OPINION OF THE COURT
Cоntrary to his pleas, a military judge sitting as a general court-martial convicted the appellant of one specification of receiving visual depictions of minors engaging in sexually explicit conduct and one specification of viewing depictions of minors engaging in sexually explicit conduct, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The appellant was sentenced to a bad-conduct discharge, confinement for 24 months, and reduction to E-2. The convening authority approved the sentence as adjudged. On appeal, the appellant asserts five errors: (1) the military judge erred by finding the appellant’s confession to be sufficiently corroborated, (2) the appellant’s constitutional right to fair notice was violated when he was charged with and convicted of viewing child pornography, (3) the military judge erred by repeatedly permitting hearsay evidence to be introduced over his objection, (4) the military judge abandoned her role as an impartial and neutral arbiter, and (5) the аppellant’s due process rights were violated when the Government took nearly two years to bring court-martial charges to trial. Finding no merit to the appellant’s assignments of error, we affirm the findings and sentence.
Background
The appellant was stationed at Spangdah-lem Air Base, Germany. In October 2006, the German police initiated an investigation into suspected child pornography being sent and received over the Internet. During the course of the investigation, the appellant was identified by a German Internet service provider (ISP) as a potential recipient of child pornography. The investigators contacted the Air Force Office of Special Investigations (OSI) at Spangdahlem with their findings. The OSI, in turn, began its own investigation. On 13 September 2007, Special Agent (SA) Davis interviewed the appellant, who, after a proper rights advisement, agreed to make a statement. The appellant said that, while searching the Internet for adult pornography of “Hispanic and Asian women,” he camе across banners and pop-up advertisements depicting “young individuals, under 18, in sexual poses or having oral intercourse.” The appellant admitted to intentionally clicking on the banners and pop-ups as well as viewing images portraying minors engaging in various sexual activities. Following his verbal admission, the appellant provided a written statement, describing in detail the 19 pornographic images he observed. He esti
On 17 September 2007, the German police seized two tower computers, a laptop computer, a gaming console, a router, and a modem from the appellant’s apartment. SA Davis accompanied the German police during the search and observed the officers take the computers and place a white sticker on each item seized. On 17 October 2007, SA Davis took possession of the seized items from the German police. SA Davis testified that the white stickers hе previously observed were still attached and the items were in the same general condition as when he observed the officers taking them from the appellant’s apartment. Forensic copies of the computer hard drives were created and sent to a computer forensic company for analysis. The analyst, Ms. Carol Peden, testified at the court-martial. She said that, along with the laptop and two internal hard drives, she received paperwork detailing the OSI case number, the appellant’s name, and the items to be analyzed. During her analysis, she found evidence of suspected child pornography on one of the internal hard drives, along with a computer profile named “merritttl.” She further testified that the forensic data showed the computer user had “accessed porn sites concerning Asian women and then followed redirects, pop-ups, or links to other types of sites, some containing terminology indicating child porn.”
Corroboration of the Appellant’s Statement
As he did at trial, the appellant argues on appeal that his statement to OSI was not sufficiently corroborated to be admitted into evidence. Specifically, the appellant asserts that, because the Government failed to maintain an adequate chain of custody from the time the hard drive was seized by the German police to the point it was returned to OSI, it was possible that the police might have given OSI the wrong hard drive or even potentially altered the evidence on the drive itself, rendering the evidence recovered from the hard drive unreliable.
We review a military judge’s decision to admit an appellant’s confession applying an abuse of discretion standard, United States v. Young,
After hearing argument on the issue, the military judge made detailed findings of fact which were not clearly erroneous and we adopt them as our own. SA Davis observed the German police remove computer equipment from the appellant’s apartment and place a white sticker on the items seized. He took possession of these same items approximately one month later. He testified that the objects appeared to be in the same general condition as when they were taken by the German police. The forensic analysis of the hard drive indicated that the user had
The analyst’s conclusion that the user “hаd followed links or pop-ups from adult sites to other types of sites, some containing terminology indicating child porn,” was consistent with the appellant’s admission that he followed links and pop-up ads that eventually led to pictures of child pornography. Ms. Peden’s statement that she recovered 17 pictures from the unallocated space on the hard drive — indicating they had been previously deleted — was in agreement with the appellant’s admission that he deleted the pictures aftеr viewing them. Further, Ms. Peden’s description of the pictures was entirely consistent with the expressive depictions provided by the appellant in his written statement to OSI. Finally, the Yahoo user profile, entitled “merritttl,” corresponded with the appellant’s last name and first and middle initials. Based on these facts, we are convinced the Government provided the requisite quantum of independent evidence required to corroborate the appellant’s confession.
Notice
Specification 2 of the Charge reads:
In that [the appellant] did, at or near Spangdahlem Air Base, Germany, on divers occasions, between on or about 6 May 2006 and on or about 13 May 2006, wrongfully and knowingly view one or more visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.1
On appeal, the appellant claims, as he did at trial, that he was unaware that the private viewing of children engaging in sexual aсtivities could constitute criminal misconduct. Specifically, because the offense of “viewing child pornography” was not enumerated in the UCMJ or listed as an offense under Title 18, United States Code, he avers he was not placed on fair notice that such conduct could be service discrediting and therefore subject to criminal sanctions.
It is well settled under military law that a service member may be prosecuted for a service discrediting offense even if that conduct is not specificаlly listed in the Manual for Courts-Martial. United States v. Saunders,
In doing so in the case before us, we find a sufficient basis exists to find the appellant knew, or should have known, that his conduct was service discrediting. First, in his statement to OSI, the appellant disclosed: “These imаges I have tried to forget ... I am deeply a shamed (sic) for having even looked at such images ... It is to great horror that [I] have to recall these images that I tried so hard to forget seeing.” Such an admission is powerful evidence that the appellant was fully aware that viewing child pornography could call the Air Force into disrepute and thereby violate the UCMJ.
Military case law further supports our conclusion. In United States v. Sapp,
Various federal circuits have held that the act of viewing child pornography violated the Child Pornography Prevention Act, 18 U.S.C. §§ 2251-60, even though “viewing” was not specifically listed in the statute until 2008.
Finally, the Supreme Court has concluded that states can constitutionally proscribe the possession and viewing of child pornography on the basis the state “had a compelling interest[ ] in protecting the physical and psychological wеll-being of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials.” Osborne v. Ohio,
When taking the case law and the appellant’s own characterization of the horrors associated with child pornography into account, we have no difficulty concluding the appellant was on notice of the service discrediting nature of his conduct.
Hearsay
The appellant insists the military judge repeatedly relied on inadmissible hearsay to ultimately conclude that the hard drive examined by Ms. Peden was a forensic copy of the drive belonging to the appellant. Specifically, the appellant argues the information given by the ISP to the German police concerning the user name and internet protocol address of an individual suspected of receiving child pornography was improperly considered. Likewise, the appellant contends the military judge erred by permitting SA Davis to testify about what he was told by the German pоlice regarding three U.S. military members who were being investigated for receipt of child pornography. He further complains the military judge improperly permitted the Government’s expert to testify as to what she was told concerning the media she examined and how it was allegedly connected to the appellant. Finally, the appellant argues the Government’s expert relied on improper hearsay to conclude that the forensic copy of the hard drive she examined matched the drive seized by the police.
A military judge’s decision to accept evidence is evaluated for an abuse of
It is clear from the record that the statements objected to at trial were not used by the Government to prove their truth, but rather to ascertain why various steps were being taken (i.e., why OSI undertook its own investigation that resulted in the appellant being interviewed and whether the verbal and written admissions given to the investigatory agent were corroborated). Further, Ms. Peden’s testimony about what she was told at the time she examined the appellant’s hard drive was not hearsay because it explained why she was examining the hard drive in the first place. More importantly, her subsequent testimony at trial did not rely upon what she was told by SA Davis, but rather described what she specifically found after examining the drive, testimony the appellant was fully able to cross-examine at trial.
The appellant’s contention that the military judge relied upon impermissible hearsay to conclude that Ms. Peden examined an exact forensic copy of the hard drive taken from the appellant’s apartment is incorrect. Ms. Peden testified that she compared the hash values of the original and copied hard drives to determine if the two drives were forensically identical. She explained that hash values are created by software when a forensic copy is made from the original. Such machine-generated data does not constitute hearsay. United States v. Sweeney,
Impartiality of the Military Judge
The appellant argues that thе military judge abandoned her role as an impartial and neutral arbiter and became a partisan advocate for the prosecution. The appellant asserts the military judge provided repeated assistance and instruction to the trial counsel concerning evidentiary processes and permitted the Government to correct deficiencies in its case. After a full review of the record, we find no merit to the appellant’s complaint.
When a military judge’s impartiality is quеstioned on appeal, we must determine whether, taken as a whole in the context of trial, a court-martial’s legality, fairness, and impartiality were put into doubt from the objective viewpoint of a reasonable person. United States v. Ramos,
In the case before us, it is important to appreciate that the military judge was also the fact finder. As such, she was entitled to question witnesses and examine the strength and weakness of the evidence presented at the court-martial. Article 46, UCMJ, 10 U.S.C. § 846, affords “equal op
After a full review of the record, we find the military judge maintained her “fulcrum position of impartiality” and her questions of the witnesses “did not suggest any judicial preference or belief.” United States v. Acosta,
Denial of Speedy Trial
The appellant asserts that his right to due process under the Fifth Amendment
With respect to the first prong, the appellant states the Government “dеlayed, charged, withdrew charges and recharged without any change in the key evidence from April 2008 until trial on August 31, 2009,” ostensibly because the Government was unable to find sufficient evidence to link him with the hard drive examined by the Government’s expert. The appellant fails to provide evidence that the Government sought to intentionally delay his case for the purpose of gaining a tactical advantage or hampering his defense. The appellant’s argument that the delays were requested beсause the Government could not perfect its case amounts to conjecture. Speculation by the accused on either prong of the test is insufficient to show a due process violation. Reed,
Likewise, the appellant has failed to show how he was actually prejudiced by the delay. He claims to have suffered prejudice because the Government was “given multiple bites at the apple.... [A]fter sitting for two years, the lapse of time, the loss of witnesses, the fading of memories and еvidence of mishandling, if not adulteration of key evidence raises more questions than it answers.” He continues by stating that key witnesses “who could testify about how [the appellant] was identified as a person contacting a web server hosting child pornography were no longer available.” Similarly, he now contends that witnesses who could explain how the hard drive suddenly appeared during the transition of evidence from the German police to OSI were not available. As with the
Appellate Delay
In this case, the overall delay of more than 540 days between the trial and completion of review by this Court is facially unreasonable. Because this delay is unreasonable, we examine the four factors set forth in Barker v. Wingo,
Having considered the totality of the circumstances and the entire record, we conclude that any denial of the appellant’s right to speedy post-trial review and his appeal was harmless beyond a reasonable doubt and thаt no relief is warranted.
Conclusion
The approved findings and the sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant remains. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Reed,
AFFIRMED.
Notes
. By exceptions, the appellant was found guilty of the specified conduct as being service discrediting under Clause 2 of Article 134, UCMJ, 10 U.S.C. § 934.
. We differentiate this case from United States v. Navrestad,
. 18 U.S.C. § 2252A was amended in 2008 to add viewing of child pornography as a listed offense.
. U.S. Const. amend. V.