UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

 

UNITED STATES, ) Misc. Dkt. No. 2013-24

Appellant )

)

v. )

) ORDER

Airman First Class (E-3) )

JACOB R. MCINTYRE, )

USAF, )

Appellee ) Panel No. 1

HARNEY, Senior Judge:

On 9 May 2013, the appellee was charged with one specification of knowingly and 

wrongfully possessing child pornography and one specification of knowingly and 

wrongfully viewing child pornography, in violation of Article 134, UCMJ, 10 U.S.C. 

§ 934. The case was referred to a general court-martial on 13 June 2013.

On 29 August 2013, the appellee filed a Motion to Suppress all out-of-court 

written or oral admissions and statements made by the appellee regarding possession or 

viewing child pornography for lack of independent corroborating evidence. Following 

the appellee’s arraignment on 3 September 2013, the military judge heard argument on 

the appellee’s motions, including the Motion to Suppress. On 4 September 2013, the 

military judge granted the motion and subsequently denied the Government’s request for 

reconsideration. On 6 September 2013, the Government filed a timely appeal of the 

military judge’s ruling, pursuant to Article 62, UCMJ, 10 U.S.C. § 862. This Court heard 

oral argument on 12 December 2013.

Background

On 13 February 2013, the appellee was given a polygraph examination in order to 

obtain a security clearance. A polygrapher and a special agent from the Air Force Office 

of Special Investigations (AFOSI) conducted the recorded interview, which lasted 

approximately 4-5 hours. This interview was the origin of the appellee’s oral and 

written statements at issue. 

In his statements, the appellee vacillates on his culpability but ultimately admits to 

viewing child pornography on his personal computer laptop while on active duty and 
2 Misc. Dkt. No. 2013-24

possessing child pornography on a “Mac-only” external hard drive.1 The appellee 

explained that the Macbook computer he used to access the external hard drive had 

crashed prior to him coming on active duty.

Based on this interview, the AFOSI received authorization to search the appellee’s 

house. The AFOSI visited the appellee’s house three separate times on the day of his 

interview, twice while the appellee was being interviewed and once with the appellee. 

During the first visit, the AFOSI interviewed the appellee’s wife about the appellee’s 

misconduct. During the second visit, the AFOSI searched for and collected electronic 

media evidence, which included a Macbook computer and two Dell laptop computers. 

During the final visit, the appellee accompanied the AFOSI to show them the location of 

the Mac-only hard drive. The appellee’s wife was present on all three occasions. 

During the third search, where the appellee assisted the AFOSI agents in 

attempting to retrieve the external hard drive, the appellee proceeded directly to a 

bookcase and appeared genuinely surprised when he did not find the hard drive in the 

bookcase. He stated, “I’m not sure where this is at,” and, “I want to find this for you 

guys.” The external hard drive was never recovered, but the Defense Computer 

Forensics Laboratory (DCFL) examined the contents of the Macbook computer, the two 

Dell laptop computers, and two micro SD cards.

On the Macbook, DCFL found 24 images of suspected child pornography and 1 

confirmed National Center for Missing and Exploited Children (NCMEC) picture; 

however, the images were in unallocated storage space, which does not attribute user 

information or original date/time.2 Moreover, DCFL confirmed that the Macbook 

computer hardware had indeed crashed in May 2011, prior to the appellee’s entry onto 

active duty. No child pornography images were found on the Dell computers. The 

internet history on one of the Dell computers confirmed the appellee conducted internet 

searches via the Bing search engine for the terms “huge cum shot,” and “cum shoots 

everywhere,” which resulted in hits for Adobe Flash video files titled, “gay cumshots,”

 

1 While not the subject of the motion to suppress, the appellee’s statements also mention other highly prejudicial 

pre-service misconduct that involved him inappropriately touching his sister and two female cousins when he was a 

minor, searching for child pornography when he was between the ages of 10 and 21, and sharing a live-feed of him 

sexually gratifying himself on the internet when he was between 19-20 years old.

2 Unallocated Space is described as

[s]pace on a hard drive that is not allocated for active use by the file system. When files are 

deleted from a hard drive, the data is not removed or wiped from the drive, but the space that the 

files occupy on the drive is changed from ‘allocated’ to ‘unallocated’, meaning that it is available 

for future data to be written to as needed. When future data is written to this space, it overwrites

the existing data (the deleted content). Data found in unallocated space is usually fragmented, and 

identifying metadata information, such as original user, MAC time info, and original directory 

location, are no longer tracked or maintained.

Appellate Ex. XIII, Attach. 4, at 32.
3 Misc. Dkt. No. 2013-24

“cumshots and cumeating gay,” and “divine cumshots,” that were present on the website 

“xhamster.com.” The appellee told the agents during his interview that he no longer 

downloaded and saved images, and that he regularly cleared his internet history to avoid 

confrontation with his wife. Consequently, DCFL did not find actual video files of adult 

pornography or child pornography on the Dell computer.

The military judge granted the defense motion to suppress the entire contents of 

the oral and written statements of the appellee. With regards to possession of child 

pornography, the military judge considered whether or not there was a hard drive in the 

possession of the appellee during the charged time frame and what corroboration existed

to support the appellee’s statement that there actually were images of minors engaged in 

sexually explicit conduct on the external hard drive. Ultimately, the judge determined the 

Government had not provided any independent evidence the appellee had possessed the 

hard drive while on active duty, and there was no evidence to connect the images in 

unallocated space to what was on the missing hard drive. Specifically, the military judge 

identified that DCFL was unable to determine when the images were first accessed or 

deleted on the Macbook and whether any of them were transferred to the external hard 

drive. 

With regards to viewing child pornography, the military judge considered the 

partial internet history recovered from the Dell laptop, the Bing search engine the 

appellee said he had used for searches of child pornography, the lack of the content 

searched for or viewed, and the search terminology used. The judge stated that while the 

appellee’s statement was vague, it did indicate the appellee continued to search the 

internet using the Bing search engine for images of males and females as young as 13 

years of age. However, he determined no corroboration existed because the DCFL report 

did not reflect the actual content of searched or viewed items, and the search terms 

recovered by DCFL for the appellee’s Bing searches were not indicative of child 

pornography. The judge did not discuss the Macbook unallocated pictures in his analysis 

of the viewing charge.

Discussion

Under Article 62, UCMJ, appeal, this Court “may act only with respect to matters 

of law” and a military judge’s conclusions of law are reviewed de novo. Article 62(b), 

UCMJ, 10 U.S.C. § 862(b); Rules for Courts-Martial 908(c)(2); United States v. Baker, 

70 M.J. 283, 287 (C.A.A.F. 2011); United States v. Terry, 66 M.J. 514, 517 (A.F. Ct. 

Crim. App. 2008). “When a court is limited to reviewing matters of law, the question is 

not whether a reviewing court might disagree with the trial court’s findings, but whether 

those findings are ‘fairly supported by the record.’” Baker, 70 M.J. at 288 (quoting 

Unites States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985)). This Court reviews a military 

judge’s ruling on a motion to suppress for abuse of discretion. United States v. Cote, 

72 M.J. 41, 44 (C.A.A.F 2013); see also United States v. White, 69 M.J. 236, 239 
4 Misc. Dkt. No. 2013-24

(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.’” White, 69 M.J. at 239 (quoting United States v. 

Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)). An abuse of discretion occurs when the findings 

of fact are clearly erroneous or the conclusions of law are based on an erroneous view of 

the law. United States v. Hollis, 57 M.J. 74, 79 (C.A.A.F. 2002). As such, the findings 

of fact are reviewed under the clearly erroneous standard and conclusions of law are 

reviewed de novo. Cote, 72 M.J. at 44. 

We have reviewed the military judge’s findings of fact. They are “fairly supported 

by the record” and not clearly erroneous. Accordingly, we adopt all such findings of fact 

as our own for purposes of this opinion.3 Applying the requisite standards to the case 

before us, we find as a matter of law the military judge did not abuse his discretion by 

granting the motion to suppress the appellee’s oral and written statements for lack of 

corroboration. An accused may not be convicted solely on his own uncorroborated 

confession. Smith v. United States, 348 U.S. 147, 152-53 (1954). The purpose of the rule 

is to avoid convicting someone based on untrue confessions. Id. The reliability of a 

statement may be questionable if it was obtained from someone under the pressure of a 

police investigation – “whose words may reflect the strain and confusion attending his 

predicament rather than a clear reflection of his past.” Id. 

The corroborative evidence must include “substantial independent evidence” that 

the crime has been committed. Id. at 156. The corroborating evidence does not have to 

prove the crime beyond a reasonable doubt, nor does it have to meet a preponderance. Id. 

The independent evidence only needs to raise the inference of truth of the facts stated in 

the admission or confession. Mil. R. Evid. 304(g)(1). It is “sufficient if the corroboration 

merely fortifies the truth of the confession, without independently establishing the crime 

charged.” Smith, 348 U.S. at 156. “[O]ne available mode of corroboration is for the 

independent evidence to bolster the confession itself and thereby prove the offense 

‘through’ the statements of the accused.” Id. Not every element of an offense to which

the confession pertains needs to have independent evidence in order to satisfy the

corroboration requirement. See United States v. Maio, 34 M.J. 215, 218 (C.M.A. 1992). 

However, the “reliability of the essential facts must be established.” United States v.

Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997). Our superior court has described the 

quantum of evidence necessary for corroboration as “slight” or “very slight.” United

States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987) (characterizing the amount of required 

corroboration as “slight”); United States v. Grant, 56 M.J. 410, 416 (C.A.A.F. 2002)

(required corroboration “may be very slight”). To meet this minimal standard, the 

 

3 We note that the Defense Computer Forensics Laboratory analyzed 25 pictures, not 24 as the military judge 

described. Originally, AFOSI selected 24 picture files to be analyzed but added 1 additional picture file at a later 

time that turned out to be from the National Center for Missing and Exploited Children database, bringing the total 

picture files analyzed to 25. Nevertheless, as a whole, the findings of fact are a reasonable depiction of the evidence 

before the military judge and are not clearly erroneous.
5 Misc. Dkt. No. 2013-24

“substantial independent evidence” generally creates a solid link between the accused and 

the specific crime charged. The courts have not made a practice of drawing any possible 

inference in order to make a connection between the accused and the crime to which he 

has confessed.

The military judge alone decides when enough corroboration has been received. 

Mil. R. Evid. 304(g)(2). Our superior court has determined that not only does the judge 

have to review the corroboration evidence in concert with the confession, but the panel 

must also review the amount and type of corroborative evidence in order to give the 

confession the proper weight. United States v. Duvall, 47 M.J. 189, 192 (C.A.A.F. 1997). 

I. Possession of Child Pornography

We find the military judge correctly concluded that the record contained 

insufficient evidence to corroborate the appellee’s statements that he possessed child 

pornography while on active duty. The appellee stated he had an external hard drive that 

was only Mac-compatible, which he used to download and save child pornography before 

entering active duty. He told the AFOSI he still possessed the external hard drive; 

however, the AFOSI was not able to recover it during the searches of the appellee’s 

residence. 

None of the appellee’s electronic media analyzed by DCFL indicated that the 

appellee possessed child pornography during the charged time frame. The DCFL report 

indicates that an external hard drive had been connected to the Macbook at some point 

and that pornographic video files had been accessed from the external hard drive; 

however, none of the files were indicative of child pornography. Therefore, the military 

judge concluded the Macbook contained no forensic evidence to corroborate that an 

external hard drive containing child pornography was ever connected to the Macbook as 

the appellee had admitted. Also, no witnesses testified that the appellee had a hard drive 

containing child pornography during his time on active duty. At best, the appellee’s wife 

suggested to the AFOSI that a hard drive did exist; however, the extent of what she knew

about the contents of the hard drive is unclear. Akin to the results of the DCFL forensic 

analysis, the statements of the appellee’s wife do not corroborate that he possessed child 

pornography. Without a witness or forensic evidence to connect the appellee in some 

way to the possession of child pornography during the charged time frame, the military 

judge reasonably concluded the appellee’s confessions were not corroborated.

In his reconsideration, the military judge addressed United States v. Mitchell,

29 M.J. 854 (A.F.C.M.R. 1989), a case cited by the Government to support the idea that 

corroboration of past crimes can be used to corroborate the current charged offense. In 

doing so, the military judge distinguished Mitchell from the case at hand. The accused in 

Mitchell was convicted of selling seven vehicles on the black market. Two of the 

vehicles had documents that showed the accused’s involvement; documents for five other 
6 Misc. Dkt. No. 2013-24

vehicles showed no connection to the accused. In Mitchell, the similarities in the crimes 

and the ongoing nature of the crimes established reliability during a specified time frame

sufficient to corroborate the confession. Here, however, the military judge stated that 

because the present case includes images accessed or possessed at least two years before 

the confession, they did not provide any level of confidence in establishing possession 

during the charged time frame. We agree. Moreover, in Mitchell, the charges for all 

seven vehicles were in front of the members; however, in the present case, the appellee is 

not charged with the earlier crime of possessing or viewing the child pornography found

in the unallocated space of the Macbook. As such, that evidence is not before the 

members as a part of a continuing crime like it was in Mitchell. 

The Government also argues that the appellee’s supposed “non-testimonial acts” 

prove consciousness of guilt. United States v. Baldwin, 54 M.J. 551 (A.F. Ct. Crim. App. 

2000), aff’d, 54 M.J. 464 (C.A.A.F. 2001). We find Baldwin distinguishable from this 

case. First, Baldwin specifically dealt with “non-testimonial” acts that were mostly in 

front of Baldwin’s wife, whereas the appellee’s actions in this case were in the presence 

of law enforcement at the end of a lengthy interrogation. In addition, the Government 

has not articulated how the appellee’s actions in front of the AFOSI could be considered

non-testimonial in nature. See Crawford v. Washington, 541 U.S. 36 (2004). Finally, the 

appellee’s own statements cannot be used to corroborate his confession. Mil. R. Evid.

304(g). Evidence independent from his confession is still necessary to meet the slight or 

very slight corroboration standard.

II. Viewing Child Pornography

With regards to viewing child pornography, the military judge analyzed the 

evidence before him and concluded that corroboration to one potential crime which predated the appellee’s military service could not be used to corroborate his confession for a 

crime limited to his active duty service. We agree with the military judge’s ruling and 

find this case analogous to United States v. Rounds, 30 M.J. 76 (C.M.A. 1990).

In Rounds, the accused confessed, among other things, to using cocaine on two 

occasions, once on Thanksgiving and once on New Year’s Eve. The evidence to 

corroborate the Thanksgiving use included testimony the accused attended a party with 

high school friends who had “been involved in the use of drugs” and that one friend was 

known to have used cocaine in the past; however, no drugs or were seen by the 

corroborating witness. The same witness testified regarding the New Year’s Eve use. 

Although the witness did not see the accused use cocaine, he testified that he and the 

accused attended a New Year’s Eve party with high school friends, that drugs were 

readily available at the party, and that twice he borrowed a dollar bill from the accused to

use cocaine while standing next to him. Our superior court upheld the conviction for the 

New Year’s Eve use and overturned the conviction for the Thanksgiving use, even 

though in both instances the witness did not observe the accused using cocaine. The 
7 Misc. Dkt. No. 2013-24

corroboration for the New Year’s Eve use included putting the accused at the scene of 

active drug use where he had direct access to drugs being used by others.

In the case before us, no independent evidence of child pornography was found on 

the appellee’s working computer (akin to the Thanksgiving drug use). However, there 

was child pornography in unallocated space on the broken Macbook (akin to the New 

Year’s Eve drug use). In other words, even though no one saw Rounds use cocaine in 

both instances, in the same way no one ever saw the appellee look at child pornography, 

someone at least saw Rounds in the presence of drugs for the charge that remained. By 

analogy, to properly corroborate the appellee’s confession, even if no one witnessed him 

viewing it, the child pornography needed to at least be present in some form on one of the 

appellee’s working computers.

The military judge’s ruling that the viewing specification is not corroborated is 

supported by United States v. McCastle, 40 M.J. 763 (A.F.C.M.R. 1994), aff'd, 

43 M.J. 438 (C.A.A.F. 1996). In McCastle, this Court considered the accused’s 

confession to drug use. While no witnesses were available to corroborate his

statements, this Court was satisfied the following essential facts supported drug use: the

place identified by the accused was well known to local law enforcement as a drug

distribution location during the specific time frame; the identity of a dealer met the

accused’s description; and the car and license plate of the drug dealer were verified as

being affiliated with drug distribution. This case lacks the level of detail in McCastle. 

Unlike the detailed description of the drug dealer and his car in McCastle, the appellee’s 

confession does not describe in detail the types of images he was viewing while on active 

duty. Moreover, while in McCastle the drug distribution site was known to law 

enforcement as a place where drugs were sold, here there is no testimony from an expert 

or law enforcement official connecting the sites the appellee visited with the child 

pornography he confessed to viewing.

The Government asserts the appellee’s internet search history on the Dell 

computer, combined with the child pornography discovered in “unallocated space” on the 

appellee’s inoperable Macbook computer, provides modus operandi evidence to 

corroborate the appellee’s confession of viewing child pornography while on active duty. 

United States v. Merritt, 71 M.J. 699 (A.F. Ct. Crim. App. 2012), rev’d in part on other 

grounds, 72 M.J. 483 (C.A.A.F. 2013)). We find this argument misplaced. See United 

States v. Rollins, 23 M.J. 729, 734 (A.F.C.M.R. 1986) (“If identity is not in doubt and the 

only issue is whether the criminal act was committed, modus operandi is not relevant.”); 

see also United States v. Rappaport, 22 M.J. 445, 446 (C.M.A. 1986).

Merritt and the case before us are markedly different. In Merritt, a German 

internet service provider detected child pornography being downloaded on the accused’s 

computer. In the present case, there is no evidence before the Court from an internet 

service provider to indicate child pornography was accessed or downloaded by the 
8 Misc. Dkt. No. 2013-24

appellee. Further, as the military judge noted, the appellee’s confession to viewing child 

pornography during the charged time frame was relatively vague. The accused in 

Merritt, however, gave a very detailed confession that dovetailed precisely with the 

forensic evidence found on his computer, which showed that he searched for adult Asian 

pornography, followed pop-up sites with terminology indicative of child pornography,

and had child pornography in that computer’s unallocated space. Here, the forensic 

evidence includes appellee’s search terms for adult pornography and 25 pictures of child 

pornography in the unallocated space of a separate computer that was inoperable during 

the charged time frame. We note that the appellee admitted to regularly deleting his 

internet search history. The Government uses this fact to explain the lack of evidence for 

viewing child pornography during the charged time frame. However, this theory would 

have required the military judge to have determined the absence of evidence was now 

corroborating evidence. No testimony was presented from a DCFL witness who could 

have made connections between the appellee’s admission to deleting internet history and 

what would or would not have been present on the appellee’s computer. 

Conclusion

We hold the military judge did not err in granting the motion to suppress the 

appellee’s oral and written statements for lack of corroboration. The military judge made 

detailed findings of facts supported by the record, accurately described the applicable 

law, and reasonably concluded that the Government had not sufficiently corroborated the 

appellee’s confessions. As such, the military judge did not abuse his discretion. We 

therefore affirm the military judge’s decision and remand the case to the trial court for 

further proceedings. 

On consideration of the United States appeal under Article 62, UCMJ, it is by the 

Court on this 16th day of January, 2014.

ORDERED:

That the United States appeal under Article 62, UCMJ, is hereby DENIED.

ORR, Senior Judge, and MITCHELL, Judge, concur.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court