Petition for Writ of Certiorari — Gallo v. United States
Supreme Court brief2002
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SUPREME COURT OF THE UNITED STATES
GINO J. GALLO,
Airman First Class (E-3), United States Air Force,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent. :
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
TIMOTHY W. MURPHY
Lt Colonel, United States Air Force
Chief, Appellate Defense Counsel
Counsel of Record
PATRICK J. DOLAN
Captain, United States Air Force
Appellate Defense Counsel
BEVERLY B. KNOTT
Lt Colonel, United States Air Force
Chief, Appellate Defense Division
Air Force Appellate Defense Division
112 Luke Avenue, Suite 343
Bolling Air Force Base, DC 20332
(202) 767-1562
Counsel for Petitioner
December 2001
falow
i
QUESTION PRESENTED
Whether the Petitioner’s Fourth Amendment
rights were violated when the affidavit
supporting the warrant for the search of his
home consisted solely of a behavioral profile,
false information and facts failing to link the
home to any incriminating evidence?
TABLE OF CONTENTS
Page
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Supreme Court Cases:
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Iiknois v. Gates , 462 U.S. 213 (1983).........004 spaveaeiv~ cdekasetaaie 9
United States v. Leon, 468 U.S. 897 (1984) .....cccceeseseees 9,10,11
Military Cases:
United States v. Carter, 54 MJ. 441 (2001) .......c.cccececseseseeees 9,11
Manual for Courts-Martial
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: IN THE
SUPREME COURTC “HE UNITED STATES
ee
GINO J. GALLO,
Airman First Class (E-3), United States Air Force,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
Gino J. Gallo, Airman First Class (E-3), United States Air Force,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Armed Forces.
The Petitioner, Airman First Class Gino J. Gallo,
respectfully prays that a writ of certiorari issue to review the
order and judgment of the United States Court of Appeals for
the Armed Forces entered in this case on September 20, 2001.
OPINIONS BELOW
The order and judgment of the United States Court of
Appeals for the Armed Forces, reported at United States v. Gallo,
55 M.J. 418 (2001), is located at Appendix A. The opinion of
the United States Air Force Court of Criminal Appeals,
reported at United States v. Gallo, 53 M.J. 556 (A.F. Ct. Crim.
2
App. 2000), is located at Appendix B.
JURISDICTION
The judgment of the United States Court of Appeals
for the Armed Forces was entered on September 20, 2001.
The jurisdiction of this Court is invoked under 28 U.S.C. §
1259(3) and 10 U.S.C. § 867(a)(3).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment of the United States
Constitution states:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
STATEMENT OF THE CASE
On 26 through 28 January 1998, the Petitioner was
tried by a general court-martial convened at Maxwell Air Force
Base, Alabama. Contrary to his pleas, the Petitioner was found
guilty of willful dereliction of duty in violation of Article 92 of
the Uniform Code of Military Justice [10 U.S.C. § 892] and
various offenses involving the possession and distribution of
child pornography in violation of 18 U.S.C. § 2251, 18 U.S.C. §
2252, and 18 U.S.C. § 1462. He was sentenced to a
dishonorable discharge, confinement for 42 months, forfeiture
of all pay and allowances, and reduction in rank to Airman
3
Basic. On June 1, 1998, the Convening Authority, the
commander who convened Petitioner’s court-martial,
approved the sentence as adjudged.
On 25 April 2000, in a published opinion, the Air
Force Court of Criminal Appeals reversed Petitioner’s
conviction to one violation of 18 U.S.C.§ 2252, but affirmed
the remaining findings of guilt and the sentence. United States v.
Gallo, 53 M.J. 556 (A.F. Ct. Crim. App. 2000).
On January 2, 2001, the United States Court of Appeals
for the Armed Forces granted review on the following issue:
WHETHER A1iC GALLO’S FOURTH-
AMENDMENT RIGHT TO BE FREE
FROM UNREASONABLE SEARCHES
AND SEIZURES WAS VIOLATED WHEN
FEDERAL LAW ENFORCEMENT
OFFICERS EXECUTED A WARRANT TO
SEARCH HIS HOME THAT WAS ISSUED
BASED SOLELY ON AN AFFIDAVIT
FROM A UNITED STATES CUSTOMS
AGENT, WHICH ONLY CONTAINED A
PEDOPHILE BEHAVIORAL PROFILE, AN
ALLEGATION THAT A1C GALLO HAD
“CHILD PORNOGRAPHY” IMAGES ON
HIS WORK SITE COMPUTER, AND
OTHER EVIDENCE THAT FAILED TO
LINK AiC GALLO’S HOME TO
EVIDENCE OF A CRIME.
On September 20, 2001, the United States Court of
Appeals for the Armed Forces affirmed the decision below.
United States v Gallo, 55 M.J. 418 (2001). The question
presented in this petition is based on the issue granted by the
4
Court of Appeals for the Armed Forces.
STATEMENT OF FACTS
In late June 1996, Master Sergeant (MSgt) Yvonne
Schipani became the Superintendent of Information and
Resource Management for the Standards System Group
located on Gunter Annex, Maxwell Air Force Base, Alabama.
(R. at 99) Upon assuming this position, she also became
Petitioner’s supervisor. Jd After observing Petitioner for a
few weeks, MSgt Schipani became concerned about his
productivity and began monitoring his activities. (R. at 101)
Soon thereafter, Petitioner’s behavior made her suspicious that
he was misusing the Internet access on his workstation
computer. (R. at 102-103)
In mid-July 1996, suspicious of A1C Gallo’s computer
activities, MSgt Schipani accessed his workstation computer to
obtain evidence of what seemed to be preoccupying him. (R.
at 103) Upon accessing the hard drive, MSgt Schipani found
several graphic files. Jd She opened them and found what she
described as “pornography.” Id.
On October 22, 1996, Staff Sergeant (SSgt) Henry
Martin, the Domain Name and Electronic Mail Administrator
for the Air Force Standards System Group, also located on
Gunter Annex, received an electronic mail message from a
representative of an Internet service provider. (R. at 110) The
message indicated that a person at “IP address” 143.158.38.2
was trading child pornography.' (R. at 110-111; Pros. Ex. 3)
' An “IP,” or Internet Protocel, address “is the numeric address that is used
by the computers on the Internet as basically an address. It allows routing
of information to a specific area, and then a specific machine ....” (R. at
109; see also R. at 130-131)
5
With the IP address provided by the Internet service provider,
SSgt Martin was able to trace the address to Petitioner’s
workstation computer. (R. at 112) SSgt Martin then provided
this information to the “Security Division.” Id.
In October 1996, Special Agent (SA) William A.
Schwartz of the local Air Force Office of Special Investigations
detachment, received information from the Standard Systems
Group computer security office that someone might be
soliciting “preteen sex” from a government computer. (R. at
119) SA Schwartz coordinated with SSgt Martin, who was able
to identify Petitioner as the individual soliciting sex through the
IP address provided in the email message from the Internet
service provider. Id. Based on this information, SA Schwartz
obtained search authorization to search Petitioner’s office and
seize an “exact duplicate (mirror image) of the hard drive from
[Petitioner’s] computer, identified by IP address 143.158.38.2.”
(R. at 119; App. Ex. XX)
Later, on the evening of October 23, 1996, SA
Schwartz and SA Dave Merkel, a computer crimes investigator
from Headquarters, Air Force Office of Special Investigations,
Bolling Air Force Base, DC, executed the search authorization
and obtained a “mirror image” of Petitioner’s workstation hard
drive. (R. at 56, 120-121) A subsequent analysis performed by
SA Merkel revealed that the hard drive contained
approximately 262 graphic images of children “in various
sexual encounters, along with some text files.” (R. at 121; App.
Ex. XX) The analysis of the workstation hard drive also
revealed that some text files of unknown origin had been
viewed from or transferred to computer diskettes. (R. at 65)
However, the media analysis disclosed no evidence that files
containing visual images had been transferred to diskettes. Id.
6
On 8 November 1996, SA Schwartz interviewed MSgt
Schipani. (R. at 85) During the interview, SA Schwartz asked
MSgt Schipani if she knew whether Petitioner had a computer
at home, but she did not know. Jd Soon thereafter, MSgt
Schipani questioned Petitioner as to whether he, in fact, had a
home computer. Id. Petitioner responded that he did have a
home computer, but MSgt Schipani did not advise Petitioner
of his right against self-incrimination under Article 31 of the
Uniform Code of Military Justice (10 U.S.C. § 831) before
questioning him. Id. She then provided this information to SA
Schwartz. (R. at 85)
Based on the foregoing information, SA Schwartz
contacted SA Jim Putnoky of the United States Customs
Service in an effort to obtain a search warrant of Petitioner’s
mobile home. (R. at 121-122) On November 19, 1996, based
on SA Putnoky’s affidavit, a magistrate of the United States
District Court for the Middle District of Alabama issued a
warrant to search Petitioner’s residence for various evidence
related to minors engaged in sexually explicit conduct. (App.
Ex. XX) In his affidavit accompanying the search warrant
application, SA Putnoky based his request on the following:
1. a pedophile profile;
2. “approximately 262 apparent child
pornography photographs” found on
Petitioner’s workstation computer;
3. MSgt Schipani’s confirmation that Petitioner
had a home computer;
4. the fact that several of the photographs
found on the workstation hard drive
7
matched imported photographs seized in
previous US Customs cases; and,
5. an analysis of Petitioner’s work area
computer that indicated cotuputer files of
unknown content “were either downloaded
or uploaded from the hard drive to a
diskette, relating to files received over the
internet. Once the files are downloaded to a
diskette, this makes the files extremely
portable in nature.”
(App. Ex. XX, 16-30) There was no clarification in the
affidavit that the files of “unknown content” mentioned in
paragraph 5 were known to be text files and not graphic files.
On November 20, 1996, the search warrant on
Petitioner’s residence was executed by U.S. Customs agents
with SA Schwartz present. (R. at 121) In Petitioner’s
bedroom, the agents found approximately 554 diskettes, 47
VHS video tapes containing commercial and homemade
“pornography,” some printed documents and “post-it” notes
containing Internet and electronic mail addresses. (R. at 122-
123)
At trial, Petitioner’s defense counsel moved to suppress
the evidence obtained from the search. (R. at 52-53, App. Ex.
XX) He argued that the affidavit provided to the Federal
magistrate failed to establish probable cause and was based on
mere suspicion. More specifically, he argued that the U.S.
Customs agent had no basis to believe that Petitioner was a
pedophile. (R. at 78-79) He also argued that the information
obtained by MSgt Schipani concerning whether Petitioner had
a home computer was obtained in violation of Article 31 of the
Uniform Code of Military Justice. (R. at 78) Finally, he argued
8
that the information provided concerning the uploading and
downloading of files to a floppy disk was incomplete,
misleading, and failed to sufficiently establish a fair probability
of finding evidence of an alleged crime in Petitioner’s home.
(R. at 79-80)
The military judge denied the motion. (R. at 89) He
ruled that the U.S. Customs agent’s conclusion that Petitioner
was a pedophile was based on information obtained during the
investigation. (R. at 87). He further ruled that under the
totality of the circumstances, any discrepancy in the
information provided concerning the uploading and
downloading of files to a floppy diskette did not mislead the
magistrate. (R. at 88) As to the unwarned statement obtained
by Petitioner’s supervisor, the military judge held that “even
assuming that the information obtained by Master Sergeant
Schipani was illegally obtained, the remaining information
contained in the affidavit provided to the magistrate was
sufficient to establish probable cause. (R. at 89) Finally, the
military judge concluded that even if the warrant was defective,
the evidence would be admissible under the “good faith”
exception. Id.
Several of the findings of guilt in Petitioner’s case were
substantially based on the evidence seized at his residence.
REASONS FOR GRANTING THE WRIT
In its decision below, the United States Court of
Appeals for the Armed Forces correctly concluded that MSgt
Schipani’s unwarned inquiry of Petitioner as to whether he
owned a home computer was improper and refused to
consider the relevant portion of the affidavit in support of the
search warrant in considering whether the affidavit presented
probable cause. Gallo, 55 M.J. at 418. However, the lower
9
court incorrectly concluded that probable cause existed to
search Petitioner’s home based on unsubstantiated profile
evidence that Petitioner was a pedophile and the assertion that
the images on Petitioner’s workstation computer were
pornographic. Moreover, the lower court also held that even if
the affidavit did not present probable cause, the good faith
exception in Mil. R. Evid. 311(6)(3)(B), Manual for Courts-
Martial, United States (1995 ed.), would have salvaged the
warrant. Id. at 422. However, in its analysis of the good faith
exception, the lower court failed to acknowledge that, in
issuing the warrant, the magistrate relied on false testimony by
an investigator in the case that indicated that some of the
graphic files from Petitioner’s computer workstation had been
transferred to or viewed from a computer diskette. This
approach by the lower court is in substantial conflict with this
Honorable Court’s Fourth Amendment jurisprudence.”
This Honorable Court has held that where a warrant is
issued based on false information, “the deference accorded to a
magistrate’s finding of probable cause does not preclude
inquiry into the knowing or reckless falsity of the affidavit on
which that determination was based.” Franks v. Delaware, 438
U.S. 154 (1978). This view has been followed by the Court of
Appeals for the Armed Forces. See, Umited States v. Carter, 54
M.J. 414, 419 (2001) (quoting United States v. Leon, 468 U.S. 897,
914-15 (1984)).
In this case, the magistrate judge did not have a
“substantial basis for . . . conclud[ing] that probable cause
existed.” I/knois v. Gates, 462 U.S. 213, 238-39 (1983). SA
Merkel, a “computer forensic specialist,” examined Petitioner’s
computer workstation at the request of SA Schwartz, the lead
2 This view was shared by two members of the court below who voted to
reverse the decision of the Air Force Court of Criminal Appeals.
10
investigator, and determined that there was nothing in the
computer necessarily indicating that images had been
downloaded to a floppy disk. SA Schwartz passed the results
of his investigation, including SA Merkel’s analysis, to SA
Putnoky, who prepared an affidavit and submitted it to the
magistrate judge. Contrary to SA Merkel’s conclusions, SA
Putnoky’s affidavit asserted that “analysis of the hard drive on
the government owned computer at [Petitioner’s] work site
disclosed that on several imstances, files were either
downloaded or uploaded from the hard drive to a diskette.” In
failing to state that the transferred files were text files and not
files containing images, the affiant knowingly or recklessly
provided the magistrate with false information.
Moreover, SA Putnoky’s affidavit provided no
description of the images found on Petitioner’s computer. It
merely set out his conclusions that they were “child
pornography,” “adult pornography,” and “apparent child
pornography.” It is well established that “[t]he magistrate’s
determination ‘cannot be a mere ratification of the bare
conclusions of others.’ ” Leon, 468 U.S. at 914-15.
SA Putnoky’s affidavit also assumed that Petitioner was
a pedophile and described at great length the kinds of items
that are usually found in the homes of pedophiles. SA
Putnoky’s affidavit, however, provided no factual support for
his conclusion that Petitioner was a pedophile. Without such
factual support, the affidavit did not provide sufficient
information to permit the -magistrate to independently
determine whether Petitioner was a pedophile.
Thus, the basis for searching Petitioner’s home was SA
Putnoky’s unsupported assertion that Petitioner was a
pedophile, SA Putnoky’s unsupported assertion that the images
were pornographic, and SA Putnoky’s false representation that
11
images had been uploaded or downloaded on Petitioner’s
work-station computer, using a floppy disk. Otherwise, the
affidavit provided no information indicating a nexus between
the evidence seized from Petitioner’s workstation computer
and the possibility that related evidence might be found at his
home. Because the supporting affidavit contained false
information and relied heavily on bare bones conclusions
without supporting facts, the magistrate simply did not have a
substantial basis for concluding that probable cause existed to
search Petitioner’ s residence.
Furthermore, the good faith exception in Mil. R. Evid.
311(b)(3)(B), which is modeled on this Honorable Court’s
Fourth Amendment jurisprudence, cannot save the search in
this case. See, Carter, 54 M.J. at 419-420 (citing Leon, 468 U.S.
at 914-15). Mil. R. Evid. 311(6}(3)(B) provides that where a
subsequently invalidated search warrant is issued by competent
authority, evidence obtained from the search may be used if
the individual issuing the warrant had a “substantial basis for
determining the existence of probable cause” and “the officials
seeking and executing the . . . warrant reasonably and with
good faith relied on the issuance of the . . . warrant.” Mil. R.
Evid. 311(b)(3). In Leon, however, this Honorable Court set
out four circumstances where the good faith exception does
not apply: (1) a false or reckless affidavit; (2) a “rubber stamp”
judicial review; (3) a facially deficient affidavit; and (4) a facially
deficient warrant. 468 U.S. at 914-15. Thus, in accordance
with this Court’s jurisprudence, the “substantial basis” prong
of Mil. R. Evid. 311(6)(3)(B) is not satisfied if the affidavit is
intentionally or recklessly false, or if it is a “ ‘bare bones’ recital
of conclusions.” /d., at 421.
In this case, since SA Schwartz and SA Putnoky, the.
agents who executed the warrant, provided false information
and a mere recital of conclusions for the magistrate to rely on,
12
good faith cannot be imputed to them.
CONCLUSION
The Court of Appeals for the Armed Forces erred
when it concluded that the search warrant in this case was
supported by probable cause. It further erred when it
concluded that the good faith exception would have saved the
warrant even if the affidavit supporting it did not provide
probable cause. Thus, the decision of the court below
represents a significant departure from this Honorable Court’s
Fourth Amendment jurisprudence. Therefore, Petitioner
respectfully requests this Honorable Court to grant his petition
for a writ of certiorari.
Respectfully submitted,
TIMOTHY W. MURPHY
Lt Colonel, United States Air Force
Chief, Appellate Defense Counsel
Counsel of Record
PATRICK J. DOLAN
Captain, United States Air Force
Appellate Defense Counsel
BEVERLY B. KNOTT
Lt Colonel, United States Air Force
Chief, Appellate Defense Division
Air Force Appellate Defense Division
Counsel for Petitioner
112 Luke Avenue, Suite 343
Bolling Air Force Base, DC 20332
(202) 767-1562
la
APPENDIX A
UNITED STATES, Appellee,
v.
Gino J. GALLO, Airman First Class,
U.S. Air Force, Appellant.
No. 00-0560
Crim. App. No. 33303
55 M.J. 418 (2001)
United States Court of Appeals for the Armed Forces
Argued April 20, 2001
Decided September 20, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in
which SULLIVAN and BAKER, JJ., joined. SULLIVAN, J.,
filed a concurring opinion. GIERKE, J., filed a dissenting
opinion, in which EFFRON, J., joined.
For Appellant: scion Seaphant. let (argued); Colonel James
R. Wise and Lieutenant Colonel Timothy W. Murphy (on
brief).
For Appellee: Captain James C. Fraser (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief).
Amicus Curiae: Mark Santos (law student)(argued); Tracy
McCormack (supervising attorney)(on brief) — For the
University of Texas Law School.
Military Judge: J. L. Anderson
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted of dereliction of
2a
duty, in violation of Article 92, Uniform Code of Military
Justice, 10 USC § 892, and advertising, transporting, receiving,
possessing, and placing on the Internet child pornography, in
violation of 18 USC §§ 2251(c), 2252(a)(1), (2), and (4), and
1462(a). The convening authority approved the sentence of a
dishonorable discharge, 42 months’ confinement, total
forfeitures, arid reduction to the lowest enlisted grade. The
Court of Criminal Appeals set aside the finding of guilty to
possession of child pornography, affirmed the remaining
findings, and reassessed and affirmed the sentence as approved
by the convening authority. 53 MJ 556 (2000).
We granted review of the following issue:
WHETHER APPELLANT’S FOURTH
AMENDMENT RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES
WAS VIOLATED WHEN FEDERAL LAW
ENFORCEMENT OFFICERS EXECUTED A
WARRANT TO SEARCH HIS HOME THAT WAS
ISSUED BASED SOLELY ON AN AFFIDAVIT
FROM A UNITED STATES CUSTOMS AGENT
WHICH CONTAINED ONLY A PEDOPHILE
BEHAVIORAL PROFILE, AN ALLEGATION
THAT APPELLANT HAD "CHILD
PORNOGRAPHY" IMAGES ON HIS WORK SITE
COMPUTER, AND OTHER EVIDENCE THAT
FAILED TO LINK APPELLANT’S HOME TO
EVIDENCE OF A CRIME
' We heard oral argument in this case at the Courthouse of the
Supreme Court of Texas in Austin, Texas, as part of this
Court’s Project Outreach. See, United States v. Allen, 34 MJ 228,
229 n.1 (CMA 1992).
3a
For the reasons set forth below, we affirm the decision of the
Court of Criminal Appeals.
FACTS
Because of a decline in appellant’s work performance, in mid-
July 1996, appellant’s supervisor, Master Sergeant Schipani,
examined his work station. On his computer, she found a
number of sexually explicit images and subsequently issued a
letter of reprimand for the misuse of a government computer.
On October 22, 1996, a computer security monitor, Staff
Sergeant Martin, received information from an Internet service
provider that a person with a certain Internet Protocol (IP)
address was "trading child pornography.” Sergeant Martin
traced the IP address to appellant’s government-issued, work-
station computer. He then provided this information to the
Office of Special Investigations (OSI).
The next day, Special Agent Schwartz of the OSI, utilizing the
information provided by Sergeant Martin, obtained a search
warrant to seize a "mirror image” of a hard disk from
appellant’s government computer. That evening, Special
Agents Schwartz and Merkel executed the warrant and made a
copy of appellant’s hard drive on his government-issued
computer. An analysis of this disk revealed 262 graphic images
of children "in various sexual encounters, along with some text
files." This search revealed that at least the text files had been
viewed from or transferred to computer diskettes.
About 2 weeks later, Special Agent Schwartz interviewed
Master Sergeant Schipani and asked if appellant had a
computer at home. Some time later, without advising appellant
of his rights, Master Sergeant Schipani asked appellant if he
had a home computer, and he said he did. When the agents
received this information, they contacted Mr. Putnoky, who
4a
sought the search warrant. At that me, Mr. Putnoky had been
a United States Customs Service agent for 26 years. Mr.
Putnoky had participated in numerous child pornography
investigations. He had spent the previous 31 years in an
undercover capacity for the Customs Service, which plays a
lead role in investigating child pornography that enters the
United States through the mail or the Internet. "Commercially
produced child pornography historically has been and
continues to be a product of foreign distributors...." (From Mr.
Putnoky’s affidavit, infra). Mr. Putnoky prepared an affidavit
and submitted it to a federal magistrate judge, who then issued
a search warrant for appellant’s residence and his personal
computer. The affidavit also contained the following:
6. Based on my training and experience, I have learned
that: .
A. The term "pedophile" (preferential child molester) is
a psychiatric diagnostic term which refers to persons
who have a sexual attraction to children. These persons
are also referred to as "preferential child molesters.” I
have attended both formal training and seminars in the
field involving child pornography investigations,
importation and distribution of child pornography
and obscene materials given by the U.S. Customs
Setvice, the Federal Bureau of Investigation and
numerous State and Local law enforcement
agencies /departments. I have participated in the
interviews of pedophiles....
B. Pedophiles collect sexually explicit or suggestive
materials involving children such as photographs,
magazines, video tapes, books, computer disks....
C. Pedophiles rarely, if ever, dispose of their sexually
Sa
explicit materials....
D. It has been my experience that pedophiles almost
always maintain and possess their materials (pictures,
films, video tapes, computer disks, correspondence and
photographs) in a place considered secure, frequently
within the privacy and security of their own homes. It
has been my experience that pedophiles residing with
parents, other family members, or any other person not
aware of their activities, will often conceal their child
pornography and related materials within their
residence, secreted and concealed in locations known
only by them and no one else cohabiting in the same
residence.
7. My belief [is] that this property is located within the
premises to be searched [(appellant’s home)}.
8. On October 23, 1996, the United States Air Force,
Office of Special Investigations (OSI), Maxwell Air
Force Base, Montgomery, Alabama, commenced an
investigation into the possible trafficking of child
pornography over the computer internet systems. This
investigation involved the soliciting and advertising of
child pornography on the DALnet IRC network by
Gino GALLO. A systems administrator associated with
the DALnet IRC discovered computer traffic indicating
the trading of child pornography.
9. Tracy REED, DALnet systems administrator located
at San Diego, California, researched the source of the
solicitations /advertisements and identified Gino
GALLO ’s Internet Protocol (IP) address (143.158.38.2)
6a
as the source of the solicitation/advertisement. This
Internet Protocol (IP) address is assigned to the
computer that subject GALLO operates in room 122,
building 856, which is located at Maxwell Air Force
Base, Gunter Annex, Montgomery, Alabama. Mr.
REED notified officials in the United States Air Force
of his findings.
13. .... The analysis of the hard drive ... disclosed that
on several instances, files were either downloaded or
uploaded from the hard drive to a diskette[.]
14. Based on the facts presented in this Affidavit, your
affiant has probable cause to believe that presently,
and/or at the time of this warrant’s execution, there is
property contained within the place to be searched,
which is evidence of violations of Title 18, United
States Code, Sections 2251, et seq. and/or 1462, as well
as other documents, records, correspondence, receipts,
order forms and/or other materials reflecting the
importation, purchase, receipt and/or possession of
child pornography. Additionally, there is property
which was designed or intended for use, is being used,
ot has been used as a means of committing criminal
offenses under Title 18, United States Code, Sections
2251, et seg. and 1462.
The affidavit also contained the following information:
1. A statement that "approximately 262 apparent child
pornography photographs" were found on appellant’s
work computer.
2. The fact that several of the photographs seized from
appellant’s work computer matched imported
Ta
photographs seized in other Customs’ cases.
3. A statement that Master Sergeant Shipani had
confirmed appellant owned a home computer.
4. A statement that an analysis of appellant’s work
computer indicated that computer files of unknown
content had been "downloaded or uploaded from the
hard drive to a diskette, relating to files received over
the internet. Once these files are downloaded to a
diskette, this makes the files extremely portable in
nature."
DISCUSSION
Mil.R.Evid. 315()(2), Manual for Courts-Martial, United States
(1995 ed.),2 defines probable cause as "a reasonable belief that
cs the ... property ... sought is located in the place ... to be
search[ed]." This definition encompasses showing a nexus to
the plaee to be searched, and that the information relied on is
not too stale. United States v. Lopez, 35 MJ 35, 38-39 (CMA
1992). In determining whether probable cause existed, all the
information set forth in the affidavit need not be used. Based
on the ruling by the trial judge and the decision of the Court of
Criminal Appeals, we will assume that Master Sergeant
Schipani’s inquiry whether appellant owned a home computer
was improper. See, United States v. Grooters, 39 MJ 269, 273
(CMA 1994). Even so, when there are misstatements or
improperly obtained information, we sever those from the
affidavit and examine the remainder to determine if probable
cause still exists. See, ¢,g., Umited States v. Canfield, 212 F.3d
2 The Manual provision cited is the version in effect at the
time of appellant’s court-martial. The current version is
unchanged.
a i en
8a
713, 717-18 (2d Cir. 2000). As the Eighth Circuit Court of
Appeals recently stated in Technical Ordnance, Inc. v. United States,
244 F.3d 641, 647 (8th Cir. 2001):
Even if a false statement or omission is
included in an affidavit, the Fourth Amendment
is not violated if the affidavit would still
show probable cause after such falsehood or
omission is redacted or corrected.
In reviewing the affidavit, we should bear in mind that
"[a] grudging or negative attitude by reviewing courts
towards warrants” ... is inconsistent with the Fourth
Amendment’s strong preference for searches
conducted pursuant to a warrant; "courts should not
invalidate warrant{s] by interpreting affidavits in a
hyper-technical, rather than a commonsense, manner."
Tlhnois v. Gates, 462 U.S. 213, 236 (1983)(citations omitted).
Certainly, conclusory statements should not be in an affidavit,
but in the end, the review process deals with the question of
probability. The issue is whether there was a "substantial basis'
upon which the federal magistrate judge could have found
probable cause to believe a search of appellant’s residence
would uncover child pornography. United States v. Carter, 54 MJ
414, 421 (2001).
As to the time element, information more than 6 months old
when seizing pornography on a computer or a hard drive has
been allowed. United States v. Hay, 231 F.3d 630 (9th Cir.
2000)(6 months); United States v. Lacy, 119 F.3d 742 (9th Cir.
1997)(10 months).
As to the nexus requirement, the affidavit by the agent, who
9a
had 26 years’ experience in law enforcement, set forth his
opinion as to how pornographic material is obtained and
stored. The courts have allowed a gap in the nexus to be filled
in based on the affiant’s experience.
A judicial officer may give considerable weight to "the
conclusion of experienced law enforcement officers
regarding where evidence of a crime is likely to be
found," United States v. Fannin, 817 F.2d 1379, 1382 (9th
Cir. 1987), and is "entitled to draw reasonable
inferences about where evidence is likely to be kept,
based on the nature of the evidence and the type of the
offense." United States v. Angulo-Lopez, 791 F.2d 1394,
1399 (9th Cir. 1986). :
United States v. Lawson, 999 F.2d 985, 987 (6th Cir. 1993); see
also, United States v. Hodge, 246 F.3d 301 (3d Cir. 2001); United
States v. Emmons, 24 F.3d 1210 (10th Cir. 1994).
In addition to the affiant’s experience, other factors bolster the
opinion as to where the child pornography might be found in
appellant’s home. There were 262 pictures found; appellant fit
the pedophile profile; he had advertised for child pornography;
solicited child pornography; and downloaded and uploaded
child pornography from his work computer. Based on these
factors, it is reasonably probable that appellant would keep and
work on this material in a place over which he had substantial
control. Additionally, it is reasonable to infer that the additional
materials would be secreted in a place other than his office.
Lopez, 35 MJ at 39; see also, United States v. Koelling, 992 F.2d 817,
819-20, 823 (8th Cir. 1993)(upheld warrant containing
statement that "pedophiles ... keep these materials [(child
pornography)] for many months and years, and rarely, if ever,
dispose of their collections").
10a
Even if probable cause was lacking because of the failure to
establish a nexus with appellant’s house, the good faith
exception in Loper would apply. We have excised any
statements obtained in violation of Article 31, UCMJ, 10 USC
§ 831; there is no evidence of an intentional misstatement, nor
is this a bare bones affidavit that would preclude the
application of the good faith exception. This is a detailed
affidavit presented by an experienced law enforcement official
investigating child pornography on the Internet. In 1996, these
investigations were not as prevalent as they are today. Thus, to
ensure that the warrant was not issued based on a bare bones
statement, the officer set forth and detailed his experience and
why he believed child pornography would be at appellant’s
house.
This officer’s opinion is supported by Special Agent Schwartz’s
testimony that the search of the office computer showed at
least three text files from this directory had been modified
using the Microsoft Word program. At the time, the files were
opened and the Word program was downloaded to a floppy
diskette. According to Special Agent Merkel, this downloading
yielded three possibilities: (1) "It could mean that ... a file was
resident on the hard drive ... could have been opened ... and
then saved to the floppy drive,"; "The file could have been
present on the floppy drive and then opened,"; or (3) the file
"could have been created and then saved to the floppy drive."
Based on this testimony, the Court of Criminal Appeals
adopted the military judge’s finding: "The analysis by the
AFOSI also revealed that some files had been either read from
the floppy drive, transferred from the hard drive to the floppy
drive, or transferred from the floppy drive to the hard drive.”
53 MJ at 559. The 262 images of child pornography, the
Internet solicitation, the Internet advertisement, and the
pedophile profile justify the inference that the material sought
lla
would be at appellant’s residence. Because of the breath of this
material, at a minimum, the application of the good faith
exception seems appropriate. Thus, we hold that the judge did
not abuse his discretion in denying appellant’s motion to
suppress.
Fhe decision of the United States Air Force_Court of Criminal
Appeals is affirmed.
SULLIVAN, Judge (concurring):
I write separately to amplify a certain point made by the
majority. Specifically, the information averred in the affidavit
and provided to the magistrate judge constituted sufficient
probable cause to issue a search warrant in this case.
This case is factually similar to United States v. Hay, 231 F.3d
630 (9th Cir. 2000). In Hay, a magistrate judge issued a search
warrant to search the appellant’s apartment and seize the
appellant’s "computer hardware, software, records, instructions
or documentation, and depictions of child pornography." Id. at
633. The supporting affidavit averred that a known child
pornographer in Canada had sent 19 graphic files to the
appellant’s Internet address; that the same Internet address was
associated with a network port wired to the appellant’s
apartment; and that, by the appellant’s own admissions to an
undercover Customs agent, the appellant maintained a
computer in his apartment wired to the Internet for his sole
use. Id. at 632-33. Although there was no direct evidence that
the images of child pornography would actually be found in the
appellant’s apartment, the Ninth Circuit believed the magistrate
judge could reasonably infer so from the facts found in the
affidavit. Id. at 636.
12a
Likewise in this case, the magistrate judge had a substantial
basis to find the probable cause necessary to issue the search
warrant. As in Hay, this appellant told someone (viz. his
supervisor) about his computer at home. Moreover,
investigators found 262 images of child pornography on
appellant’s computer at work. Rather than having the files sent
to his personal Internet address, evidence indicates that
appellant downloaded Internet files to his work computer and
then transferred those files to diskettes. Consistent with the
Ninth Circuit’s approach in Hay, I think the magistrate judge
could reasonably infer that appellant had stored images of child
pornography on his computer at home. See, United States v. Lacy,
119 F.3d 742 (9th Cir. 1997); but of, United States v. Weber, 923
F.2d 1338 (9th Cir. 1990).
GIERKE, Judge, with whom EFFRON, Judge, joins
(dissenting):
In my view, there was no probable cause for the search of
appellant’s home. The search warrant was based on illegally
obtained evidence that appellant had a computer in his home, a
false statement that images had been uploaded or downloaded
from appellant’s work-station computer, an unsubstantiated
assumption that appellant was a pedophile, and a bare bones
assertion that the images on appellant’s work-station computer
were pornographic.
Furthermore, I do not believe that the magistrate judge had a
“substantial basis for . . . conclud{ing] that probable cause
existed." United States v. Carter, 54 MJ 414, 418 (2001), quoting
I/hnots v. Gates, 462 U.S. 213, 238-39 (1983). Where a warrant is
issued based on false information, "the deference accorded to a
magistrate’s finding of probable cause does not preclude
inquiry into the knowing or reckless falsity of the affidavit on
13a
which that determination was based. Franks v. Delaware, 438
U.S. 154... (1978)." Carter, 54 MJ at 419, quoting United States
v. Leon, 468 U.S. 897, 914-15 (1984).
In this case, Special Agent (SA) Merkel, a "computer forensic
specialist," examined appellant’s work-station computer at the
request of SA Schwartz, the OSI lead investigator. SA Merkel
concluded that there was nothing in the computer necessarily
indicating that images had been downloaded to a floppy disc.
SA Schwartz passed the results of his investigation, including
SA Merkel’s analysis, to SA Putnoky, who prepared an affidavit
and submitted it to the magistrate judge. Contrary to SA
Merkel’s conclusions, SA Putnoky’s affidavit asserted that
"analysis of the hard drive on the government owned
computer at [appellant’s] work cite disclosed that on several
instances, files were either downloaded or uploaded from the
hard drive to a diskette." In my view, the investigators
knowingly or recklessly provided the magistrate with false
information.
SA Putnoky’s affidavit provided no description of the images
found on appellant’s computer. It merely set out his '
conclusions that they were "child pornography,” "adult
pornography,” and "apparent child pornography." It is well
established that "[t]he magistrate’s determination ‘cannot be a
mere ratification of the bare conclusions of others." Carter,
supra, quoting Leon, supra. In United States v. Monroe, 52 MJ 326,
332 (2000), this Court reaffirmed that a magistrate may not rely
on the bare bones conclusions of investigators, but instead,
"must be provided sufficient information to make an
independent determination under the totality of the
circumstances." In Monroe, this Court held that the phrase
"graphic pornographic photographs" was sufficient to describe
"obscenity as legally defined." This Court cautioned, however,
14a
that "[t]his is a case of borderline sufficiency and should not be
taken as a model for future conduct." Id. In my view, this
Court drew the line in Monrve, and this case goes beyond that
line.
SA Putnoky’s affidavit also assumed that appellant was a
pedophile, and described at great length the kinds of items that
are usually found in the homes of pedophiles. SA Putnoky’s
affidavit, however, provided no factual support for his
conclusion that appellant was a pedophile. Without such
factual support, the affidavit did not provide sufficient
information to permit the magistrate to independently
determine whether appellant was a pedophile.
The basis for searching appellant’s home was SA Putnoky’s
unsupported assertion that appellant was a pedophile, SA
Putnoky’s unsupported assertion that the images were
pornographic, and SA Putnoky’s false representation that
images had been uploaded or downloaded on appellant’s work-
station computer, using a floppy disc. Because the supporting
- affidavit contained false information and relied heavily on bare
bones conclusions without supporting facts, I am unwilling to
agtee that the magistrate had a substantial basis for concluding
that probable cause existed.
Furthermore, in my view, the good faith exception in Mil. R.
Evid. 311(b)(3)(B), Manual for Courts-Martial, United States
(1995 ed.),* cannot save the search in this case. In United States
v. Leon, supra, the Supreme Court set out four circumstances
where the good faith exception does not apply: (1) a false or
reckless affidavit; (2) a "rubber stamp" judicial review; (3) a
facially deficient affidavit; and (4) a facially deficient warrant.
* The Manual provision cited is the version in effect at the time
of appellant’s court-martial. The current version is unchanged.
| ceaeiesiiiiaiiaalaeaaaaaiiieaiiiiiias
15a
See, Carter, 54 MJ at 419-20. The "substantjal basis" prong of
Mil. R. Evid. 311(b)(3)(B) is not satisfied if the affidavit is
intentionally or recklessly false, or if it is a ‘bare bones’ recital
of conclusions." Jd. at 421. In this case, SA Schwartz and SA
Putnoky, the agents who executed the warrant, were the
sources of the false information and the "‘bare bones’ recital of
conclusions." Unlike the majority, I do not consider SA
Putnoky’s 26 years of investigative experience as a factor
supporting good faith. To the contrary, 1 would expect an
experienced agent to understand the implications of providing
false information and relying on bare bones conclusions.
Under these circumstances, I cannot conclude that SA
Schwartz and SA Putnoky acted in good faith.
In my view, the military judge erred by refusing to suppress the
evidence seized from appellant’s home. Accordingly, I dissent.
16a
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
UNITED STATES
Vv.
Airman First Class GINO J. GALLO
United States Air Force
ACM 33303
25 April 2000
53 M.J. 556 (2000)
Sentence adjudged 28 January 1998 by GCM convened at
Maxwell Air Force Base, Alabama. Military Judge: Jack L.
Anderson (sitting alone).
Approved sentence: Dishonorable discharge, confinement for
42 months, forfeiture of all pay and allowances, and reduction
to E-1.
Appellate Counsel for Appellant: Major Stephen P. Kelly
(argued), Colonel Jeanne M. Rueth, Colonel Theodore J. Fink,
and Colonel Douglas H. Kohrt.
Appellate Counsel for the United States: Captain Suzanne
Sumner (argued), Colonel Anthony P. Dattilo, Lieutenant
Colonel Ronald A. Rodgers, and Major J. Robert Cantrall.
Before
SNYDER, SCHLEGEL, and BURD
Appellate Military Judges
17a
OPINION OF THE COURT
SNYDER, Chief Judge:
Tried by a military judge sitting as a general court-
martial, appellant stands convicted, contrary to his pleas, of
‘dereliction of duty and five specifications of violating the
Protection of Children Against Sexual Exploitation Act of
1977, as amended, and the federal obscenity statute. Articles
92, 134, UCMJ, 10 U.S.C. §§ 892, 934 (18 U.S.C. §§ 2251(0),
2252(a)(1), (2), (4), 1462(a)). He was sentenced to a
dishonorable discharge, confinement for 42 months, forfeiture
of all pay and allowances, and reduction to E-1, all of which
the convening authority approved. Appellant has submitted six
assignments of error for our consideration. We set aside part
of the findings but otherwise affirm.
I. Legality of Search
a. Background
Appellant avers that the search of his off-base mobile
home was illegal because the issuing magistrate was not
presented with information sufficient to establish probable
cause that evidence of a crime would be found in appellant’s
home. After hearing evidence on trial defense counsel’s timely
motion to suppress, the military judge found the essential facts,
as follows:
1. The accused is assigned to the Headquarters 7
Standard Systems Group, Maxwell Air Force
Base, Alabama.
2. On or about October 22, 1996, the
Headquarters Standard Systems Group received
18a
information that a government computer with
IP Address 143.158.38.2 was trading child
pornography. Special Agent Schwartz of the
Air Force Office of Special Investigations
became aware of the IP address and that it
belonged to a government computer used by
the accused.
3. On October 23, 1996, special agents from
the Air Force Office of Special Investigations
obtained a search authorization to make a
mirror copy of the accused’s government
computer hard drive to search for evidence of
misconduct, specifically possession and
distribution of child pornography via the
Internet. See Appellate Exhibit XXI.
4. On October 23, 1996, Special Agents
Schwartz and Merkel made a mirror copy of the
hard drive of the accused’s government
computer.
5. An analysis of the hard drive, which began
on October 30, 1996, revealed that the hard
drive contained several graphic images,
including images of naked children. See
Appellate Exhibit XX.
6. The analysis by the AFOSI also revealed
that some files had been either read from the
floppy drive, transferred from the hard drive to
the floppy drive, or transferred from the floppy
drive to the hard drive.
7. On November 8, 1996, Special Agent
:
19a
Schwartz interviewed Master Sergeant Schipani.
Special Agent Schwartz asked Master Sergeant
Schipani if she knew the accused had a
computer at home. Master Sergeant Schipani
stated that she did not know if the accused had
a computer at home. There is no evidence that
the special agent requested Master Sergeant
Schipani to question the accused regarding
whether or not he had a computer at home.
8. Sometime after November 8, 1996, Master
Sergeant Schipani questioned the accused
regarding whether or not he had a computer at
home. Master Sergeant Schipani did not
question the accused prior to asking him if he
had a computer--excuse me--did not advise the
accused of his rights under Article 31 of the
UCM) prior to asking questions if he had a
computer. The accused responded that he did
have a computer. Master Sergeant Schipani
provided this information to AFOSI.
9. On November 19, 1996, the Air Force
Office of Special Investigations and United
States Custom Service sought and obtained a
wattant to search the accused’s residence at
3918 Lakewood Drive, Lakewood Estates,
Montgomery, Alabama. The description of the
items to be searched included--quote--
computers and electronic storage devices and
removable storage media, including, but not
limited to, diskettes--also known as floppy
diskettes, mass storage devices, including
nonremovable storage devices”--and I’ve left
out some language--”for assessing information
20a
pertaining to child pornography and/or child
erotica as defined herein. See Appellate Exhibit
XX.
10. There is no evidence that any person, in
the making of this affidavit, acted with a
reckless disregard for the truth.
xx eK K 5
14. On November 19, 1996, Vanzetta
McPherson, United States Magistrate Judge,
Montgomery, Alabama, issued a search warrant
authorizing a search of the accused’s residence
at 3918 Lakewood Drive, Lakewood Estates,
Montgomery, Alabama. See Appellate Exhibit
XX. Search warrants issued by state and
federal civilian magistrates and executed by
military criminal investigators are specifically
recognized in military law. Usited States v.
Modesto, 39 M.J. 1055 (ACMR 1994). As a
general proposition, warrants issued by a
magistrate are entitled to great deference by
reviewing courts. United States v. Modesto, 39
M.J. 1055 (ACMR 1994). See also Umited States v.
Ozanich, 27 M.J. 585 (AFCMR 1988).
15. The search warrant was based on the
affidavit prepared by James Putnoky, a senior
special agent with the United States Customs
Service, Department of the Treasury. Mr.
Putnoky stated that the information contained
within his affidavit was based on his personal
knowledge and--quote--information obtained
from other law enforcement officials--close
quote. The defense alleges that there were
statements within the affidavit that were
2la
incorrect or based on information improperly
obtained from the accused.
16. The defense believes that the search of the
accused’s home was based upon mere suspicion
rather than probable cause or even reasonable
suspicion. The defense argues that the
government had no information that the
accused had information on his home
computer. Furthermore, they dispute the
statements contained in the affidavit by Mr.
Putnoky upon which the magistrate made her
decision to issue the search authority.
17. The first of these alleged incorrect
statements is Mr. Putnoky’s description of the
accused as a pedophile and that, based on his
experience and training, pedophiles almost
always maintain and possess sexually explicit
materials containing children in their home.
However, as detailed in his affidavit, Mr.
Putnoky based his determination that the
accused was a pedophile on the information
obtained during the investigation. Mr. Putnoky,
in his affidavit, details the basis for his belief
that the accused is a pedophile. One of the
details was the fact that over 262 apparent child
pornography photographs were discovered on
the hard drive of the accused’s government
owned computer. All of this information, upon
which Mr. Putnoky based his opinion that the
accused was a pedophile, was provided the
magistrate. Therefore, there is no basis for the
defense contention that the military magistrate
was somehow misled by Mr. Putnoky’s
22a
statement that he was a pedophile.
18. The next statement contained in the
affidavit by Mr. Putnoky which the defense
alleges is incorrect is the information contained
in paragraph 13, which states, among- other
things, an analysis of the hard drive of the
accused’s government computer revealed that--
quote--on several imstances, files were
downloaded or uploaded from the hard drive to
a diskette, relating to files received over the
Internet--close quote. Paragraph 13, which I
just referred to, goes on to state that--quote--
Once files are downloaded to a diskette, this
makes them extremely portable--close quote.
The defense points to the testimony of Special
Agent Merkel in support of their contention.
Special Agent Merkel testified that the
statement in paragraph 13 was correct, but
further testified that there was another possible
explanation; that is, the accused could have
reviewed a file on a floppy disk without a
transfer. However, in all cases, Special Agent
Merkel testified that the information involved
the use of drive A, which is for a floppy disk.
Therefore, any discrepancy in the affidavit,
when viewed under the totality of the circum-
stances, did not materially mislead the
magistrate.
19. The next statement contained in the
affidavit prepared by Mr. Putnoky which is
challenged by the accused is also contained in
paragraph 13. Specifically, the defense is
challenging the statement that the accused had
23a
a personal computer at his residence. The
defense argues that this information was
illegally obtained from the accused. This also
forms a basis for their second argument as
discussed above. This information was based
on the accused’s response to a question by
Master Sergeant Schipani, his supervisor.
Master Sergeant Schipani testified that, when
she initially spoke with Special Agent Schwartz,
she was not sure if the accused had a personal
computer at his residence. She testified that,
after this interview, she questioned the accused
whether he had a personal computer at his
residence. She stated that she was not sure why
she asked the question, including whether it
was based on a request by Special Agent
Schwartz. She testified that she did not read
the accused his Article 31 rights prior to asking
the accused this question. Article 31--quote--
requires warnings only when questioning is
done during an official law enforcement
investigation or disciplinary inquiry--close
quote. See United States v. Duga, 10 MJ. 206
(CMA 1981) and United States v. Loukas, 29 MJ.
385 (CMA 1990). Analysis of whether
questioning is part of an official law
enforcement investigation or disciplinary
inquiry is governed by an objective test. Umited
States v. Good, 32 M.J. 105 (CMA 1991). While
there’s no conclusive evidence to show that
Master Sergeant Schipani was acting in a law
enforcement capacity, the courts in Duga and
Loukas seemed to indicate that, when
questioning is done by the subject’s military
supervisor, there is a rebuttable presumption
-
24a
that the questioning was done for disciplinary
purposes.
20. If an affidavit contains both illegally-
obtained information and legally obtained
information, the illegally obtained information
should be excised. United States v. Camanga, 38
M.J. 249 (CMA 1993). If the remaining
information is sufficient to establish probable
cause, it is deemed to be from an independent
source. United States v. Camanga, 38 M.J. 249
(CMA 1993). I have concluded that, even
assuming that the information obtained by
Master Sergeant Schipani was illegally obtained,
the remaining information contained in the
affidavit provided to the magistrate was
sufficient to establish probable cause.
21. Additionally, I conclude that, if there were
any defects in the obtaining of the search
warrant, the evidence should still be admitted
under the good faith exception. See Umited States
v. Leon, 468 U.S. #97, 104 S. Ct. [3405]; 82 L.
Ed. 2d 677], a 1984 case; Massachusetts ».
Sheppard, 468 U.S. 981, 104 S. Ct. 3424; 82 L.
Ed. 2d 737[], a 1984 case. United States v. Lopez,
35 M.J. 35 (CMA 1992)[.]
b. Discussion.
A military judge's ruling on the admission or exclusion
of evidence, including rulings on motions to suppress, are
reviewed for an abuse of discretion. United States v. Ayala, 43
M.J]. 296 (1995); United States v. Agosto, 43 M.J. 745, 748 (A.F.
Ct. Crim. App. 1995). As search issues generally are mixed
25a
questions of fact and law, we review a military judge's findings
of fact under a clearly erroneous standard, and we review the
military judge's conclusions of law under a de novo standard of
review. A military judge abuses his or her discretion on a
motion to suppress only if the factual findings are clearly
erroneous or the law is applied erroneously. Aya/a, 43 M.J. at
298; United States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985). The
military judge's findings are fully supported by the evidence of
record, and we adopt them as our own. Article 66(c), UCMJ,
10 U.S.C. § 866(c).
Probable cause exists when there is sufficient
information to provide the authorizing official 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(f)(2); United States v. Mix, 35 MJ. 283 (C.M.A. 1992).
Whether probable cause exists for a commander or magistrate
to issue an authorization to search is determined by the totality
of the circumstances presented to the magistrate. I/Anois v.
Gates, 462 U.S. 213, 233 (1983); accord United States v. Hester, 47
M.J. 461, 463, cert. denied, 525 U.S. 850 (1998). In Gases, the
Court emphasized the fact that the law does not demand that a
magistrate make technical, legal determinations when deciding
whether to issue a warrant. Instead, only a practical, common
sense assessment is required, because the central question is
whether there is probable cause, not whether there is proof
beyond a reasonable doubt. See Gates, 462 U.S. at 231, and
cases cited therein.
Searches authorized by magistrates are preferable to
searches conducted under other bases. Consequently, a
magistrate's determination that probable cause existed is
entitled to great deference. See United States v. Leon, 468 U.S.
897, 914 (1984); Hester, 47 M.J. at 466 (Gierke, J., concurring in
part and in the result); Umited States v. Lopez, 35 M.J. 35, 49-50
26a
(C.M.A. 1992) (Wiss, J., concurring in the result). In light of
this deference, this Court’s de novo review is confined to
whether the military judge was correct in ruling that the
magistrate had a substantial basis for finding probable cause
existed to search appellant's residence. United States v. Monroe,
__ MJ. ___ No. 99-0536/AF, slip op. at 12 (Mar. 13, 2000);
United States v. Figueroa, 35 M.J. 54, 56 (C.M.A. 1992).
The military judge apparently ruled that it was
improper for Master Sergeant (MSgt) Schipani to ask appellant
if he owned a personal computer at home without first
advising him of his rights pursuant to Article 31, UCMJ, 10
U.S.C. § 831. He concluded that, even if her inquiry of
appellant was barred by Article 31, UCMJ, and appellant’s
answer was excluded from evidence, there still was sufficient
information which provided the magistrate a substantial basis
for issuing the search warrant. To dispel any uncertainty
regarding this issue, we will assume, argwendo, that MSgt
Schipani’s inquiry of appellant should have been preceded by
the requisite advisement. Id.
Whenever an affidavit in support of an application for
a search authorization or warrant contains both admissible and
inadmissible information, the affidavit is tested for sufficiency
solely on the basis of the admissible information. United States
v. Camanga, 38 M.J. 249 (C.M.A. 1993). Assessed under this
standard, we agree with the military judge’s ruling that there
still is sufficient information to support the magistrate’s ruling.
Appellant focuses his attack on the portions of Special
Agent (SA) Putnoky’s affidavit which sets forth his opinion on
the behavior of pedophiles. Specifically, appellant avers that
SA Putnoky did not demonstrate that he possessed the
requisite qualification to opine that appellant fit the diagnosis
of pedophilia and that there was no evidence submitted to the
27a
magistrate to the effect that appellant previously had been
diagnosed as a pedophile. Therefore, any information in SA
Putnoky’s affidavit which averred appellant is a pedophile lacks
a factual basis and, thus, was immaterial to the magistrate’s
decision. We believe appellant takes too restrictive an
approach to the law which governs this area of search law.
In United States v. Henley, 48 M.J. 864 (A.F. Ct. Crim.
App. 1998), this Court held that it was perfectly permissible for
a magistrate to rely on expert, or other, opinion testimony
when determining the existence of probable cause, so long as
there was an adequate factual foundation from which the
issuing magistrate could personally assess the opinion. Id. at
869-70. We further held that there was more than adequate
information in that case from which the magistrate could
conclude that Captain Henley was a pedophile and still was in
possession of pornographic materials which were last seen
several months earlier. Part of the underlying foundation was
the fact that a certified forensic psychologist previously had
read the detailed statements of Henley’s children and opined he
was a pedophile. However, appellant misreads Henke if he is
averring that it requires a professional medical diagnosis as a
matter of law. We did not so hold in Henkey nor do we adopt
that premise in the instant case. We are not presented with any
reason to conclude that an otherwise qualified lay person may
not render an opinion on whether one possesses a behavioral
disorder. See Mil. R. Evid. 701.
Appellant’s counsel properly conceded during oral
argument that, whatever standard may apply to opinion
evidence contained in search affidavits, it certainly is no more
rigorous than that mandated by Mil. R. Evid. 702. This
standard is quite liberal, in that it requires only that the person
rendering the opinion possess training or knowledge beyond
that of the average person. United States v. Mustafa, 22 M.]. 165
\
28a
(C.M.A. 1986). SA Putnoky, by virtue of 26 years of training
and on-the-job experience, clearly demonstrated he was
qualified to render the opinions contained in his affidavit
regarding pedophilia and the habits of pedophiles, ef a/.
We do agree with appellant, however, that SA
Putnoky’s affidavit lacked any factual support regarding child
molestation, for there was no evidence that appellant ever
molested anyone, child or adult. But this does not advance his
ultimate argument, because SA Putnoky’s affidavit addressed
more than that facet of pedophilia. SA Putnoky also shared his
experience and training regarding how pedophiles retain and
catalog child pornography and the actions they take to secure
it. More importantly, SA Putnoky did not restrict his subject
class to pedophiles. His affidavit also referenced individuals
who collect child pornography.
There is ample factual information in the affidavit from
which the magistrate could conclude that appellant is a
collector of child pornography even if he is not a pedophile.
Further, whether appellant is a pedophile is of minimal
importance in the instant case. In Heniey, five years had elapsed
since the evidence sought was last seen. Consequently, the
information in the affidavit regarding pedophiles was critical
on the issue of staleness. Hen/ey, 48 M.J. at 869, and cases cited
therein (classification of pedophilia meant child pornography
still was present in home despite passage of lengthy period of
time). This factor is not present in the instant case, because the
information on which the investigators were acting was in no
way dated. Further, SA Putnoky’s opinion was validated by the
fact that the suspect files on appellant’s workplace computer
were password protected. The final link in this chain was the
information that a diskette or diskettes had been used in
appellant’s workplace computer in connection with the files
which contained the images of child pornography. - A
29a
reasonable person easily could conclude that those diskettes
were located in appellant’s home. This brings us to appellant’s
final complaint regarding the affidavit, which is whether the
materials were adequately described to the magistrate.
Appellant correctly avers that the issuing magistrate
may not rely on the conclusory opinion of an investigator. New
York v. P. J. Video, Inc., 475 U.S. 868 (1986); United States v.
Monrve, 50 M.J. 550 (A.F. Ct. Crim. App. 1999), aff'd, ____ MJ.
____ No. 99-0536/AF (Mar. 13, 2000). In Monroe, however, we
held that the search magistrate could rely on terms of art used
in the affidavit, especially when they were used by a member of
the servicing office of the staff judge advocate, to describe the
contents of suspected obscene materials. We believe this is
especially so where the material is not a book or movie, etc.,
where overall context is important. In the instant case, in the
second and fourth paragraphs of his affidavit, SA Putnoky
stated he was requesting authorization to seize evidence of
violations of 18 U.S.C. §§ 2251-57 or § 1462. He also used the
term, “child pornography” to describe the images found on
appellant’s workplace computer. These are not mere
conclusions. Further, in the appendix wherein SA Putnoky
described the items to be seized, he again referred to the terms
of the applicable statute and specifically requested permission
to seize any visual depiction of minors engaged in sexually
explicit conduct as defined in 18 U.S.C. § 2256. There is no
reason for us to conclude that the magistrate did not
reasonably believe that the images on the computer met that
definition. Accordingly, we agree with the military judge that
the issuing magistrate had a substantial basis for issuing the
search warrant. Monroe, 50 M.J. at 561.
We also agree that, if necessary to apply the principle,
the search in the instant case qualifies for the good faith
exception. There simply is no police misconduct to be
30a
deterred in the instant case. The investigators were diligent to
invoke legal process at all stages of the investigation, including
obtaining a search authorization to inspect the hard drive of
the government computer on appellant’s desk. It was only
after a detailed analysis of that drive that they applied for a
warrant to search appellant’s home. There is no evidence in
this record which supports an allegation that the investigators
had a reckless disregard for the truth or that no magistrate
would have relied on the affidavit. Mil. R. Evid. 311()(3);
Monroe, 50 M.J. at 561.
II. Legal and Factual Sufficiency
a. Child Pornography
Appellant next submits that the evidence is legally and
factually insufficient to prove his guilt of Specification 4,
Charge II. We agree with the former averment. The
specification in question reads as follows:
In that [appellant] . . . did, at or near
Montgomery, Alabama, on divers occasions
between on or about 1 January 1996 to on or
about 20 November 1996, knowingly possess 3
or more digital motion pictures and/or other
digital visual depictions of minor children,
under the age of 18 years, engaged in sexually
explicit conduct, which motion picture and/or
visual depictions had been shipped or
transported in interstate commerce, in violation
of 18 United States Code Section 2252(a)(4).
Trial defense counsel moved to dismiss the
specification for failure to state an offense. The military judge
denied the motion but directed that the language, “and/or
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other visual depictions,” be deleted from the specification. In
renewing the overall substantive issue before us, appellate
defense counsel correctly observe that the core issue is not the
sufficiency of the specification but whether the offense
charged is proven. As this Court noted in United States ».
Commander, 39 M.). 972, 980 (A.F.C.M.R. 1994), the focus of a
motion to dismiss for failure to state an offense is the
specification itself, not the fact that the government’s proof
may fall short or the accused may have some defense to the
charge. Accord United States v. Galchick, __ M.J. __. ACM
32990 (A.F. Ct. Crim. App. Mar. 14, 2000); see also United States
v. Snyder, 428 F.2d 520, 522 (9th Cir.), cert. denied, 400 U.S. 903
(1970). Under the UCM], the military is a notice pleading
jurisdiction. If a specification informs an accused of the
offense against which he or she must defend and bars a future
prosecution for the same offense, the specification is sufficient.
United States v. Sell, 11 C.M.R. 202, 206 (C.M.A. 1953); see
United States v. Schwarz, 15 MJ. 109, 111 (C.M.A. 1983). The
specification in the instant case more than satisfies this
standard. Therefore, as observed, the real issue is legal and
factual sufficiency.
To find a conviction legally sufficient, this Court must
determine that, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable
doubt. Jackson v. Virgimia, 443 U.S. 307, 319 (1979). When
testing for legal sufficiency, every reasonable inference from
the evidence must be drawn in favor of the prosecution. United
States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991); accord United
States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993). Further, the
evidence need not be free of conflict to satisfy this standard.
United States v. Steward, 18 M.J. 506, 508 (A.F.C.M.R. 1984).
However, to find a conviction factually sufficient, we ourselves,
after weighing the evidence in the record of trial and making
32a
allowances for not having personally observed the-witnesses,
must be convinced of the accused's guilt beyond a reasonable
doubt. United States v. Turner, 25 M.}. 324 (C.M.A. 1987).
The statute under which appellant was charged, 18
U.S.C. § 2252(a)(4)(B), reads as follows:
Any person who knowingly possesses 3 or
more books, magazines, periodicals, films,
video tapes, or other matter which contain any
visual depiction that has been mailed, or has
been shipped or transported in interstate or
foreign commerce, or which was produced
using materials which have been mailed or so
shipped or transported, by any means including
computer, if--
(i) the producing of such visual
depiction involves the use of a minor engaging
in sexually explicit conduct; and
(ti) such visual depiction is of such
conduct... .
The elements which the government was required to
prove beyond a reasonable doubt are:
1) Appellant knowingly possessed 3 or more
motion pictures;
2) The motion pictures contained visual
depictions which had been mailed, shipped, or
transported in interstate or foreign commerce;
3) The producing of the visual depictions
involved the use of minors engaging in sexually
explicit conduct; and
33a
4) The visual depictions were of such sexually
explicit conduct.
Appellant renews his argument that, to violate this
statute, Congress intended that one possess the prohibited
items in some form of organized compilation, such as a book
or magazine. This is especially so, he avers, in light of the
deletion directed by the military judge, which precludes the
government from relying on the alternate clause, “or other
matter.” As such, he argues, the seven motion pictures he
possessed on at least two “floppy diskettes” (typical 34% inch
computer disks) do not violate the statute because they are not
compiled and do “not qualify as ‘film,’ ‘video tape,’ or other
similar organized compilations contemplated by the statute.”
With this we cannot agree.
To support this averment, appellant relies on United
States v. Falk, 50 M.J. 385 (1999), to argue that the statute under
which he was charged does not reach his conduct. Otherwise,
Congress would not have subsequently amended the statute to
specifically include computer images. See id. at 391. This
argument is not directly germane to our disposition, because
we find appellant’s conduct falls squarely within the primary
clause of the statute, as opposed to falling under the so called -
“other matter” clause, which was the salient issue in Falk. Id.
In reaching this conclusion, we reject appellate defense
counsel’s description of the visual depictions in issue in the
instant case as “animated graphic image files.” We specifically
find, as apparently did the military judge, that, the visual
depictions in issue, regardless of their length, are actual motion
pictures of real children which were placed on a computer disk.
Article 66(c), UCMJ, 10 U.S.C. § 866(c); see United States v. Vig,
167 F.3d 443, 449 (8th Cir.) Gury was in a position to draw its
own independent conclusion as to whether real children were
34a
depicted), cert. denied, __ U.S. ___, 120 S. Ct. 146, 145 L. Ed.
2d 125 (1999). It is in this vein that we apply the statute.
The only mention otherwise made of film in the statute
is in the definitions, where Congress provided that “visual
depiction’ includes undeveloped film and video tape.” 18
U.S.C. § 2256(5). With this being the case, we give words used
in the statute their ordinary meaning. Diamond ». Diebr, 450
U.S. 175, 182 (1981) (quoting Perrin v. United States, 444 U.S. 37,
42 (1979)).
The everyday definition of “film” supports the
conclusion that Congress clearly intended motion pictures to
be covered by the term, “films.” Otherwise, we would have
the absurd result of the statute not prohibiting motion pictures
which depict minors engaged in sexually explicit conduct on
media other than typical film. Among the definitions given for
“film” is: “4: motion picture.” Webster’s New Collegiate
Dictionary 429 (1977). The statute lists “films” as a specific,
independent unit. Congress did not state three reels of film,
etc., but “3 or more films.” Appellant had seven.
We agree with appellate government counsel that
Congress did not proscribe a minimum length for films or
motion pictures and, given the broad protection from sexual
exploitation Congress intended to accord minors, see United
States v. Whiting, 165 F.3d 631 (8th Cir. 1999), we hold that a
motion picture of any length is covered by the statute, even if
contained on a computer disk. Therefore, the seven motion
pictures which a t possessed on computer disks are
within the statute’s terms. The remaining issue is whether the
other elements are sufficiently established by the evidence of
record. As regards the remaining elements, we find, as a matter
of law, that the government failed to sufficiently prove the
critical jurisdictional element of interstate or foreign
iia cata A
35a
commerce.
The government sought to prove the required
connection with interstate commerce via the sole theory of
Internet activity by appellant. To prove this theory, the
government presented expert testimony on the analysis of the
hard disk drive (HD) of the government computer appellant
used at work. Scripts or dialogs extracted from appellant’s
assigned computer HD revealed worldwide web addresses in
~states other than Alabama which his computer had accessed.
These text files and “upload logs” revealed massive activity
whereby files containing images depicting children engaged in
sexually explicit conduct were both received and transmitted
via the Internet and appellant’s work computer. A substantial
number of these files were traced back to this Internet traffic
and also were found in duplicate on the HD of appellant’s
work computer and on 3% inch disks (floppies) found in his
home. This evidence clearly is sufficient to prove interstate
activity if linkage to the files in question is otherwise
demonstrated. See Umited States v. Murray, __ MJ. __, No. 99-
0303/AF, slip op. at 8-9 (April 6, 2000) (citing United States v.
Carroll, 105 F.3d 740, 742 (1st Cir.), cert. denied, 520 U.S. 1258
(1997); ACLU ». Reno, 929 F. Supp. 824, 830-38 (E.D. Pa.
1996)). However, with regards to the seven motion pictures,
the necessary linkage is not established.
The statute mandates that at least three of the motion
pictures traveled in interstate commerce at or before the point
in time appellant came into possession of them. The only
Internet link that the government could establish with the
motion pictures was with the motion picture contained in
“Babyluv.mpg.” A “deleted” text file recovered from
appellant’s work computer HD contained the following: “DCC
Send of babyluv.mpg to redpoint completed.” This apparent
transmission, however, is not sufficient evidence from which
36a
one may infer that appellant downloaded Babyluv.mpg, or the
other 6 motion pictures, from the Internet. See United States v.
Pinckney, 85 F.3d 4, 7 (2d Cir. 1996) (holding the government
failed to produce any evidence, circumstantial or otherwise,
from which jury could infer interstate activity). The fatal
deficiency in the government’s evidence is that proof that
appellant at some time shipped or transmitted one of the
motion pictures in interstate commerce is not proof that 3 or
more of the motion pictures had earlier transited interstate
commerce as required by the statute, for appellant may very
well have obtained them from a source other than the Internet.
See United States v. Wilson, 182 F.3d 737 (10th Cir. 1999)
(holding circumstantial evidence which inferentially linked one
diskette to interstate commerce not sufficient to allow
inference that other two diskettes were similarly linked).
Therefore, the government failed to prove the critical
jurisdictional element required by 18 U.S.C. § 2252(a)(4)(B).
Having concluded that the evidence on Specification 4,
Charge II, is legally insufficient, we must now address any
applicable lesser included offense prior to closing on this issue.
Appellant was charged under the third clause (the crimes and
offenses not capital clause) of Article 134 with violating the
United States Code, 18 U.S.C. § 2252(a)(4). Whenever an
offense is so charged, an offense under the other two clauses
(conduct prejudicial to good order and discipline or conduct
discrediting to the service) is necessarily included if the
specification is drafted broadly enough to convey notice.
United States v. Williams, 17 M.J. 207, 215-16 (C.M.A. 1984);
United States v. Mayo, 12 M.J. 286 (C.M.A. 1982). Although the
specification appears sufficiently broad to embrace an offense
under either or both clauses, in view of the fact that this
remains an unsettled area of the law and our final disposition,
we need not address this factor at this time.
37a
Generally, when an appellate court disapproves a
finding because proof of an essential element is missing, it may
substitute a lesser included offense for the disapproved
findings, often even where the lesser offense was not instructed
upon or otherwise considered at trial. United States v. McKinkey,
27 MJ. 78, 79 (C.M.A. 1988). This general statement in
McKinley, notwithstanding, there is a parallel body of law which
provides that an appellate court may not approve a lesser
included offense which was not instructed on or considered by
the military judge. United States v. Perkins, 47 C.M.R. 259, 263-
66 (A.F.C.M.R. 1973); see generally United States v. Johnson, 39 MJ.
1033 (A.C.M.R. 1994); United States v. Martin, 50 C.M.R. 314,
316 (A.C.M.R.), afd, 1 MJ. 75 (C.M.A. 1975). Those cases
which, after disapproving findings under clause 3, approved
findings of a lesser included offense under either of the first
two clauses of Article 134 addressed situations where the
military judge had fully instructed the members that they had
to be convinced beyond a reasonable doubt that the accused’s
conduct was either prejudicial to good order and discipline or
service discrediting. Willams, 17 MJ. at 216; Mayo, 12 MJ. at
294.
In the instant case, however, appellant opted for trial
by military judge alone, and military judges, of course, do not
instruct themselves prior to announcing findings. The
precedents which have addressed this issue do not apply a
different standard for bench trials where an offense is charged
under the third clause of Article 134. The appellate court looks
to the theory by which the case was prosecuted at trial. Perkzns,
47 C.M.R. at 263-66; Johnson, 39 MJ. at 1036-37; Martin, 50
C.M.R. at 316-17.
It is abundantly clear that the government relied
exclusively on the third clause, and that also is the manner by
which appellant defended against the charge. During litigation
38a
of trial defense counsel’s motions to dismiss the charge, his
written motion set forth what he believed to be the elements of
the offense. His submission did not include conduct
prejudicial to good order and discipline or service discrediting
as elements, and there was no objection by the government.
Further, neither trial counsel nor trial defense counsel
mentioned these elements in their respective closing
arguments. Ergo, we will not approve a lesser included offense
under Clause 1 or 2, Article 134. Perkins, 47 C.M.R. at 266.
We also leave for another day the issue of whether the
government initially could have charged these offenses under
Clause 1, 2, or both, and avoided the necessity of having to
prove federal jurisdiction either territorially or via a link with
interstate commerce. See, ¢.g., United States v. Fox, 50 M.J. 444,
445 (1999); Wilkams, 17 M.J. at 216; United States v. Scholten, 17
M.J. 171, 174 (C.M.A. 1984); Mayo, 12 M.J. at 293-94. In any
event, that is not the manner by which the government chose
to proceed. Therefore, we must hold the government to the
path it chose.
b. Obscene Materials Depicting Adults
Appellant also attacks the legal and factual sufficiency
of the evidence on Specification 5, Charge I, which charged a
violation of 18 U.S.C. § 1462(a), the federal obscenity law. The
salient part of the statute reads as follows:
Whoever . . . knowingly uses any express
company or other common carrier of
interactive computer service (as defined in
section 230(e)(2) of the Communications Act
of 1934), for carriage in interstate or foreign
commerce— 4
39a
(a) any obscene, lewd, lascivious, or filthy book,
pamphlet, picture, motion-picture film, paper,
letter, writing, print, or other matter of indecent
character{.]
Appellant’s specific complaints are that the government
“failed to establish an interstate connection to a substantial
amount of the evidence introduced on this specification,” and
that the government failed to define the applicable community
standard or introduce evidence establishing the standard. We
disagree.
~ We note from the outset that appellant’s styling of this
assignment of error implies a concession. Specifically, a
“substantial amount” is not all; ergo, by implication, an
interstate commerce connection was established with regards
to some of the evidence. Unlike section 2252(a)(4)(B), section
1462(a) does not require a minimum amount of obscene
material to violate the statute. Therefore, the evidence is
legally sufficient if appellant used an interactive computer
service for interstate transit of any of the obscene materials in
issue. We find the evidence legally and factually sufficient.
The analysis performed on the HD of appellant’s
assigned work computer revealed that Internet Relay Chat
(IRC) software had been installed on the computer. The local
network administrator testified that IRC software was not part
of the standard official government setup for government
computers at Gunter Annex. IRC software enables the user or
users to engage in real-time conversation over the Internet via
keyboard input. Also installed on appellant’s assigned
computer as part of the IRC package was a Direct Client
Connection (DCC), which allowed direct exchanges between
appellant’s computer and anyone desiring to connect without
the necessity of using a chatroom or other forum as a medium.
4a
Further, this IRC-DCC combination allowed appellant’s
assigned government computer to serve as a File Server for
anyone seeking access to child pornography. Whenever
someone accessed appellant’s assigned government computer,
part of the welcome screen read, “DON’T FORGET TO
SEND BACK SOME TEEN/PRETEEN PICS!!!” In fact,
appellant’s assigned government computer was configured to
actively trade child pornography with any interested user of his
File Server Service. Specifically, it was programmed to provide
double for whatever he received. The sophistication of
appellant’s configuration was such that, if one who accessed
appellant’s server was short of units, the computer
conveniently provided a game of chance in the form of a horse
race whereby the user could seek to win units with which to
trade.
In addition to the evidence detailed, ante, over 500
floppies were seized from appellant's home. These disks
contained files which contained visual depictions of both adults
and children engaged in sexually explicit conduct that were
identical to files found on his government computer HD.
These files were password-protected, and the password used
on appellant’s government computer HD, his personal
computer HD, and the floppies, was the same.
The analysis of his government- computer HD also
revealed activity involving floppies regarding the files which
contained some of the visual depictions seized. While the
analyst could not specify whether the activity was transferring
files from the HD to the floppies, the converse, or merely
viewing files already on floppies without a transfer, the analysis
nonetheless detected activity involving floppies.on a computer
with access to the Internet.
Trial defense counsel tried to suggest that someone else
4la
could have installed the software and used appellant’s
government computer for these illicit activities. The evidence,
however, albeit circumstantial, compellingly demonstrates it
was appellant who configured and programmed his assigned
government computer to function as a File Server to traffic in
obscene materials. The sophisticated IRC-DCC setup on
appellant’s work computer and the text files recovered from
the HD demonstrate his extensive activity on the Internet
involving child pornography and obscene materials depicting
adults. Appellant also misses the mark on the issue of the
applicable community standard.
Trial defense counsel endeavored to convince the
military judge that a so-called Cyberspace Community Standard
was the proper community standard by which to determine if
the materials in appellant’s possession were obscene. He relied
on dicta in United States v. Maxwell, 45 MJ. 406 (1996), to
support his assertion. The prosecution specifically argued to
the military judge that an Air Force standard was the proper
standard, and that is the standard which the military judge
applied. We find no error.
The language in Maxwel/ which appellant relies on is:
[W]e are not prepared to state unequivocally
that an Air Force community standard is the
one to apply when the conviction is based upon
the U.S. Code. [citation omitted] The standard
to be used in this case may be the entire
community of subscribers to the AOL service
or the members of AOL who use a specific
bulletin board.
Id. at 426. The language used by our superior court in the last
sentence, to say the least, is not at all illuminating when one
|
42a
considers that just prior to the quoted language the court
observed that, in the case then before it, an Air Force standard
was most likely the appropmniate standard. Jd In any event, we
consider the above language as intellectualizing at best and not
any indication that our superior court will construe this as the
law.
First, the Court specifically recognized the Air Force as
a specific community for determining community standards of
obscenity. Id. at 426; see also United States v. Hullett, 40 M.J. 189,
191 (C.M.A. 1994); United States v. Dyer, 22 M.J. 578 (A.C.M.R.
1986). The problem in Maxwei/ was that the military judge did
not instruct the members to apply an Air Force standard but
the nationwide standard which the Supreme Court specifically
held was inapplicable. Maxwell, 45 M.J. at 425-26. Second, a
so-called cyberstandard has been rejected by at least one
federal court, United States v. Thomas, 74 F.3d 701 (6th Cir.
1996), and so do we. Such a standard would be just as
untenable as the nationwide standard. Users of Internet
chatrooms and other services connect from global locations,
not just from points located within the United States. Further,
to use a standard fashioned by the users of a specific bulletin
board service (BBS) or chatroom would essentially repeal the
obscenity laws. Obviously, people who actively seek such
materials would not deem them obscene. Even commentators
who advocate a different standard for cyberspace do so, not
based on a special standard for specific chatrooms or BBS, but
as an adjunct to the constitutional nght to possess obscene
materials in the privacy of one’s home, and the fact that the
personal computer allows it to be done directly between the
individual and source. See, ¢g., John S. Zanghi, “Community
Standards” in Cyberspace, 21 U. Dayton L. Rev. 95 (1995).
Appellant trafficked in obscenity by using his assigned
Air Force computer on an Air Force installation. The
43a
compelling circumstantial evidence is that the obscene
materials in issue that were found in his off-base home were
first downloaded from off of the Internet, or received from
other individuals via the Internet, onto his assigned Air Force
computer. He then copied them to floppies which he carried
home. The military judge was entirely correct to apply an Air
Force standard of obscenity. Maxwe//, 45 M.J. at 426. Further,
as in Maxwell, the materials in the instant case are so graphic as
to be obscene regardless of the standard applied. Id.
Therefore, we find the evidence legally and factually sufficient.
III. Sentence Reassessment
In light of our disapproval of the findings of guilty on
Specification 4, Charge II, we must now reassess the sentence.
Before we may reassess a sentence to cure error, we must be
reasonably certain that we can determine the minimum
sentence which the sentencing authority would have imposed
absent the offense charged in Specification 4, Charge II. United
States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales,
22 MJ. 305 (C.M.A. 1986). We are confident we can do so in
the instant case.
We are convinced that the military judge would have
senfenced appellant to the same sentence even in the absence
of the disapproved findings. The most aggravating factor of
this case is appellant was a purveyor of child pornography or
other obscene materials who used his assigned government
computer to facilitate his illicit activities. Possessing seven
fewer items depicting child pornography does not change the
seriousness of his crimes one iota. Therefore, we believe the
sentence is nonetheless appropriate for the remaining offenses.
IV. Sentence Severity
44a
Appellant also asks that we find his sentence inappropniately
severe. In determining sentence severity, this Court must
exercise its judicial powers to assure that justice is done and that
the accused gets the punishment he deserves. Performing this
function does not authorize this Court to exercise clemency.
Umited States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988). The
primary manner by which we discharge this responsibility is to
give individualized consideration to an appellant, including the
nature and seriousness of the offenses and the character of the
appellant's service. United States v. Snelling, 14 M.J. 267 (C.M.A.
1982).
Applying the guidance of Healy and Sneling, we do not
find appellant’s sentence inappropriately severe. Article 66(c),
UCM]. In fact, with respect to this category of offenses, we
find the surrounding circumstances of appellant’s misconduct
to be among the more aggravating which this Court has had
occasion to consider.
V. Other Assignments of Error
We have considered the remaining assignments of error
submitted by appellant and resolved them adversely to him.
Article 59(a), UCMJ, 10 U.S.C. § 859(a); United States v. Powell,
49 M.]. 460 (1998); United States v. Palmiter, 20 M.J. 90 (C.M.A.
1985); United States v. Boyd, _ M.J. __. ACM 33483 (A.F. Ct.
Crim. App. Feb 17, 2000); Umited States v. Erby, 46 M.J. 649
(A.F. Ct. Crim. App. 1997), affd in part and modified in part, 49
M.J. 134 (1998); United States v. Washington, 42 M.J. 547 (A.F.
Ct. Crim. App. 1995).
VI. Conclusion
The findings of guilty on Specification 4, Charge II, are
disapproved and the specification dismissed. Finding no error
45a
prejudicial to the substantial rights of appellant, the findings, as
modified, and sentence, as reassessed, are hereby
AFFIRMED.
Senior Judge SCHLEGEL and Judge BURD concur.
OFFICIAL
LAURA L. GREEN
Clerk of Court
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