United States v. Airman First Class McIntyre, 2014 WL 487093 (A.F.Ct.Crim.App.)) January 2014

This case came before the Air Force Court of Criminal Appeals (AFCCA) via interlocutory appeal (Article 62, UCMJ) by the Government.  The basis of the appeal stems from the trial judge’s ruling to suppress all oral and written statements by the accused regarding his admissions to possession and viewing of child pornography.  The trial judge ruled that there was no independent corroborating evidence to support the admission of the oral/written statements by the accused.

Facts: In February of 2013, the accused was taking a polygraph examination as part of a security clearance investigation.  During the examination (4-5 hours long), the accused admitted to viewing child pornography since entered active duty.  He also admitted to possessing child pornography on a “Mac only” hard drive.  He stated that the Mac he used to access the hard drive crashed prior to his entrance onto active duty.  Based on the interview the Air Force Office of Special Investigations (AFOSI) obtained authorization to search the accused’s home.  The home was searched 3 times.  One time with the help of the accused.  A Mac, two Dell laptops, and two micro SD cards were seized, but no “Mac only” hard drive could be found.  DCFL examined the electronic media devices.  24 images of suspected and 1 image of confirmed (via NCMEC) child pornography were recovered from the Mac, but were found in the unallocated space (previously deleted files waiting to be overwritten but not accessible to the user), which did not give time/date or user information.   There was no other child pornography found on any of the other devices.  DCFL also confirmed that Mac had crashed (prior to the accused’s entrance onto active duty).  There were internet search terms for pornography, but nothing that was indicative of child pornography search terms.

The Trial Judge’s Ruling:  With regards to possession of child pornography, the military judge considered whether or not there was a hard drive in the possession of the accused during the charged time frame and what corroboration existed to support his statement that there actually was actual child pornography.  The Judge determined that the Government provided no independent evidence that the accused possessed the hard drive while on active duty (because it was never found), and there was no evidence to connect the images in unallocated space to what was on the missing hard drive.

With regards to viewing child pornography, the judge considered the internet history from the Dell laptop. The Judge stated that while the accused’s statement was vague (regarding his continued search for child pornography), it did indicate the he 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 Appeal: 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. 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). 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.

The Holding: 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.

“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.”

“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.”

We therefore affirm the military judge’s decision and remand the case to the trial court for further proceedings.”

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