## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________
No. 201 500400

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v.



### RIGO J. BETANCOURT Sergeant (E

- 5), U.S. Marine Corps

Appellant

_________________________ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel E lizabeth A. Harvey , USMC. Convening Authority: Commanding General, 1st Marine Division

, Camp Pendleton, CA. Staff Judge Advocate’s Recommendation: Lieutenant Col onel Devin C. Young , USMC

. For Appellant: Lieutenant R. Andrew Austria, JAGC, USN

. For Appellee: Lieutenant Commander Jeremy Brooks , JAGC , USN ; Lieutenant Commander Justin Henderson

, JAGC, USN

.

_________________________
Decided 6 June 2017

________________

_________
Before C AMPBELL
, R UGH
, AND H UTCHISON
, Appellate Military Judges

_________________________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.

________________ _________ RUGH, Judge:

A panel of officer and enlisted members sitting as a general court

- martial convicted the appellant, contrary to his pleas, of one specification of aggravated sexual contact and two specifications of assault consummated byUnited States v. Betancourt , No. 201500400

2 a battery i n violation of Articles 120 and 128, U niform C ode of M ilitary
J ustice (UCMJ) , 10 U.S.C. § § 920 and 928 (2012). 1
The military judge also convicted the appellant, pursuant to his pleas, of one specification of conspiracy to commit assault, two specification s of violating a lawful general order, two specifications of signing a false record, one specification of cocaine use, one specification of possession of cocaine with intent to distribute, one specification of possession of methamphetamine
with intent to distribute, one specification of larceny, one specification of forgery, and one specification of assault consummated by a battery in violation of Articles 81, 92, 107 , 112a, 121, 123, and 128, UCMJ; 10 U.S.C. §§ 881, 892, 907, 912a, 921, 923, and 928 (2012 ).
The members sentenced the appellant to five years’ confinement, reduction to pay grade E

- 1, total forfeiture of pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence
executed.

The appellant asserts seven assignments of error (AOE): (1) that the
evidence of the appellant’s convictions for assault consummated by a battery and aggravated sexual contact was factually in sufficient ; (2) that the military judge abused her discretion in failing to suppress evidence derived from the search of the appellant’s cell phone ; (3) that the military judge abused her
discretion in admitting evidence under M ILITARY R ULE OF E VIDENCE ( M IL

. R.
E VID

. ) 404(b)

, S UPPLEMENT TO M ANUAL FOR C OURTS

- M ARTIAL
, U NITED S TATES (2012 ed.) ; (4) that a command authorized search of the defense
counsel office s amounted to unlawful command influence ; (5) that the search also amounted to prosecutorial misconduct; (6) that the mili tary judge violated the appellant’s right to counsel under the Sixth Amendment to the
Constitution by disqual if ying his original trial defense counsel and compell ing them to testify against him at trial ; and (7) that the promulgating
order does not accurat ely reflect the court

- martial’s findings

. 2

A fter weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses as did the trial court, this cour t is convinced of the appellant’ s g uilt beyond reasonable doubt. U nited States v.

1 After findings, the military judge dis missed one specification of assault consummated by battery as multiplicious

. Record at 1706.

2 In a supplemental AOE, the appellant argued the military judge erred in instructing the members regarding reasonable doubt. In accordance with the holding
in Uni ted States v. McClour , 76 M.J. 23 (C.A.A.F. 2017), we summarily reject the supplemental assignment of error. United States v. Clifton , 35 M.J. 79, 81

- 82 (C.M.A. 1992).United States v. Betancourt , No. 201500400

3 Rankin , 63 M.J. 552, 557 (N

- M. Ct. Crim. App. 2006) (citing United States v.
Turner , 25 M.J. 324, 325 (C.M.A. 1987) and Art. 66(c), UCMJ) )

, aff'd on other grounds , 64 M.J. 348 (C.A.A.F. 2007). Additionally, having carefully
considered the r ecord of trial, the pleadings, and oral argument on the second, fourth

, and fifth AOE, we find no error materially prejudicial to a substantial right of the appellant and affirm.

I. B ACKGROUND
In July 2013

, to cope with what he alleged was a close friend’s death, the appellant joined a Southern California criminal motorcycle gang. During the process of first pledging th en fully joining the gang, the appellant embarked on a course of reckless and criminal behavior. He began using cocaine with
his then

- girlfr iend, Ms. MR. He acquired quantities of cocaine and methamphetamines

, which he weighed and bagged for distribution to other gang members and “ hangers

- on. ” 3 He tattooed a swastika on his stomach, and publicly wore the accoutrements

– the clothing, badges, and other symbols

– of the criminal motorcycle gang

. Additionally, he defrauded the government of basic allowance for housing (BAH) after he was divorced.

Marine Corps Criminal Investigative Division (CID) first learned of the appellant’s offenses in December 2 013 after he provided a positive urinalysis
for cocaine. T he investigation then expanded to include his affiliation with the criminal motorcycle gang and his other acts.

On 29 January 2014, the appellant conspired with a fellow gang member, First Sergeant Charles Reynolds, U.S. Marine Corps, to assault a gunnery sergeant because he believed the gunnery sergeant was attempting to pursue his girlfriend , Ms. HK . After the girlfriend trick ed the gunnery sergeant into meeting at a local bar, the two men traveled to the bar where they surprised
the g unnery s ergeant and beat him

.
In early March 2014 Ms. MR , who was now no longer the appellant’s girlfriend, contacted a CID agent claiming to have information about the appellant’s use of cocaine and his fraudulent c laim to BAH. During follow

- up interviews with agents, Ms. MR also provided information on the appellant’s participation in the criminal motorcycle gang and his related possession of cocaine and methamphetamines. This includ ed witnessing the appellant with a scale and small bags used for preparing controlled substances for
distribut ion and sale.

3 A term of art used to describe followers of the gang who were not members or pledges.United States v. Betancourt , No. 201500400

4 On 12 March 2014, after initially describing the appellant’s criminal activities to CID, Ms. MR contacted the appellant via text message and bragged to him about what she ha d done

.

[Text from Ms. MR:] Don’t expect to get anything from here either. All your gear won ’ t be here. I ’ m getting rid of everything that u left here. Should a thought ab what u said to me before
it [expletive] u worse. I’ll be setting up with cid too. I never wanna see u again. I’ll make sure I don’t while you rot away in a jail cell at the brig. [Expletive] with the wrong one punk

[Text from the appellant:] Why are you still texting me

. . . [Text from Ms. MR:] Ur gonna be sorry u tr eated me this

way [Text from the appellant:] There is nothing I can do to stop

you

. . . you been black mailing me with this for far to long

. . . your gonna do it regardless 4
After this exchange , the appellant drove to Ms. MR’s home. Once there, the appe llant and Ms. MR argued about his involvement in the criminal motorcycle gang. Ms. MR referred to the gang as “a bunch of losers

, ” enraging the appellant. 5 He attacked Ms. MR, grabbing her by the throat.

Q [Trial Counsel]: Do you remember how that happen ed?

A [Ms. MR]: Honestly, it was just all

– I just know he was screaming at me and, you know, telling me that this is

– you know, this had to happen; I did this to myself; I just couldn’t keep my mouth shut; and, you know, I don’t talk about his club
and th ose types of things. 6
He then grabbed her by her crotch, and stated, “ This [Ms. MR’s vagina] is mine, nobody else’s. This is mine.” 7

After the fight , the appellant left

, and Ms. MR called 9

- 1

- 1 to report the
assault . The appellant was placed in pretrial c onfinement on 14 March 2014, and photos were taken of his tattoos, including the swastika tattoo Ms. MR had previously described to the CID agent

. As a result of the assault, Ms. MR
suffered a hematoma in her vaginal area, requiring surgery, and bruises to
her neck.

4 Prosecution Exhibit (PE) 24 at 8

- 9 ([sic] throughout).

5 Record at 1211.

6 Id . at 1212.

7 Id. at 1215.United States v. Betancourt , No. 201500400

5 Ten days after the appellant was placed in the brig, the appellant’s Staff
Non

- Commissioned Officer

- in

- Charge (SNCOIC) contacted the appellant’s
detailed trial defense counsel, First Lieutenant (1stLt) I, with a request from the appellant

– that t he SNCOIC pass the appellant’s cell phone over to 1stLt
I to review it for potential ly exculpatory text messages involving the assault on Ms. MR. 1stLt I agreed and took possession of the phone, its blue and white case, a phone charger, and an extra batter y. The next day, 25 March 2014, 1stLt I powered on the appellant’s phone
and reviewed the call logs and the text messages between the appellant and
Ms. MR. While reviewing, 1stLt I took several screenshot images of potentially exculpatory text messages a nd then exported the images by connecting the phone to her government computer. During this process, 1stLt I deleted some of the screenshot images which she took and which were saved to the appellant’s phone. She then stored the phone in a file cabinet dra wer in
her office located on board Marine Corps Base Camp Pendleton, 22 Area

. While in her possession, the blue and white case remained on the phone.
On 4 April 2014, 1stLt I filed a motion requesting the appellant’s release from pretrial confinement. She i ncluded some of the screenshot images of the text messages from the appellant’s phone in that motion. Shortly thereafter,
1stLt F was detailed t o the case as an assistant defense counsel.

Now with knowledge of potentially exculpatory text messages on the appellant’s phone, CID became interested in locating the phone . The tr ial
counsel approached 1stLt I, who agreed to provide a copy of the remaining text messages involving Ms. MR from the phone to the government . At the time, there was a general consensus among the parties that 1stLt I would be able to turn over the phone to government agents if or when she was presented with a command authorization to search and seize the phone. With the assistance of the trial counsel, the lead CID agent drafted a probabl e cause affidavit to be presented to the 22 Area Commander as basis for a Command Authorized Search and Seizure (CASS). Based on indications that
some of the appellant’s text messages may have been deleted, the lead CID agent believed that the phone might contain incuplatory evidence and other incriminating messages, calls, and photos.

On 30 April 2014

, a n Article 32, UCMJ, preliminary hearing was held regarding the allegations against the appellant. 1stLt I again presented the screenshot images of the tex t messages as evidence. During the hearing, 1stLt I was informed by her senior defense counsel of the government’s intention to obtain a CASS for the phone. After the hearing, 1stLt I passed the phone to her assistant counsel, 1stLt F.

1stLt F connected t he powered

- on phone to his government computer and transferred data from the phone to his computer. For unknown reasons, theUnited States v. Betancourt , No. 201500400

6 phone was also removed from its case. It was then stored in 1stLt F’s locked
desk drawer. The case, the charger

, and the spare batt ery were placed in a separate desk drawer containing 1stLt F’s personal items.

On 1 May 2014

, the lead CID agent presented an affidavit requesting a search of “[t]he Defense Section, Legal Service Support Section located on the second floor of Building [X] , MCB CPC, and/or the possession of defense trial counsels identified as [1stLt I] or [1stLt F]” and “[t]he personal Android cellular telepho ne belonging to [the appellant] ” to the 22 Area Commander. 8 Based on the affidavit and other discussion s the Area C ommander
determined that probable cause existed to believe that the appellant’s phone contained evidence of his criminal activity. He then generally reduced this determination to writing in a CASS authorizing the search

. Sensitive to the potential issues involved in a search of defense counsel offices, the Area Co m mander also contacted the Legal Services Support
Section

– West (LSSS) Officer

- in

- Charge (OIC) to discuss the search. The
LSSS OIC then discussed with the senior trial counsel (STC) the possibility of a preservation order pending judicial involvement post

- referral of charges. The STC advised that a preservation order would be insufficient if the phone

was remotely accessed when powered on. He also expressed concern that the phone might be returned t o a friend of the appellant and, thereby, lost to the government.
That same evening, 1stLt F took the phone out of his office with the intention of returning the phone to the appellant’s SNCOIC, who first provided the phone to the defense counsel. The SNC OIC was then to return the phone to Ms. HK, the appellant’s then

- girlfriend. However, instead of delivering the phone to the SNCOIC or Ms. HK , 1stLt F returned it to his
office

.
T hat evening and the next day, the LSSS OIC, the STC, the senior
defense couns el, and the Marine Corps Chief Defe nse Counsel discussed the potential search of the defense spaces

, including the primary concern that professional rules prevented 1stLt I and 1stLt F from returning the phone voluntarily. As a result of these discussions, the STC decided against using
search procedures that would protect attorney

- client privileged materials

, because he believed the search would not require review of documents within
the defense counsel ’ s offices. 9 Instead, the STC and LSSS OIC agreed to o t her

8 Appellate Exhibit (AE) XIII at 51.

9 This was a belief partially perpetuated by the senior defense counsel’s assertion that violation of the privileg e wasn’t a primary concern in turning over the phone to government agents.United States v. Betancourt , No. 201500400

7 safeguards

, including video record ing the search and conducting the search in the presence of the defense counsel. T he LSSS OIC was not aware that the
CASS also authorized searching defense counsel offices besides those of 1stLt
I and 1stLt F.

On 2 May 2014, the STC met with CID agents at the LSSS offices in preparation for the search. The STC escorted the four agents

– three searchers and one videographer

– upstairs t o the defense offices

, where they requested
the senior defense counsel produce the appella nt’s phone. The senior defense counsel politely declined. The CID agents then began their search in 1stLt I’s office before moving on to 1stLt F’s office. The agents were professional but extremely thorough, searching through desk drawers, file cabinets, l ockers

, garbage cans, and ceiling tiles. The agents opened case files, but quickly flipped through the files without pausing to read documents within the files. Two additional law enforcement officers secured the spaces prohibiting personnel from leaving d uring the search.

In 1stLt F’s office, the agents discovered a phone matching the description of the appellant’s phone in a desk drawer. In a separate drawer, the agents found a blue and white phone case, a phone charger, and a spare battery.
1stLt F decli ned to identify the phone

, claiming privilege, and the agents seized the phone and accessories.

After searching 1stLt F’s office, the agents continued to search the defense spaces including the offices of five other defense counsel who were
not connected to the appellant’s case. In all, the search took around two hours to complete.

Two week s a fter the phone was seized from 1stLt F’s o ffice , a CID agent made a forensic copy of every file in the a ppellant’s phone and provided it to a special taint review of ficer appointed by the LSSS OIC

. T he taint review officer “reviewed all the data from the cell phone,” but only did so to identify attorney

- client “privileged information” contained therein

. 10 The officer found

no privileged material in his review.

The age nt then review ed the forensic cop y for relevant data and
discovered digital photographs related to the appellant’s membership in the criminal motorcycle gang i n the “images ” folder

. S everal of these photographs
were admitted into evidence. 11 The forensic ag ent a lso identified several photo graphs in th e “images” folder suggest ing the appellant’s participation in drug use and drug distribution

, 12 including one of a “[w]hite powdery

10 AE XIV at 75.

11 R ecord at 1193; P E 14

.

12 Record at 1195

- 96; PE 16.United States v. Betancourt , No. 201500400

8 substance next to some money and a box cutter

, ” 13 and photos of the appellant wit h Ms. MR. 14 Subsequent l ab analysis of the blue and white phone case revealed cocaine residue.

In the fallout from the search, the CID agents involved were ordered to secure the video recording of the search and to not disclose any information regarding th e search until directed to do so by a military judge. The lead CID agents were removed from further action on the case. The LSSS OIC directed a taint review, including a review of the video recording, by an independent investigating officer. The STC was re moved from his position

, and the trial
counsel was disqualified from any involvement in the appellant’s case. Two new trial counsel and new CID investigators were assigned to the case from a Marine Complex Trial Team, a separate chain of command from the L egal Support Services Team led by the STC

. Upon motion from the government, the military judge disqualified 1stLt I and 1stLt F from further representation of the appellant because of a likely conflict of interest and because they had become necessary witn esses at trial.

At trial, the appellant pleaded guilty to violating general orders prohibiting participation in criminal gangs and racist tattoo s ; use of cocaine and possession of cocaine and methamphetamines with the intent to distribute; larceny of BAH a nd falsifying a form to e ffect that larceny; forging false orders to break a residential lease; and conspiracy to assault and assault and battery of his romantic rival. He also pleaded guilty to falsifying a brig visitation roster to indicate that Ms. HK, his new girlfriend, was a family member.

T he appellant pleaded not guilty to the offenses related to the assault of Ms. MR. The members convicted the appellant of aggravated sexual contact for grabbing Ms. MR’s vaginal area with physical strength or violen ce sufficient to overcome, restrain

, or injure her and assault consummated by battery for strangling Ms. MR with his hands.

II. D ISCUSSION
A. Search of the appellant’s cell phone
“[N]o Warrants shall issue, but upon probable cause, supported by Oath
or af firmation , and particularly describing the place to be searched and the persons or things to be seized. ” U.S. C ONST

. amend

. IV

. Evidence obtained in violation of the Fourth Amendment is generally inadmissible. M IL

. R

. E VID

. 311

. “ We review a military judge ’s ruling on a motion to suppress evidence for

13 R ecord at 1195

- 96.

14 R ecord at 1194; P E 15.United States v. Betancourt , No. 201500400

9 an abuse of discretion, viewing the evidence in the light most favorable to the party prevailing below. ” United States v. Hoffman , 75 M.J. 120, 124 (C.A.A.F. 2016). We review the military judge’s findings of f act for clear error and
conclusions of law de novo. Id.

At trial, t he military judge denied the appellant’s motion to suppress the
results of the search for

, and of

, the appellant’s phone. 15 The appellant argues that the military judge abused her discretio n because: (1) the “search of the cell phone data was illegal because the CASS did not authorize it to be searched;” and, 2) even if it authorized a search, the CASS was overbroad “because it did not contain any search protocols, nor did it list with parti cularity the places to search on [the appellant’s] cell phone [

. ] ” 16
1. Did the CASS authorize a search of the cell phone’s content s ?

The CASS provide d that “there is reason to believe that on the person of and/or on the premises known as” 1stLt I and 1stLt F and the defense
counsel offices , “[t]here is now being concealed certain property,” the appellant’s “personal cellular telephone,” and that the CID a gent is “hereby authorized to search the person and/or place named for the property specified
and if the property is found to seize it.” 17
The appellant now argues that because the CASS authorize d seizing the phone but did not directly address searching the contents of the phone, any evidence discovered on the phone

— namely photographs and text messages

— must b e suppressed. We disagree.

First, we acknowledge the “unremarkable” conclusion that “cell phones may not be searched without probable cause and a warrant unless the search and seizure falls within one of the recognized exceptions to the warrant requirement .” United States v. Wicks , 73 M.J. 93, 97

- 99 (C.A.A.F. 2014) (citations omitted) (suppressing evidence obtained from a cell phone where the “Government proceeded without a warrant or search authorization” to

15 AE CLXXIV at 17.

16 Appellant’s B rief of 29 Jul 2016 at 34. The a ppellant also argues that the military judge “failed to address the search of [ the appellant’s ] cell phone data ” in her ruling. Id. We disagree, given that under the heading “conclusions of law,” the military judge stated that the search authority “autho ri zed two searches,” one of the defense spaces for the phone, and one of the phone “to obtain the evidence of the alleged offenses.” AE CLXXIV at 13

- 14. “Where a finding of fact is included under the heading of conclusions of law it will be treated as a fact ual finding.” Utzinger v. United State s, 432 F.2d 485, 489 (6th Cir. 1970) (citation omitted). In light of the lead CID agent’s affidavit, discussed infra , these findings of fact are not clearly erroneous.

17 AE XIII at 64.United States v. Betancourt , No. 201500400

10 execute three searches of the contents of the ce ll phone, including “over 45,000 text messages”).

Modern cell phones are a door to a house with an infinite number of rooms, and those rooms can be filled with all of the most personal markers of our private lives. There are few places so desirous of prot ection from government intrusion. As a result

, we find that the agents in this case were required to seek authorization to search based on probable cause before searching the contents of the appellant’s cell phone. However, i n reviewing the scope of a sear ch authorization that was reduced to writing, we are not constrained to the four corners of that writing. We may also rely on affidavits, attachments, and testimony to discern the intent of those seeking and granting the authorization and to establish the bounds of probable cause. 18

This is similar to the approach taken by our sister court in United States
v. Richards , No. 38346, 2016 CCA LEXIS 285

, unpublished op. (A.F. Ct. Crim. App. 2 May 2016), rev. granted

, 76 M.J. 45 (C.A.A.F. 2016). 19 In
Richards

, the Air Force Court of Criminal Appeals (AFCCA) rejected Richards’ argument that, because the search authorization only broadly listed his residence as subject to search and electronic media devices as the items to be seized, the investigators did not have au thorization to search the
contents of the seized devices. Id

. at *44

- 45. The AFCCA noted that “the affidavit accompanying the written search authorization” and “[t]estimony from [investigative] agents at trial makes clear they were seeking
authorization to search the devices, not just seize them.” Id . (internal quotation mark s omitted). 20
Here, the lead CID agent twice requested authority to search the appellant’s “personal Android

. . . cellular telephone,” once in the body and once on the cover sheet (sig ned by the search authority on both the front and

18 See United States v. Allen , 53 M.J. 402, 404, 407

- 08 (C.A.A.F. 2000) (noting that where a “warrant

. . . authorized only a search of appellant’s residence” for child pornography, the information in the investigator’s affidavit nevertheless also justified a search of the digital content s of the “appellant’s computer equipment and associated materials”).

19 Richards is pending review by the Court of Appeals for the Armed Forces only as to whether the “search authorization was overbroad in failing to limit the dates of
the communications b eing searched,” and as to whether the Court of Criminal Appeals panel that heard Richards’ case was “improperly constituted.”

20 See also United States v. Eppes , No. 38881, unpublished op., 2017 CCA LEXIS 152, at *15 (A.F. Ct. Crim. App. 21 Feb 2017) (“[B] a sed on the facts developed by the military judge, we are satisfied the intent of the warrant was to authorize the examination of computer hardware seized

. . . .”).United States v. Betancourt , No. 201500400

11 back page ) of the “Affidavit In Support Of Application For Search
Authorization.” 21 The cov er sheet cites the lead agent’s :

Belie[f] that there is now being concealed certain property, namely:

. . . . Electr onic media, communications, and data files pertaining to the kidnapping, assault, and sexual assault of [Ms. MR]; defrauding the U.S. Marine Corps; sale and use of illegal drugs; affiliation with an Outlaw Motorcycle Gang; and possessing a swastika tattoo on [the appellant’s] abdomen. 22

The Area Commander then signed the search authorization prepared by the lead agent. Based on this, w e find that the Area Commander intended to
authorize the requested search of the contents of the appellant’s cell phone

once it was seized

. 2. Was the CASS over broad ?

The appellant next argues that the search of his cell phone ’s content s was overly broad because it neither “list[ed] with particularity the places to
search on [ the ] cell phone,” nor contained “search protocols.” 23 We review de

novo a claim that a search “ authorization was overly broad” such that it “result[ed] in a general search prohibited by the Fourth Amendment.” United
States v. Eppes , 2017 CCA LEXIS 152, at *1 3 (A.F, Ct. Crim. App 21 Feb 2017) (citing United St ates v. Maxwell , 45 M.J. 406, 420 (C.A.A.F. 1996)). 24 “[W]e examine both the warrant and the supporting affidavit to determine
whether the search identifies the crimes committed and the items which

21 AE XIII at 51; 62

- 63

.

22 Id

. at 51.

23 Appellant’s B rief at 34. Even t hough limit s to the l ocation to be searched may be described as search “protocol s ,” the appellant also raises other concerns (e.g. “[t]o what degree the search and analysis is done by automation, computer software, or actual agents; [h]ow it will determine what types of files, or the files themselves, that fall within the ambit of the probable cause”) related to the methods used to conduct the search. Id. at 37. As a result, we address the question of over

- breadth in the locations to be searched, separately from the issue of ot her search protocols

.

24 At trial, t he appellant did not directly allege that the search of the cell phone was overly broad because it failed to specifically list the places to be searched

— the

over

- breadth claim at trial was that the search of the defense c ounsel spaces was overly broad. AE XVII at 8

- 9. However, in claiming that the CASS was “not based on probable cause,” trial defense counsel averred that there was no “reason to believe that other text messages or pictures” besides the messages between the appellant and Ms. MR the day of the alleged assault, “would be included on the phone.” Id. at 8. As this argument implie s that a search of the phone’s pictures w as overly broad, we find that t he appellant did not forfeit the over

- breadth argument as to the places to be searched on the cell phone

.United States v. Betancourt , No. 201500400

12 could be evidence of those crimes.” Id. at *15 (citing Unit ed States v.
Martinelli , 454 F.3d 1300, 1308 (11th Cir. 2006))

. a. Failure to limit the search to particular places on the cell phone

The appellant asserts that the examination of the forensic copy of his cell phone

— a copy that included “every text message , email, Facebook chat, instant message, picture, video, and web

- browsing history” accessed on the appellant’s phone

— exceeded the scope of the search authorization and was therefore overly broad in that it “exceeded the Government’s probable cause for [the appellant’s] suspected offenses

. ” 25
The appellant’s argument is supported, in part, by some civilian courts that have suggested the Fourth Amendment’s “particularity” la nguage requires search warrant s to specify how the government will determine
which loc ations in a cell phone ma y be searched for data. 26 However, the Court of Appeals for the Armed Forces ( CAAF ) has not enforce d a similar prophylactic r equirement for all military search authorizations of electronic media. Instead, particularity in the search authorization must be determined

on a case

- by

- case basis.

In some rare and unique cases, probable cause c ould support a search of
one’s entire cell phone . In these cases, the search authorization would need only list a description of the cell phone witho ut any greater specificity. But i n most cases, probable cause would permit a search of only some divisions of the phone’s storage , and the search authorization would need to be tailored accordingly. However, once again we may rely on the ancillary document s, affidavits, and attachments to determine where probable cause has placed
natural limits o n the scope of the authorization , limit ing the search authority
to those places on the phone that were reasonably implicated by probable

cause

. In other words, an a uthorization to search digital media like cell phone data, meets constitutional particularity requirements when the areas to be

25 Appellant’s B rief at 40

- 41.

26 See In re The Search of Premises Known as: A Nextel Cellular Tel. with Belonging to & Seized from , 2014 U.S. Dist. LEXIS 88215, at *37, 41 (D. Kan. Jun. 26, 2014) (“[P]robable cause to believe drug trafficking communication may be found in [the phone’s] mail application will not support the search of the phone’s Angry Birds application.”). But see United States v. Burgess , 576 F.3d 1078, 1093

- 94 (10th Cir. 2009) (noting that “[i]t is unrealistic to expect a warrant to prospectively restrict the scope of a search” of files “by directory,” as “[o]ne would not

. . . expect a warrant
to

. . . prospectively restrict the search to

. . . ‘file folders labeled ‘Meth Lab’ or ‘Customers’”).United States v. Betancourt , No. 201500400

13 searched are “clearly related to the information constituting probable cause.”
Allen , 53 M.J. at 408. 27

Here, the affidavit list ed the crimes about which the lead agent sought to
discover evidence. 28 The lead agent’s affidavit also stated that Ms. MR provided digital images to CID of the appellant wearing gang clothing and symbols, leading the agent to believe the cell phone would h ave evidence of the appellant’s gang involvement. 29 The lead agent further averred th at based on her training and experience she expected that “person(s) associated with the use and sale of illegal drugs typically negotiate prices, set up meetings to conduc t buys, and exchange photographs and/or videos of products,” and that those in “gang affiliated activities communicate regularly via cellular telephone, exchange messages, photographs and videos.” 30 The affidavit further provided that the appellant tested p ositive for cocaine in a command urinalysis and that Ms. MR reported having “seen [the appellant] possessing and using cocaine and crystal methamphetamine,” and “weighing and packaging the illegal drugs in preparation to sell them [

. ] ” 31 This supported the l ead agent ’s assertion to the search authority that there was “probable cause to believe evidence of his use, possession, manufacture or sale of illegal drugs [was] contained on his cellular telephone.” 32

We find that the search authorization was n ot unconst itutionally
overbroad

. The affidavit’s description of potential drug, gang, sexual assault, and kidnapping charges served to focus the investigatory effort. The affidavit

27 In Allen , the CAAF held that a warrant which stated in its supporting affidavit that a search for child pornography on Allen’s “digitally stored files on computer disks or hard drives,” without otherwise listing specific locations on the drives, was “not gen eral or overbroad.” Id. at 407

- 08. Similarly, in Richards the AFCCA held that a broad search of digital copies of Richards’ electronic devices was “not constitutionally overbroad.” 2016 CCA LEXIS 285, at *49, 59. Even though the child victim’s statements t o investigators did not say that Richards had “shared pictures or videos” in their online chats, a search of the pictures folder in Richards’ devices did not exceed the scope of the search authorization. Id. at *57, 60 (noting that although the “choice to first search the ‘pictures’ folder might not have been the most logical place to find

. . . evidence

. . . it was not an unreasonable place” to search).

28 AE XIII at 51 (“[T] he request for authorization to search and seize is made in
connection with an inv estigation into the offense(s) of: Article 92, UCMJ

— Failure to obey order or regulation, Article 120

— Sexual Assault, Article 128

— Assault, Article
132

— Frauds against the United States, and Article 134

– Kidnapping.” ).

29 Id. at 56, 62.

30 Id. at 52, 58

- 59.

31 Id

. at 56, 61

32 Id. at 62

.United States v. Betancourt , No. 201500400

14 provided a substantial basis for probable cause to suspect that the appellant
distrib uted illegal drugs and was a gang member. It then linked those behaviors to cell phone usage. Since the identified locations on the phone to be view ed

— e.g., contacts, photos, videos, and messages

— were, per Allen

, “related to the information constituting pr obable cause,” 53 M.J. at 408, the
authorization provided sufficient limits to deter government “rummaging ” through the phone in areas where evidence of a crime might not reasonably
be located. 33 As a result, the authorization was not general or overbroad

. Finally, even if the government exceeded the scope of its authorization when it created a forensic copy of the entire contents of the phone, including the analytical data, we find no prejudice under these circumstances in which the only evidence discovered on the phone was found in those areas included in the authorization’s probable cause

, and the intrusion into other areas appeared

— from the meager record provided

— to be superficial. 34
b. Failure to specify search protocols

For the first time, t he appellant argues that the failure to specify search protocols makes the CASS unconstitutionally overbroad. 35 Where a “different basis was raised in [the] suppression motion at trial” than on appeal, we
review for “ plain error.” United States v. Garcia , 57 M.J. 716, 7 18

- 19 (N

- M. Ct. Crim. App. 2002) (citing United States v. Musa , 45 F.3d 922, 924 (5th Cir. 1995)). As the appellant did not argue at trial that the images should be suppressed for failure to follow particular search protocols, we review for plain error.

To show plain error, the appellant must persuade this court that: “‘(1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.’” United States v. Tunstall, 72 M.J. 191, 194 (C.A.A.F. 2 013) (quoting United States v.
Girouard , 70 M.J. 5, 11 (C.A.A.F. 2011)). The plain error doctrine is “to be used sparingly, solely in those circumstances in which a miscarriage of justice
would otherwise result.” United States v. Causey , 37 M.J. 308, 311 ( C.M.A. 1993) (citations and internal quotation marks omitted). “ ‘ Plain’ is synonymous

33 Appellant’s Brief at 33 (citing Coolidge v. New Hampshire , 403 U.S. 443, 467 (1971)).

34 See United States v. Blakeney , 942 F.2d 1001, 1026

- 27 (6th Cir. 1991) (holding that even where a portion of a warrant impermissibly used the overbroad, “generic term ‘jewelry,’” this did “not require suppression of all of the items seized pursuant to the warrant,” only of any “jewelry seized pursuant to the overbroad portion of the search warrant”

— and since none of this jewelry was introduced i nto evidence, “Blakeney was not prejudiced by the defect in the warrant”).

35 Appellant’s B rief at 37.United States v. Betancourt , No. 201500400

15 with ‘ clear ’ or, equivalently ‘ obvious[,] ’ ” and any plain error “must be so ‘under current law.’” United States v. DeMerse , 37 M.J. 488, 491 (C.M.A. 1993) (first alteratio n in original ) (ci tation omitted).

While the use of search protocols may be valuable in guiding investigators

, protecting suspects , and educating courts , we are not aware of any authority from our superior court requiring the use of such search protocols in all cases involving the search of electronic media . In light of judicial divergence as to their necessity, 36 we thus decline to find the absence of search protocols in this case to be plain or obvious error. We will not assign to the military judge a res ponsibility to foresee requirements that we have yet to anticipate

. B. Unlawful c ommand i nflu ence

“ Congress and this court are concerned not only with eliminating actual unlawful command influence, but also with ‘eliminating even the appearance
of unlawf

ul command influence at courts

- martial.’” United States v. Lewis , 63 M.J. 405, 415 (C.A.A.F. 2006) (quoting United States v. Rosser , 6 M.J. 267, 271 (C.M.A. 1979)).

The defense has the burden of raising the issue of actual or apparent
unlawful command infl uence. United States v. Reed , 65 M.J. 487, 488 (C.A.A.F. 2008) (citing United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)). On appeal the appellant must present “some evidence” of unlawful command influence, showing (1) “facts which, if true, const itute unlawful command influence,” (2) “the proceedings were unfair,” and (3) “unlawful
command influence was the cause of the unfairness.” Biagase , 50 M.J. at 150 (citations omitted).

“The test for actual unlawful command influence is, figuratively

spea king, ‘whether the convening authority has been brought into the
deliberation room.’” United States v. Allen , 31 M.J. 572, 590 (N

- M.C.M.R. 1990) (quoting United States v. Grady , 15 M.J. 275 (C.M.A. 1982)).

The test for apparent unlawful command influence is objective. “We focus upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public.” Lewis , 63 M.J. at 415. An appearance of unlawful command influence arises “where an objective, disinter ested observer, fully informed of all the facts and

36 Compare Burgess , 576 F.3d at 1093

- 94 (criticizing imposition of “filename or extension”

— i.e. file type

— protocols) with United States v. Comprehensive Dr ug Testing, Inc. , 579 F.3d 989, 1006 (9th Cir. 2009) (en banc) (“The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.”).United States v. Betancourt , No. 201500400

16 circumstances, would harbor a significant doubt about the fairness of the proceeding.” Id

. Once some evidence has raised the specter of unlawful command influence, “ the government bears the burden of prov ing beyond a reasonable doubt that either the predicate facts proffered by the appellant do not exist, or the facts as presented do not constitute unlawful command influence. ’” United States v. Boyce , __ M.J. __, No. 16

- 0546

, 2017 CAAF LEXIS 494 at *1 6 (C. A.A.F. May 22, 2017) ( ci ting United States v. Salyer , 72 M.J. 72 M.J. 415, 423 (C.A.A.F. 2013) ) . If the government cannot meet this initial burden, then the government must prove beyond a reasonable doubt “that the unlawful command influence did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would [ not ] harbor a significant doubt about the fairness of the proceeding. ” Id . at *1 6

- 17 (citations and internal quotation mark s omitted ) ( alteration in original ).

‘ “Where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly

erroneous standard, b ut the question of command influence flowing from those facts is a question of law that [the] Court reviews de novo .” ’ Reed , 65 M.J. at 488 (C.A.A.F. 2008) (quoting United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994)).

At his court

- martial, the appe llant made a timely motion to dismiss the charges and specifications on the grounds of unlawful command influence. The military judge determined that the defense presented no evidence of
actual unlawful command influence, concluding: “ The actions of the C ID investigators, trial counsel and area commander in this case were not an effort to influence the outcome of the [appellant’s] court

- martial. ” 37
However, the military judge did find some evidence supporting apparent unlawful command influence, namely that the search for the phone extended into the offices of defense counsel with no involvement in the appellant’s case. Having shifted the burden, the military judge then found the government

met its burden and denied the defense motion.

The appellant now asse rts that the appearance of unlawful command influence directly affected the findings and sentence in that “the Government still used evidence seized from [the appellant’s] phone at trial

, ” 38 and the

37 AE CLXXI I at 14. Of note, the c ommander who authorized the search, the 22 Area , Area Commander, was neither the convening authority nor the appellant’s
command ing officer

.

38 Appellant’s Brief at 55.United States v. Betancourt , No. 201500400

17 search led to 1stLt I’s and 1stLt F’s disqualification as defense counsel and

an order for them to testify.

We agree that the appellant has raised some evidence of apparent
unlawful command influence . N onetheless, we are convinced beyond reasonable doubt that an objective, disinterested observer, fully informed o f all the facts and circumstances, would not harbor a significant doubt as t o the fairness of the appellant’ s court

- martial, to include the findings and the adjudged sentence.

First, the government took significant corrective action after the search to
li mit disclosure of any information obtained by CID agents during the search. This included removing the STC, the trial counsel

, and the investigators from further involvement with the investigation or court

- martial. New ly assigned trial counsel and investig ators were not part of the Legal Support Services
Team but from the separate Complex Trial Team

. The video recording of the search was secured by order until a special investigating officer was appointed to review it for potential leakage of privileged inf ormation

. Subsequently, t he recording was sealed by the military judge who reviewed it
in camera

. Second, as discussed supra , the phone and its contents were seized pursuant to a valid search authorization. Therefore its contents, while both helpful and h armful to the appellant ’s cause , did not unfairly affect the findings or sentence. Likewise, 1stLt I and 1stLt F were disqualified as defense counsel and ordered to testify as a result of their possession of the phone, not as a result of the manner in whic h the phone was ultimately acquired by the government. Had the government obtained the phone by more ordinary means, 1stLt I and 1stLt F may still have been necessary witnesses as to the chain of custody of the phone and the phone case. Similarly, the even tual conflict of interest between 1stLt I, 1stLt F

, and the appellant was not born of the search

, but of defense counsels’ possession of the phone preceding the search. In that regard, the search was immaterial to the matter of whether to disqualify either defense counsel.

Finally, the best indicator of the lack of apparent unlawful command influence is the fact that the appellant was wholly or partially acquitted of many of the most serious offenses related to the attack on Ms. MR. To the
extent the text m essages between the appellant and Ms. MR weighed upon the members, they did not prevent them from finding the appellant not guilty of assaulting Ms. MR with a dangerous weapon, assaulting her with an intent or a means likely to cause grievous bodily harm, and communicating threats to her and her daughter.United States v. Betancourt , No. 201500400

18 For these reasons, we are convinced beyond reasonable doubt that the appellant’s trial was untainted by the appearance of unlawful command
influence.

C. Prosecutorial m isconduct

Prosecutorial misconduct o ccurs when a prosecutor “‘oversteps the bounds of propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.’” United States v. Fletcher , 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting Berger v. Uni ted States , 295 U.S. 78, 84 (1935)). “Prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g. , a constitutional provision, a statute, a Manual rule, or an applicable professi onal ethics canon.” United States v. Meek , 44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger , 295 U.S. at 88) (additional citation omitted).

When an appellant objects to alleged prosecutorial misconduct at trial, we review for prejudicial error. United States v. Hornback , 73 M.J. 155, 159 (C.A.A.F. 2014). We will accep t the military judge’s findings of fact unless the findings are clearly erroneous.

Here, the appellant made a timely motion alleging that the action s or inaction of the STC related to the search of the defense offices amounted to prosecutorial misconduct. In denying the appellant’s motion, the military judge found:

Although [the STC] was aware of the Air Force JAG memorandum concerning searches of defense counsel offices and other procedures usually put in place for such types of searches, he did not think that they applied to this situation because the evidence being sought was not a document and the search would not require the review of any documents in an attorney’s office. 39

T he appellant as serts that the STC 40 committed prosecutorial
misconduct when he supervised the search of defense offices without first implementing safeguards to minimize exposure to attorney work product and

39 AE CLXXVII at 7

- 8.

40 In his brief, the appellant alleges that “ the Government committed prosecutorial misconduct when it executed an overly

- expansive search of the defense

spaces [

. ] ” Appellant’s Brief at 59. Under the facts of this case, we decline to paint all possible government actors as de facto prosecutors, and i nstead, focus our analysis on the actions or inactions of the STC, in line with the allegation as litigated by the trial defense counsel, analyzed by the military judge, and focused on during oral argument

.United States v. Betancourt , No. 201500400

19 privileged communications as discussed in United States v. Calho un , 49 M.J. 485 (C.A.A.F. 1998) and utilized in other jurisdictions

. 41
As highlighted by the appellant, t hese precautions include: consideration
for obtaining the desired information from other sources or through the use of subpoena; conducting the search pursuant to a valid warrant issued by a military magistrate or a search authorization directed by a commander not serving as the convening authority ; issuing warrants or authorizations tailored as narrowly as possible; e nsuring that only independent perso nnel

are involved in searching the counsel’s office an d reviewing the materials
taken , and that those personnel are provided instructions designed to minimize the intrusion into privileged materials ; p roviding copies of seized records to the subject counse l so that disruption of the counsel’s practice is minimized and the counsel is afforded an opportunity to participate in the process of disputing determinations of privilege ; and d irecting personnel conducting the search not to disclose information about t he search to prosecutors or investigators until instructed to do so by proper authority

. 42

This non

- exhaustive list of safeguards utilized by U.S. Attorney’s offices and, in part, tacitly endorsed by the CAAF in Calhoun , provide s an excellent
framework for future searches of opposing counsel offices

– a rare event inherently fraught with potential for error. These or similar procedures may also assist in satisfying the requirements of the Navy Judge Advocate General Instruction 5803.1E, Professional Conduct of Attorneys Practicing under the Cognizance and Supervision of the Judge Advocate General (JAG PR) , Enclosure (1), Rule 3.8 b (20 Jan 2015)

, which provides that :

[T]rial counsel and other government counsel shall exercise reasonable care to avoid intercepti ng, seizing, copying, viewing, or listening to communications protected by the attorney

- client privilege during investigation of a suspected offense (particularly when conducting government

- sanctioned searches where attorney

- client privileged communication s may be present), as well as in the preparation or prosecution of a case.

However, we decline to hold that these specific procedures rose to the level of a legal norm or standard at the time of the search of the defense

spaces. As a result, we do not find the failure to utilize thes e or similar

41 The appellant relies here on Chapter Nine of th e U.S. Attorney’s Manual. Appellant’s Brief at 58

- 60.

42 Calhoun , 49 M.J. at 488; United States Department of Justice, U.S. Attorney’s Manual, Title 9

- 13.420, Searches of Premises of Subject Attorneys, https://www.justice.gov/usam/usam

- 9

- 13000

- obtaining

- ev idence#9

- 13.420 , (last visited 28 May 2017).United States v. Betancourt , No. 201500400

20 precautions resulted in prosecutorial misconduct. Still, based on the cautionary tale of this case, prosecutors should ensure that specially tailored safeguards

, like those used in Calhoun

, are prophylactically appl ied in all
future cases in which they are participants in the planning and execution of a search of opposing counsel ’ s spaces.

E ven if the failure to apply these safeguards before the search amounted to misconduct on the part of the STC, we find no prejudi ce. In assessing for prejudice, we look at the cumulative impact o f any
misconduct on the appellant ’s substantial rights and the fairness of his trial by balancing “ three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the mi sconduct, and (3) the weight of the evidence supporting the conviction. ” Fletcher , 62 M.J. at 184. Prosecutorial misconduct requires reversal when the trial counsel’ s behavior, taken as a whole, was “so damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.” Id

.
1. Severity of the misconduct

While the STC maintained supervisory responsibility for the trial counsel
in his Legal Services Support Team , he was not specifically detailed to the appellant’s c ase. Despite this, he was regularly involved in discussing case matters with the detailed trial counsel, and once the possibility of the search of the defense offices became more likely, he also engaged his counterpart, the senior defense counsel, in sever al discussions designed to “reach mutually agreeable terms on relinquishing [the phone] to the government.” 43
After compromise failed, the STC received concurrence from his supervisory attorney and the LSSS OIC that a CASS should be executed. He
then contac ted CID and arranged for them to search the spaces as soon as defense counsel were present. He also reviewed the CASS and affidavit for legal sufficiency.

When CID arrived at the defense offices, the STC briefed th em on the
conduct of the search: “I told t hem that they should execute their search according to the highest standards of their protocols for conducting a search. I told them that the conduct of this search would be highly scrutinized. I ensured they had a video recorder to document the search its elf.” 44 He did not provide the searchers any additional specific protocol on conducting the search. He provide d the searchers no guidance in writing.

43 AE XIV at 59.

44 Id. at 61.United States v. Betancourt , No. 201500400

21 During the search, the STC entered the defense offices three times; once
to inform the senior defense coun sel of the search, once to determine whether personnel would be permitted to leave the spaces during the search, and once to carry out an administrative function unrelated to the search. The STC did not supervise the CID agents ’ conduct of the search, obse rve their search techniques, or provide advic e to the agents during the course of the search

. After wards , the STC was briefed by the CID agents and was informed that the agents had seized a phone, a case, a charger

, and a spare battery. The agents did not disclose any other information to him. The STC asserts that he instructed the agents to secure the evidence and the video recording of the search from examination and to not discuss anything they observed until they were provided further guidance.

This wa s the sum total of the STC’s involvement in the search of the
defense offices. While the search of the other defense counsels’ offices

– those with no direct connection to the appellant

– raises the specter of unlawful
command influence and demands greater scr utiny of each affected case, the STC’s involvement in those parts of the search were still tangential. Additionally, while his failure to enforce more rigorous taint procedures
before the search were not best practice s , this did not rise to the level of

se vere misconduct under the circumstances of this case.

2. Measures adopted to cure the misconduct

Furthermore, any inaction on the part of the STC prior to the search we re offset by the robust measures taken to preserve any potential leakage of privileged inf

ormation undertaken immediately after the search ended.

As discussed above, the searchers were ordered to secure the video recording and not disc uss the search until directed to do so

. The LSSS OIC directed a taint review of the video recording. The CID a gents assigned, including the lead agent, were removed from the case. The STC was removed from his position

, and the trial counsel was removed from the appellant’s case. Two new trial counsel and new CID investigators from different chains
of command were assigned to the case.

3. Weight of the evidence supporting the conviction

Finally, after weighing the evidence supporting the appellant’s conviction for aggravated sexual contact and assault consummated by battery, including the cell phone tower analysis plac ing the appellant in the area of Ms. MR’s home, the medical evidence of Ms. MR’s vulvar hematoma, the bruising on her neck consistent with strangling, and the contents of the 9

- 1

- 1 phone call, and recognizing that we did not see or hear the witnesses, this court is convinced of the appellant’s guilt beyond a reasonable doubt.United States v. Betancourt , No. 201500400

22 For these reasons, even were we to determine that the STC’s action s or inaction related to the search rose to the level of misconduct, we find no prejudicial error

. D. Disqualification of d efense c ounsel

The appellant argues he was denied his Sixth Amendment right to counsel when the military judge disqualified 1stLt I and 1stLt F from further participation as the appellant’s defense counsel

. Prior to court

- martial assembly, the govern ment moved to disqualify both
defense counsel asserting that they were potential witnesses at trial based on their possession of the appellant’s cell phone during the month preceding the
search of the defense offices. The government alleged that counsel ’ s testimony was necessary to account for the deletion of text messages and gang member contact information from the phone

— evidence of the appellant’s guilty mind

— and to discount sources of cocaine residue on the phone’s case other than the appellant. This ra ised both a conflict of interest issue and a concern over defense counsel operating as unsworn witnesses.

To ameliorate these concerns, the military judge sought from the appellant a waiver of any conflict, identifying the conflict as the foreclosure of

p ossible defenses by the appellant should he choose to implicate his counsel
in deleting potentially incriminating matters from his phone or in cross

contaminat ing his phone with cocaine from another source inside 1stLt I’s or 1stLt F ’s desk drawers. After speaking with conflict

- free counsel, the appellant asserted that he understood the nature of the conflict and waived the right to conflict

- free counsel. 45

The military judge also encouraged the parties to stipulate to defense
counsel ’ s testimony regarding t heir possession of the appellant’s phone

, resolving a possible violation of JAG PR Rule 3.7 that generally prohibits counsel from appearing as a witness on a contested matter

. After the parties failed to reach a stipulation, the military judge disqualifie d counsel, finding that defense counsel ’ s reluctance to stipulate may have evidenced a desire to limit their own exposure under the JAG PR rules. If so, then the conflict of interest “likely ran deeper than [the appellant] understood and knowingly waived.” 46 She also found that 1stLt I and 1stLt F

45 We highlight United States v. Hale

, ___ M.J. ___, No. 201600015, 2017 CCA LEXIS 364, at *42

- 43 ( N

- M. Ct. Crim. App. 31 May 2017)

, demonstrating the difficulties that may arise

— unli ke here

— when the military judge for whatever reason is unable to identify possible conflicts of interest, inquire into the nature of
th ose conflicts, and resolve them, if necessary, through waiver or disqualification.

46 AE CLXXVIII at 18.United States v. Betancourt , No. 201500400

23 would be the only sources of information concerning the handling of the phone and would thus be necessary witnesses on a potentially contested issue
at trial.

The appellant was detailed two new counsel, a Marine C orps major and a captain, who represented the appellant during the rest of the motions hearings, through his pleas, on the merits, and during sentencing proceedings. During the contested portion of trial, 1stLt I and 1stLt F were called to testify

, denied deleting any text messages from the phone, and denied placing the phone in a location in which it might come into contact
with coca ine. This testimony, when taken in concert with the lab’s identification of cocaine residue on the phone’s case

, corroborated Ms. MR ’s
claim that the appellant regularly kept cocaine hidden between his phone and its case. 1stLt I’s and 1stLt F’s testimony left unresolved the matter of
the missing text messages.

The Sixth Amendment to the Constitution guarantees that “ in all
cri minal prosecutions, the accused shall enjoy the right . . . to have the
Assista nce of Counsel for his defence.” Once an attorney

- client relationship has been established, it may be severed only for “good cause” unless the relationship has been terminated w ith the consent of the member. R ULE FOR C OURT

- M ARTIAL 505(d)(2)(B), M ANUAL FOR C OURTS

- M ARTIAL
, U NITED S TATES (201 2 ed.) ; United States v. Spriggs , 52 M.J. 235, 240 (C.A.A.F. 2000)

. Good cause may exist when a conflict of interest places in doubt the
abilit y of defense counsel to be an effective advocate. “ [ W ] here a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest.” United States v. Lee , 66 M.J. 387, 388 (C.A.A.F. 2008) (quoti ng Wood v. Georgia, 450 U.S. 261, 271 (1981)). An accused may waive t his right to conflict

- free counsel , but t his must be done voluntarily and with “ sufficient awareness of the relevant circumstances and likely consequences” as to be knowing and intelligen t

. Id. (quoting Brady v. United States, 397 U.S. 742, 748 (1970) (internal quotation
mark s omitted)). The military judge must be allowed substantial latitude in refusing to accept an appellant’s waiver of a conflict of interest “not only in
those rare case s where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.” Wheat v.
United States , 486 U.S. 153, 163 (1988).

Good cause may also exist when the conflict creates the appearance of
unfairness to observers or threatens to undermine ethical standards

. Id . a t
160. Both a potential ethical conflict and the appearance of unfairness may
arise when a counsel becomes a wi tness at court

- martial

.United States v. Betancourt , No. 201500400

24 “ An attorney acts as an unsworn witness when his relationship to his client results in his having first

- hand knowledge of the events presented at
trial. ” United States v. Locascio , 6 F.3d 924, 933 (2d Cir. 1993)

. “ H is role as
advoca te may give his client an unfair advantage, because the attorney can subtly impart to the jury his first

- hand knowledge of the events without having to swear an oath or be subject to cross examination. ” Id

. To that end, JAG PR Rule 3.7 prohibits counsel from acting as an advocate at a trial in which he or she is likely to be a necessary witness, unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and quality of the legal services rendered; or (3) disqualific ation of counsel would work substantial hardship on the client.

We re view a military judge’ s decision to disqualify counsel for an abuse of
discretion. United States v. Strother, 60 M.J. 476, 478 (C.A.A.F. 2005). The military judge will be overturned only if the findings of fact are clearly erroneous or the decision is influenced by an erroneous interpretation of the
law. United States v. Rhoades , 65 M.J. 393, 397 (C.A.A.F. 2008) (citing United States v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006)).

We agre e with the military judge that there existed good cause to sever the attorney

- client relationship and disqualify 1stLt I and 1stLt F as defense
counsel.

First, an actual conflict of interest 47 operated between the interests of the appellant and his counsel as to the contents and whereabouts of the appellant’s phone. 1stLt I and 1stLt F possessed the appellant’s phone from 24 March 2014 to 2 May 2014. During that time, they powered

- on and perused the phone’s contents, created and deleted content, connected t he phone to their government computers in order to transfer data, removed the phone’s case, and discussed turning the phone over to the appellant’s then

girlfriend, Ms. HK. This placed 1stLt I and 1stLt F in the position of defending themselves from accusa tions that they intentionally or negligently destroyed evidence or were the source

— t hrough cross

- contamination or other

means

— of the damning cocaine residue evidence. Fear of violating ethical rules also appeared to motivate 1stLt F’s attempt to return the phone to Ms. HK (via the appellant’s SNCOIC), demonstrating that his own professional concerns had begun to creep into his tactical decision

- making. These conflicts

ra n so deep that the military judge was well within her discretion to refuse to

47 See Hale

, 2017 CCA LEXIS 364, at * 23 (“ A conflict of interest is actual, as opposed to potential, when, during the course of the representation, ‘the attorney’s and defendant’s interests diverge with respect to a material factual or legal issue or to a course of action. ’”) (quoting United States v. Perez , 325 F.3d 115, 125 (2d Cir. 2003) )

.United States v. Betancourt , No. 201500400

25 accept the appellant’s waiver because it had not been knowingly and intelligently made

. Second, 1stLt I and 1stLt F became necessary witnesses to the trial, each possessing first

- hand knowledge regarding their personal possession of the phone. As the military judge noted,

[T]he members would be able to determine that [1stLt I and 1stLt F] were the only sources of information concerning the chain of custody and the care and handling of the phone and case. The same attorneys would then be arguing to the
member s concer ning this testimony, leading the members to place greater weight on the defense arguments because the counsel clearly had first

- hand knowledge of these events. 48
Such an advantage to the defense would create an appearance of
unfairness to an outside observ er and seem to violate the prohibition of JAG PR Rule 3.7. As a result, it was appropriate to sever the attorney

- client relationship when alternatives to the defense counsel’s testimony were no longer viable

. For these reasons, we find that the military ju dge did not abuse her discretion when disqualifying 1stLt I and 1stLt F as appellant’s defense
counsel.

E. Admission of evidence under M IL

. R. E VID

. 404(b)
While “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character[,]” it may be admissible to prove, “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” M IL

. R. E VID

. 404(b)(1) and (2), S UPPLEMENT

TO M ANUAL FOR C OURTS

- M ARTIAL
, U NITED S TATES (201 2 ed.) . Evidence of this type must be offered for a proper purpose other than to demonstrate the propensity of an accused to commit the crimes charged. United States v.
Acton , 38 M.J. 330, 333 (C.M.A. 1993) ( quo ting United States v. Castillo , 29 M.J. 145, 150 (C.M.A. 1989) )

. In order to admit evidence of uncharged misconduct under M IL

. R. E VID

. 404(b): (1) the evidence must reasonably support a finding that the accused
committed the uncharged misconduct; (2) a material fact in issue must be made more or less probable by the evidence; and (3) the danger of unfair prejudice must not substantially outweigh the probative value of the
evidence. United States v. Reynolds , 29 M.J. 105, 1 09 (C.M.A. 1989)

.

48 AE CLXXVIII at 18.United States v. Betancourt , No. 201500400

26 We review a military judge’s evidentiary rulings for an abuse of discretion, that is, whether the “challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. Solomon , 72 M.J. 176, 179 (C.A.A .F. 2013) (citation and internal quotation marks omitted).

Prior to trial, the government sought a preliminary ruling on the admissibility of various items of evidence under M IL

. R. E VID

. 404(b)(1) and (2) . Specifically, trial counsel sought to introduce the testimony of Ms. MR

, relating her knowledge of the various criminal acts for which the appellant had already pleaded guilty, that is: his participation in the criminal motorcycle gang; his possession of cocaine, methamphetamines, and the tools
needed t o d istribute those drugs to others; his use of cocaine and steroids ; his fraudulent receipt of BAH; and his swastika tattoo. They also sought to introduce several photographs of the appellant that were also corroborative of his participation in the crimina l motorcycle gang and of his possession of drugs.

T he military judge issued a written ruling applying the three

- part test for admissibility of evidence of uncharged misconduct offered under M IL

. R.
E VID

. 404(b)

, established in Reynolds , and determined tha t evidence of the appellant’s alleged steroid use and additional pictures of his swastika tattoo were inadmissible either because the evidence failed to support the underlying act (the steroid use) or because the probative value was substantially outweighe d by the danger of unfair prejudice (the swastika tattoo). The military judge did permit the government to introduce the rest of Ms. MR’s testimony and the photographs to demonstrate a possible motive for assaulting Ms. MR

— “to protect [the appellant] and t he members of the [gang].” 49 The photographs were admitted as Prosecution Exhibits 14, 15 and
16.

Both before the introduction of evidence 50 and again before deliberations, 51 the military judge instru cted the members that evidence of
other crimes or acts was not admissible to show that the appellant was a bad person, but instead was being introduced by the government to show the motivation of the appellant to commit the offenses alleged.

The appellant now asserts that the military judge abused her discretion by admitting Prosecution Exhibits 14, 15

, and 16 (the photographs) into

49 AE CXXXV at 4.

50 Record at 1104.

51 Id. at 1655.United States v. Betancourt , No. 201500400

27 evidence and by failing to articulate the application of the Wright factors 52 in evaluating the third Reynolds prong. We disagree.

Here, the military judge admitted the prosecution exhi bits only after applying the Reynolds test, finding the evidence legally relevant, and determining its probative value was not substantially outweighed by the danger of unfair prejudice. 53 Because the military judge did not articulate any balancing of the W

right factors on the record, we will accord her decision less
deference than we would otherwise. United States v. Berry , 61 M.J. 91, 96 (C.A.A.F. 2005)

. 54 R egardless, we find that the military judge did not abuse
h er discretion in admitting the evidence as proof of the appellant’s motive

, and further conclude that the military judge appropriately directed the
members to limit their consideration of the evidence to its proper uses.

F. Errors in the court

- martial order

As identified by the appellant and conc eded by the government, the promulgating order fails to reflect that the military judge dismissed Specification 1 of the Third Additional Charge IV as multiplicious with Specification 2 of the Third Additional Charge II after the members found the appellan t not guilty of the greater offense under the charge but guilty of the lesser included offense of assault consummated by battery. The appellant does not assert, and we do not find, any prejudice resulting from this error. Nevertheless, the appellant is ent itled to have the court

- martial order accurately reflect the results of the proceedings. United States v. Crumpley

, 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1998). We thus order corrective action in our decretal paragraph.

52 The Wright factors as first set out in United States v. Wright , 53 M.J. 476 (C.A.A.F. 2000) and subsequently ar ticulated in United States v. Berry , 61 M.J. 91, 95 (C.A.A.F. 2005) are: “the strength of the proof of the prior act; the probative weight of the evidence; the potential to present less prejudicial evidence; the possible distraction of the fact

- finder; th e time needed to prove the prior conduct; the temporal proximity of the prior event; the frequency of the acts; the presence of any intervening circumstances; and the relationship between the parties.”

53 AE LXXI

.

54 We also find the Wright factors to be lar gely inapt when applied to this case involving the appellant’s possible motives to commit the alleged crime as analyzed solely under M IL

. R. E VID . 404(b).United States v. Betancourt , No. 201500400

28 III. C ONCLUSION
The findings an d the sentence are affirmed. The supplemental court

martial order shall reflect that Specification 1 of the Third Additional Charge
IV was dismissed

. 

### Senior Judge CAMPBELL and Judge HUTCHISON concur.

For the Court

R.H. TROIDL Clerk of Court