                       UNITED STATES, Appellee

                                    v.

                        Joseph W. LEE, Airman
                      U.S. Air Force, Appellant

                              No. 03-0071

                        Crim. App. No. S29894

       United States Court of Appeals for the Armed Forces

                       Argued October 16, 2006

                      Decided December 27, 2006

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.

STUCKY and RYAN, JJ., did not participate.

                                 Counsel

For Appellant: Captain John N. Page III (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Major Matthew Ward, (argued); Colonel Gary F.
Spencer, Lieutenant Colonel Robert V. Combs, and Captain Kimani
R. Eason (on brief); Colonel Gerald R. Bruce.

Military Judge:   James L. Flanary


       This opinion is subject to revision before final publication.
United States v. Lee, No. 03-0071/AF

     Judge ERDMANN delivered the opinion of the court.

     Airman Joseph W. Lee was convicted at a contested special

court-martial of violating Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2000), by possessing one or

more images of child pornography in violation of 18 U.S.C. §

2252A (2000).   A military judge sentenced Lee to a bad-conduct

discharge, confinement for seventy-five days, and reduction to

airman basic.   The convening authority approved the sentence and

the United States Air Force Court of Criminal Appeals affirmed

the findings and sentence.   United States v. Lee, 57 M.J. 659,

664 (A.F. Ct. Crim. App. 2002).

     On January 20, 2004, this court set Lee’s conviction aside

in light of our decision in United States v. O’Connor, 58 M.J.

450 (C.A.A.F. 2003), and authorized a rehearing.   United States

v. Lee, 59 M.J. 261 (C.A.A.F. 2004) (summary disposition).     At a

rehearing before a military judge, Lee was again convicted of

possessing child pornography in violation 18 U.S.C. § 2252A.

Lee was sentenced to a bad-conduct discharge, confinement for

seventy-five days, and reduction to the lowest enlisted grade.

Again, the convening authority approved the sentence and the

Court of Criminal Appeals affirmed the findings and sentence.

United States v. Lee, No. ACM S29894 (A.F. Ct. Crim. App. July

28, 2005).   We granted review of a single issue questioning




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United States v. Lee, No. 03-0071/AF

whether Lee should have been afforded the assistance of an

expert consultant to assist in the preparation of his defense.1

       In trials by courts-martial, the accused is afforded equal

access to witnesses and evidence, including a right to the

assistance of necessary experts without regard to his ability to

pay for those expert services.    Article 46, UCMJ, 10 U.S.C. §

846 (2000); United States v. Garries, 22 M.J. 288, 290 (C.M.A.),

cert. denied, 479 U.S. 985 (1986).    Lee contends that he was

wrongly denied the assistance of an expert consultant in

forensic computer examination in order to prepare to meet the

charge against him and to cross-examine the Government’s expert

in computer forensics.    Lee argues that an expert consultant was

necessary to the defense in order to understand the scientific

techniques used to review and analyze computer graphic images

and to determine whether such images were real or computer-

generated.    We conclude that under the circumstances of this

case, Lee was denied his right to expert assistance for the

preparation and presentation of his defense.




1
    On March 29, 2006, we granted review of the following issue:

      WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
      DENIED THE DEFENSE REQUEST FOR AN EXPERT CONSULTANT IN
      THE FIELD OF FORENSIC COMPUTER EXAMINATION.

62 M.J. 197 (C.A.A.F. 2006).

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United States v. Lee, No. 03-0071/AF

                             Background

     Prior to the rehearing, Lee’s defense counsel was provided

a Government witness list.   Among the listed witnesses was Mr.

Michael Buratowski, a forensic expert from the Defense Computer

Forensics Laboratory who had prepared a “Media Analysis Report”

based upon his examination of graphic images seized from Lee’s

laptop computer.   Mr. Buratowski would offer expert testimony

that the images taken from Lee’s computer were real photos.

After reviewing the report and interviewing Mr. Buratowski,

defense counsel requested the employment, at Government expense,

of Mr. Marcus Lawson as a confidential expert consultant.   In

support of this request defense counsel noted:

   7. Defense interviewed Mr. Burtowski [sic] on 13 Aug
   04. During this interview, Mr. Burtowski [sic] stated
   that the media analysis used to analyze the images is a
   fairly new process, approximately one year old. He also
   stated that he had never testified before using this
   type of picture analysis, that it is not nationally
   certified, that each forensic lab has different ways of
   analyzing pictures, and that the picture analysis of
   this nature is an evolving process.

   8. The defense does not have the necessary
   qualifications to prepare adequately for this case,
   especially for evidence provided to the defense a week
   before trial. The defense requires an expert to analyze
   the report, do its own analysis of the pictures, analyze
   the hard drive and help formulate possible defenses.

   9. The world of forensic computer analysis, the
   underlying science and anything else associated with
   those subjects, is a very large area of knowledge. It
   takes someone with specialized knowledge in that field
   to understand that world, and this expertise is
   something the defense lacks at this time. Without this
   knowledge, we cannot adequately assist AB Lee in his
   defense. Furthermore, we are hamstrung by new forensic

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United States v. Lee, No. 03-0071/AF

   evidence that was provided a week before trial. Without
   this knowledge, we are forced to take testimony from the
   government’s forensic examiner at face value. We do not
   have the expertise to cross-examine or otherwise
   challenge witness testimony or conclusions about the
   results of this media analysis. This inadequacy will
   result in a violation of AB Lee’s right to present a
   defense if it is not remedied.


Defense counsel’s request indicated that the expert would be of

assistance to the defense both in preparing for trial and as a

potential expert witness at trial.   The Government did not

provide an expert consultant to the defense prior to trial.

     At trial, Lee’s counsel made a motion to compel appointment

of an expert consultant.   The following discussion between the

military judge and defense counsel transpired during the hearing

on that motion:

     DC: Your Honor, on 9 August 2004, the defense was
     presented with a forensic analysis report or, as it is
     termed on the report, a Media Analysis Report. It was
     given to the defense approximately a week and a half
     before trial. The defense had no notice that this
     report was being given, that it was even being
     analyzed, and the prosecution is offering it to prove
     up the charge in Article -– under 18 U.S.C. 2252(a).

          The defense has not had an opportunity or the
     knowledge to adequately prepare for this trial due to
     our lack of expertise in media analysis. And, I’d
     like to proffer that the expert witness will say that
     it is a fairly new technology that has been developed
     since U.S. v. Ashcroft [sic] to prove that the images
     are real. The expert witness will opine that these
     images are real. And, the defense would request an
     expert, number one, to analyze the report either in
     forensic computer examination or, more precisely,
     media analysis. We would request an expert to analyze
     the report and help us develop any potential cross-
     examination. And, without an expert to even analyze


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United States v. Lee, No. 03-0071/AF

     the veracity of the report, we are burdened at trial.
     Thank you, Your Honor.

     MJ: Okay. Counsel, let me ask you this before I take
     trial counsel’s response to this. You say you found
     out about the result of the test about a week and a
     half ago?

     DC:   Yes, Your Honor.

     MJ: And, at that time, did you have access to where
     you could either talk in person or telephone the
     government witness involved the case?

     DC: We received the contact information for the
     witness on the 9th, that is the first notice we had of
     the witness.

     MJ:   Okay.   And, today’s the 19th?

     DC:   Yes, Your Honor.

     MJ: So you’ve had the contact information for about
     ten days?

     DC:   Yes, Your Honor.

     MJ: And you did, in fact, call and contact this
     particular witness?

     DC:   Yes, Your Honor.

     MJ: Okay.     And did you have a chance to discuss this
     with him?

     DC:   Yes, Your Honor.

     MJ: And did you -– you did, in fact, conduct an
     interview with him about the test itself, is that
     correct?

     DC:   Yes, Your Honor.

     MJ: Okay. And, after that, if you’d have chosen to,
     did you have access to senior attorneys, other than
     yourself, in your chain of command to discuss the
     issue with?

     DC:   Yes, Your Honor.

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United States v. Lee, No. 03-0071/AF


     MJ: And, did you, in fact, discuss this issue with
     them also?

     DC:   Yes, Your Honor.

     MJ: Okay. And did you discuss the analysis
     techniques that were being used?

     DC:   Yes, Your Honor.

     MJ: Okay. And, other than what you’ve got in your
     motion, was there any other defect or any other
     problem with the testing process other than what
     you’ve stated in your motion here?

     DC: There was no, to our knowledge, no defect in the
     testing process; however, we do not have the expertise
     to even know if there is a defect.

     MJ: Okay. Well, when you were talking to the
     government witness, was he aware of any defects that
     were in the testing process?

     DC:   No, Your Honor.

     MJ: All right. Did he appear to be confident with
     the testing results?

     DC:   Yes, Your Honor.

     MJ: Okay. Did he give you anything, at all, other
     than just the fact that it was a new technique that
     would make you think that this is an invalid process
     based on the science of it?

     DC:   No, Your Honor.

     Government counsel argued that the subject matter did not

necessitate a defense expert and that the defense had had

adequate time to prepare on the key issue of whether the graphic

images were or were not actual.   The military judge denied the

defense motion stating:



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United States v. Lee, No. 03-0071/AF

     [The court finds], by preponderance, that the defense
     did, in fact, contact the expert, had an opportunity
     to interrogate him, to ask him specific questions
     about the programming, about the process, that based
     upon the proffer given and the questions from the
     court of the defense, the expert did not know of any
     glaring -– not glaring -– but any defects in the
     process or the science that was behind the imaging
     process, and that there [were] no apparent defects in
     that process based on the limited evidence received by
     the court so far. As a result of that, the court
     finds that there is no relevant and necessary
     requirement for an expert based upon this, based upon
     what the defense has proffered, the court finds,
     therefore, that the motion for the request is denied.

     Mr. Buratowski was recognized as an expert in computer

forensic and digital photo analysis and testified at the trial.

He demonstrated the qualitative and quantitative analysis

examination process for computer images and he discussed

relevant concepts and tools such as:     pixilation and

randomization of colors within images; the bas relief filter;

the glowing edges filter; the sharpen more filter; the

solarization filter; and the four channels that make up a

digital image (red, green, blue, and luminosity).    Mr.

Buratowski related information about his examination of five

graphic images taken from Lee’s laptop computer as well as his

expert opinion that the five images were real as opposed to

virtual.

                            Discussion

     At a court-martial, the parties and the court “shall have

equal opportunity to obtain witnesses and other evidence.”

Article 46, UCMJ.   Prior to trial, the defense must submit a

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United States v. Lee, No. 03-0071/AF

request for employment of an expert to the convening authority

supported, in part, by a “statement of reasons why the

employment of the expert is necessary.”   Rule for Courts-Martial

703(d).   If the request is denied by the convening authority,

that request may be renewed at trial before the military judge.

Id.   On appeal, we review the military judge’s ruling on a

request for expert assistance for abuse of discretion.    United

States v. Gunkle, 55 M.J. 26, 32 (C.A.A.F. 2001).

      An accused’s entitlement to expert assistance is not

limited to actual expert testimony at trial.   The entitlement to

that expertise is available “before trial to aid in the

preparation of his defense upon a demonstration of necessity.”

United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005);

see also United States v. Kreutzer, 61 M.J. 293, 305 (C.A.A.F.

2005).    To demonstrate that necessity, “[t]he accused must show

that a reasonable probability exists ‘both that an expert would

be of assistance to the defense and that denial of expert

assistance would result in a fundamentally unfair trial.’”

Bresnahan, 62 M.J. at 143 (quoting Gunkle, 55 M.J. at 31).    To

test the adequacy of this showing of necessity, we apply a

three-part test:   “[t]he defense must show:   (1) why the expert

assistance is needed; (2) what the expert assistance would

accomplish for the accused; and (3) why the defense counsel were

unable to gather and present the evidence that the expert

assistance would be able to develop.”   Id. (footnotes omitted)

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United States v. Lee, No. 03-0071/AF

(citing United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A.

1994); United States v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F.

1996)).   On the facts of this case, we conclude that the defense

made an adequate showing of necessity.

     Whether the alleged images of child pornography were real

or virtual was, as defense counsel asserted, a critical issue in

this case.    The Government’s witness list revealed that it would

rely on forensic testing and expert testimony to demonstrate

that the images were real.   Defense counsel requested Mr.

Lawson’s expertise to assist in reviewing the Government’s Media

Analysis Report, to analyze the relatively novel methods used to

generate that report, to conduct an independent analysis of the

images from Lee’s computer, and to assist the defense in

preparing to meet Mr. Buratowski’s expert testimony.   This

assistance would provide the basis upon which defense counsel

could cross-examine the Government expert and possibly challenge

the actual or real nature of the graphic images.   Defense

counsel demonstrated that this expert assistance was necessary

to defend against key evidence of guilt to be presented by the

Government.

     We also agree with the defense counsel’s assertion that the

defense did not have the qualifications or expertise to deal

with forensic image analysis as presented by the Government’s

expert witness.   Defense counsel’s assertion that the scientific

discipline involved was novel, evolving, and varied from lab to

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United States v. Lee, No. 03-0071/AF

lab is supported by Mr. Buratowski’s testimony.    The image

analysis process used on the images from Lee’s computer was

created just over a year before the rehearing.    Mr. Buratowski

was one of only three individuals in the Department of Defense

qualified to do digital media analysis and even he had not

testified in court as an expert in that discipline.   It is not

reasonable to expect that defense counsel could learn an

entirely new scientific discipline, test the Government’s

analytical report, and prepare cross-examination, particularly

given the very short time before this rehearing was scheduled.

     In concluding that the defense met its burden of

establishing necessity, we are concerned with the manner in

which the military judge responded to this request.   The

military judge’s questioning of defense counsel reflects that

the military judge found that since the defense counsel had the

opportunity to discuss the images with the Government’s expert,

there was no need for a separate defense expert.   Aside from the

common-sense conclusion that Mr. Buratowski would be unlikely to

cast a critical eye upon his own expertise, his analytical

methods, or his professional conclusions, making a selected

Government expert available for interview prior to trial does

not properly respond to a defense showing of necessity for

expert assistance.

     In United States v. Warner, 62 M.J. 114, 120 (C.A.A.F.

2005), we commented that “Article 46 is a clear statement of

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United States v. Lee, No. 03-0071/AF

congressional intent against Government exploitation of its

opportunity to obtain an expert vastly superior to the

defense’s.”   As this case demonstrates, the playing field at

trial is rendered even more uneven when the Government benefits

from scientific evidence and expert testimony while the defense

is wholly denied a necessary expert to prepare for and respond

to the Government’s expert.   Denying Lee the expert assistance

of a defense consultant was an abuse of discretion.

     Before we reverse this case for an abuse of discretion, we

must determine that the error materially prejudiced Lee’s

substantial rights.   Article 59(a), UCMJ, 10 U.S.C. § 859(a)

(2000).   In this case, the Government met a critical element of

its burden of proof by showing the graphic images to be real

through scientific analysis and expert testimony.   Lee, on the

other hand, was denied the asset necessary for him to challenge

that Government evidence and prepare a defense.   Denying Lee the

resources necessary to prepare and present a defense was

prejudicial error.

     In coming to this conclusion we are cognizant of our recent

decision in United States v. Cendejas, 62 M.J. 334 (C.A.A.F.

2006), which was issued after the trial and the Court of

Criminal Appeal’s decision in this case.   Cendejas also dealt

with graphic images of alleged child pornography and we held

“that a factfinder can make a determination as to whether actual

children were used to produce the images based upon a review of

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United States v. Lee, No. 03-0071/AF

the images alone.”   Id. at 338.    Arguably then, Lee was not

prejudiced because the factfinder, in this case the military

judge, had before him the graphic images from which he could

draw his own conclusion that they were actual.    However, in

Cendejas we specifically stated that our holding did “not

prevent a defendant from having the opportunity to challenge the

images on the basis that they do not depict an actual child.”

Id.   Here, the Government clearly relied upon more than just the

images themselves and Lee did not have the opportunity to

prepare a challenge to the Government’s evidence or to the

images alone.

      We are also aware that the military judge made special

findings in which he said that his findings were “bolstered by

the testimony of . . . Mr. Buratowski.”    The military judge

further stated:   “Finally, upon reviewing the images in

Prosecution Exhibits 2 through 5, and applying the court’s

commonsense, knowledge of human nature and the ways of the

world, the court is independently convinced, beyond a

reasonable[] doubt[,] that the images are of real children

ranging in ages from six to ten years.”    Nonetheless, we cannot

be confident in the fairness of the result of this trial where

Lee was deprived of the opportunity to have expert assistance

that could have undermined the military judge’s conclusion.

      Courts-martial must not only be just, they must be

perceived as just.   The requirement of Article 46, UCMJ, for

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United States v. Lee, No. 03-0071/AF

equal access to witnesses and evidence secures that just result

and enhances the perception of fairness in military justice.

Where the Government has found it necessary to grant itself an

expert and present expert forensic analysis often involving

novel or complex scientific disciplines, fundamental fairness

compels the military judge to be vigilant to ensure that an

accused is not disadvantaged by a lack of resources and denied

necessary expert assistance in the preparation or presentation

of his defense.

                             Decision

     The decision of the United States Air Force Court of

Criminal Appeals is reversed and the findings and sentence are

set aside.   The record of trial is returned to the Judge

Advocate General of the Air Force.   A rehearing may be ordered.




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