Petition for Writ of Certiorari — Larson v. United States (No. 08-114)
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Lo Mere, Cher ty
In the Supreme Court of the United States
MAJOR JOHN R. LARSON,
Petitioner
Ue
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 M. Cox Shannon A. Bennett
Captain, U.S. Air Force Major, U.S. Air Force
Counsel of Record Air Force Appellate
Defense Division
112 Luke Ave, Ste 343
Bolling AFB, DC 20032
(202) 767-1562
QUESTION PRESENTED
In O'Connor v. Ortega, 480 U.S. 709 (1987), the
plurality and concurrence disagreed that the
reasonableness of a government employee's
expectation of privacy changes according to the
Government’s identity at the time of its intrusion.
Here, supervision could access’ Petitioner’s
password-protected work computer and monitor
his use. However, law enforcement agents
conducting a criminal investigation entered
Petitioner’s private, locked office and searched
his computer without a warrant. Is evidence
discovered in such a search admissible?
TABLE OF CONTENTS
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CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .......................0. 1
STATEMENT OF THE CASE ........................0088 2
REASONS FOR GRANTING THE WRIT......... 5
I. CONTRARY TO THE COURT OF APPEALS
FOR THE ARMED FORCES, THE
FEDERAL CIRCUIT COURTS OF
APPEALS SUGGEST THAT THEY WILL
ENDORSE THE VIEW THAT THE LAW
ENFORCEMENT STATUS OF THE
INDIVIDUAL MAKING THE INTRUSION
IS RELEVANT TO A GOVERNMENT
EMPLOYEE'S EXPECTATION OF
FEES ap env ele ie CO oC RO 8
Il. THE GOVERNMENT AS EMPLOYER IS
DIFFERENT THAN THE GOVERNMENT
TEINS 5. cesacnsicannnystssicnsabeewens oeeine 10
A. Public employees can have private offices
and do lock their office doors................ 12
B. Mere access to a public employee's work
computer by a supervisor or technician
does not necessarily render an expectation
of privacy unreasonable..................... 12
C. Public employees use government-owned
property to conduct their work......... ae
D. Even if engaged in illegal conduct, a
government employee does not enjoy any
lesser expectation of privacy............... 15
E. Conclusion
CONCLUSION
APPENDIX
Opinion of the United States Court of Appeals
for the Armed Forces (April 25, 2008)
Opinion of the United States Air Force Court of
Criminal Appeals (December 7, 2006)...... 22a
TABLE OF AUTHORITIES
Constitutional Provisions
U3. CADINI ST « IN, BY onic evnsciccsciserecenienes passim
Supreme Court of the United States Cases
Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics,
403 U.S. 388 (1971)
Burdeau v. McDowell,
256 U.S. 465 (1921)
Horton v. California,
496 U.S. 128 (1990)
Katz v. United States,
389 U.S. 347 (1967)
Mancusi v. DeForte,
392 U.S. 364 (1968)
McDonald v. United States,
335 U.S. 451 (1948)
National Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989)
O'Connor v. Ortega,
480 U.S. 709 (1987)
Rakas v. Illinois,
439 U.S. 128 (1978)
United States v. Salvucci,
- 448 U.S. 83 (1980)
Walter v. United States,
447 U.S. 649 (1980)
Waters v. Churchill,
511 U.S. 661 (1994)
United States Court of Appeals Cases
Gossmeyer v. McDonald,
128 F.3d 481 (7th Cir. 1991)
Gudema v. Nassau County,
163 F.3d 717 (2d Cir. 1998)
Leveanthal v. Knapek,
266 F.3d 64 (2d Cir. 2001)
Murck v. Glenayre Electronics,
200 F.Se FEE CFE Cir. ZOO) ........2....0...cceceseesece 17
Reyes v. Maschmerer,
446 F.3d 1199 (11th Cir. 2006)
United States v. Gooch,
6 F.3d 673 (9th Cir. 1993)
United States v. Jones,
286 F.3d 1146 (9th Cir. 2002)
United States v. Larson,
66 M.J. 212 (C.A.A.F. 2008)
United States v. Larson,
64 M.J. 559 (A.F. Ct. Crim. App. 2006)
United States v. Long,
64 M.J. 57 (C.A.A.F 2006)
United States v. Slanina,
283 F.3d 670 (5th Cir. 2002) ............ 8, 12, 13, 17
United States v. Taketa,
923 F.2d 665 (9th Cir. 1991)
United States v. Thorn,
375 F.3d 679 (8th Cir. 2004)
United States v. Whaley,
779 F.2d 585 (11th Cir. 1986)
United States v. Ziegler,
474 F.3d 1184 (9th Cir. 2004)
vi
Vega -Rodriguez v. Puerto Rico Tel. Co.,
110 F.3d 174 (ist Cir. 1997)
United States Federal District Court Cases
Konopka v. Borough of Wyoming,
383 F. Supp. 2d 666 (M.D. Pa. 2005)
Rossi v. Town of Pelham,
35 F. Supp. 2d 58 (D.N.H. (1997)
Trujillo v. City of Ontario,
428 F. Supp. 2d 1094 (C.D. Cal. 2006)
Federal Statutes
10 U.S.C. § 867a(a)
28 U.S.C. § 1259
Miscellaneous
United States Census Bureau, 2002 Census of
Governments, Volume 3, Number 2, Compendium
of Public Employment: 2002 GC02(3) 2, U.S.
Government Printing Office, at 1 (September
United States General Accounting Office, General
Accounting Office: Employee Privacy: Computer-
Use Monitoring Practices and Polices of Selected
Companies, SEVENTH ANNUAL INTERNET LAW
INSTITUTE, at 1049, 1058 (PLI_ Patents,
Copyrights, Trademarks, and _ Literary Prop.
Course, Handbook Series No. 755, 2003) 6
vil
Will Thomas DeVries, Protecting Privacy in the
Digital Age, 18 BERKELEY TECH. LJ. 283, 294
(2003)
The Petitioner, Major John R._ Larson, |
respectfully prays that a writ of certiorari issue to
review the order and judgment of te United States
Court of Appeals for the Armed Forces entered in
his case on April 25, 2008.
OPINIONS BELOW
The order and judgment of the United States
Court of Appeals for the Armed Forces, United
States v. Larson, 66 M.J. 212 (C.A.A.F. 2008), is
located at Appendix (App.) la. The order and
judgment of the United States Air Force Court of
Criminal Appeals, United States v. Larson, 64 M.J.
559 (A.F. Ct. Crim. App. 2006), is located at App.
22a.
JURISDICTION
The judgment of the United States Court of
Appeals for the Armed Forces was entered on April
25, 2008. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1259(3) (2000) and 10 U.S.C. §
867a(a) (2000).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth Amendment to 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
2
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
STATEMENT OF THE CASE
In this case, the police conducted a warrantless
search of Petitioner's workplace computer that he
kept in his locked, private office and protected with a
password known only to him.
Petitioner, an Air Force officer, worked as a
satellite communications specialist at Schriever Air
Force Base (AFB) in Colorado Springs, Colorado. In
July 2002, the Colorado Springs Police Department
arrested him at a local mall, after an internet sting
operation identified him as a potential child sexual
predator. Following his arrest, the Air Force Office
of Special Investigations (AFOSI), which had
coordinated with the Colorado Springs Police
Department’s investigation and arrest, went to
Petitioner’s office and _ seized his workplace
computer, without a warrant. AFOSI subsequently
searched the computer, also without a warrant, and
found sexually explicit photographs and movies on it.
The computer was located in Petitioner’s private
office, reserved for his exclusive use during his
assignment at Schriever AFB. He was allowed to
and did lock the office in his absence. Thus, it was
locked at the time AFOSI arrived to seize his
computer. No one else had a key to his office except
the fire department and building manager. In fact,
AFOSI had to summon the fire department to open
Petitioner’s door to seize his computer even though
3
Petitioner's commanding officer was present at the
time of the seizure.
Additionally, Petitioner secured the computer
with a personal password known only to him. No
one else used his computer, although his
commanding officer and a network administrator
could access the computer and any files not protected
by a password if they so desired. The commanding
officer, however, had never done so _ during
Petitioner’s assignment. Furthermore, the evidence
did not suggest that the network administrator had
ever accessed Petitioner’s computer in his time at
Schriever AFB either.
To use his computer, Petitioner had_ to
acknowledge certain conditions listed in an on-
screen banner that appeared when he logged-on.
The banner stated that the computer was property of
the Department of Defense, was for official use and
not illegal activity, and was subject to monitoring.
The banner did not state that users were subject to
monitoring by law enforcement. Notwithstanding
this banner, Petitioner's commanding officer
permitted personal use of the government computers
so long as it did not interfere with the performance
of official duties.
Petitioner was charged with attempted carnal
knowledge with a minor, attempted indecent acts
with a minor, communicating indecent language,
using a facility or means of interstate commerce to
attempt to entice a minor to engage in sexual
activity, and violating a lawful general regulation
prohibiting the viewing of sexually explicit images
on a government computer. The latter charge was
4
based solely on the images found during the
warrantless search of his computer.
He moved to suppress the results of AFOSI’s
search prior to trial, asserting that the agents
required a warrant. The military judge denied the
motion. According to the military judge, the on-
screen banner, the network administrator’s ability to
access the computer, and the government’s
ownership of the computer precluded Petitioner from
having a reasonable expectation of privacy in the
computer. Thus, a warrant was unnecessary.
The Air Force Court of Criminal Appeals affirmed.
It held that since the evidence did not demonstrate
that Petitioner was even aware of the existence of
the files AFOSI discovered during its search, he
could not have entertained a subjective expectation
of privacy in them. Moreover, the court noted that
the computer automatically stored the files as part of
its operating system and the Petitioner would not be
taking the computer with him at the conclusion of
his assignment. As such, the court reasoned that
Petitioner could not expect the contents of the
computer to remain private. The Air Force Court
thus concluded that the military judge did not abuse
his discretion in denying Petitioner's motion to
suppress. App. 30a-3la.
The Court of Appeals for the Armed Forces
granted review of the case to consider AFOSI’s
warrantless search of Petitioner’s computer and
affirmed the Air Force Court of Criminal Appeals’
decision. App. la-2la. The court held that Military
Rule of Evidence 314(d) creates a “rebuttable
presumption” “that there is no_- reasonable
5
expectation of privacy in government property.” and
that Petitioner did not rebut the presumption. First,
the court faulted Petitioner for not testifying, thus
concluding that he failed to show a _ subjective
expectation of privacy. Regardless, “the access to
this computer by both [Petitioner’s] commander and
the system administrator” validated the
presumption against Petitioner’s expectation of
privacy. Furthermore, the court found that
Petitioner, by virtue of the on-screen banner, was on
notice that he could not use the computer for illegal
activity and that “there could be _ third-party
monitoring.” Accordingly, the court concluded that
Petitioner had no expectation of privacy in materials
on his government computer.
The lower courts did not discuss the fact that it
had been law enforcement agents rather than
Petitioner's supervisor who intruded into his
workplace computer.
REASONS FOR GRANTING THE WRIT
This Court should grant this petition to resolve
the conflict between the plurality and concurring
opinions in O'Connor v. Ortega, 480 U.S. 709 (1987),
regarding public workplace searches, and more
specifically, a government employee’s expectation of
privacy in the government workplace. Answering
the question presented will impact this country’s
more than 21 million federal, state, and local
government employees as well as provide critical
guidance to countless law enforcement agencies. See
U.S. Census Bureau, 2002 Census of Governments,
Volume 3 Number 2. Compendium of Public
6
Employment: 2002 GC02(3)-2, U.S. Government
Printing Office, at 1 (September 2004).
The Ortega plurahty suggested that’ the
reasonableness of a government employee’s
expectation of privacy depends, in part, on the status
of the Government at the time of the intrusion, 1.e.,
whether the Government is acting as employer or as
sovereign. Jd. at 717. Justice Scalia’s concurring
opinion disagreed, asserting instead that “[tlhe
identity of the searcher (police v. employer) is [not]
relevant []) to whether Fourth Amendment
protections apply.” Jd (Scalia, J., concurring).
Moreover, he feared that the plurality’s decision
failed to provide “police officers” with a “clue” as to
how to assess a public employee’s expectation of
privacy in the Government workplace. Jd. at 729
(Scalia, J., concurring).
Ortega specifically addressed a _ work-related
intrusion by the Government as employer and not a
criminal investigation conducted by the police. See
id. at 723. With the increasing ubiquity of
computers and other technology in the workplace
comes a need for a “clue” in such investigations. Cf
United States General Accounting Office, General
Accounting Office: Employee Privacy: Computer-Use
Monitoring Practices and Polices of Selected
Companies, SEVENTH ANNUAL INTERNET LAW
INSTITUTE, at 1049, 1058 (PLI _ Patents,
Copyrights, Trademarks, and Literary Prop. Course,
Handbook Series No. 755, 2003) (noting increase of
computers in the workplace from eighteen percent in
1998 to almost forty-two percent in 2001). As one
commentator has written, the “digital age has
7
changed crime and criminal investigation.” Will
Thomas DeVries, Protecting Privacy in the Digital
Age, 18 BERKELEY TECH. L.J. 283, 294 (2003).
The Eleventh Circuit has just recently expressed
concern that the Fourth Amendment’s application in
the government workplace is “unclear.” Heyes v.
Maschmerer, 446 F.3d 1199, 1203 (11th Cir. 2006).
Proving this point, the Court of Appeals for the
Armed Forces in this case did not attach any
significance to the fact that AFOSI and not
Petitioner’s commanding officer conducted the
search of the computer. The other federal appellate
courts likely would have. None has squarely decided
the question presented here, but their discussions of
Ortega indicate support for the view that a
government employee’s expectation of privacy does
depend on the status of the Government at the time
of the intrusion. See, e.g., Vega-Rodriguez v. Puerto
Rico Tel. Co., 110 F.3d 174, 180 Gist Cir. 1997);
Gudema v. Nassau County, 163 F.3d 717, 722 (2d
Cir. 1998); Gossmeyer v. McDonald, 128 F.3d 481
(7th Cir. 1997); Unrted States v. Thorn, 375 F.3d 679
(8th Cir. 2004), vacated on other grounds, 543 US.
1112 (2005); United States v. Jones, 286 F.3d 1146
(9th Cir. 2002): Reyes, 446 F.3d 1199.
Petitioner’s work environment was hardly unique.
Like Petitioner, many of the millions of government
employees in this country certainly have private
offices, enjoy the ability to lock their offices when not
there, and use password-protected computers owned
by the Government they know supervision can
monitor. The question presented by this case is thus
timely, relevant, and appropriate to make what is
8
“unclear” clear. Granting this petition will eliminate
what the Fifth Circuit has characterized as a “need
to tread lightly in this relatively new area of Fourth
Amendment jurisprudence.” United States v.
Slanina, 283 F.3d 670, 680 n.8 (5th Cir. 2002),
vacated on other grounds by 537 U.S. 802 (2002).
I.
CONTRARY TO THE COURT OF
APPEALS FOR THE ARMED
FORCES, THE FEDERAL CIRCUIT
COURTS OF APPEALS SUGGEST
THAT THEY WILL ENDORSE THE
VIEW THAT THE LAW
ENFORCEMENT STATUS OF THE
INDIVIDUAL MAKING THE
INTRUSION IS RELEVANT TO A
GOVERNMENT EMPLOYEE’S
EXPECTATION OF PRIVACY.
The lower court never discussed the significance,
if any, of AFOSI agents’ law enforcement status or
their criminal investigation on Petitioner’s
expectation of privacy in his computer. By failing to
do so, the Court of Appeals for the Armed Forces has
implicitly adopted an approach that conflicts with
that of other federal appellate courts. Although they
have not decided the precise question presented,
other federal courts have shown that’ the
Government’s status at the time of a workplace
intrusion is relevant to the question of a government
employee’s expectation of privacy.
For example, the Ninth Circuit recognized “a less
heightened standard of review for public employer
9
searches” than for police searches. See United
States v. Jones, 286 F.3d 1146, 1150 (9th Cir. 2002).
The Second Circuit has explained that “neither a
warrant nor probable cause is required when a
government entity conducts a reasonable search
acting in its capacity as employer rather than law
enforcer.” Gudema v. Nassau County, 163 F.3d 717,
722 (2d Cir. 1998). The Seventh Circuit apparently
will require a warrant when law enforcement
conducting a criminal investigation, as opposed to an
internal misconduct inquiry conducted by
supervision, searches a government employee’s
workplace. See Gossmeyer v. McDonald, 128 F.3d
481, 492 (7th Cir. 1997) (moting that the “presence of
so many [law enforcement] officials . . . did not
transform an agency’s work-related search into a
criminal search requiring probable cause and a
warrant”). Similarly, the Eighth Circuit, in United
States v. Thorn, 375 F.3d 679, 685 (8th Cir. 2004),
vacated on other grounds, 543 U.S. 1112 (2005),
upheld a warrantless, work-related search because
“alt no time did the agency’s investigation into
Thorn’s work-related misconduct devolve into a de
facto criminal investigation that should have been
conducted pursuant to a warrant.” The First Circuit
observed that the “precise extent of an employee's
expectation of privacy often turns on the nature of
an intended intrusion,” implying that a reasonable
expectation of privacy exists against a criminal
investigation but not necessarily as to a work-related
intrusion. See Vega-Rodriguez v. Puerto Rico Tel.
Co., 110 F.3d 174, 180 (ist Cir. 1997). Finally, the
Eleventh Circuit in Reyes, 446 F.3d at 1204 n.i,
noted that it would “distinguish between the
10
government as law enforcer and government as
employer’ to resolve a 42 U.S.C. § 1983 claim, thus
demonstrating the relevance of law enforcement’s
involvement in a workplace intrusion.
Even more directly, a United States District Court
ruled in Konopka v. Borough of Wyoming, 383 F.
Supp. 2d 666, 679 (M.D. Pa. 2005), that a
government employee had a reasonable expectation
of privacy because “a law enforcement official .. .
committed the intrusion.”
Granting review of this case will enable this Court
to establish uniformity of the law impacting over 21
million government employees and will directly
affect law enforcement’s ability to conduct criminal
investigations in the government workplace.
IT.
THE GOVERNMENT AS EMPLOYER
IS DIFFERENT THAN THE
GOVERNMENT AS SOVEREIGN.
When acting as an employer, the Government may
need to make “reasonable intrusions” to ensure the
proper and efficient work of the Government.
Ortega, 480 U.S. at 724. But law enforcement’s “job
is the detection of crime and the arrest of criminals.”
McDonald v. United States, 335 U.S. 451, 455-56
(1948). The two identities of the Government are
different with different interests and priorities.
In Mancusi v. DeForte, 392 U.S. 364, 369 (1968),
this Court suggested that an employee in the private
sector can enjoy a reasonable expectation of privacy
vis-a-vis law enforcement even if not vis-a-vis his
11
supervisor. If true, then a government employee
should have the same expectations. See Ortega, 480
U.S. at 731 (Scalia, J., concurring).
This Court has already established that public
employees have a “diminished expectation of privacy
with respect to office privacy.” National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 671
(1989). When it comes to law enforcement, however,
it cannot be forgotten that although the Fourth
Amendment limits governmental conduct, see
Walter v. United States, 447 U.S. 649, 656 (1980), its
“origin and history clearly show that it was intended
as a restraint upon the activities of sovereign
authority,” Burdeau v. McDowell, 256 U.S. 465, 475
(1921). Indeed, “[a] citizen’s expectation of privacy
against unreasonable government intrusions is at its
most robust when the intruder is a police officer.”
Rossi v. Town of Pelham, 35 F. Supp. 2d 58, 67
(D.N.H. 1997) (citing Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388,
394 (1971)). Thus, because of the differences
between the Government as employer and the
Government as sovereign, this Court has always
“assumed” that “the government as employer... has
far broader powers than does the government as
sovereign.” Waters v. CAurchill, 511 U.S. 661, 671
(1994) (plurality opinion).
Accordingly, the factors the lower court identified
in this case as to why Petitioner did not have a
reasonable expectation of privacy take on an entirely
different hght. While they might conceivably
militate against an expectation of privacy vis-a-vis
Petitioner’s Government employer, they do evince a
12
privacy interest “too precious to entrust to the
discretion of those whose job js the detection of crime
and the arrest of criminals.” McDonald, 335 U.S. at
455-56.
A. Pubhc employees can have private offices and
do lock their office doors.
Many public employees have private offices they
are able to lock. An employee who essentially has
exclusive use of an office and the ability to lock his
door when absent evinces a subjective expectation of
privacy. See, e.g., United States v. Ziegler, 474 F.3d
1184, 1190 (9th Cir. 2007); S/anina, 283 F.3d at 676
(finding government employee showed a subjective
expectation of privacy because “he had closed and
locked the door to his office”). And under such
circumstances, society would be prepared to accept
that expectation of privacy, at least with respect to
law enforcement, as reasonable. See Mancusi, 392
U.S. at 369. A supervisor or building manager in
possession of a master key does not destroy this
expectation. Otherwise, the existence of such a key
would overcome the legitimate privacy interest of
any hotel, office, or apartment occupant. United
States v. Taketa, 923 F.2d 665, 672-73 (9th Cir.
1991).
B. Mere access to a public employee’s work
computer by a supervisor or technician does
not necessarily render an expectation of
privacy unreasonable.
While the lower court also noted Petitioner did not
have a reasonable expectation of privacy because of
13
his supervisor's and the network administrator’s
ability to access to the computer, the evidence did
not demonstrate that the supervisor’ or
administrator ever did access the computer. More
importantly, the lower court did not claim that any
such access made Petitioner’s computer “so open to
fellow employees or the public that no expectation of
privacy [was] reasonable.” Ortega, 480 U.S. at 718.
Indeed, even some access by an employer, co-worker,
or supervisor docs not make an_ employee’s
expectation of privacy unreasonable. See Slanina,
283 F.3d at 676 (explaining that the ability of a
select few of the defendant’s co-workers to access his
office did not defeat his reasonable expectation of
privacy); Leventhal v. Knapek, 266 F.3d 64, 74 (2d
Cir. 2001) (finding that government employee’s
expectation of privacy was reasonable as _ state
agency's access to computer did not appear to be
frequent, widespread, or extensive); Taketa, 923
F.2d at 672-73 (rejecting argument government
employee lacked a reasonable expectation of privacy
because regulation authorizing inspection had not
been enforced). Whatever such access has on an
employee’s expectation of privacy vis-a-vis his
employer is a different question than the expectation
vis-a-vis law enforcement. The Government-
employer might access the workplace to retrieve a
document or file to effectuate the Government’s
business. That is a far cry from law enforcement
retrieving a document or file as evidence of criminal
activity.
14
C. Public employees use government-owned
property to conduct their work.
The lower court began its analysis in Petitioner’s
case by noting that the Government owned the
computer that AFOSI searched. The lower court
overemphasized the Government’s property interest
in the computer, and Petitioner’s lack thereof. This
Court has countenanced that privacy interests
protected by the Fourth Amendment do not turn on
ownership. See, e. g., Rakas v. Illinois, 439 U.S. 128,
143 (1978) (stating that the “protection of the Fourth
Amendment depends not upon a property rnght in
the invaded place but upon whether the person who
claims the protection of the Amendment has a
legitimate expectation of privacy in the invaded
place"); Katz v. United States, 389 U.S. 347, 353
(1967) (deciding that the Fourth Amendment
protects people and not simply “areas”); United
States v. Salvucci, 448 U.S. 83, 93 (1980) (observing
that this Court “must... engage in a conscientious
effort to apply the Fourth Amendment by asking not
merely whether the defendant had a_ possessory
interest in the items seized, but whether he had an
expectation of privacy in the area_ searched.”).
Following the lower courts reasoning, no
government employee could claim a_ reasonable
expectation of privacy in government-owned
property in the workplace even if the employee
enjoyed essentially exclusive use of the property.
Ortega’s recognition of an expectation of privacy in
the government workplace consequently becomes
illusory.
15
D. Even if engaged in illegal conduct, a
government employee does not enjoy any
lesser expectation of privacy.
Finally, the lower court cited the log-on banner as
a circumstance negating Petitioner’s reasonable
expectation of privacy. Although the banner warned
the user that illegal use of the computer was
prohibited, such a warning does not effect a person’s
expectation of privacy. Otherwise, doing something
one is not supposed to do would give law
enforcement license to search and seize as it pleased.
This is not the law. As this Court recognized in
Horton v. California, 496 U.S. 128, 137 n.7 (1990),
“even where the object is contraband, this Court has
repeatedly stated and enforced the basic rule that
the police may not enter and make a warrantless
seizure.” Were it not for that basic rule, “no
lawbreaker would have a subjective expectation of
privacy in any place because the expectation of
arrest is always imminent.” United States v. Gooch,
6 F.3d 673 (9th Cir. 1993); see also United States v.
Whaley, 779 F.2d 585, 590 n.8 (11th Cir. 1986)
(noting that “a person [] engaged in criminal conduct
within his home does not, standing aione, destroy a
homeowner’s expectation of privacy”).
Similarly, while the banner put Petitioner on
notice that his use was subject to monitoring, it did
not suggest that the monitoring was for a law
enforcement purpose. Employers undoubtedly may
wish to monitor their employees’ use of a computer
as a means to discover work-related employee
misfeasance, but that is a “substantially different”
16
intrusion than law enforcement seeking to detect
criminal activity.
E. Conclusion
If a government employee's “expectation of privacy
must be assessed in the context of the employment
relation,” Ortega, 480 U.S. at 717, then the
Government’s status at the time of the intrusion
becomes significant. In situations like Petitioner's,
the police do not have an employment relationship
with the individuals that it searches. Accordingly,
what might be permissible for the Government as
employer might not for the Government as law
enforcement. Cf Churchill, 511 U.S. at 671. In fact,
the Government’s status may very well be
determinative. See Ortega, 480 U.S. at 729 (Scalia,
J., concurring). Supervisors and law enforcement, as
do the courts, need to know.
Petitioner’s military status does not affect the
analysis. His workplace was not a hangar, bunker,
or tent in a combat zone, see United States v. Long,
64 M.J. 57, 62 (C.A.A.F. 2006), but rather had all the
trappings associated with a civilian government
employee’s private office. And, his military
commander, whose has more authority and power
than a civilian counterpart, see id., did not conduct
the search — law enforcement did. The Court of
Appeals for the Armed Forces did not identify any
uniquely military interest justifying its conclusion
that Petitioner lacked a reasonable expectation of
privacy. Indeed, its analysis compels the conclusion
that the Colorado Springs Police Department, a law
enforcement agency not associated with the military,
17
would not have required a warrant to search
Petitioner's computer either.
In sum, many government employees are similarly
situated as Petitioner. They work in offices in which
co-workers and supervisors enter, even frequently.
They work on government-owned computers that the
employees know supervision can monitor. Cf Muzick
v. Glenayre Electronics, 280 F.3d 741, 743 (7th Cir.
2002) (noting that “the abuse of access to workplace
computers is so common... that reserving a right of
inspection is so far from being unreasonable that the
failure to do so might well be thought irresponsible”).
Thus, the different interests the Government has as
employer as compared to when it acts as law
enforcement raise the important, unanswered
question of whether “the nature of the
[Government’s}] intrusion can affect whether a
person has a reasonable expectation of privacy [such
that] a person may not have such an expectation
from one type of search, [but] he or she reasonably
may expect privacy with respect to another.” Trujr/lo
v. City of Ontario, 428 F. Supp. 2d 1094, 1103 (C.D.
Cal. 2006).
CONCLUSION
This Court should grant certiorari to provide the
necessary guidance “in this relatively new area of
Fourth Amendment jurisprudence” so _ that
vovernment employees, their supervisors, the police,
and the courts need not “tread lightly.” See S/anina,
283 F.3d at 680 n.8. And in doing so, it will resolve
the competing plurality and concurring opinions in
18
Ortega and a probable split of authority among the
federal appellate courts.
For the foregoing reasons, Petitioner respectfully
requests that this Honorable Court grant his petition
for a writ of certiorari.
Respectfully submitted,
TIMOTHY M. COX
Captain, U.S. Air Force
Counsel of Record
SHANNON A. BENNETT
Major, U.S. Air Force
AF Legal Operations Agency
Appellate Defense Division
112 Luke Ave, Ste 343
Bolling AFB, DC 20332-8000
(202) 767-1562
Counsel for Petitioner
la
Appendix
UNITED STATES, Appellee
v.
John R. LARSON, Major,
U.S. Air Force, Appellant
UNITED STATES
COURT OF APPEALS FOR
THE ARMED FORCES
66 M.J. 212
November 27, 2007, Argued
April 25, 2008, Decided
OPINION BY: RYAN
OPINION
Judge RYAN delivered the opinion of the Court.
A general court-martial composed of officer
members convicted Appellant, contrary to his pleas,
of one specification each of attempted carnal!
knowledge and attempted indecent acts with a
minor, violations of Article 80, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 880 (2000), one
specification of violating a lawful general regulation,
a violation of Article 92, UCMJ, 10 US.C. $ 892
(2000), and one specification each of communicating
indecent language and using a facility or means of
interstate commerce to attempt to entice a minor to
2a
engage in sexual activity, violations of Article 134,
UCMJ, 10 U.S.C. § 934 (2000).
The members sentenced Appellant to dismissal
from the service, confinement for nine years, and
forfeiture of all pay and allowances. The convening
authority approved the dismissal and forfeitures, but
reduced Appellant's confinement to six years. The
United States Air Force Court of Criminal Appeals
affirmed. United States v. Larson, 64 MJ. 559 (A.F.
Ct. Crim. App. 2006).
We granted review of the following issues:
I.
WHETHER THE AIR FORCE COURT
OF CRIMINAL APPEALS ERRED IN
HOLDING THAT APPELLANT HAD NO
REASONABLE EXPECTATION OF
PRIVACY IN HIS GOVERNMENT
COMPUTER DESPITE THIS COURT'S
RULING IN UNITED STATES v. LONG,
64 MJ. 57 (CAA.F. 2006).
IT.
WHETHER THE APPELLANT WAS
DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL
GUARANTEED BY THE SIXTH
AMENDMENT AND AATICLE 27,
UCM, WHEN HIS CIVILIAN DEFENSE
COUNSEL, IN HIS OPENING
STATEMENT, DURING FINDINGS,
AND AGAIN IN CLOSING ARGUMENT,
3a
CONCEDED THE APPELLANT'S GUILT
TO VARIOUS CHARGES AND
SPECIFICATIONS. !
1 65M ed. 253 (C.A.A.F. 2007).
After oral argument in November 2007,
Court specified the following related issues:
I.
IN THE MILITARY JUSTICE
SYSTEM, IS THE DECISION TO
CONCEDE GUILT TO ONE OF
MULTIPLE CHARGED OFFENSES
DURING ARGUMENT A _ TACTICAL
DECISION THAT COUNSEL MAY
MAKE WITHOUT OBTAINING
CONSENT OF THE ACCUSED? SEE
FLORIDA v. NIXON, 543 U.S. 175, 125 S.
Ct. 561, 160 L. Ed. 2d 565 (2004),
UNITED STATES v. CARE, 18 CMA.
535, 40 CMR. 247 (1969 UNITED
STATES v. BERTELSON, 3 MZ. 314
(C.M.A. 1977).
II.
ASSUMING, ARGUENDO, THAT
COUNSEL MAY CONCEDE GUILT AS A
TACTICAL MATTER AFTER
CONSULTATION BUT WITHOUT
CONSENT OF THE ACCUSED, DOES
THE RECORD IN THE PRESENT CASE
SUPPORT A CONCLUSION THAT
COUNSEL CONSULTED WITH
4a
APPELLANT PRIOR TO MAKING
SUCH A CONCESSION? IF NOT, WAS
THE FAILURE TO DO SO
PREJUDICIAL AS TO THE FINDINGS
OR SENTENCE? SEE STRICKLAND v.
WASHINGTON, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). 2
2 65 MU. 449 (CA.A.F. 2007)
For the reasons stated below, we affirm the
decision of the lower court.
I. Appellant's Motion to Suppress
A. Factual Background
Appellant used the government computer in his
military office to obtain sexually explicit material, to
include pornographic images and video, from the
Internet and to initiate instant message
conversations with "Kristin," someone he belheved to
be a fourteen-year-old girl. "Kristin" was actually a
civilian police detective working to catch online
sexual predators.
Civilian police and the Air Force Office of Special
Investigations (AFOSI) cooperated in the
investigation of Appellant. The police used a
proposed meeting between Appellant and "Kristin"
at a local mall as a sting operation. When Appellant
arrived at the mall at the time he had arranged with
"Kristin," the police arrested Appellant. While
conducting a search incident to arrest the police
discovered a receipt for a package of condoms
purchased just fifteen minutes earlier in Appellant's
5a
pocket. During a consensual search of Appellant's
car, police found a package of condoms and a book
entitled Sexaholics Anonymous.
After Appellant's arrest, AFOSI continued to
pursue its own investigation. Appellant's
commander, using a master key to the government
office occupied by Appellant, allowed AFOSI agents
to enter and to seize the government computer in the
office. A search of the computer's hard drive revealed
stored pornographic material, a web browser history
that showed Appellant visited pornographic websites
and engaged in sexually explicit chat sessions in his
office on his government computer, and other
electronic data implicating Appellant in the charged
offenses.
At trial, Appellant asserted that the warrantless
search of his government computer violated the
Fourth Amendment and that the evidence obtained
from it should be suppressed. The military judge
held an Article 39(a), UCMJ, 10 US.C. § 83Ha)
(2000), session to determine the admissibility of the
evidence. Based on the testimony elicited at the
Article 39(a), UCMJ, session the military judge
made initial findings of fact on the record and later
made detailed supplemental findings of fact.
The military judge found that Appellant was
assigned to a private office and haa a key to lock the
office, but other Air Force personnel, including the
fire department and the command's facility manager
also had keys to his office. The office contained a
government computer that was_ provided to
Appeliant to accomplish official business. The
6a
military judge found that Appellant could secure the
computer with a personal password, but a system
administrator could still access the computer. When
Appellant logged on to the computer, he was
required to click a button accepting conditions listed
in a banner, which stated that the computer was
Department of Defense property, was for official use,
and that he consented to monitoring. The military
judge found that, while Appellant "reasonably
understood that he was allowed to send personal e-
mail or visit the internet as long as it didn't interfere
with [his] duties," this did not change the fact that
the government owned the computer and had a right
to access it. This finding was largely based on the
testimony of Appellant's commander, who testified
that he could log onto Appellant's computer with his
own password and access all portions of the hard
drive unless Appellant had protected something with
his own password. Although the military judge did
not specifically reference the commander's access in
his findings, this testimony adds further support to
the military judge's ultimate ruling. Moreover, no
evidence was presented that any of the evidence
recovered from the hard drive was. password
protected.
In hght of these facts, the military judge ruled
that the Government had _ established by a
preponderance of the evidence that Appellant had no
reasonable expectation of privacy in the government
computer because the computer had a "consent to
monitoring" banner that had to be acknowledged
with each log on, the system administrator had
access to every part of the computer, including the
7a
hard drive, and the computer was government
property.
B. Fourth Amendment Analysis
We review the denial of a motion to suppress for
an abuse of discretion. United States v. Khamsouk,
57 M.J. 282, 286 (C_A.A.F. 2002). Findings of fact are
affirmed unless they are clearly erroneous;
conclusions of law are reviewed de novo. United
States v. Flores, 64 MJ. 451, 454 (CA.A.F. 2007)
(citing Khamsouk, 57 M.J. at 286). We consider the
evidence in the hight most favorable to the prevailing
party. United States v. Reister, 44 MJ. 409, 413
(C_A.A.F. 1996).
The military judge concluded that the
Government had carried its burden of establishing
that Appellant had no reasonable expectation of
privacy in the government computer. The lower
court agreed, and held that the military judge did
not abuse his discretion. Larson, 64 M.J. at 563. We
agree.
The Fourth Amendment of the Constitution
generally requires probable cause for searches of
places and things in which people have a reasonable
expectation of privacy. U.S. Const. amend. IV. In
addressing Fourth Amendment privacy claims, the
threshold issue is whether the person has a
legitimate expectation of privacy in the invaded
place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct.
421, 58 L. Ed. 2d 387 (1978). This inquiry invites a
court to address whether’ the individual had a
subjective expectation of prnvacy, and if so whether
8a
the subjective expectation of privacy is one that
society 1s prepared to accept as reasonable. Smith v.
Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L.
Ed. 2d 220 (1979), superseded by statute, Electronic
Communications Privacy Act of 1986, 148 U.S.C. §
3121(a) (2000) (prohibiting installation of a pen
register without a court order).
As the property searched here was a government
computer, Military Rule of Evidence (M.R.E.) 314(d),
which addresses the search of government property,
pertains. It states:
Government property may be searched
under this rule un/ess the person to whom
the property is issued or assigned has a
reasonable expectation of privacy therein
at the time of the search. Under normal]
circumstances, a person does not have a
reasonable expectation of privacy in
government property that is not issued for
personal use... .
Emphasis added. The discussion to this rule
recognizes that the presumption that there is no
reasonable expectation of privacy in government
property is rebuttable. Manua/ for Courts-Martiail,
United States, Analysis of the Military Rules of
Evidence app. 22 at A22-26 (2005 ed.). Whether
there is a reasonable expectation of privacy in
government property is determined under that
totality of the circumstances, which includes the
rebuttable presumption. See, eg, Samson v.
California, 547 U_S. 843, 848, 126 S. Ct. 2193, 165 L.
Ed. 2d 250 (2006), M.R.E. 314(d).
Ya
In this case, based on the _ totality of
circumstances presented including the _ factors
identified below, Appellant fails to rebut and
overcome the presumption that he had no reasonable
expectation of privacy in the government computer
provided to him for official use. M.R.E. 314(d). There
is no evidence Appellant had a subjective expectation
of privacy in the government computer, and he did
not testify that he did. See Flores, 64 MJ. at 454
(factoring into the reasonable expectation of privacy
analysis the fact that the accused did not testify on
the motion to suppress). Moreover the access to this
computer by both Appellant’s commander and the
system administrator supports the validity of the
presumption that he had no reasonable expectation
of privacy in the government computer.
Finally, the mihtary judge found as fact that
when Appellant used the computer "a banner
appeared that stateld] that it was a DOD computer,
it [was] for official use, not to be used for illegal
activity. And that] [ilt also had a statement that
users of the computer consent to monitoring." This
factual finding is supported by the record, is not
clearly erroncous and, taking the facts in the light
most favorable to the prevailing party, establishes
both that Appellant was put on notice that the
computer was not to be used for illegal activity and
that there could be third-party monitoring.
Appellant argues that this case is controlled by
this Court's decision in United States v. Long, 64
M.S. 57 (CA.A.F. 2006), which he claims establ'shes
that he had a reasonable expectation of privacy in
his government computer. That reliance is
10a
misplaced. We made clear in Long that our decision
was rooted in the "particular facts of that case, [and]
we concludeld] that the lower court was not clearly
erroneous in its determination that Appellee had a
subjective expectation of privacy in the e-mails she
sent from her office computer and in the e-mails that
were stored on the government server." /d. at 63.
The present case is factually distinguishable from
Long. Long rested in large part on the testimony of
the command's. network administrator: "the
testimony of the network administrator las to the
agency practice of recognizing the privacy interests
of users in their e-mail] is the most compelling
evidence supporting the notion that Appellee had a
subjective expectation of privacy." /d.
Here, unlike in Long, Appellant presented no
evidence that he enjoyed an expectation of privacy in
materials on his government computer. And, unlike
in Long, the testimony of Appellant's commander
and the military judge's findings of fact established
both monitoring of and command access to the
government computer.
Long does not control the decision here, and we
agree with the CCA that the military judge did not
abuse his discretion in concluding that Appellant
had no expectation of privacy in the government
computer. Larson, 64 M.J. at 563.
II. Appellant's Ineffective Assistance of Counsel
Claim
A. Factual Background
lia
As the trial on the merits began, the military
judge instructed the panel that "the opening
statements are the views of what both counsel
believe the evidence will show you. The opening
statements are not evidence in and of themselves."
Included in Appellant's civilian defense counsel's
opening statement to the members were the
following comments about Appellant's use of his
government computer:
You're going to see that Major Larson
was employed and used his computer in
an inappropriate fashion. There's no
question about that. That's not going to be
an issue in this case. It's going to be
conceded. Major Larson took his computer
and used it inappropriately.
You're going to hear that there is a
regulation or rule that you are not to use
your computer for particular purposes... .
[I]t's mot going to be the defense
contention in this case that Major Larson
-- that it was ever intended for Major
Larson to get on the computer and start
going into. profiles and _é contacting
individuals in chat rooms, and profiles,
and downloading photos. .. . [T]hat is not
going to be an issue in this case.
Civilian defense counsel ended his’ opening
statement in a similar ve.n:
But, when it gets down to the truth of
this case -- and I'm not going to get up
12a
here and try to represent something to
you that's not true -- Major Larson is
guilty of misusing his computer because it
was never anticipated by [Appellant's
superiors] that he was to use _ that
computer for those reasons. It wasn't, and
he shouldn't have done that .... But, he
certainly never attempted to do what
they're claiming he did. And we're going
to ask you at the conclusion of this case to
find him not guilty of those charges and
specifications.
As civilian defense counsel concluded his opening
statement, the military judge again instructed the
panel that “opening statements of both sides are
simply their views and they are not evidence in and
of themselves."
As the case approached its conclusion, and before
closing arguments, the military judge repeated his
instruction about the relationship of arguments and
evidence in the case:
You will hear an exposition of the facts
by counsel for both sides as they view
them. Bear in mind that the arguments of
counsel are not evidence. Argument is
made by counsel to assist you in
understanding and_ evaluating the
evidence, but you must make the
determination of the issues in the case on
the evidence as you remember it and
apply the law as I instruct you.
l3a
In closing argument, civilian defense counsel
argued, as relevant to the granted issues:
In this case, Major Larson is presumed
innocent. It's hard to think of innocence
and the concept of being presumptively
innocent or free of any guilt after you've
had an opportunity to view some of [the}
things that you see in this case. The
despicable photographs, the downloaded
pictures, some of the chats, the indecent
language that was communicated, but the
fact is, is that presumption of innocence is
there and remains there, unless the
prosecution proves every element of every
charge beyond a reasonable doubt.
. . Major Larson has a problem in
viewing sexually explicit materials.
There's no question about that.
I said to you in the opening that he
violated -- he did not obey a lawful order
and that's viewing sexually explicit
material over the internet.
... There are a lot of things that I've
forgotten and there are a lot of issues that
1 won't necessarily raise and bring up and
for that I'm sorry. And I apologize to my
chent if I forgot to mention things that
are important, certainly, that you might
l4a
feel they're important. But I know that
each and every one [of] you are dedicated,
your service here and I know that each
one of you believe that it in order to do
this job right, in order to make sure that
this officer, and yes, an officer that made
bad choices and bad decisions, and he
disobeyed his lawful orders, and certainly
communicated indecent language and he
did things, and thinking this was in the
privacy of his own office, but certainly
took advantage of that and brought, I
think, discredit upon the service, you
know, a disreputable situation and for
that I'm sure you can -- you know that
this man is embarrassed and sorry for
that.
Appellant's civilian counsel's argument, both in
opening and closing, stressed that he did not contest
the fact that Appellant improperly used a
government computer. Appellant filed an affidavit
with the CCA asserting that his civilian defense
counsel did not consult him before making the
decision to not contest that charge, and that this
failure to consult amounted to a violation of his
Sixth Amendment right to counsel. Appellant
claimed that the arguments caused him to rule out
the option of testifying.
That court ordered trial defense counsel to
answer four specific questions, one of which was
what specific discussions occurred between trial
defense counsel and Appellant regarding concessions
of fact concerning Appellant's guilt. Counsel
15a
responded to the CCA's order, but did not answer the
question.
Puzzlingly, the CCA accepted trial defense
counsel's non-response and proceeded to determine
that Appellant's counsel was not constitutionally
deficient. Larson, 64 MJ. 564. Relying on an
affidavit of civilian defense counsel that averred that
the defense team concluded that there was no
plausible defense to the Article 92, UCM, offense of
wrongfully viewing sexually explicit images on the
government computer, the lower court reasoned it
would not “second-guess such tactical decisions made
to seize and retain’ credibility with the members,
particularly when, as here, the trial] defense team's
efforts are directed toward minimizing their clients
punitive exposure." Larson, 64 MJ. at 568.
B. Sixth Amendment Analysis
2.
Defense counsel “undoubtedly has a duty to
consult with the client regarding ‘important
decisions,’ including questions of overarching
defense strategy." Florida v. Nixon, 543 U.S. 178,
187, 125 S. Ct. 551, 160 L. Ed. 2d 566 (2004) (citing
Strickland v. Washington, 466 U.S. 668, 688, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984)), see also Pineo v.
State, 2006 ME 119, PP 12-16, 908 A.2d 632, 638-39
(applying Nixon in a non-capital case). Whether the
client must consent to the strategic decision made by
counsel before counsel may proceed is a different
question. See Taylor v. [lrnois, 484 U.S. 400, 417-18,
108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) ("Although
16a
there are basic rights that the attorney cannot waive
without the _ fully informed and __ publicly
acknowledged consent of the client, the lawyer has --
and must have -- full authority to manage the
conduct of the trial.") (footnote omitted).
In Nixon, the Supreme Court determined that,
based on the facts of that case, an attorney who
consulted with his client need not acquire the
consent of the client before making the strategic
decision to concede some or all aspects of a crime at
trial in order to achieve an acceptable overarching
strategic goal as long as the defendant "retained the
rights accorded a defendant in a criniinal trial." 543
U.S. at 188. And federal courts have consistently
held that “conceding guilt to one count of a multi
count indictment to bolster the case for innocence on
the remaining counts is a valid trial strategy which,
by itself, does not rise to the level of deficient
performance." United States v. Holman, 314 F.3d
837, 840 (7th Cir. 2002) see also United States v.
Swanson, 943 F.2d 1070, 1075-76 (9th Cir. 1991)
(recognizing "that in some cases a trial attorney may
find it advantageous to his client's interests to
concede certain elements of an offense or his guilt of
one of several charges"); Clozza v. Murray, 913 F.2d
1092, 1100 (4th Cir. 1990) (holding that because
defense counsel's "remarks were largely attributable
to trial strategy, we cannot, in keeping with
Strickland, second-guess counsel's tactical choices"
to concede).
Nor is it true, as Appellant contends, that this
case falls outside of Mixon because trial defense
counsel's actions in this case foreclosed a contested
17a
trial on the charged offenses and were tantamount to
a confession. ? Just as in Nixon, the Government was
still required "to present during the guilt phase
competent, admissible evidence establishing the
essential elements of the crimes .. . charged . . . .[,]
the defense reserved the mght to cross-examine
witnesses... and... [did] endeavor . . . to exclude
prejudicial evidence." 543 U.S. at 188.
3 Nothing in United States v. Bertelson, 3
M.J. 314 (CMA. 1977), or United States v.
Care, 18 CMA. 535, 40 CM.R. 247 (1969,
dictates a different result. In this case there
was nothing analogous to a guilty plea or
confessional stipulation that might have
allowed the members to abdicate their duty to
find Appellant guilty of every element of each
of the charged offenses.
In this case, the Government presented evidence
on all charges, covered all charges in its opening and
closing argument, and the members were instructed
on each charged offense by the military judge.
Moreover, as noted by the military judge both before
and after argument, counsel's statements during
argument were not evidence; his statements did not
relieve the Government of its burden of proof, inject
new factual matters into the trial, or stand as the
legal equivalent of a confession.
4
If the evidence showed trial defense ceunsel had
at in-depth discussion with Appellant regarding
counsel's strategic choice, this might be a very
18a
different case. See Davenport v. Diguglielmo, 215 F-
App'x 175, 181 (3d Cir. 2007) (stating "“[t]he Court in
Nixon held ‘counsel's strategic choice is not impeded
by any blanket rule demanding the defendant's
exphcit consent’ as long as counsel informed the
defendant of the strategy before he proceeded and it
satisfied the Strickland standard" (quoting Nixon,
548 U.S. at 192). But the response requested, and
non-response accepted, at the lower court on the
question whether such consuitation took place do
not inform this Court as to what, if any, discussions
occurred, and if they did occur, what was said.
Therefore we will assume deficient performance of
counsel for failure to consult on the _ strategic
decision to concede guilt in argument to one of the
offenses charged and move on to determine whether
Appellant was prejudiced. See Strickland, 466 U.S.
at 697 (stating that a court may "dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice"); United States v. McConnell, 55
MU. 479, 481 (CA.A.F. 2001) (stating the same).
Appellant argues that he was prejudiced by his
civilian defense counsel's decision to concede his
improper use of a government computer during
argument because it ensured a guilty verdict with
respect to the Article 92, UCMJ, charge and
effectively prevented him from taking the stand in
his own defense. Whether there was _ prejudice
depends on whether there is "“a_ rezsonable
probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.”
United States v. Polk, 32 Md. 150, 153 (CMA.
1991) (citations and quotation marks omitted). The
19a
appeliant bears the burden of demonstrating that
"there is a reasonable ,yvobability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland,
466 U_S. at 694.
Appellant has not met his burden. We are
convinced beyond a reasonable doubt there was no
prejudice and that there is no reasonable probability
that the factfinder would have had a reasonable
doubt respecting Appellant's guilt but for his civilian
defense counsel's’ error. Based on the evidence
adduced at trial there was no question that
Appellant had in fact attempted carnal knowledge
and indecent acts with a child, attempted to entice a
minor, violated an order regarding the use of his
government computer, and used indecent language.
First, the evidence supporting the charged
offenses was overwhelming. The _ prosecution
presented pornographic material taken from
Appellant's computer, sexually explicit chat sessions
between Appellant and an individual who said she
was underage, Appellant's online profile, which
included his picture, testimony that showed
Appellant was apprehended at a rendezvous based
on a meeting set up in the aforementioned chat
sessions, and evidence that Appellant had purchased
a package of condoms only fifteen minutes before
the meeting. Second, no plausible defense to the
Article 92, UCM, offense of wrongful use of a
computer or other offense has been raised by
Appellant. Relatedly, Appellant fails to tell us what
he would have testified to absent his counsel's
comments. Third, Aypellant does not argue that his
20a
defense at trial to the remaining charges -- that he
beheved he was actually talking to someone of a
more appropriate age -- was in any way undercut by
counsel's strategic choice. And finally, the military
judge instructed the members three times that the
arguments of counsel were not evidence.
While, post hoc, Appellant may wish that his
attorney had engaged in a "useless charade," United
States v. Cronic, 466 U.S. 648, 656 n.19, 104 S. Ct.
2039, 80 L. Ed. 2d 657 (1984), given the facts of this
case we conclude that there was no prejudice
stemming from the fact that he did not.
III. Decision
The decision of the United States Air Force Court
of Criminal] Appeals is affirmed.
CONCUR BY: EFFRON
CONCUR
EFFRON, Chief Judge (concurring):
With respect to Appellant's claim that counsel
was ineffective by conceding guilt in his opening
statement and closing argument as to a charge in a
case involving multiple offenses, I agree that any
error was not prejudicial under the second prong of
Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). The question of
whether, in the military justice system, the consent
of an accused is required prior to such a concession is
a matter that may be deferred until a case presents
a more clearly developed record on that issue. See
2la
Article 45(a), Uniform Code of Military Justice, 10
U.S.C. § 845(a) (2000), United States v. Honeycutt,
29 M.S. 416, 419 n.4 (CMA. 1990), United States v.
Haye, 29 M.J. 213, 215 (CMA. 1989), United States
v. Bertelson, 3 MJ. 314, 317 (C.MA. 1977), United
States v. Care, 18 CMA. 535, 538-39, 40 CMR.
247, 250-51 (1969; Rule for Courts-Martial (R.C.M.)
811(c); R.C.M. 906(b)(10); R.C.M. 910.
22a
UNITED STATES
Vv.
Major JOHN R. LARSON,
United States Air Force
UNITED STATES AIR FORCE
COURT OF CRIMINAL
APPEALS
64 M.J. 559
December 7, 2006, Decided
COUNSEL: For Appellant: Colonel Carlos L.
McDade, Colonel] Nikki A. Hall, Lieutenant Colonel
Mark R. Strickland, Major Sandra K. Whittington,
and Major Christopher S. Morgan.
For the United States: Colonel Cary F. Spencer,
Lieutenant Colonel Robert V. Combs, and Major Jin-
Hwa L. Frazier.
JUDGES: Before MOODY, MATHEWS, and
THOMPSON, Appellate Military Judges. Senior
Judge MOODY participated in this decision prior to
his retirement.
OPINION BY: MATHEWS
OPINION
OPINION OF THE COURT
MATHEWS, Judge:
23a
The appellant was convicted, contrary to his
pleas, of one specification each of attempted carnal
knowledge and attempted indecent acts with a
minor, both in violation of Article 80, UCMJ, J0
U.S.C. § 880, one specification of violating a lawful
general regulation, in violation of Article 92, UCMJ,
10 USC. § 892% and one specification each of
communicating indecent language and using a
facility or means of interstate commerce to attempt
to entice a minor to engage in sexual activity, ' both
in violation of Article 134, UCMJ, 10 U.S.C. § 934. A
panel of officers sentenced the appellant to dismissal
from the service, confinement for 9 years, and
forfeiture of all pay and allowances. The convening
authority approved the dismissal and forfeitures, but
reduced the appellant's sentence to confinement
from 9 years to 6 years.
1 This offense, a violation of 148 US.C. §
2422(b), was charged under the "crimes and
offenses not capital" clause of Article 134,
UCMYJ, 10 U.S.C. § 934.
On appeal, the appellant assigns the following
errors: first, that the military judge erred by denying
a defense motion to suppress evidence seized from
the government computer assigned for’ the
appellant's use; second, that three of the
specifications were multiplicious; third, that his
trial defense counsel were ineffective; and finally,
that he was entrapped by the government. 2 We find
no error and affirm.
24a
2 This issue was raised by the appellant
pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
Background
The appellant, a 36-year-old married officer, was
a satellite communication specialist assigned to
Schriever Air Force Base (AFB) in Colorado Springs,
Colorado. At the time of the offenses, he was a
reservist on extended active duty, temporarily filling
in for another officer who was deployed. The office
assigned to the appellant was the same one
previously occupied by the deployed officer, and still
contained some of that officer's personal belongings.
The office contained a computer, which wa.
connected to the Internet, allowing the appellant to
avail himself of the wide variety of services available
there. This computer was programmed to display a
banner stating it was government equipment and
that users consented to monitoring.
One of the services accessed by the appellant was
an instant-messaging (IM) feature of a major
internet company. This particular IM service allows
users to select a user name and to input data about
themselves, including their real name, age, location,
gender, and hobbies. The appellant identified
himself as "Skeeler" and his location as Colorado
Springs. He included his true age on his profile, but
not his real name. He identified his sole hobby as
"Public sex."
On 10 July 2002, the appellant struck up a
conversation with "Kristin," another user of the
25a
same IM service. He quickly learned that Kristin
was 14 years old, lived in Colorado Springs, and, up
until recently, owned a pet hamster. After a few
minutes of further conversation, the appellant
steered the topic of discussion from rodents to sex.
He asked Kristin to send him a picture of herself,
and, on viewing it, told her she was a “hottie.” He
asked Kristin if she'd ever had sex; and when she
said no, he asked if she'd like to. He then asked if
she masturbated, confiding that he did so “often.”
Kristin ended the conversation a few minutes later.
A few days after meeting her online, the
appellant initiated another conversation with
Kristin. He asked if they could meet in person, and
suggested going to a nearby park where he claimed
they could have sex without being seen. Over the
course of the next week or so, the appellant urged
Kristin to masturbate and to touch her anus, to
describe those acts to him after the fact, and also to
describe various aspects of her anatomy to him. As
these discussions progressed, the appellant
repeatedly discussed his desire to engage in sexual
intercourse with Kristin, and asked if she would
perform oral sodomy on him and allow him to anally
sodomize her. Before they could meet in person,
however, the appellant apparently reconsidered,
writing "you know, as much as i'd [sid love to meet
you and hook up, i [sic] really don't think we should
since it is illegal and i [sic] could get arrested if
anyone ever found out..."
A little over an hour later, however, the appellant
had another change of heart: "you know i'm [sid
dying to hook up with you right?" He asked if Kristin
26a
could meet him immediately. When she told him no,
he suggested the following day and she agreed. In
response to her query “u [sicl mean we can stil [sic]
do it?" the appellant wrote, “you have to promise me
you won't tell anyone.” As fate would have it,
however, the appellant's duty schedule intervened,
and he was unable to meet with Kristin as planned.
He sent her an e-mail apologizing, and assuring her
that he would "still like to get together." After more
sexually explicit IM conversations, the appellant and
Kristin again made plans to meet at a fast-food
restaurant in a local mall. Afterward, they agreed,
they would go somewhere else and have sex.
This time, the appellant kept his appointment.
Upon arriving at the scheduled rendezvous point,
however, the appellant was promptly apprehended
by local police. It was only after his arrest that the
appellant learned "Kristin" was not actually a 14-
year-old girl, but was instead an undercover
Colorado Springs police officer who kept verbatim
copies of all the appellant's conversations with
"Kristin." In a search incident to the appellant's
arrest, the police discovered in the appellant's pocket
a receipt for a package of condoms purchased just 15
minutes prior to his arrest.
In the days following’ the appellant's
apprehension by the _ civilian. police, military
authorities were notified of what transpired and
began their own investigation. The appellant's
commander, using a master key to the government
office used by the appellant, allowed agents of the
Air Force Office of Special Investigations (AFOSD to
seize the government computer in that office. A
27a
search of the computer hard drive turned up data
files, stored automatically by the Microsoft Windows
operating system during the appellant's Internet
browsing sessions, indicating the appellant had used
the computer to search the Internet for sexually-
related material and obtain sexually-explicit images.
The Appellant's Trial
The appellant was represented at trial by
military defense counsel and two civilian defense
counsel, Mr. M and Mr. G. The defense team
promptly moved, inter alia, to suppress evidence
taken from the computer used by the appellant on
the grounds that the warrantless search of this
government equipment violated the appellant's
rights under the Fourth Amendment. * The military
judge denied that motion, and several others that
would have had the effect of dismissing all or parts
of the government's case, but granted several!
motions limiting the evidence that the government
could present at trial.
3 U.S. CONST. amend. IV.
The appellant pled not guilty to all Charges and
Specifications. In his opening statement to the
members, Mr. M offered the following view of the
appellant's use of his government computer:
You're going to see that Major Larson
was employed and used his computer in
an inappropriate fashion. There's no
question about that. That's not going to be
an issue in this case. It's going to be
28a
conceded. Major Larson took his computer
and used it inappropriately.
You're going to hear that there is a
regulation or rule that you are not to use
your government computer for particular
purposes. .. . [I]t's not going to be the
defense contention in this case that Major
Larson -- that it was ever intended for
Major Larson to get on the computer and
start going into profiles and contacting
individuals in chat rooms, and profiles,
and downloading photos. .. . [T]hat is not
going to be an issue in this case.
Mr. M concluded his opening statement in a
similar vein:
But, when it gets down to the truth of this case --
and I'm not going to get up here and try to represent
sumething to you that's not true -- Major Larson is
guilty of misusing his computer because it was never
anticipated by [the appellant's superiors] that he
was to use that computer for those reasons. It
wasn't, and he shouldn't have done that... . But, he
certainly never attempted to do what they're
claiming he did. And we're going to ask you at the
conclusion of this case to find him not guilty of those
charges and specifications.
The members found the appellant guilty of all
Charges and Specifications. Although they found the
appellant guilty of misusing his government
computer in violation of an Air Force instruction, the
members excepted some of the language from the
29a
Article 92, UCMd, specification, finding the
appellant not guilty of using the computer to view
sexually explicit movies.
Discussion
1. Search of the Government Computer
The appellant complains the military judge erred
by denying his motion to suppress evidence seized
from the computer in the government office assigned
to the appellant. We review the military judge's
decision for an abuse of discretion. United States v.
Rodriguez, 60 Md. 239, 246 (CA.A.F. 2004). In
determining whether the military judge abused his
discretion, we consider his findings of law de novo
and his findings of fact using a clearly erroneous
standard. United States v. Ayala, 43 M.J. 296, 298
(C_.A.A.F. 1995) (citing United States v. Cardenas, 9
F.3d 11389, 1147 (5th Cir. 1993).
The appellant's commander testified the purpose
of the government office, and of the government
computer, was to accord the person filling the
appellant's position a place and the means necessary
to conduct government business. The military judge
found that access to the office and to the computer,
while limited, was not restricted to the appellant,
but also extended to the appellant's commander and
various administrators and other personnel assigned
to the unit. One of those personnel, of course, would
be the deployed officer for whom the appellant was
filling in, whose personal belongings remained in the
office awaiting his return.
30a
This appears to us to be a case of first impression
in some respects. In military jurisprudence, the focus
of Fourth Amendment litigation involving computers
has primarily been on the expectation of privacy to
be afforded to e-mail: personal communications
between users, sent via computers using networks or
the Internet. See, e.g, United States v. Long, 64
MJ. 57 (CA.A.F. 2006); United States v. Monroe, 52
M.J. 326 (CA.A.F. 2000). The search of the
government computer here did not focus on such
communications. Instead, the AFOSI searched for
certain data files, created as part of the "normal
operating procedure" of the Microsoft Windows
operating system, which record the date, time, and
Internet address of web sites visited by the computer
user, as well as information about the user account
in use on the computer at the time the sites were
visited. * Such files are like a "documented history of
[the user's] travels on the Internet." United States v.
Romm, 455 F.3d 990, 994 n.5 (9th Cir. 2006).
4 The government expert testified that the
computer was logged in using the account
name and password for the user account
‘larsonyjr.'
The military judge concluded the appellant had
no expectation of privacy in the contents of the
computer. We find no abuse of discretion in his
ruling. There is no evidence the appellant was aware
the Internet history files existed, and we are
unconvinced the appellant could entertain a
subjective expectation of privacy in them without
such knowledge. Moreover, we conclude such an
expectation, even if it existed, would on these facts
3la
not be reasonable. The data in question was recorded
automatically, not for law enforcement purposes, but
as part of the computer's operating system. The
appellant could not expect to keep _ private
automatically-recorded data stored on government
property he would reasonably have known would be
turned over to another officer on that officer's return
from deployment. See, e.g., United States v. Conklin,
63 MJ. 333, 3837 (C_A.A.F. 2006 (finding only a
"limited" expectation of privacy in a government
computer in a government office); United States v.
Tanksley, 54 MJ. 169, 172 (CA.A.F. 2000)
overruled in part on other grounds by United States
v. Inong, 58 MJ. 460, 465 (C.A.A.F. 2003) (finding
"at best" a "reduced" expectation in_ personal
computer data kept in a governrent office). See a/so
United States v. Ziegler, 456 F.3d 1138 (9th Cir.
2006) (no expectation of privacy in employer-owned
computers; survey of federal cases). The military
judge did not err.
2. Multiplicity
The appellant contends his convictions under
Article 80, UCMJ, are multiplicious with the Article
134, UCMJ, offense under Title 18; or, in the
alternative, that they represent an unreasonable
multiplication of charges. We disagree.
As our superior appellate court recently noted, /8
U.S.C. § 2422(b/ represents Congress’ "clear choice to
criminalize persuasion and the attempt to persuade"
minors to engage in sexual activity, "not the
performance of the sexual acts themselves." United
States v. Brooks, 60 M.J. 495, 498 (C_A.A.F. 2005)
32a
(quoting United States v. Bailey, 228 F.3d 637, 639
(6th Cir. 2000)). This offense was completed by the
appellant's efforts to cajole "Kristin" to engage in sex
acts with him. The fact that the appellant later took
steps toward the actual commission of those acts is
immaterial.
The Article 80, UCMJ, offenses, however, did
require steps toward the completion oi the acts.
Those steps were not taken until several days after
the Title 18 offense was complete: the appellant
drove to the mall to meet with “Kristin,” purchased a
package of condoms and proceeded to the fast-food
restaurant to keep his rendezvous. Examining the
disparate elements of the Article 80, UCMd, offenses
and the Title 18 offense, as well as the distinct and
separate facts needed to establish the appellant's
guilt of each, we conclude the offenses are not
multiplicious. United States v. Teters, 37 M.J. 270,
376-77 (C.M.A. 1993). Furthermore, we see no
evidence of prosecutorial overreach in_ the
government's charging decision. > Cf United States
v. Quiroz, 55 MJ. 334, 338-39 (C_A.A.F. 2001). There
was no unreasonable multiplication of charges here.
5 The appellant was married at the time of
these offenses, yet the government did not elect
to charge him with the offense of attempted
adultery. We express no opinion on the
propriety of such a charge, but we are
persuaded by its omission that the government
exercised restraint in deciding what charges to
‘ring.
3. Ineffective Assistance of Counsel
33a
The appellant next complains that his counsel,
Mr. M, conceded his guilt during opening statement
and at other points during the tmal. These
concessions, the appellant claims, caused him to
"completely [rule] out the option of testifying" in his
own defense. As a consequence of his counsel's
conduct, the appellant questions "how much
preparation actually went into" his defense.
We analyze claims of ineffective assistance of
counsel under the framework established by the
Supreme Court in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Counsel are presumed to be competent. The
presumption of competence may be rebutted by a
showing of factual errors unreasonable under
prevailing professional norms. The appellant bears
the burden of establishing that his trial defense
counsel were ineffective. United States v. Garcia, 59
MJ. 447, 450 (CA.A.F. 2004) United States v.
McConnell, 55 M.J. 479, 482 (C_.A.A.F. 2001). lf the
conduct of the trial defense team is sufficiently
egregious that it results in "a total breakdown of the
adversarial process," no further showing of prejudice
is required. United States v. Hennis, 40 M.d. 868,
867 (A.F.CM.R. 1994 (citing United States v.
Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d
657 (1984)). When the alleged lapse in judgment or
performance does not rise to this level, we test for
prejudice. Strickland, 466 U.S. at 687. See also
United States v. Polk, 32 MJ. 150, 152 (C.M.A.
1991).
Our review of the record leaves us unconvinced
that the appellant has carried his burden. Although
34a
Mr. M did concede elements of the Article 92, UCMJ,
offense, he told the members that the appellant
"certainly never attempted to do what they're
claiming he did," and urged them to find the
appellant not guilty on all of the Charges and
Specifications. The members clearly did not take Mr.
M's comments as a blanket concession of guilt.
Instead, they found the appellant guilty of the
Article 92, UCMJ, offense by exceptions, acquitting
him of some of the conduct alleged by the
government. Thus, we cannot say the adversarial
process was completely broken.
In fact, Mr. M and the other members of the
appellant's trial defense team conducted an
extraordinarily vigorous effort on the appellant's
behalf, making over a dozen motions, orally and in
writing, challenging every aspect of the
government's case. They even took the unusual step,
when a new military judge took over the case after a
lengthy recess in the proceedings, of asking the new
military judge to reconsider and reverse an adverse
ruling made by the original judge. Although
unsuccessful in most regards, they were able to win
the exclusion of some of the government's evidence.
There was no unconditional defense surrender, as
envisioned by Cronicand Hennis.
Nor do we find the defense counsel's conduct
deficient under Strickland and Polk. According to an
affidavit from Mr. M., provided by government
appellate counsel, the defense team concluded there
was no plausible defense to the Article 92, UCM,
charge. Analyzing the entire record, we are unable to
find fault with their analysis. The appellant's
35a
counsel further concluded that asserting a flimsy
defense on this charge -- the least serious of those
faced by the appellant -- would damage their ability
to plausibly maintain the appellant's innocence
against the more serious charges. We generally will
not second-guess such tactical decisions made to
seize and retain credibility with the members,
particularly when, as here, the trial defense team's
efforts are directed toward minimizing their client's
punitive exposure. United States v. Hansen, 36 M.d.
599, 611 (A.F-CM.R. 1992). The appellant's counsel
were not ineffective.
4. Entrapment
Finally, the appellant insists his conduct was the
product of entrapment by the government. For the
appellant to prevail, there must be evidence the
government agents -- here, the Colorado Springs
police -- induced the appellant's behavior, and that
the appellant was not otherwise predisposed to
commit the offenses. See Rule for Courts-Martial
916(g); United States v. Howell, 836 Mu. 354, 359
(CM.A. 1993). Inducement, in this context, means
more than merely providing the appellant the means
or opportunity to commit a crime, or deploying
artifice or stratagems such as pretending to be
someone other than a government agent. Only
“circumstances suggesting overreaching by [the]
government ... or any pressuring .. . of the
appellant to commit these offenses" will suffice.
Howell, 36 M.J.at 360.
Examining the record de novo, we find the
appellant was not entrapped. The Colorado Springs
36a
police officers who created the persona of 14-year-old
"Kristin" did nothing to pressure the appellant, nor
did they overreach. Indeed, it was the appellant who
sought out "Kristin" and initiated a conversation
with her, brought up the subject of sex, and asked
her to engage in sex with him. When she seemed
reluctant to engage in anal sex, or sex in a public
place as the appellant asked, he assured her that he
would stop if she wanted him to stop and that they
wouldn't be caught. The appellant specified the date
and time of their rendezvous, the place they would
meet, and even the clothes "Kristin" would wear. In
short, far from being pressured, the appellant was
firmly in the lead. Moreover, from the biographical
information he entered in his user profile to his
eager pursuit of "Kristin" in their IM conversations -
- telling her he "really, really" wanted to get together
with her and that he was "dying" to "hook up” for sex
-- the evidence as a whole shows appellant was
plainly acting on his own initiative and in
furtherance of his own predispositions. There simply
was no entrapment here. ®
6 We do not find it necessary to consider the
materials seized from the government
computer in_ resolving the question of
entrapment. Those materials, which included
dozens of user profiles of girls "Kristin's" age,
served to undermine the appellant's claims.
Because the appellant's proclivities were so
clearly displayed by his online conversations
with “Kristin,” however, exclusion of the seized
material would not have affected the result.
Conclusion
37a
The findings and sentence are correct in law and
fact, and no error prejudicial to the substantial
rights of the appellant occurred. Article 66(c),
UCMJ, 10 U.S.C. § 866(c), United States v. Reed, 54
M.J. 37, 41 (C_A.A.F. 2000). Accordingly, the findings
and sentence are
AFFIRMED.
Senior Judge MOODY participated in this decision
prior to his retirement.
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