of the good faith exception. His ruling correctly stated the four circumstances when the good faith exception cannot apply. See United States v.

Carter, 54 M.J. 414, 419 (C.A.A.F. 2001) (quoting United States v. Leon, 468

U.S. 897, 923 (1984)). Of the four circumstances set forth in Leon, only two—

the first and third—are at issue in this appeal:

(1) False or reckless affidavit—Where the magistrate “was misled by information in an affidavit that the affiant knew was false

or would have known was false except for his reckless disregard

for the truth”; . . .

1 U.S. CONST. amend. IV.

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(3) Facially deficient affidavit—Where the warrant was based on

an affidavit “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable”; . . .

Id.2 I will address these two circumstances in turn.

1. False or reckless affidavit

In evaluating whether the affidavit contained known false information or

information the affiant knew was false, the military judge considered the

sworn testimony of the affiant, Technical Sergeant (TSgt) DD, then an Air

Force Office of Special Investigations (AFOSI) agent. The military judge characterized the affidavit as “balanced” with no “bad faith or illegality” by the

participants. I agree with the military judge’s characterizations of the affidavit

and the affiant.

In contrast, the majority opinion finds TSgt DD’s assertion in the affidavit

that Appellant’s home “could contain evidence of child pornography” to notably

impact the analysis of the good faith exception. I come to a different conclusion

and believe the best approach is to address whether the magistrate was misled

by information that either (1) TSgt DD knew was false; or (2) would have

known was false except for TSgt DD’s reckless disregard for the truth. As the

majority opinion only concludes that TSgt DD acted recklessly, I only address

the second part of the above test.

On the second part, I cannot determine that TSgt DD acted with a reckless

disregard for the truth. His affidavit used caveats like “alleged” offense, and

“could” contain child pornography. TSgt DD indicated he was seeking evidence

of Appellant’s “intent” to manufacture child pornography. In the affidavit, TSgt

DD did not exaggerate or mischaracterize the facts that ES reported. At best,

TSgt DD’s word choice of “child pornography” constituted mere negligence in

understanding the elements of the offenses being investigated. In essence,

TSgt DD’s affidavit shows a poor understanding of when a depiction of a 12year-old girl in some state of undressing or depicted showering would meet the

2 Mil. R. Evid. 311(c)(3)(B)’s language “the individual issuing the authorization or war-

rant had a substantial basis for determining the existence of probable cause” has been

interpreted by the CAAF as addressing the first and third prongs of Leon. See Carter,

54 M.J. at 421. Additionally, the CAAF recently described Carter’s discussion of the

good faith exception as a “thorough consideration of a complicated issue, giving effect

to all parts of [Mil. R. Evid.] 311.” United States v. Perkins, 78 M.J. 381, 388 (C.A.A.F.

2019).

55a

legal definition of sexually explicit conduct.3 In my view, this does not rise to

the level of a reckless disregard for the truth.

Even if the majority opinion is correct that TSgt DD acted with a reckless

disregard for the truth, this does not end the inquiry. The magistrate must also

be misled by the information provided in the affidavit. The military judge dedicated a half page of his findings of fact to the military magistrate, Colonel

(Col) SA. Col SA was trained by the legal office on her magistrate duties and

over a two-year period participated in two search authorizations per month

with law enforcement and judge advocates. During her motion testimony, Col

SA recalled Appellant’s alleged actions with ES correctly. Col SA had the impression that Appellant’s behavior with ES spanned a period of time, that more

than one incident involving a recording device occurred, and that Appellant

asked ES to send him pictures of her unclothed. I find no indication that a

poorly worded affidavit that described the alleged offense as involving “child

pornography” in the affidavit misled this experienced military magistrate.

2. Facially deficient affidavit

The next question is whether the affidavit so lacked in indicia of probable

cause as to render official belief in its existence entirely unreasonable. The facial deficiency litigated at trial, and at issue on appeal, centers around the failure of the affidavit to establish a nexus between Appellant’s camcorder4 and a

computer where the videos were ultimately found. The challenge is not to the

affidavit as a whole, but to a specific portion of it. See Carter, 54 M.J. at 421

(stating the affidavit must be more than a bare bones recital of conclusions).

The military judge looked closely at United States v. Nieto, where the

United States Court of Appeals for the Armed Forces (CAAF) found the Government had not met its burden of establishing the good faith exception by a

preponderance of the evidence. 76 M.J. 101, 108 (C.A.A.F. 2017). In Neito,

there was no specific and particular nexus between a cellular phone and a laptop computer. Id. In his written ruling, the military judge recognized his ruling

on the good faith exception was a “very close call” and that it “may appear

3 See, e.g., United States v. Piolunek, 74 M.J. 107, 109 (C.A.A.F. 2015) (citing United

States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)).

4 The affidavit uses the word “camera” consistent with the AFOSI interview notes of

ES. The military judge’s ruling uses “camera,” “video camera,” and “camcorder” in different portions of his findings of fact. During motion practice, SA MD recalled ES describing the “camera” as a “small handheld camcorder” and “small camcorder with a

flip out screen.” TSgt DD similarly described the “camera” as a “small camcorder with

the flip out screen.”

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inconsistent with the holding of the CAAF in Nieto.” The military judge reviewed both Col SA’s perspective as the magistrate and TSgt DD’s perspective

before concluding “[t]he agents who executed search5 would be objectively reasonable in believing [Col SA] had a ‘substantial basis’ for concluding there was

probable cause . . . .” (Footnote added).

The military judge determined that Col SA applied “her own common sense

belief and understanding regarding the likelihood of an individual transferring

data from a camcorder to another media device . . . .” Col SA had already consulted with TSgt DD and a judge advocate before concluding Appellant

“had likely backed up the video from the camera onto other devices.” Backing

up such material seemed reasonable as her impression was that Appellant’s

behavior “spanned a period of time” and “included more than one instance with

the camcorder” and because Appellant asked for naked pictures of ES. Additionally, Col SA testified “based on my personal knowledge of electronic devices

in general and including camcorders, I would expect that someone would back

up videos or pictures taken on a camcorder, just as a rule.”

The military judge also made findings of fact about TSgt DD’s personal experience6 that “camcorders were not typically used to watch videos.” For that

reason, TSgt DD “believed [Appellant] may have transferred videos onto other

media devices.”

The military judge ultimately concluded “there is no evidence that the warrant was based on an affidavit ‘so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.’” See Leon, 468 U.S.

at 923. The military judge rejected the challenge that the affidavit was facially

deficient.

In my view, the military judge’s decision on whether the affidavit was facially deficient was a very close call. Nieto is important precedent on the application of the good faith exception to digital evidence and the CAAF published

Nieto two months prior to Appellant’s trial. But the electronic device in Nieto

5 During the search of Appellant’s home, TSgt DD seized the computer from which the

videos were eventually recovered.

6 SA MD’s motion testimony described a discussion at the AFOSI detachment on the

scope of the search authorization. “We wanted to search for obviously the camcorder,

but we also wanted to search for anything that could contain digital media because we

felt it was likely that -- most camcorders, you have to attach them to a computer or

other storage device to save videos.” The military judge did not reference this testimony

in his findings of fact. I include it only to provide context to the findings of fact the

military judge made about TSgt DD’s personal experience.

57a

was different and to me that matters to the analysis of whether the good faith

exception applies.

Both Col SA and TSgt DD independently believed it was common sense for

Appellant to connect a camera or camcorder to another media device, like a

computer. Col SA deemed this inference reasonable when she granted the

search authorization. A judge advocate was present for the telephone discussion with Col SA and TSgt DD. The record shows no objections by this attorney.

The military judge found the affidavit was not “so lacking in indicia of probable

cause” for it to be objectively “entirely unreasonable.” So too, I cannot conclude

that a reasonably well-trained officer would have known that the search of a

computer found inside Appellant’s home near a camcorder was illegal despite

the magistrate’s authorization in light of all of the circumstances. See Leon,

468 U.S. at 922 n.23. Therefore, in my view, the military judge did not abuse

his discretion in denying the defense motion to suppress and applying the good

faith exception.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

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