*1 STATES, Appellee, UNITED Airman, GARLICK, P.
Jason Senior Force, Appellant. Air
U.S. CRAWFORD, J., opinion delivered the No. 04-0669. GIERKE, C.J., Court, in which and EF- Crim.App. No. 35298. ERDMANN, JJ., joined. BAK- FRON Appeals U.S. Court of for ER, J., concurring separate opinion. filed a the Armed Forces. Appellant: Captain L. For Martin Powell Argued April L, 2005. (argued); Colonel Carlos McDade and (on brief); Major Whittington Sandra K. Aug. Decided Major Terry McElyea. L. Appellee: Major For John C. Johnson Gary F. (argued); Lieutenant Colonel Spencer Robert and Lieutenant Colonel V. brief). (on Combs Appellant: for R. Amicus Curiae Melissa (law student) (argued). Covolesky Appellee: Amicus David Hart- Curiae (law student) nagel (argued).
Judge opinion CRAWFORD delivered the of the Court. court-martial,
Sitting general mili- as a tary judge Appellant, pursuant convicted pleas, specification wrongful his of one depictions possession of visual of minors en- conduct, sexually gaged explicit in viola- tion Article of clauses Uniform (UCMJ), Military Code of Justice 10 U.S.C. military judge § sentenced E-l, Appellant to be reduced to to be con- months, discharged fined for ten discharge. The conven- with a bad-conduct authority reduced sentence ap- days, for 199 but otherwise confinement 10, 2004, the proved the sentence. On June Appeals Air modi- Force Court of Criminal findings: fied the [E]xcepting phrases “on divers occa- depictions of a minor sions” and “visual sexually explicit conduct” from engaging in substituting therefore finding guilty, “thirty-four depictions minors en- visual conduct,” sexually explicit as ref- gaged in *2 defense counsel was untrue. Trial as davit Exhibit 1 and in Prosecution erenced appel- memorandum to appended to by thirteen attachments illustrated submissions, at- clemency which are lant’s that exhibit. trial. The state- the record of tached to 35298, Garlick, No. ACM “Every e- is as follows: question ment in *8, 2004 WL at 2004 CCA LEXIS group was [Candyman] sent to the mail (A.F.Ct.Crim.App. June at *3 automatically. every to member distributed 2004). and affirmed That court reassessed Therefore, transmitted an individual when 10, 2004, this On December the sentence. Candyman group pornography following of the issue: granted review Court e-mail, transmitted images were via those PRO- APPELLANT’S DUE WHETHER Ac- every group of the members.” to one BY RIGHTS WERE VIOLATED CESS memorandum, cording trial counsel’s TO THE PROSECUTION’S FAILURE however, receipt of e-mails was automatic INFOR- DISCOVERABLE DISCLOSE to setting for subscribers only the default TRIAL.1 MATION PRIOR TO were able group, and individuals may have that error that We conclude they emails if so chose. elect not to receive informa- from a failure to disclose resulted memorandum, this infor- According to this beyond a reasonable harmless tion was prior FBI to trial known to the mation was doubt, Appellant’s guilty that was and appellant’s case. voluntary. Finding knowing and no basis providence of law to *2, fact and Garlick, LEXIS at 2004 WL affirm. plea, (footnote added). we 1539576, *1at Special Agent eleven-page affidavit of The FACTS (SA) Davis, Magistrate upon which the U.S. based, included Judge’s search warrant was facts, as The court below summarized the FBI five-year of SA Davis’s brief details follows: career; premises and items described of an Inter- appellant The was a member seized; provided definitions Candyman, group (Egroup) net called Act, 18 U.S.C. Pornography Prevention Child pornog- forum devoted to child electronic sources; (2000), ex- §§ and other 2251-2260 raphy. appellant The was subscriber pe- workings computers and plained basic January January 2001 to 28 from devices; explained how the internet ripheral investigation by Bureau of An the Federal traffic in child as a medium for is used (FBI) ap- Investigation revealed that the how internet sites and user pornography and im- pellant possession was in of numerous work, including that even on-line addresses ages pornography at his home near of child on the detectable traces Base, storage can leave im- Eglin Air Florida. These Force that stor- computer used to effect au- individual ages during discovered a search were explained magistrate also by age. a civilian federal This section thorized tend to col- cause affidavit sub- in child pursuant to a interested lect, trade, images case took on com- by preserve mitted the FBI. Trial and etc., place August disks, usually on 5 2002.2 retain the puters, time. The affida- images long periods August appellant avers that on The nearly pages of infor- provided four vit then ended, court-martial a week after his operation of the specific mation counsel notified the trial defense the trial Appellant’s involvement Egroup that a statement counsel memorandum affi- therein: in the FBI’s contained timely dispute re- argument at The 2. There is no in this case
1. We heard oral Law, (at Washington University investigation) George School of the Article 32 ceived or before D.C., “Project Washington, part of the Court's as supporting affidavit the search warrant Mahoney, Outreach.” See United States Agent Kerry Special Davis. [SA] (C.A.A.F.2003). The amici n. 1 M.J. pursuant of the appeared to Rule 13A curiae of Practice and Procedure. Court's Rules 3) minors; purpose 25.... the remainder were considered website, Egroup, as stated on its own was child erotica. Yahoo was unable to tell the clips as follows: FBI who downloaded or video However, Egroup. from when some- group People “This is for who love kids. website, uploaded a one post any type you messages You can file Egroup up that a notice was set such any type pics like too [sic] and vids *3 advising sent via e-mail to all members you IF ALL like too P.S. WE [sic]. file, them the name the which it WORK TOGETHER WE WILL HAVE of of folder in, posted been had the e-mail address THE BEST GROUP ON THE NET.” of and, posted the individual it in some who cases, description a the In other of file. Voluntary Egroup Membership: 27. In words, pornography posted child to the join person Egroup, order to a had to automatically website was distributed to visit the URL and send an e-mail to members, knowingly each of which had group permis- requesting moderator joined Egroup trading of devoted to join. sion to The moderator would then pornography, [emphasis child to in- added request- send a confirmation notice to the factually misleading dicate material.] account, advising or’s e-mail him that he Egroup. now had access to the There was 2, January 30. E-mail received: From addition, join. no In fee to at the bottom 2001, through February Bin- SA instructing of each e-mail were directions a ney approximately received 498 e-mail stop member what to do if he wanted messages Candyman Egroup, receiving group e-mails from the and no images most of which contained of child longer of desired to be member pornography or child erotica or informa- group. concerning subjects oper- tion those or the 28____ Second, Egroup. During period, all new members ation of the of Egroup immediately Binney were approximate- added to the SA received a total of Candyman Every e-mail list. images e-mail sent erotica child and 105 child group every was distributed to pornography images through e- these automatically. Therefore, member when containing mails. The last e-mail child uploaded an individual and transmitted pornography Binney SA received from the group February he received on 2001— group, images were transmitted to Eg- the date that Yahoo! closed down the every group .... one members [em- roup. por- This e-mail contained two child phasis factually added to indicate mislead- nography images. image depicts The first ing material.] years approximately a nude female ten age performing Images oral sex on an adult male on the Posted Website: The while primary Candyman Eg- the second shows the same female feature of the straddling roup’s an adult male while masturbat- website was the “Files” section. upload This allowed him. members and down- images directly load from the web- 22, 2001, January Binney 31. On SA Binney site. SA was member of the grand jury subpoena on served federal 2, 2001, Egroup January through from Services, operator Yahoo the owner and 6, 2001, February when Yahoo! closed Egroups. responded Yahoo with a list of Egroup. During period down the approximately e-mail addresses time, Binney captured approximately SA Candyman Egroup Specifi- members. images clips one hundred and video garlickjason@ cally, the e-mail address uploaded had been to the website. The hotmail.com, was listed on the images clips and video can be broken into Egroup list. 1) categories: majority depicted three prepubescent engaged minors in different 2) activities; logs provided subscription Yahoo large
sexual number of the 33.... (indicating images genitalia focused on the of the nude the dates and times subscribers Warrant, Investigating Affidavit For Search requested to subscribe unsubscribe and/or 28, 2002, Report, Allied Pa- Officer’s June post logs Egroups), to the different pers. indicating the dates and times members formal, messages receiving post-trial text notice of
posted
After
and/or
affidavit,4Appel-
search
misstatements
Egroups.
requested
counsel
a ten-
lant’s trial defense
Warrant, Investigating
Affidavit For Search
clemency
day delay in
mat-
the submission
Report,
Allied Pa-
Officer’s
June
ters:
Garlick,
183, at
pers. See also
2004 LEXIS
informed
Aug
the defense was
On
*3,2004
1539576,at *1.
WL
inconsistency existed in the
that a factual
append
“subscrip-
Kerry
SA Davis did not
affidavit submitted
SA
Davis
obtaining the search warrant for SrA Gar-
logs”
tion
to the affidavit and did not aver
effectively
lick’s home.
In order to
advise
pertaining Appellant’s
dates and times
*4
my
prepare
adequate
clemen-
client and
alleged activity
Egroup,
with the
or that
cy request
appropriate ac-
or take other
Appellant
Egroup
was a member of the
tion,
require
I
time to investi-
additional
January
on
date other than
2001.3
gate and research this matter.5
documenting
“garlickjason@
After
delay,
After this
the defense counsel submit-
Appellant’s
hotmail.com” was
“username”
clemency
convening
to
au-
ted
matters
Appellant
and that
lived at the
to
address
behalf,
thority
Appellant’s
on
to which she
searched, SA Davis added:
appended trial counsel’s notice
“factual
31, 2001,
August
pursuant
44. On
requested
inconsistencies.” Defense counsel
order,
provided
zip
court
Yahoo!
disk to
“inconsistencies,”
no relief related to these
the Houston Division of the FBI contain-
appellate
nor
indicate that
does
record
log
Egroups
all
files from the three
requested
post-trial
defense counsel
either a
[“Candyman,” “ShangrLIa,”
12-
and “Girls
39(a)
Article
session6
a new trial.7
analyzed
copied
16”]. Houston
all
DISCUSSION
referencing
garlickjason@
information
hotmail
Brady
onto CD which was forwarded to
Maryl
contends that
701(a)(6) compel
andI8 and
Agency
the Pensacola
R.C.M.
disclosure
Resident
of the FBI.
evidence,
exculpatory
including
impeach
evidence,
trial,
ment
for use at
and that the
46.
copies
Attached
this affidavit are
of Government failed to make such disclosure.
photographs
by
which were received
Further, because the Government cannot
P.
Jason
Garlick while he
awas member
demonstrate
a reasonable doubt that
Candyman e-group.
photo-
These
the results of trial would not have been dif
graphs
sample
photo-
are a
of the 116
ferent, Appellant argues that he is entitled to
graphs that Jason P. Garlick received
a new trial under this
in
Court’s decision
e-group.
while a member of that
United States v. Roberts.9
22, 2001,
January
subpoe-
military
3.
is
date
the FBI’s
FAX notice of these defects to
authorities
Yahoo;
prior
na was served on
the affidavit does not
to trial.
give
response
the date of Yahoo’s
or the effective
date of the information contained therein.
Request
Delay,
August
5.
dated
for
2002.
memorandum,
According
4.
trial counsel
(R.C.M.)
6. See Rule
for Courts-Martial
notice
received
of the defective search affidavit
1102(b)(2).
days
Appellant's
two
after
trial. Trial counsel’s
notice to defense counsel was delivered seven
1210;
Scaff,
7. See R.C.M.
United States v.
trial,
days
day
after
on the same
the record of
(C.M.A.1989).
trial was
av-
authenticated.
The memorandum
ers that
the affidavit’s defects were "known to
8. 373 U.S.
83 S.Ct.
351
offense(s) to which the
guilt
issue of
of the
CONCLUSION
910(j).
But a valid
was made.” R.C.M.
by
not
the Gov-
The information
disclosed
voluntary.
intelligent
guilty plea must be
knowledge
Appellant’s
ernment was within
Roeseler,
v.
55 M.J.
289
United States
being formally
trial. Even after
well before
Care,
(C.A.A.F.2001);
error,
notified after trial of a disclosure
(1969).
“Misap
obtaining
delay
legal options, C.M.A.
C.M.R.
to consider
litigate
Appellant’s counsel declined to
strength
prehension of the
and extent
importance
con-
issue or advocate its
by
prosecution’s
engendered
which is
case
vening authority in
her R.C.M.
submis-
impermissible
misrepresentation
or other
circumstances,
unique
sion. Under
clearly
government conduct is a matter which
may
from a
error that
have resulted
impact on the voluntariness of the deci
could
failure to disclose such information is harm-
plead guilty.”
appellant
sion
Unit
According-
less
a reasonable doubt.
(C.M.A.
Payton,
ed
States
ly,
we find no
in law or fact to
basis
1987).
Gillies,
See also Von Moltke v.
voluntary
providence Appellant’s
plea,
708, 720,
U.S.
68 S.Ct.
An unconditional “waives right challenge that he waived his to that raised, objection, previously whether or not objection probable insofar as the relates to the factual warrant for cause.
352
(including FBI or
incident
to said case
Harmless Error
enforcement)
are
law
which
other civilian
however,
Ultimately,
Ap
conclude
any
provi-
pursuant
not furnished
other
because,
pellant’s conviction must survive
[;] any known
request
this
...
sions of
material,
remaining
even absent the false
credibility of
tending to diminish
evidence
information in the warrant affidavit continues
[;
potential
and]
... all
witnesses
probable
cause. At the thresh
establish
possession
all
evidence
old,
simply
duty
reviewing
of a
court is
“[t]he
to Trial
or otherwise known
Government
magistrate
had a ‘substan
to ensure
1)
reasonably may tend to:
Counsel which
concluding1
probable
for ...
tial basis
2)
Accused;
negate
guilt of the
reduce
Carter,
v.
cause existed.” United States
guilt of the Accused to the offenses
(C.A.A.F.2001)
(quoting Illinois
M.J.
3)
punishment.
charged; or
reduced the
Gates,
213, 238-39, 103
462 U.S.
S.Ct.
(internal
(1983)
2317,
326-27. But where majority of courts con- with the Consistent that the failed to disclose discov- Government that, issue, however, I conclude sidering this response specific in to a re- erable evidence knowledge or regardless of the Government’s quest, shifts to the Government the burden regarding materi- the erroneous recklessness harm- to demonstrate the nondisclosure was al, remaining in the warrant the information beyond Id. at 327. less a reasonable doubt. adequate proba- was demonstrate affidavit Here, fairly served a counsel Froman, v. 355 cause. United States ble See discovery request to trial counsel detailed (5th Cir.2004); United States F.3d 882 for, among things: asking other (10th Cir.2003); Hutto, Fed.Appx. 6 see Schmidt, F.3d 100 notes, memoran- also United States personal or business [A]ll Cir.2004) (2d (stating in dicta that the affida- da, prepared by investigators writings (C.A.A.F.2005) (internal cause, ci- probable vit continued to establish but omitted) (em- marks quotation tations and deciding grounds). ease on other While original). phasis in automatically re- allegation Appellant that I inference from think it is reasonable in pictures pornography ceived of child his e- in the the uncontested information warrant component significant mail was a of the war- Candy- probable purpose affidavit that probable predicate, it rant affidavit’s membership gain man access to the was only particular, not one. In was pornography child available on the website. that affidavit asserted the “website had sev- joining likely Someone the site was to down- including eral features” different “‘Files’ Thus, pornography. in load and trade provided section an area for mem- [which] that am satisfied a reasonable doubt images post bers to or video files for others affi- unchallenged portion of the warrant Indeed, upload.” the affidavit described constituted a substantial basis for the davit “primary the Files section as the feature” issuing magistrate was to conclude there website, agent and noted that the investi- probable Appellant cause that had download- gating approximately the case downloaded Candyman pornography ed child one hundred of child website, images in and retained such his period. and erotica over a one month The possession. quoted description affidavit also the website’s My conclusion is further ratified two “group people itself as a who love kids” First, in additional considerations. “post any type messages and invitation to suppressed cases where courts have you any type pies like too [sic] vids warrant, fruits of the the defen- you like too does not chal- [sic].” they dants demonstrated that had elected a lenge portions Perez, of the affidavit. option. non-automatic distribution 471; Strauser, F.Supp.2d at recently As we reiterated Thus, F.Supp.2d at 1137. the erroneous in- v. Bethea: formation the warrant affidavit was not probable A false, cause determination is a only demonstrably misleading but as whether, practical, applied receipt to those defendants’ of child common-sense decision Here, pornography. Appellant does not given all the circumstances forth in set claim that he chose one of the non-automatic issuing judge], affidavit before [the includ- Thus, delivery options. there is no basis for veracity knowledge and basis of prejudice. an inference of actual persons supplying information, hearsay Finally, significant I find it probability there is a fair that contraband improvident did not assert his of a evidence crime will be found in a clemency package post-trial or in a session in particular place. military judge. front of the He raised the Supreme emphasized Court has legal only issue as a concern after it became flexible, probable cause is a common-sense apparent that other defendants standard. A cause determination having raising were some success the issue. merely requires person that a of reason- sum, Appellant alleges In that the contest- able caution could believe that the search cause, ed warrant lacks and conse- *8 crime; may reveal evidence of a it does not quently, guilty plea improvi- that his any showing demand such belief dently disagree entered. Because I with likely correct or more true than So false. Appellant regarding proposition, his first though people even often use that there is no conclude substantial basis not, likely mean more than providence or fact to of his law require showing does not that an event is Prater, guilty plea. United States v. (C.M.A.1991). likely. than more 50%