UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATE S, ) Misc. Dkt. No. 2013

- 24

Appell ant ) )

v. ) ) ORDER Airman First Class (E

- 3) )

JACOB R. MCINTYRE

, ) USAF, )

Appell ee ) Panel No. 1

HARNEY

, Senior J udge :

On 9 May 2013, t he 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 o r 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 appe llee’s motions, including the Motion to Suppress. On 4 September 2013, t he military judge granted the motion and subsequently denied the Government’s request for

reconsideration. On 6 September 2013, t he Government filed a timely appeal of the military j udge’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 (AF OSI ) 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 vacillate s on his culpability but ultimately admits to viewing child pornography on his personal computer laptop while on active duty andMisc. Dkt. No. 2013

- 24 2 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 AF OSI received authorization to search the appellee’s

house. The AF OSI visited the appellee’s house three separate tim es on the day of his interview, twice while the appellee was being interviewed and once with the appellee. During t he first visit , the AFOSI interview ed the appellee’s wife about the appellee’s

miscon duct. During the second visit, the AFOSI se arch ed for and collect ed 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 AF OSI 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 dr ive in the

bookcase . He s tat ed, “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 spa ce, 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 on to active duty. No child pornography images were found on th e 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 Whil e 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

sexu ally 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 re moved 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 E x. XIII, Attach. 4, at 32.Misc. Dkt. No. 2013

- 24 3 “ 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

downloade d 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 duri ng the charged time frame and what corroboration exist ed 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 interne t 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 s tatement 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 ref

lect 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 viewin g 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); Rul es 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 Sta tes 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, 239Misc. Dkt. No. 2013

- 24 4 (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 State s 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 s uch, 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 cle arly 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. A n 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 avoi d 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 predic ament 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 reas onable 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 . M il. R

. E vid. 304(g)(1). It is “sufficient if the corroboration merely f ortifies 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) (characteriz ing 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 ” ). T o meet this m inimal 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 tha t 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.Misc. Dkt. No. 2013

- 24 5 “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.

M il. R

. E vid. 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 possess ed child pornography while on active duty. The appellee stated he had an external hard drive that was only Mac

- compa tible

, which he used to download and save child pornography before entering active duty. He told the AFOSI he still possess ed 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 pornogr aphic 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 driv e 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

s ugge sted to the AF OSI that a hard drive did exist; however

, the extent of what she kn ew about the content s 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 possess ed child pornography . Without a witness or forensic evidence to connect the appellee in some
way to the possession of child porn ography during the charged time frame

, the military judge reasonably concluded the appellee’s confessions were not corro borated.

In his reconsideration, the military judge addresse d 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 otherMisc. Dkt. No. 2013

- 24 6 vehicles showed no connection to the accused. In Mitchell

, the similarities in the crimes and the ongoing nature of the crimes establishe d reliability during a specified time frame

sufficient to corroborate the confession

. Here, h owever, 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 ap pellee’s supposed “non

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

200 0 ), 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

fr ont 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, t he Government

ha s not art iculated how the appellee’s actions in front of the AF OSI 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.

3 04(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 pre

dated 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, on c e on Thanksgiving and on c e on New Year’s E ve. 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

. A lthough t he 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

. O ur superior court upheld the conviction for the
New Year’s Eve use and overturned the conviction for th e Thanksgiving use

, even though in both instances the witness did not observe the accused us ing cocaine . TheMisc. Dkt. No. 2013

- 24 7 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 us ed 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 th e New

Year’s Eve drug use ) . In other words, even though no one saw Rounds use cocaine in both instances, in the same way n o one ever saw the appellee look at child p orn ography

, 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

.

T he military j udge’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 C ourt co nsidered the accused ’ s confession to drug use. While no witnesses were available to corroborate his

statements, this Court was satisfied the following essent ial 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 , t he 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 te stimony from an expert

or law enforcement official connect ing the sites the appellee visited with the child pornography h e 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 app ellee’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 th e case before us are markedly different

. I n Merritt , a German internet service provider detected child porn ography 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 theMisc. Dkt. No. 2013

- 24 8 appellee. Further, as the military judge noted, the appellee’s confession to viewing child

pornogr aphy 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 t hat he searched for adult Asian

porn ography

, followed pop

- up sites with terminology indicative of child porn ography,

and had child porn ography in that computer’s unallocated space. Here, the forensic evidence includes appellee’s search terms for adult pornography and 25 pictures of child

pornograp hy 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 su fficiently corroborat ed 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 Uni ted States appeal under Article 62, UCMJ, it is by the

Court on this 1 6 t h day of January, 20 14.

ORDERED:

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

.

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

FOR THE COURT

S TEVEN LUCAS

Clerk of the Court