UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class SYDNEY S. CARPENTER

United States Air Force

ACM 38628

14 January 2016

Sentence adjudged 15 March 2014 by GCM convened at Barksdale Air 

Force Base, Louisiana. Military Judge: Bradley A. Cleveland.

Approved Sentence: Bad-conduct discharge, confinement for 10 months, 

forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for the Appellant: Captain Michael A. Schrama.

Appellate Counsel for the United States: Major Meredith L. Steer; Major 

Roberto Ramirez; and Gerald R. Bruce, Esquire.

Before

MITCHELL, TELLER, and MAYBERRY

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under Rule of Practice and Procedure 18.4.

MAYBERRY, Judge:

At a general court-martial composed of officer members, Appellant was convicted, 

contrary to his pleas, of possession of child pornography in violation of Article 134, 

UCMJ, 10 U.S.C. § 934. The court sentenced Appellant to a bad-conduct discharge, 

confinement for 10 months, hard labor without confinement for 2 months, restriction to 

Barksdale Air Force Base for 2 months, forfeiture of all pay and allowances, and 

reduction to E-1. The convening authority did not approve the hard labor without 

confinement or the restriction to base but approved the remainder of the sentence as 

adjudged.
2 ACM 38628

On appeal, Appellant raised five assignments of error: (1) the military judge erred 

by admitting evidence found on Appellant’s laptop, (2) the military judge erred in 

admitting Mil. R. Evid. 404(b) evidence of his civilian arrest for soliciting a minor, (3) 

the evidence was legally insufficient to support his conviction, (4) trial counsel’s 

sentencing argument was improper and (5) the military judge erred in failing to give an 

impossibility instruction.1 We disagree and affirm the finding and sentence.

Background

In May 2013, Detective M, a member of the Caddo Parish Sheriff’s Office (who 

was also a member of the Internet Crimes Against Children Task Force) saw a posted 

advertisement on Craigslist.com soliciting sex but identifying no age restriction. The 

detective adopted the assumed identity of a 13-year-old female and responded to the 

posting. Over the next two days, the detective corresponded with “Syd,” the poster of the 

Craigslist.com ad, who was later identified as Appellant. The two individuals exchanged 

phone numbers and subsequently communicated by text message. The tenor of the texts 

was overtly sexual and non-nude photographs were exchanged. A meeting was arranged 

for 10 May 2013 at a local mall. Additional texts were exchanged to identify the exact 

location for the meeting. The detective went to the planned meeting location, saw a male 

matching the description from the texts (Appellant), walked up behind him, called out the 

name “Syd,” identified himself as a sheriff’s deputy, and informed him that he was under 

arrest for computer-aided solicitation of a minor in violation of Louisiana law. At the 

time of his arrest, Appellant had a cell phone in his possession. 

After Appellant was booked, the Sheriff’s Office contacted Air Force Office of 

Special Investigations (AFOSI) at Barksdale Air Force Base (AFB). A joint investigation 

ensued. AFOSI Special Agent (SA) H sought search authority from the military 

magistrate for Appellant’s dorm room to seize “electronic devices capable of sending 

emails and text messages.” Together, SA H and Detective M went to Appellant’s room 

and seized a laptop and a tablet. Both items were given to Detective M. Approximately 

30 days later, Detective M performed a forensic preview of Appellant’s laptop for 

evidence of the solicitation related emails. Finding none, he continued to review the files 

and folders and came across anime pornography.2Since this was not illegal in his 

jurisdiction, he contacted AFOSI, which told him they could not do anything with this 

type of evidence either. Undeterred, Detective M kept looking, this time using software 

specifically designed to locate known images of child pornography and found what he 

believed to be child pornography. Because Barksdale AFB has exclusive federal 

jurisdiction, he again called SA H, informed him of his most recent discovery, and 

ultimately returned the laptop and tablet to AFOSI. 

 

1 Appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 

2 Throughout this opinion, the term “anime” specifically refers to cartoon-type images or videos that depict what 

appear to be minors engaging in sexually explicit conduct or lascivious exhibition of the genitals or pubic area.
3 ACM 38628

After the discovery of the anime and suspected child pornography, SA H again 

sought search authorization from the military magistrate, requesting to search Appellant’s 

dorm room. This time, he specifically requested to “search and seize electronic media 

devices capable of storing child pornography or evidence thereof.” The magistrate again 

authorized the search. Pursuant to this authorization, AFOSI seized additional items of 

digital media (e.g., subscriber identity module (SIM) cards meant for cellular phones, 

writable CD-Rs, and external hard drives). On 24 June, after AFOSI obtained custody of 

the laptop, SA H sought a third search authorization to search the laptop for child 

pornography or evidence thereof. In late June, AFOSI made a mirror image of the laptop 

originally seized in May and sent all of these items to the Defense Computer Forensics 

Laboratory (DCFL) for a forensic data extraction (FDE) analysis. The initial analysis 

identified over 200,000 images and videos. Of those, 99 images were identified as 

known child pornography. AFOSI requested a “deep dive” analysis of 24 images. Later, 

in December, AFOSI sent additional images to DCFL for “deep dive” analysis and 

requested additional information on items previously analyzed by DCFL. 

Additional facts necessary to resolve the assigned errors are included below.

Admission of Evidence from Laptop

Appellant asserts the military judge abused his discretion in admitting evidence 

from the laptop because there was no authorization for the laptop to be searched. Trial 

defense counsel similarly challenged admission of this evidence in a motion to suppress 

pursuant to Mil. R. Evid. 311(a), primarily emphasizing the fact that Detective M’s 

search of the computer exceeded the scope of the search authorization but also alleging 

the search authorization only allowed for seizure of items from Appellant’s dorm room, 

not searching. This issue was thoroughly litigated at trial. 

We review a military judge’s decision to deny a motion to suppress under an abuse 

of discretion standard. In doing so, we “consider the evidence ‘in the light most 

favorable to the’ prevailing party.” United States v. Rodriguez, 60 M.J. 239, 246 

(C.A.A.F. 2004) (quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)). 

We review the military judge’s “factfinding under the clearly-erroneous standard and 

[his] conclusions of law under the de novo standard.” United States v. Ayala, 43 M.J. 296, 

298 (C.A.A.F. 1995) (citations omitted). We will find an abuse of discretion only if the 

military judge’s “findings of fact are clearly erroneous or his conclusions of law are 

incorrect.” Id.

Appellant asserts that the authorization granted by the military magistrate 

(verbally on 10 May and in writing on 13 May) did not authorize anything other than a 

search of the dorm room and seizure of electronics capable of sending/receiving emails 

and texts. Consequently, any search activities by Detective M would have been unlawful. 

The written Air Force (AF) Form 1176, Authority to Search and Seize, clearly did not 
4 ACM 38628

contain a request to search any electronics – rather, it authorizes a search of “Building 

4660 # 120, Barksdale AFB, LA” and seizure of “Electronic Devices capable of sending 

Emails and Text messages.”3 The accompanying affidavit also requested authority “to 

search and seize [Appellant’s] dorm room” for such electronic devices.

4

 SA H testified 

that those documents contained everything he discussed with the magistrate and 

acknowledged that nowhere on those documents was there a request to search any 

electronics. Detective M testified that the AF Form 1176 did not mention searching 

electronics. The magistrate testified that it was his intent that anything on the computer 

was “fair game,” but he did not ever communicate that to SA H.

The military judge’s written findings indicated that he found SA H and Detective 

M to be sincere, unbiased, and credible. The military judge’s findings of fact further

stated:

In furtherance of the joint investigation, on 10 May 2013, AFOSI Special 

Agent (SA) [H] sought search authority from Col [PM], a military search 

authority on Barksdale AFB. The AF Form 1176 requested authority to 

seize “Electronic Devices capable of sending E-mails and Text messages.” 

...Colonel [PM] issued an authority to search and seize [Appellant’s dorm 

room] for electronic devices capable of sending emails and text 

messages....Pursuant to the search authority SA [H] and Detective [M] 

conducted the search on 10 May 2013 and seized a Toshiba hard drive and 

a computer tablet...Based on the search authority, SA [H] (and Detective 

[M]) was permitted to search the items seized from [Appellant].

The 10 May search authorization was particularly focused in its scope and 

permitted a search of any electronic items that were capable of sending 

emails and text messages. Emails, text messages, and photos attached to an 

email or text message, can be stored anywhere on a computer...and the 

investigators were permitted to search anywhere on the devices to recover 

the evidence they needed. 

Appellant’s position is that, while the military judge did provide a very detailed 

written ruling on the motion to suppress, he failed to analyze the issue of whether the 

search of the laptop was permissible. The Government appears to concede that the initial 

search was unlawful, citing to the fact that “appellant’s laptop was searched by a civilian 

law enforcement agency not under the control of the Air Force.” It does not further 

expound on this statement. The Government concludes its argument with “[t]here is 

 

3 Conversely, in a subsequent Air Force (AF) Form 1176 dated 24 June 2013, the military magistrate authorized a 

search of Appellant’s “laptop computer hard drive and tablet computer” for seizure of “Child pornography and 

evidence thereof.”

4

In the supporting affidavit for the AF Form 1176 dated 24 June 2013, SA H requested authority “to search 

[Appellant’s] laptop computer and tablet computer for child pornography or evidence thereof.”
5 ACM 38628

nothing in Appellant’s argument or in the record of trial to suggest that the military 

judge’s findings are ‘clearly erroneous’.” The Government’s brief includes the portion of 

the trial judge’s ruling addressing inevitable discovery, but the brief does not 

independently address any other aspect of the legality of the search and seizure. 

The Government’s assertion that Detective M’s search was “not under the control 

of the Air Force” is contrary to the law. In United States v. Daniels, 60 M.J. 69, 71 

(C.A.A.F. 2004), our superior court specifically examined the issue of private 

actors/government agents in the context of Fourth Amendment searches and held: 

[T]he question of whether a private actor performed as a government agent 

does not hinge on motivation, but rather “on the degree of the 

Government’s participation in the private party’s activities, a question that 

can only be resolved ‘in light of all the circumstances.’” Skinner v. 

Railway Labor Executives’ Ass’n, 489 U.S. 602, 614-15, 103 L. Ed. 2d 639, 

109 S. Ct. 1402 (1989) (internal citations omitted). To implicate the Fourth 

Amendment in this respect, there must be “clear indices of the 

Government’s encouragement, endorsement, and participation” in the 

challenged search. Id. at 615-16. 

In the case before us, all of the search authorizations were issued by the military 

magistrate. This was a joint investigation between Caddo Parish and the Air Force. This 

was a government search implicating the Fourth Amendment. As such, the Fourth 

Amendment5provides that “the right of the people to be secure . . . 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.” Mil. R. Evid. 315(b)(1) echoes that

particularity requirement. We are satisfied that the intent of AFOSI was to request 

permission to “search” the electronic devices, rather than merely to “seize” them. We are 

similarly convinced that the military magistrate’s intent was the same. A search that is 

conducted pursuant to a search authorization is presumptively reasonable. United States 

v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014). The search authorization intended to grant 

AFOSI permission to search the contents of the electronic devices, and even if an error 

was committed in completing the form, at a minimum the good faith exception to the 

exclusionary rule applies. See United States v. Carter, 54 M.J. 414, 419 (C.A.A.F. 2001). 

We therefore find the military judge did not abuse his discretion in declining to suppress 

the evidence on this basis.

Having found the military judge’s ruling that the search authorization included the 

authority to search the electronics seized from Appellant’s room, we do not agree with 

the military judge’s conclusion that the search did not exceed the scope of the warrant.

 

5 U.S. CONST. amend. IV.
6 ACM 38628

SA H sought search authorization for evidence of solicitation of a minor, specifically 

addressing the use of Craigslist.com and the exchange of text and email messages. SA H 

testified that he believed he could search the computer for any evidence of texts and 

emails between Appellant and the undercover officer. SA H had no knowledge of the 

exchange of photos, and therefore did not discuss that aspect of the communications 

between Appellant and the undercover officer with the magistrate. Detective M briefly 

looked, but did not find, any evidence of emails or texts or the Craigslist.com 

advertisement. He almost immediately shifted his attention to looking for photos. The 

magistrate was aware of the electronic communications between Appellant and the 

undercover officer stemming from an electronic solicitation by Appellant for sex. While 

it is reasonable to infer the search authorization allowed for efforts to seek evidence of 

those communications, it is not reasonable to infer that the magistrate authorized the 

search for evidence that he knew nothing about. Having found the military judge’s ruling 

that the search did not exceed the scope of the authorization to be an abuse of discretion, 

we consider whether the evidence found on the laptop would have been inevitably 

discovered.6 

The inevitable discovery doctrine “allows[s] admission of evidence that, although 

obtained improperly, would have been obtained by another lawful means.” United States 

v. Wallace, 66 M.J. 5, 10 (C.A.A.F. 2008) (citing Nix v. Williams, 467 U.S. 431, 444 

(1984)); see also Mil. R. Evid. 311(b)(2) (stating that “[e]vidence that was obtained as a 

result of an unlawful search or seizure may be used when the evidence would have been 

obtained even if such unlawful search or seizure had not been made”). When routine 

procedures of a law enforcement agency would have discovered the same evidence, the 

inevitable discovery rule applies even in the absence of a prior or parallel investigation. 

United States v. Owens, 51 M.J. 204, 210–11 (C.A.A.F. 1999). Mil. R. Evid. 315(f)(2) 

provides that “[p]robable cause to search exists when there is a reasonable belief that the 

person, property, or evidence sought is located in the place or in the person to be 

searched.” “When a commander is asked to authorize a search, the question is ‘whether, 

given all the circumstances set forth in the affidavit before him, . . . a fair probability’ 

exists that the suspected evidence will be found in the place to be searched.” Owens, 51 

M.J. at 211 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

In the case before us, the military judge also conducted an inevitable discovery 

analysis. However, his analysis was premised on Detective M’s search of the laptop 

being permissible and analyzed only the evidence discovered after Detective M shifted 

his focus from searching for evidence of the solicitation of a minor to searching for child 

pornography. Because a proper inevitable discovery analysis must exclude the taint 

 

6 Having determined that there was no authorization to search the computer seized from Appellant’s dorm room, we 

do not address whether the search exceeded the scope or analyze the possible application of the plain view or good 

faith exceptions. For the same reason, we do not address the issue of whether or not the search authorization had 

expired by the time Detective M conducted the search activities. 
7 ACM 38628

resulting from any impermissible search activities conducted by Detective M, we find the 

military judge’s ruling was an abuse of discretion.

The starting point of the inevitable discovery analysis must be the point in time 

after Detective M exceeded the scope of the search authorization and started looking for 

photos. Had SA H been fully apprised of the all of the details involved in the solicitation 

offense (which is the only basis for the search authorization at this point in time), to 

include the exchange of photographs, it is reasonable to believe that he would have 

included that information in the request for search authorization. Unlike the actual 

request and affidavit in the case before us and in accordance with this court’s decision in 

United States v. Osorio, 66 M.J. 632, 637 (A.F.C.C.A. 2008), that request would have to 

be specific in scope, which in turn, would mandate specificity in the execution of the 

search.7 

Here, a search request for electronic photos, emails, texts, and evidence of 

accessing the Craigslist.com website from on or about 8 April until on or about 13 April 

would have met the Osorio requirement. A review of the downloads folder on 

Appellant’s computer would have fallen within the scope of the authorized search. Such 

a search would have discovered the anime images, as well as some of the other images of 

suspected child pornography. The discovery of those images, combined with a law 

enforcement official’s knowledge and experience in child pornography cases, would have 

provided probable cause to seek additional search authorization for child pornography. 

See United States v. Hoffmann, 74 M.J. 542, 547 (N.M.C.C.A. 2014) (finding proper 

application of the inevitable discovery doctrine, allowing the search of Appellant’s 

laptop, where the investigating agent knew Appellant had sexually propositioned young 

boys and possessed computers in his barracks room, as it was reasonable to conclude that 

“those who attempt to locate and then engage in sexual activity with children frequently 

first conduct some type of computer-based research”). As such, the evidence from 

Appellant’s laptop would have been admissible.

While we are troubled by the careless actions of law enforcement in this case, we 

recognize that reliance on the notion that police negligence automatically triggers 

suppression cannot be squared with the principles underlying the exclusionary rule. As 

 

7 When dealing with search warrants for computers, practitioners must generate specific warrants and search 

processes necessary to comply with that specificity. United States v. Osorio, 66 M.J. 632, 637 (A.F.C.C.A. 2008). 

This court’s ruling in Osorio acknowledged our superior court’s holding in United States v. Wallace, 66 M.J. 5 

(C.A.A.F. 2008) that pornography would have been inevitably discovered because the investigators would have had 

to sift through all the captured data to find relevant email traffic. Osorio also acknowledged Judge Baker’s 

concurring opinion regarding the use of “primitive software to conduct computer searches” which he claimed did 

not excuse the resulting violation of Appellant’s Fourth Amendment rights. Wallace, 66 M.J. at 12 (Baker, J., 

concurring). Here, there was testimony at the motion hearing from Appellant’s forensic consultant that indicated 

computer forensics software did have the capability of searching for emails and texts by keyword search, not 

requiring someone to sift through all the data, meaning that it could have searched for the image sent to Appellant 

using the hashtag associated with the photo. (Detective M testified that he was unfamiliar with these capabilities.) 
8 ACM 38628

the Supreme Court has stated, “[t]he deterrent effect of suppression must be substantial 

and outweigh any harm to the justice system.” Herring v. United States, 555 U.S. 135, 

147 (2009) (citing United States v. Leon, 468 U.S. 897 (1984)). Thus, “when police 

mistakes are the result of negligence such as that described here, rather than systemic 

error or reckless disregard of constitutional requirements, any marginal deterrence does 

not ‘pay its way.’” Id. at 147–148 (quoting Leon, 468 U.S. at 907 n. 6). In such cases, 

criminals should not “go free because the constable has blundered.” Id. at 148 (quoting 

People v. Defore, 150 N. E. 585, 587 (1926) (opinion of the Court by Cardozo, J.)).

Evidence of Solicitation of a Minor 

Appellant argues that the military judge improperly admitted evidence regarding 

the activities associated with Appellant soliciting a 13-year-old girl for sex. A military 

judge’s decision to admit evidence is reviewed for an abuse of discretion. United States

v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). “The abuse of discretion standard is a strict 

one, calling for more than a mere difference of opinion. The challenged action must be 

‘arbitrary, fanciful, clearly unreasonable, or clearly erroneous.’” United States v. White, 

69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 

(C.A.A.F. 2010)).

Trial defense counsel filed a motion in limine to exclude the evidence surrounding 

the solicitation of a minor offense since it was irrelevant to the charge of possession of 

child pornography. In this case, the military judge applied the three-pronged test for 

determining admissibility of “other acts” evidence under Mil. R. Evid. 404(b) as set out 

in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). Our superior court

summarized the Reynolds analysis, requiring us to ask: (1) whether the evidence 

reasonably supports a finding by the court members that Appellant committed prior 

crimes, wrongs or acts; (2) if a “fact . . . of consequence” is made “more” or “less 

probable” by the existence of this evidence; and (3) is the “probative value . . . 

substantially outweighed by the danger of unfair prejudice?” United States v. Barnett, 63 

M.J. 388, 394 (C.A.A.F. 2006) (alteration in original).

The military judge denied the motion, finding the evidence was relevant to the 

investigative actions of Detective M and to show the “identity” of Appellant. The 

military judge cited the fact that the events of the collateral investigation were 

inextricably intertwined with the discovery of the alleged child pornography. He found 

that the evidence was admissible for identity purposes because Appellant’s computer 

showed a web history of him accessing the Craigslist.com website, which he allegedly 

used to solicit the fictitious underage girl; he also accessed websites focused on aircraft 

design, a hobby that Appellant told AFOSI he had an interest in. Therefore, the evidence 

had more than a tendency to show that Appellant was the owner of the computer that 

contained the alleged child pornography. The military judge recognized that a proper 

instruction restricting the evidence to its proper scope would provide an effective 
9 ACM 38628

prophylactic against any improper use of the evidence by the members. He gave such a 

limiting instruction:

You may consider evidence that the accused may have used a computer and 

cell phone to solicit a minor for sex for the limited purpose of its tendency, 

if any, to identify the accused as the person who used the computer, which 

was seized by law enforcement, to commit the offense alleged in the 

Specification of the Charge or the lesser included offense of attempt. You 

may not consider this evidence for any other purpose and you may not 

concluded from this evidence that the accused is a bad person or has 

general criminal tendencies and that he has therefore committed the offense 

charged or the lesser included offense of attempt.

The computer at issue was found in Appellant’s room, on the floor of his closet. 

No one else lived in the room. The computer had a user account that was associated with 

the name “Syd.”8 Although the ruling on the motion in limine indicated that the collateral 

investigation could be used to prove the identity of the computer’s owner, the actual 

limiting instruction asserts that it could be used to prove only the identity of the user of 

the computer. Although the record does not indicate that any of the texts, emails, or 

photographs relevant to the civilian investigation were found on the computer, the 

Internet usage evidence showing the use of Craigslist.com and aircraft design websites 

was probative as to whether Appellant used the computer on the dates depicted in the 

network analysis evidence, which also documented child pornography searches on the 

computer. 

The issue for the factfinders in this case was whether or not Appellant knowingly 

possessed images of child pornography. This was a joint investigation initially focused 

solely on the crime of computer-aided solicitation of a minor, which was handled by the 

civilian justice system. That investigation discovered evidence of possession of child 

pornography, the basis of the conviction before us. The military judge’s Reynolds

analysis concluded that Appellant used his computer to solicit a minor for sex, that the 

investigative efforts emanating from that conduct led to the discovery of the child 

pornography evidence, and that the probative value substantially outweighed the danger 

of unfair prejudice. The limiting instruction given by the military judge appropriately 

informed the members as to how the evidence could be used. 

Legal and Factual Sufficiency

 

8 During trial on the merits, the expert witness from the Defense Computer Forensics Laboratory (DCFL) testified 

that a Yahoo user account called “9tailfox61” was associated with a Skype profile named “syd-kyd.” Additionally, 

he stated that “9tailfox61@yahoo.com” was the listed email address for Appellant.
10 ACM 38628

We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. 

§ 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for 

factual sufficiency is “whether, after weighing the evidence in the record of trial and 

making allowances for not having personally observed the witnesses, [we are] convinced 

of the accused’s guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 

325 (C.M.A. 1987). In conducting this unique appellate role, we take “a fresh, impartial 

look at the evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt” to “make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.” Washington, 57 

M.J. at 399. “[I]n resolving questions of legal sufficiency, we are bound to draw every 

reasonable inference from the evidence of record in favor of the prosecution.” United 

States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citing United States v. Rogers, 54 

M.J. 244, 246 (C.A.A.F. 2000)).

Appellant contends his conviction in violation of Article 134, UCMJ, 10 U.S.C. 

§ 934, was legally and factually insufficient to support the conviction because some of 

the images offered at trial were created and last written in 2011, before Appellant joined 

the military, and other images were found in unallocated space9on the hard drive of 

Appellant’s computer. 

The Specification did not list particular images, nor did it attribute a specific 

number of images. Appellant was charged with knowing and wrongful possession of 

child pornography, to wit: videos and digital images of a minor, and what appears to be a 

minor, engaging in sexually explicit conduct. At trial, the Government offered 6 videos 

of children engaged in sexual conduct; 10 images of children engaged in sexual conduct;

29 images of anime, depicting what appeared to be minors engaged in sexually explicit 

conduct or lascivious exhibitions of the genitals or pubic area; 1 screenshot of FrostWire 

software showing purported child pornography being downloaded to Appellant’s 

computer; and 2 reports showing network analysis and web browser usage on Appellant’s 

computer.10 Three of the videos offered were found in the “program files incomplete” 

folder on the “syd-kyd” user account; two were found in the FrostWire directory and one 

 

9

“[U[nallocated space is the location on the computer where files are stored after having been permanently deleted. 

When a user permanently deletes a digital file that file continues to exist on the computer; however, it exists in 

unallocated space until the file is overwritten. Once a digital file is in unallocated space, the metadata associated 

with that file is stripped away (e.g. its name, when it was accessed, when it was viewed, when it was created, or 

when it was downloaded).” United States v. Nichlos, NMCCA 201300321, unpub. op. at 29 (N.M.C.C.A. 18 

September 2014) (citations omitted).

10 Prosecution Exhibit 1 was a CD that contained two folders and two PowerPoint presentations. One PowerPoint 

presentation contained the 29 anime images and the second contained keylogger screenshot captures. One folder 

contained evidence from the 3 December 2013 DCFL report: three videos and a PowerPoint presentation containing 

24 slides. Those slides included one screenshot from each video, as well as 11 screenshots found in another video 

not independently offered as evidence. The last folder contained evidence from the 15 October 2013 DCFL report: 

two videos and a PowerPoint presentation containing 13 slides. These slides contained one screenshot from each 

video, 10 stand-alone digital images, and one screenshot from another video not independently offered as evidence.
11 ACM 38628

was found in unallocated space. Of the 10 stand-alone images, seven were found in 

unallocated space, one was found in the FrostWire directory, one was found in system 

volume information,

11 and one was an orphan file.12

 The anime images were found in the 

“downloads” folder of the “syd-kyd” user account. 

The Government presented strong circumstantial evidence that Appellant was the 

user of the computer. The computer’s “syd-kyd” account was password-protected and 

the password was “KYUUVIMON.” According to the forensic expert, kyuuvi could refer 

to a Japanese mythical animal, specifically a fox with nine tails. The computer had a 

Yahoo account (“9tailfox61”), and the “9tailfox61” user account was associated with the 

“syd-kyd” Skype profile. Further, “9tailfox61@yahoo.com” was the listed email address 

for Sydney Carpenter. The web browser report showed that the anime was downloaded 

to the computer seized from Appellant’s room in April 2013. Although the expert 

witness could not forensically link the sites contained in this document to the anime 

images admitted into evidence, this document clearly shows Appellant’s “syd-kyd” 

account both continuously accessing a variety of websites and intermittently accessing 

files in his downloads folder from about 2319 hours on 10 April 2013 through 0107 hours 

on 11 April 2013. The file names accessed included the 29 anime images admitted into 

evidence. Additionally, the web browser report showed Appellant’s profile using 

Craigslist.com, which was directly linked to his arrest by the Caddo Parish Sheriff’s 

Office. 

Five of the six videos admitted into evidence were found in allocated space on 

Appellant’s computer in folders owned by the user “syd-kyd.” Four of these videos were 

originally created in 2011 and viewed either while they were downloading or after the 

download was complete. The fifth was generated by a backup program in September 

2012. Additionally, some of them were viewed more than once. The images depicted on 

slides 2 through 12 of the 3 December PowerPoint presentation on Prosecution Exhibit 1 

came from a video also found in allocated space on Appellant’s computer; it was

attributable to the user “syd-kyd” and was created in 2011. 

 The overwhelming circumstantial evidence supports that Appellant viewed 

videos of child pornography on his personal computer; and that he, through the use of the 

FrostWire program, downloaded numerous child pornographic videos onto the hard drive 

of his computer. Despite the fact that four of the videos may have originally been 

downloaded in 2011 and one in 2012, only one video was no longer on Appellant’s 

computer when it was forensically examined.13 Based on these facts, we find Appellant 

 

11 The forensic expert witness testified that a file located in system volume information indicates it was on the 

computer at some point and backed up by the operating system.

12 The forensic expert witness testified that a lost or orphan file no longer has its logical path as to where it resided 

on the computer, but that file existed on the computer at some point in time.

13 Only the video found on slide 11 of the 15 October PowerPoint presentation on Prosecution Exhibit 1 was found 

in unallocated space. 
12 ACM 38628

knowingly and consciously possessed the four videos and exercised the dominion and 

control necessary to constitute “possession” of them. Additionally, the image depicted on 

slide 3 of the 15 October PowerPoint presentation was found in the FrostWire folder. 

Therefore, the evidence is factually and legally sufficient to convict Appellant of 

wrongfully and knowingly possessing one or more visual depictions of minors engaging 

in sexually explicit conduct.

We reach a different result as to whether Appellant possessed the sexually explicit 

images depicted on slides 6–9 and 14 of the 15 October PowerPoint presentation. These 

images were found in unallocated space, with some of them also appearing as a 

thumbcache file or in system volume information. The forensic examiner testified the 

thumbnail images were automatically created by the computer when a user viewed an 

image or video on the computer or when the computer conducted a system backup at a 

given point, and they remained even after the original image was deleted. The forensic 

examination did not find the original images or videos that resulted in the creation of 

these thumbnails. The forensic examiner could not determine the file names of the 

original images or videos that resulted in these thumbnails, nor could he determine when 

they were downloaded or viewed. Therefore, there is not proof beyond a reasonable 

doubt that Appellant was the one who viewed them. Furthermore, these thumbnails were 

found in areas of the computer that an average computer could not access without 

specialized computer software, none of which was found on Appellant’s computer. 

While the existence of duplicate copies of some of these images could conceivably 

support a finding that Appellant exerted dominion and control of the images, there was 

no evidence as to whether any actions involving these images occurred during the 

charged timeframe. 

However, under the general verdict rule, the fact that some of the images 

considered by the members were not legally sufficient does not require the conviction to 

be overturned. See United States v. Barbieri, 71 M.J. 127 (C.A.A.F. 2012), overruled by

United States v. Piolunek, 74 M.J. 107, 111–112 (C.A.A.F. 2015) (“[C]onvictions by 

general verdict for possession and receipt of visual depictions of a minor engaging in 

sexually explicit conduct on divers occasions by a properly instructed panel need not be 

set aside after the [service court] decides several images considered by the members do 

not [meet that standard].”).

Lastly, we address the anime pornography. This is due, in part, because the 

Specification charged Appellant with knowingly and wrongfully possessing “videos and

digital images of a minor, and what appears to be a minor, engaging in sexually explicit 

conduct,” rather than “or,” as is typically charged. As previously stated, 29 images were 

admitted. Possession of anime is prohibited by Article 134, UCMJ, if it depicts what 

appears to be children engaged in sexually explicit conduct or if it is obscene. See United 

States v. Williams, 553 U.S. 285, 288 (2008). We agree with the military judge’s ruling 

that the 29 images of anime admitted in this case constitute visual depictions of what 
13 ACM 38628

appear to be children engaged in sexually explicit conduct, specifically graphic images of 

simulated sexual intercourse or sodomy, including genital-genital, oral-genital, analgenital, or oral-anal intercourse, whether between persons of the same or opposite sex; 

masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or 

pubic area. 

We have considered the elements of the charged offense. We have considered the 

evidence in the light most favorable to the prosecution and find the evidence legally 

sufficient to support the conviction that Appellant knowingly possessed multiple images 

of minors and what appear to be minors engaged in sexually explicit conduct. Moreover, 

having made allowances for not having personally observed the witnesses, we are 

ourselves convinced of Appellant’s guilt beyond a reasonable doubt of the approved 

Charge and Specification.

Trial Counsel’s Sentencing Argument

Improper argument involves a question of law that this court reviews de novo. 

United States v. Marsh, 70 M.J. 101, 106 (C.A.A.F. 2011). “The legal test for improper 

argument is whether the argument was erroneous and whether it materially prejudiced the 

substantial rights of the accused.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 

2000). Where improper argument occurs during the sentencing portion of the trial, we 

determine whether or not we can be “confident that [the appellant] was sentenced ‘on the 

basis of the evidence alone.’” United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013)

(alteration in original) (quoting United States v. Erickson, 62 M.J. 221, 224 (C.A.A.F. 

2007)).

Appellant asserts that trial counsel intended to invoke the members’ passions and 

fears by castigating Appellant as the reason child pornography exists. Trial defense 

counsel objected on five occasions and the military judge sustained four of them. The 

judge sustained objections based on facts not in evidence regarding counsel’s statements 

of “the widespread supply of child pornography,” that “child pornography exists because 

of the demand,” that “the children depicted in these images and videos lived through 

these events . . . they will have to live their life understanding,” and counsel’s utterance 

of the word “scars” when discussing the victims. Appellant now asserts that sustaining 

the objections was not sufficient and that a curative instruction should have been given 

asserting that the argument was improper and should be given no weight. Appellant 

concludes that there can be no doubt that the argument weighed on the members as they 

adjudged a sentence and requests that the bad-conduct discharge be disapproved. 

The Government asserts that the military judge erred in sustaining the objections, 

opining that counsel’s argument was proper, and further notes that a proper curative 

instruction was given. The “curative instruction” cited by the Government was, in fact,

part of the judge’s rationale in sustaining an objection concerning victims’ “scars,” and 
14 ACM 38628

the judge noted that no evidence of victim impact had been introduced. The Government 

further claims that counsel’s argument had no effect on the members’ adjudged sentence 

since it was only 20 percent of the punishment requested.

Trial counsel is entitled “to argue the evidence of record, as well as all reasonable 

inferences fairly derived from such evidence.” Baer, 53 M.J. at 237. However, the Rules 

for Courts-Martial and existing case law both establish that it is error for trial counsel to 

make arguments that “‘unduly . . . inflame the passions or prejudices of the court 

members.’” Marsh, 70 M.J. at 102 (quoting United States v. Schroder, 65 M.J. 49, 58 

(C.A.A.F. 2007)). Trial defense counsel objected five times during trial counsel’s 

argument, and the military judge sustained four of the five objections. We are confident 

Appellant was sentenced on the basis of the evidence alone.

Impossibility Instruction

We review de novo the military judge’s instructions to ensure that they correctly 

address the issues raised by the evidence. United States v. Maynulet, 68 M.J. 374, 376 

(C.A.A.F. 2010). Generally, a military judge has “‘substantial discretionary power’” to 

decide whether to issue a jury instruction. United States v. McDonald, 57 M.J. 18, 20 

(C.A.A.F. 2002) (quoting United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 

1993)). If we find error, we must determine whether the error was harmless beyond a 

reasonable doubt. United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011).

Trial defense counsel requested the military judge give a special instruction 

asserting that Appellant was physically unable to control the images in unallocated space 

because the computer did not contain the requisite software. The Record of Trial does 

not contain either the draft instructions or the proposed instruction submitted by the 

defense. Consequently, the only record of the proposed instruction comes from the 

Article 39(a), UCMJ, 10 U.S.C. § 839(a), session concerning the proposed instructions. 

Defense counsel refers to a model instruction concerning physical impossibility contained 

in the Military Judges’ Benchbook. Department of the Army Pamphlet (D.A. Pam.) 27-9, 

Military Judges’ Benchbook, ¶ 5-9-1 (1 January 2010). The crux of that model 

instruction involves a scenario where a potential physical condition of Appellant made it 

physically impossible for him to obey an order or perform a duty. The military judge 

opined that the proposed instruction was “non-standard” and more along the lines of 

“legal impossibility.” The military judge ultimately concluded that the requested 

instruction was not supported by fact, specifically stating that the absence of software 

necessary to view the images at the time of the forensic examination was not dispositive,

since there was no evidence that the images had been in unallocated space prior to the 

first date of the charged time frame. We hold that the military judge did not err in 

refusing to instruct in accordance with Appellant’s request at trial.

Conclusion
15 ACM 38628

The approved finding and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 

66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved finding and 

sentence are

AFFIRMED.

FOR THE COURT

 LEAH M. CALAHAN

Clerk of the Court