           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS



UNITED STATES,                                )                Misc. Dkt. No. 2013-24
                     Appellant                )
                                              )
              v.                              )
                                              )                ORDER
Airman First Class (E-3)                      )
JACOB R. MCINTYRE,                            )
USAF,                                         )
                    Appellee                  )                Panel No. 1


HARNEY, Senior Judge:

       On 9 May 2013, the 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 or 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 appellee’s motions, including the Motion to Suppress. On 4 September 2013, the
military judge granted the motion and subsequently denied the Government’s request for
reconsideration. On 6 September 2013, the Government filed a timely appeal of the
military judge’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 (AFOSI) 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 vacillates on his culpability but ultimately admits to
viewing child pornography on his personal computer laptop while on active duty and
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 AFOSI received authorization to search the appellee’s
house. The AFOSI visited the appellee’s house three separate times on the day of his
interview, twice while the appellee was being interviewed and once with the appellee.
During the first visit, the AFOSI interviewed the appellee’s wife about the appellee’s
misconduct. During the second visit, the AFOSI searched for and collected 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 AFOSI 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 drive in the
bookcase. He stated, “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 space, 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 onto
active duty. No child pornography images were found on the 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
  While 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
sexually 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 removed 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 Ex. XIII, Attach. 4, at 32.


                                                          2                               Misc. Dkt. No. 2013-24
“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
downloaded 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 during the charged time frame and what corroboration existed
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 internet 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 statement 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 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 judge did not discuss the Macbook unallocated pictures in his analysis
of the viewing 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); Rules 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 States 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, 239


                                            3                        Misc. Dkt. No. 2013-24
(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 States 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 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.

       We have reviewed the military judge’s findings of fact. They are “fairly supported
by the record” and not clearly 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. 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. 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
predicament 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 reasonable 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. Mil. R. Evid. 304(g)(1). It is “sufficient if the corroboration
merely fortifies 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) (characterizing 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”). To meet this minimal 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 that 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.


                                                          4                                Misc. Dkt. No. 2013-24
“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.
Mil. R. Evid. 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 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.

       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 pornographic 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 drive 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
suggested to the AFOSI that a hard drive did exist; however, the extent of what she knew
about the contents 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 possessed child
pornography. Without a witness or forensic evidence to connect the appellee in some
way to the possession of child pornography during the charged time frame, the military
judge reasonably concluded the appellee’s confessions were not corroborated.

       In his reconsideration, the military judge addressed 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 other


                                            5                        Misc. Dkt. No. 2013-24
vehicles showed no connection to the accused. In Mitchell, the similarities in the crimes
and the ongoing nature of the crimes established reliability during a specified time frame
sufficient to corroborate the confession. Here, however, 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 appellee’s supposed “non-testimonial acts”
prove consciousness of guilt. United States v. Baldwin, 54 M.J. 551 (A.F. Ct. Crim. App.
2000), 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
front 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, the Government
has not articulated how the appellee’s actions in front of the AFOSI 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.
304(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, once on Thanksgiving and once on New Year’s Eve. 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.
Although the 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. Our superior court upheld the conviction for the
New Year’s Eve use and overturned the conviction for the Thanksgiving use, even
though in both instances the witness did not observe the accused using cocaine. The


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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 used 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 the New
Year’s Eve drug use). In other words, even though no one saw Rounds use cocaine in
both instances, in the same way no one ever saw the appellee look at child pornography,
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.

       The military judge’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 Court considered the accused’s
confession to drug use. While no witnesses were available to corroborate his
statements, this Court was satisfied the following essential 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, the 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 testimony from an expert
or law enforcement official connecting the sites the appellee visited with the child
pornography he 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 appellee’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 the case before us are markedly different. In Merritt, a German
internet service provider detected child pornography 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 the


                                             7                       Misc. Dkt. No. 2013-24
appellee. Further, as the military judge noted, the appellee’s confession to viewing child
pornography 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 that he searched for adult Asian
pornography, followed pop-up sites with terminology indicative of child pornography,
and had child pornography in that computer’s unallocated space. Here, the forensic
evidence includes appellee’s search terms for adult pornography and 25 pictures of child
pornography 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 sufficiently corroborated 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 United States appeal under Article 62, UCMJ, it is by the
Court on this 16th day of January, 2014.

ORDERED:

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

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



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




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