United States v. Betancourt
201500400
| N.M.C.C.A. | Jun 6, 2017Background
- Appellant Sgt. Rigo Betancourt was tried by general court-martial and convicted (some contrary to plea) of aggravated sexual contact and two assaults consummated by a battery, and (by plea) of numerous other offenses including drug possession/ distribution, conspiracy, larceny, forgery, and false records. Sentence: five years confinement, reduction to E‑1, forfeitures, and a dishonorable discharge (approved except discharge).
- CID investigated after a positive urinalysis and informant (Ms. MR) reporting drug distribution, gang affiliation, and photos; Ms. MR later alleged Betancourt assaulted and sexually grabbed her causing injury.
- Defense counsel (1stLt I and 1stLt F) came into possession of the appellant’s phone, accessed and copied screenshots, deleted some screenshots, and stored the phone in their offices. A command-authorized search and seizure (CASS) later authorized seizure of the phone and defense-space searches; CID agents executed a two‑hour search of defense offices and seized the phone and accessories.
- Forensic review of the phone produced photos and messages used at trial; the phone case tested positive for cocaine residue. After the search the government (among other remedial steps) removed certain personnel, sealed video, appointed new counsel and investigators, and conducted a taint review.
- Defense raised seven assignments of error on appeal including suppression of phone evidence, Mil. R. Evid. 404(b) challenges, unlawful command influence (apparent), prosecutorial misconduct over the defense-office search, disqualification of original defense counsel (Sixth Amendment), and errors in the promulgating order.
- The Navy‑Marine Corps Court of Criminal Appeals affirmed findings and sentence, denied suppression, rejected prejudicial unlawful command influence and prosecutorial‑misconduct claims, upheld counsel disqualification, affirmed 404(b) rulings, and ordered a correction to the promulgating order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Search/seizure and content search of phone (Fourth Amendment/CASS) | Government: CASS and affidavit authorized search of the phone’s contents. | Betancourt: CASS only authorized seizure, not searching contents; CASS was overbroad and lacked particularity and search protocols. | CASS authorized content search; affidavit and attachments show intent to search contents; search not overbroad given affidavit tied locations (photos, messages) to probable cause; absence of formal search protocols was not plain error. |
| Overbreadth/particularity in electronic search | Govt: affidavit limited the scope by describing crimes and expected locations of evidence. | Betancourt: forensic copy encompassed entire phone (messages, apps, history) exceeding probable cause. | Authorization and affidavit sufficiently particular: areas searched were reasonably related to probable cause; any over‑collection was not prejudicial given evidence actually used came from authorized areas. |
| Apparent unlawful command influence (UCI) from command‑authorized search of defense offices | Betancourt: search of defense offices gave appearance of command influence; evidence from that search and counsel disqualification tainted proceedings. | Govt: corrective actions (personnel recusal, sealed video, taint review, new counsel/investigators) cured any appearance; evidence was lawfully seized under CASS. | Some evidence of apparent UCI existed, but government proved beyond reasonable doubt that a fully informed objective observer would not harbor significant doubt about fairness; no intolerable strain on public perception; findings/sentence unaffected. |
| Prosecutorial misconduct in supervising search of defense offices | Betancourt: STC failed to employ safeguards (Calhoun‑style protocols), improperly facilitated search of opposing counsel offices. | Govt: STC’s involvement was limited; at the time no binding requirement existed to impose all listed safeguards; post‑search remedial measures mitigated risk and no prejudice. | Failure to use those specific safeguards did not amount to prosecutorial misconduct under existing law; even if misconduct, no prejudicial error given corrective steps and strong evidence. |
| Disqualification of original defense counsel / Sixth Amendment | Betancourt: disqualification deprived him of his chosen counsel and Sixth Amendment rights. | Govt: counsel became necessary witnesses and had an actual conflict from possession/access to the phone; waiver was not knowingly intelligent; disqualification was required to avoid ethical conflict/appearance issues. | Military judge did not abuse discretion: good cause existed (actual conflict and counsel as necessary witnesses); refusal to accept waiver appropriate and disqualification upheld. |
| Admission of uncharged misconduct (Mil. R. Evid. 404(b)) | Govt: evidence (photos, testimony about gang/drugs) was admissible to prove motive, intent, identity, absence of mistake. | Betancourt: exhibits prejudicial; judge failed to articulate Wright factors in balancing. | Military judge applied Reynolds test and did not abuse discretion in admitting the photos and testimony for motive; limiting instructions given. |
| Error in promulgating order | Betancourt: order failed to reflect dismissal of a multiplicious specification. | Govt: conceded error. | Court ordered corrective action to accurately reflect dismissal; no prejudice found. |
Key Cases Cited
- United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (cell phones require probable cause and warrant absent exception)
- United States v. Allen, 53 M.J. 402 (C.A.A.F. 2000) (affidavit can justify search of digital contents when tied to probable cause)
- United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989) (three‑part test for admissibility of uncharged misconduct under Mil. R. Evid. 404(b))
- United States v. Calhoun, 49 M.J. 485 (C.A.A.F. 1998) (safeguards and procedures for searches of opposing counsel offices discussed as best practices)
- United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006) (test for appearance of unlawful command influence and focus on public perception)
- United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (standard for prejudicial prosecutorial misconduct review)