                        UNITED STATES, Appellee

                                      v.

                  Jason P. GARLICK, Senior Airman
                     U.S. Air Force, Appellant

                                No. 04-0669

                          Crim. App. No. 35298

       United States Court of Appeals for the Armed Forces

                         Argued April 12, 2005

                        Decided August 25, 2005

CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and ERDMANN, JJ., joined. BAKER, J.,
filed a separate concurring opinion.

                                  Counsel

For Appellant: Captain L. Martin Powell(argued); Colonel Carlos
L. McDade and Major Sandra K. Whittington (on brief); Major
Terry L. McElyea.

For Appellee: Major John C. Johnson (argued); Lieutenant Colonel
Gary F. Spencer and Lieutenant Colonel Robert V. Combs (on
brief).

Amicus Curiae for Appellant:        Melissa R. Covolesky (law student)
(argued).

Amicus Curiae for Appellee:       David Hartnagel (law student)
(argued).

Military Judge:   Ann D. Shane

         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Garlick, No. 04-0669/AF


     Judge CRAWFORD delivered the opinion of the Court.

     Sitting as a general court-martial, a military judge

convicted Appellant, pursuant to his pleas, of one specification

of wrongful possession of visual depictions of minors engaged in

sexually explicit conduct, in violation of clauses 1 and 2,

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 934 (2000).   The military judge sentenced Appellant to be

reduced to E-1, to be confined for ten months, and to be

discharged with a bad-conduct discharge.   The convening

authority reduced Appellant’s sentence to confinement for 199

days, but otherwise approved the sentence.   On June 10, 2004,

the Air Force Court of Criminal Appeals modified the findings:

     [E]xcepting the phrases “on divers occasions” and
     “visual depictions of a minor engaging in sexually
     explicit conduct” from the finding of guilty,
     substituting therefore “thirty-four visual depictions
     of minors engaged in sexually explicit conduct, as
     referenced in Prosecution Exhibit 1 and as illustrated
     by the thirteen attachments to that exhibit.

United States v. Garlick, No. ACM 35298, 2004 CCA LEXIS 183, at

*8, 2004 WL 1539576, at *3 (A.F. Ct. Crim. App. June 10, 2004).

That court reassessed and affirmed the sentence.   On December 10,

2004, this Court granted review of the following issue:

     WHETHER APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED
     BY THE PROSECUTION’S FAILURE TO DISCLOSE DISCOVERABLE
     INFORMATION PRIOR TO TRIAL.1

1
  We heard oral argument in this case at The George Washington
University School of Law, Washington, D.C., as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58

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United States v. Garlick, No. 04-0669/AF



     We conclude that any error that may have resulted from a

failure to disclose information was harmless beyond a reasonable

doubt, and that Appellant’s guilty plea was knowing and

voluntary.   Finding no basis in fact and law to question the

providence of that plea, we affirm.

                              FACTS

     The court below summarized the facts, as follows:

     The appellant was a member of an Internet group
     (Egroup) called Candyman, an electronic forum devoted
     to child pornography. The appellant was a subscriber
     from 15 January 2001 to 28 January 2001. An
     investigation by the Federal Bureau of Investigation
     (FBI) revealed that the appellant was in possession of
     numerous images of child pornography at his home near
     Eglin Air Force Base, Florida. These images were
     discovered during a search authorized by a civilian
     federal magistrate pursuant to a probable cause
     affidavit submitted by the FBI. Trial in the case
     took place on 5 August 2002.2

     The appellant avers that on 12 August 2002, a week
     after his court-martial ended, the trial counsel
     notified the trial defense counsel by memorandum that
     a statement contained in the FBI’s probable cause
     affidavit was untrue. Trial defense counsel appended
     this memorandum to the appellant’s clemency
     submissions, which are attached to the record of
     trial. The statement in question is as follows:
     “Every e-mail sent to the [Candyman] group was
     distributed to every member automatically. Therefore,
     when an individual transmitted child pornography to


M.J. 346, 347 n.1 (C.A.A.F. 2003). The amici curiae appeared
pursuant to Rule 13A of the Court’s Rules of Practice and
Procedure.
2
  There is no dispute that Appellant timely received (at or
before the Article 32 investigation) the search warrant and
supporting affidavit of Special Agent [SA] Kerry Davis.

                                 3
United States v. Garlick, No. 04-0669/AF


     the Candyman group via e-mail, those images were
     transmitted to every one of the group members.”
     According to the trial counsel’s memorandum, however,
     automatic receipt of e-mails was only the default
     setting for subscribers to the group, and individuals
     were able to elect not to receive emails if they so
     chose. According to this memorandum, this information
     was known to the FBI prior to trial in the appellant’s
     case.

Garlick, 2004 LEXIS 183, at *2, 2004 WL 1539576, at *1 (footnote

added).

     The eleven-page affidavit of Special Agent (SA) Davis, upon

which the U.S. Magistrate Judge’s search warrant was based,

included brief details of SA Davis’s five-year FBI career;

described the premises and items to be seized; provided

definitions from the Child Pornography Prevention Act, 18 U.S.C.

§§ 2251-2260 (2000), and other sources; explained basic workings

of computers and peripheral devices; explained how the internet

is used as a medium for traffic in child pornography and how

internet sites and user addresses work, including that even on-

line storage can leave detectable traces on the individual

computer used to effect that storage.   This section also

explained that those interested in child pornography tend to

collect, trade, and preserve the images on computers, disks,

etc., and usually retain the images for long periods of time.

The affidavit then provided nearly four pages of information

specific to operation of the Candyman Egroup and to Appellant’s

involvement therein:


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United States v. Garlick, No. 04-0669/AF


     25. . . . The purpose of the Candyman Egroup, as
     stated on its own website, was as follows:

     “This group is for People who love kids. You can post
     any type of messages you like too [sic] or any type of
     pics and vids you like too [sic]. P.S. IF WE ALL WORK
     TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.”

     . . . .

     27. Voluntary Egroup Membership: In order to join
     the Egroup, a person had to visit the URL . . . and
     send an e-mail to the group moderator requesting
     permission to join. The moderator would then send a
     confirmation notice to the requestor’s e-mail account,
     advising him that he now had access to the Egroup.
     There was no fee to join. In addition, at the bottom
     of each e-mail were directions instructing a member
     what to do if he wanted to stop receiving e-mails from
     the group and no longer desired to be a member of the
     group.

     28. . . . Second, all new members of the Egroup were
     immediately added to the Candyman e-mail list. Every
     e-mail sent to the group was distributed to every
     member automatically. Therefore, when an individual
     uploaded and transmitted child pornography to the
     Candyman group, those images were transmitted to every
     one of the group members . . . . [emphasis added to
     indicate factually misleading material.]

     29. Images Posted on the Website: The primary
     feature of the Candyman Egroup’s website was the
     ‘Files’ section. This allowed members to upload and
     download images directly to and from the website. SA
     Binney was a member of the Egroup from January 2,
     2001, through February 6, 2001, when Yahoo! closed
     down the Egroup. During that period of time, SA
     Binney captured approximately one hundred images and
     video clips that had been uploaded to the website.
     The images and video clips can be broken into three
     categories: 1) the majority depicted prepubescent
     minors engaged in different sexual activities; 2) a
     large number of the images focused on the genitalia of
     the nude minors; 3) the remainder were considered
     child erotica. Yahoo was unable to tell the FBI who
     downloaded images or video clips from the Egroup.


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United States v. Garlick, No. 04-0669/AF


     However, when someone uploaded a file to the website,
     the Egroup was set up such that a notice was sent via
     e-mail to all members advising them of the name of the
     file, which folder it had been posted in, the e-mail
     address of the individual who posted it and, in some
     cases, a description of the file. In other words,
     child pornography posted to the website was
     automatically distributed to the members, each of
     which had knowingly joined an Egroup devoted to the
     trading of child pornography. [emphasis added to
     indicate factually misleading material.]

     30. E-mail received: From January 2, 2001, through
     February 6, 2001, SA Binney received approximately 498
     e-mail messages from the Candyman Egroup, most of
     which contained images of child pornography or child
     erotica or information concerning those subjects or
     the operation of the Egroup. During this period, SA
     Binney received a total of approximately 183 child
     erotica images and 105 child pornography images
     through these e-mails. The last e-mail containing
     child pornography SA Binney received from the group he
     received on February 6, 2001 –- the date that Yahoo!
     closed down the Egroup. This e-mail contained two
     child pornography images. The first image depicts a
     nude female approximately ten years of age performing
     oral sex on an adult male while the second shows the
     same female straddling an adult male while
     masturbating him.

     31. On January 22, 2001, SA Binney served a federal
     grand jury subpoena on Yahoo Services, the owner and
     operator of Egroups. Yahoo responded with a list of
     approximately 3397 e-mail addresses of Candyman Egroup
     members. Specifically, the e-mail address
     garlickjason@hotmail.com, was listed on the Candyman
     Egroup list.

     . . . .

     33. . . . Yahoo provided subscription logs
     (indicating the dates and times subscribers requested
     to subscribe and/or unsubscribe to the different
     Egroups), and post logs indicating the dates and times
     members posted images and/or text messages to the
     Egroups.



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United States v. Garlick, No. 04-0669/AF


Affidavit For Search Warrant, Investigating Officer’s Report,

June 28, 2002, Allied Papers.    See also Garlick, 2004 LEXIS 183,

at *3, 2004 WL 1539576, at *1.

     SA Davis did not append these “subscription logs” to the

affidavit and did not aver any dates and times pertaining to

Appellant’s alleged activity with the Egroup, or that Appellant

was a member of the Egroup on any date other than January 22,

2001.3   After documenting that “garlickjason@hotmail.com” was

Appellant’s “username” and that Appellant lived at the address

to be searched, SA Davis added:

     44. On August 31, 2001, pursuant to the court order,
     Yahoo! provided a zip disk to the Houston Division of
     the FBI containing all log files from the three
     Egroups [“Candyman,” “Shangri_la,” and “Girls 12-16”].
     Houston analyzed and copied all information
     referencing garlickjason@hotmail onto a CD which was
     forwarded to the Pensacola Resident Agency of the FBI.

     . . . .

     46. Attached to this affidavit are copies of 15
     photographs which were received by Jason P. Garlick
     while he was a member of the Candyman e-group. These
     photographs are a sample of the 116 photographs that
     Jason P. Garlick received while a member of that e-
     group.

Affidavit For Search Warrant, Investigating Officer’s Report,

June 28, 2002, Allied Papers.



3
  January 22, 2001, is the date the FBI’s subpoena was served on
Yahoo; the affidavit does not give the date of Yahoo’s response
or the effective date of the information contained therein.



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United States v. Garlick, No. 04-0669/AF


       After receiving formal, post-trial notice of misstatements

in the search affidavit,4 Appellant’s trial defense counsel

requested a ten-day delay in the submission of clemency matters:

       On 12 Aug 02, the defense was informed that a factual
       inconsistency existed in the affidavit submitted by SA
       Kerry Davis in obtaining the search warrant for SrA
       Garlick’s home. In order to effectively advise my
       client and prepare an adequate clemency request or
       take other appropriate action, I require additional
       time to investigate and research this matter.5

After this delay, the defense counsel submitted clemency matters

to the convening authority on Appellant’s behalf, to which she

appended trial counsel’s notice of “factual inconsistencies.”

Defense counsel requested no relief related to these

“inconsistencies,” nor does the appellate record indicate that

defense counsel requested either a post-trial Article 39(a)

session6 or a new trial.7


4
  According to this memorandum, trial counsel received notice of
the defective search affidavit two days after Appellant’s trial.
Trial counsel’s notice to defense counsel was delivered seven
days after trial, on the same day the record of trial was
authenticated. The memorandum avers that the affidavit’s
defects were “known to the FBI prior to trial in the Appellant’s
case.” Garlick, 2004 LEXIS 183, at *3, 2004 WL 1539576, at *1.
Nonetheless, this memorandum reflects only one failed attempt by
the FBI to FAX notice of these defects to military authorities
prior to trial.
5
    Request for Delay, dated August 14, 2002.
6
    See Rule for Courts-Martial (R.C.M.) 1102(b)(2).
7
  See R.C.M. 1210; United States v. Scaff, 29 M.J. 60 (C.M.A.
1989).



                                  8
United States v. Garlick, No. 04-0669/AF


                               DISCUSSION

        Appellant contends that Brady v. Maryland8 and R.C.M.

701(a)(6) compel disclosure of exculpatory evidence, including

impeachment evidence, for use at trial, and that the Government

failed to make such disclosure.     Further, because the Government

cannot demonstrate beyond a reasonable doubt that the results of

trial would not have been different, Appellant argues that he is

entitled to a new trial under this Court’s decision in United

States v. Roberts.9

        Assuming that the Government had a duty to disclose the

information at issue in a timely manner, the distinctive facts

set forth below would still compel us to evaluate Appellant’s

claims in light of whether there is a “‘substantial basis’ in

law and fact for questioning [Appellant’s] plea.”10    In

determining whether Appellant’s plea was knowing and voluntary,11

we look to the record of trial and the documents considered by

the court below.

        As detailed above, the affidavit of SA Davis raised several

concerns, which, taken together with Appellant’s admitted


8
     373 U.S. 83 (1963).
9
     59 M.J. 323 (C.A.A.F. 2004).
10
     United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
11
  United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969);
R.C.M. 910.

                                    9
United States v. Garlick, No. 04-0669/AF


familiarity with the Candyman website and its operation, cannot

have escaped the notice of both Appellant and his counsel.

     There is no indication that SA Davis included the zip drive

with his affidavit or catalogued its contents, and while

paragraphs 44 and 46 of the affidavit could be read to imply

otherwise, the actual language of those paragraphs fails to

allege that the “Houston Division” found any e-mails, uploads,

or downloads bearing garlickjason@hotmail.com, or that that

office attributed any images of child pornography to Appellant’s

possession, control, or usage.   Finally, the presumptive support

for SA Davis’s conclusion that the fifteen photographs attached

to the affidavit “were received by Jason P. Garlick while he was

a member of the Candyman e-group,” or for SA Davis’s further

conclusion that those photographs “are a sample of the 116

photographs that Jason P. Garlick received while a member of

that e-group,” is SA Davis’s earlier, erroneous description of

the “automatic e-mail” system of the website.12

     Nothing in Appellant’s pretrial agreement precluded a

suppression motion to contest either the factual sufficiency of

the affidavit or any other perceived defect in the warrant or

subsequent authorization.   Appellant made no motions.   Even


12
  In a Stipulation of Fact, Appellant acknowledges receipt of
only ninety-six images, indicating his awareness of the factual
inaccuracy of that portion of SA Davis’s affidavit.


                                 10
United States v. Garlick, No. 04-0669/AF


without the “factual inconsistencies” provided by the

Government, this was an affidavit ripe for litigation, yet

Appellant and his counsel declined to litigate the issue prior

to Appellant’s guilty plea.

       If there remained a question regarding Appellant’s

knowledge of the necessary factual support for such a motion,

that question was emphatically resolved by his counsel’s later

fully informed and well-considered declination either to raise

the motion in a post-trial Article 39(a) session,13 or request a

new trial from the convening authority.

      During the Care inquiry, the following colloquy occurred:

      MJ:    I just want to make sure that none of these . . .
             images that you’ve pled guilty to possessing
             weren’t delivered to your computer by mistake . .
             . . So what you’re telling me is there was no
             mistake?

      ACC:   Yes, Ma’am.

      MJ:    So you intentionally downloaded the images,
             knowing what they were?

      ACC:   Yes, Ma’am.

Further, the Stipulation of Fact, knowingly and willingly

entered into by Appellant, describes Appellant’s subscription to

the Candyman Egroup and the Egroup’s e-mail options, but makes

no mention of any “automatic e-mail” option.     That omission, as

well as the stipulation’s inclusion of a corrected figure for


13
     See R.C.M. 1102(b)(2); Military Rule of Evidence 311(d)(2)(A).

                                   11
United States v. Garlick, No. 04-0669/AF


the number of photographs Appellant downloaded from the Candyman

website, Appellant’s admission to the military judge that he had

purposely and intentionally downloaded these images, and

Appellant’s post-trial decision not to litigate when presented

with the opportunity to do so, detract significantly from

Appellant’s claim that he was not already aware of the “factual

inconsistencies” disclosed by the Government, as well as other

errors in SA Davis’s affidavit.

                              CONCLUSION

     The information not disclosed by the Government was within

Appellant’s knowledge well before trial.   Even after being

formally notified after trial of a disclosure error, and

obtaining a delay to consider legal options, Appellant’s counsel

declined to litigate the issue or advocate its importance to the

convening authority in her R.C.M. 1105 submission.   Under these

unique circumstances, any error that may have resulted from a

failure to disclose such information is harmless beyond a

reasonable doubt.   Accordingly, we find no basis in law or fact

to question the providence of Appellant’s voluntary plea, and we

affirm the decision of the United States Air Force Court of

Criminal Appeals.   In so doing, however, we do not retreat from

our established practice of urging trial counsel to execute

diligently their continuing duty to disclose discoverable

information to the defense.    See R.C.M. 701(d).


                                  12
United States v. Garlick, No. 04-0669/AF


     BAKER, Judge (concurring):

     I concur in the Court’s decision affirming Appellant’s

conviction.   I write separately, however, because I believe

that the Court’s analysis should focus on the effect of the

violation of Brady v. Maryland, 373 U.S. 83 (1963), in the

warrant affidavit, rather than on the Appellant’s imputed

pretrial knowledge of that error.

Waiver

     The majority disposes of Appellant’s claim principally

based upon his failure to act on imputed knowledge of the

misrepresentation in the warrant affidavit prior to entry

of his guilty plea.   Although the lead opinion never uses

the term “waiver,” its analysis is strongly redolent of

that concept.   See, e.g., Black’s Law Dictionary 1611 (8th

ed. 2004) (defining “waiver” as “the voluntary

relinquishment or abandonment -- express or implied -- of a

legal right or advantage. . . . The party alleged to have

waived a right must have had both knowledge of the existing

right and the intention of foregoing it.”).

     An unconditional guilty plea “waives any objection,

whether or not previously raised, insofar as the objection

relates to the factual issue of guilt of the offense(s) to

which the plea was made.”   R.C.M. 910(j).   But a valid

guilty plea must be intelligent and voluntary.   United
United States v. Garlick, No. 04-0669/AF


States v. Roeseler, 55 M.J. 286, 289 (C.A.A.F. 2001);

United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).

“Misapprehension of the strength and extent of the

prosecution's case which is engendered by misrepresentation

or other impermissible government conduct is a matter which

clearly could impact on the voluntariness of the decision

by appellant . . . to plead guilty.”    United States v.

Payton, 23 M.J. 379, 381 (C.M.A. 1987).     See also Von

Moltke v. Gillies, 332 U.S. 708, 720 (1948).

        Here, the Government failed to fulfill an affirmative

duty to disclose a known factual misrepresentation in the

search warrant affidavit.    That affidavit asserted that

Candyman list members automatically received all materials,

including child pornographic images, distributed to the

list.    In reality, subscribers chose from among three

different delivery options, two of which did not

automatically distribute pornographic images to list

members.    Indeed, the majority of subscribers elected one

of the “non-automatic” options.     United States v. Perez,

247 F. Supp. 2d 459, 467-68 (S.D.N.Y. 2003); United States

v. Strauser, 247 F. Supp. 2d 1135, 1137 (E.D. Mo. 2003).

        The majority contends that Appellant and his counsel

must have been aware of these errors prior to entry of

Appellant’s guilty plea.    But it seems illogical to impute


                                2
United States v. Garlick, No. 04-0669/AF


such knowledge to the Appellant where the government agent

preparing the actual warrant affidavit was himself

apparently oblivious to the error.   And once the Government

did become aware of its misrepresentation, it failed to

provide Appellant notice of the defect until several days

after he entered his unconditional guilty plea and was

sentenced.   Because Appellant’s plea was entered without

notice of a potentially fatal misrepresentation in the

search warrant, I do not believe that he waived his right

to challenge that warrant for probable cause.

Harmless Error

     Ultimately, however, I conclude that Appellant’s

conviction must survive because, even absent the false

material, the remaining information in the warrant

affidavit continues to establish probable cause.   At the

threshold, “[t]he duty of a reviewing court is simply to

ensure that the magistrate had a ‘substantial basis for . .

. concluding’ that probable cause existed.”   United States

v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001) (quoting

Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal

citations omitted).

     As we recently stated in United States v. Roberts, 59

M.J. 323, 325 (C.A.A.F. 2004), “[o]ur review of

discovery/disclosure issues utilizes a two-step analysis:


                              3
United States v. Garlick, No. 04-0669/AF


first, we determine whether the information or evidence at

issue was subject to disclosure or discovery; second, if

there was nondisclosure of such information, we test the

effect of that nondisclosure on the appellant’s trial.”

As indicated above, and conceded by the Government, the

Government’s knowledge of the false information in the

warrant affidavit was clearly material to Appellant’s

defense, and consequently, subject to disclosure under

Brady, Article 46, UCMJ, 10 U.S.C. § 846 (2000), and R.C.M.

701.   Moreover, the Government’s duty to diligently

disclose newly discovered evidence continued throughout the

duration of the court-martial proceedings.   R.C.M. 701(d).

       Proceeding to the second step of the analysis,

erroneous nondisclosure will generally entitle an appellant

to relief only where the appellant demonstrates a

reasonable probability of a different result at trial had

the evidence been disclosed.   Roberts, 59 M.J. at 326-27.

But where an appellant establishes that the Government

failed to disclose discoverable evidence in response to a

specific request, the burden shifts to the Government to

demonstrate the nondisclosure was harmless beyond a

reasonable doubt.   Id. at 327.




                               4
United States v. Garlick, No. 04-0669/AF


     Here, Appellant’s counsel served a fairly detailed

discovery request to trial counsel asking for, among other

things:

     [A]ll personal or business notes, memoranda, and
     writings prepared by investigators incident to said
     case (including FBI or other civilian law enforcement)
     which are not furnished pursuant to any other
     provisions of this request . . .[;] any known evidence
     tending to diminish credibility of . . . all potential
     witnesses . . .[; and] any and all evidence in the
     possession of the Government or otherwise known to
     Trial Counsel which reasonably may tend to: 1) negate
     the guilt of the Accused; 2) reduce the guilt of the
     Accused to the offenses charged; or 3) reduced the
     punishment.

I conclude that the Government’s failure to disclose the

erroneous information pursuant to this request shifts the

burden to the Government to demonstrate that the error was

harmless beyond a reasonable doubt.

     The probable cause predicate in the search warrant

would be invalid if the Court were to conclude that the

Government included the defective material in the

supporting affidavit “knowingly and intentionally, or with

reckless disregard for the truth,” and that the affidavit’s

remaining material was inadequate to establish probable

cause after the false information was set aside.    Franks v.

Delaware, 438 U.S. 154, 155-56 (1978).   Because the

erroneous Candyman affidavit was used to support search

warrants in literally hundreds of investigations of list



                             5
United States v. Garlick, No. 04-0669/AF


members around the world, this precise issue has been

repeatedly litigated in other courts.   At least three

federal district courts decided that the Government acted

recklessly and that the remaining information in the

affidavit was insufficient to establish probable cause.

United States v. Kunen, 323 F. Supp. 2d 390 (E.D.N.Y.

2004); Perez, 247 F. Supp. 2d 479-85; Strauser, 247 F.

Supp. 2d 1135.

       Consistent with the majority of courts considering

this issue, however, I conclude that, regardless of the

Government’s knowledge or recklessness regarding the

erroneous material, the information remaining in the

warrant affidavit was adequate to demonstrate probable

cause.   See United States v. Froman, 355 F.3d 882 (5th Cir.

2004); United States v. Hutto, 84 F.App’x. 6 (10th Cir.

2003); see also United States v. Schmidt, 373 F.3d 100 (2d

Cir. 2004) (stating in dicta that the affidavit continued

to establish probable cause, but deciding case on other

grounds).   While the allegation that Appellant

automatically received pictures of child pornography in his

e-mail was a significant component of the warrant

affidavit’s probable cause predicate, it was not the only

one.   In particular, the affidavit asserted that the

“website had several different features” including a


                               6
United States v. Garlick, No. 04-0669/AF


“‘Files’ section [which] provided an area for members to

post images or video files for others to upload.”    Indeed,

the affidavit described the Files section as the “primary

feature” of the website, and noted that the agent

investigating the case downloaded approximately one hundred

images of child pornography and erotica over a one month

period.   The affidavit also quoted the website’s

description of itself as a “group for people who love kids”

and invitation to “post any type of messages you like too

[sic] or any type of pics and vids you like too [sic].”

Appellant does not challenge these portions of the

affidavit.

     As we recently reiterated in United States v. Bethea:

          A probable cause determination is a practical,
     common-sense decision whether, given all the
     circumstances set forth in the affidavit before [the
     issuing judge], including the veracity and basis of
     knowledge of persons supplying hearsay information,
     there is a fair probability that contraband or
     evidence of a crime will be found in a particular
     place.

          The Supreme Court has emphasized that probable
     cause is a flexible, common-sense standard. A
     probable cause determination merely requires that a
     person of reasonable caution could believe that the
     search may reveal evidence of a crime; it does not
     demand any showing that such a belief be correct or
     more likely true than false. So even though people
     often use probable to mean more likely than not,
     probable cause does not require a showing that an
     event is more than 50% likely.




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United States v. Garlick, No. 04-0669/AF


61 M.J. 184, 187 (C.A.A.F. 2005) (internal citations and

quotation marks omitted) (emphasis in original).

     I think it is a reasonable inference from the

uncontested information in the warrant affidavit that a

probable purpose of Candyman membership was to gain access

to the child pornography available on the website.      Someone

joining the site was likely to download and trade in child

pornography.   Thus, I am satisfied beyond a reasonable

doubt that the unchallenged portion of the warrant

affidavit constituted a substantial basis for the issuing

magistrate to conclude that there was probable cause that

Appellant had downloaded child pornography from the

Candyman website, and retained such images in his

possession.

     My conclusion is further ratified by two additional

considerations.   First, in those cases where courts have

suppressed the fruits of the Candyman warrant, the

defendants demonstrated that they had elected a non-

automatic distribution option.    Perez, 247 F. Supp. 2d at

471; Strauser, 247 F. Supp. 2d at 1137.     Thus, the

erroneous information in the warrant affidavit was not only

false, but demonstrably misleading as applied to those

defendants’ receipt of child pornography.    Here, Appellant

does not claim that he chose one of the non-automatic


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United States v. Garlick, No. 04-0669/AF


delivery options.   Thus, there is no basis for an inference

of actual prejudice.

     Finally, I find it significant that Appellant did not

assert his plea was improvident in the clemency package or

in a post-trial session in front of the military judge.     He

raised the issue as a legal concern only after it became

apparent that other Candyman defendants were having some

success raising the issue.

     In sum, Appellant alleges that the contested warrant

lacks probable cause, and consequently, that his guilty

plea was improvidently entered.   Because I disagree with

Appellant regarding his first proposition, I conclude that

there is no substantial basis in law or fact to question

the providence of his guilty plea.   United States v.

Prater, 32 M.J. 433, 436 (C.M.A. 1991).




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