United States v. Suwinski

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant MARK S. SUWINSKI
United States Air Force

ACM 38424

20 November 2014

Sentence adjudged 22 March 2013 by GCM convened at Kadena Air Base,
Japan. Military Judge: Gregory O. Friedland.

Approved Sentence: Bad-conduct discharge and reduction to E-1.

Appellate Counsel for the Appellant: Major Anthony D. Ortiz and
Captain Lauren A. Shure.

Appellate Counsel for the United States: Major Daniel J. Breen;
Major Mary Ellen Payne; and Gerald R. Bruce, Esquire.

Before

HECKER, SANTORO, and TELLER
Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release.

SANTORO, Judge:

A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of three specifications of wrongfully and knowingly possessing
visual depictions of minors engaging in sexually-explicit conduct, in violation of
Article 134, UCMJ, 10 U.S.C. § 934.1 The members sentenced him to a bad-conduct
discharge, restriction to the limits of Kadena Air Base for two months, and reduction to
E-1. The convening authority approved the punitive discharge and reduction to E-1.

1
The appellant was acquitted of a fourth specification alleging possession of similar images.
 Before us, the appellant asserts: (1) the military judge erred in admitting, pursuant
to Mil. R. Evid. 404(b), evidence of “child erotica” and images that did not meet the
definition of child pornography; (2) the evidence was legally and factually insufficient to
establish his guilt, as there was no evidence presented that his conduct was prejudicial to
good order and discipline or service discrediting; and (3) the military judge erred in not
suppressing his statement to investigators, and the evidence derived therefrom, because
he was not advised of his rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831.2 We
disagree and affirm.

Background

The appellant’s military duties required that he complete a “counterintelligence
scoping polygraph” (CSP) examination, to be administered by an agent from the
Air Force Office of Special Investigations (AFOSI). During the testing, the examiner
considered the appellant’s responses to several questions “significant” and asked
additional questions to determine the reasons for his heightened physiological responses.
In the discussion that followed, the appellant told the examiner that he had downloaded
“porn” involving teens and internet models and, after additional questioning, that he had
downloaded “child porn.”

Following an Article 31, UCMJ, rights advisement, the appellant provided a
written statement admitting that he had several “galleries” of images and movies
involving nude and topless girls ranging in age from 6 to 16. He told the examiner he
had developed an “interest in the young female form” and viewed the images to “satisf[y]
[his] sexual urges.” He further stated he had downloaded these images from various
Internet sites, including some that had been shut down for distributing child pornography.

Agents obtained search authorizations for the appellant’s dormitory room, vehicle,
and work area, and seized computers and computer media, including several hard drives.
A subsequent forensic analysis of the media found approximately 254 images and videos
of minors engaging in sexually explicit conduct contained on four hard drives.

Additional facts necessary to resolve the assignments of error are included below.

Admission of “Child Erotica”

Among the items found on the appellant’s computer media were stories about
apparently fictional sexual encounters occurring at a preteen modeling agency, and
approximately 23,000 images of minors that both sides agreed were properly classified as
“child erotica” as they did not meet the definition of “minors engaged in sexually explicit
conduct.” Over defense objection, the military judge permitted the Government to

2
This third issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

2 ACM 38424
introduce these items pursuant to Mil. R. Evid. 404(b) as evidence of the appellant’s
knowledge and absence of mistake.

We review a military judge’s evidentiary rulings for an abuse of discretion.
United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). We will not overturn a
military judge’s ruling unless it is “‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly
erroneous,’” United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (quoting
United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)), or influenced by an erroneous
view of the law. Id. (citing United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002)).

The test for admissibility of uncharged acts is “whether the evidence of the
misconduct is offered for some purpose other than to demonstrate the accused’s
predisposition to crime and thereby to suggest that the factfinder infer that he is guilty, as
charged, because he is predisposed to commit similar offenses.” United States v.
Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006) (quoting United States v. Castillo,
29 M.J. 145, 150 (C.M.A. 1989)) (internal quotation marks omitted). Such permissible
purposes include proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Mil. R. Evid. 404(b).

We review the admissibility of uncharged misconduct under Mil. R. Evid. 404(b)
using the three-part test articulated in United States v. Reynolds:

1. Does the evidence reasonably support a finding by the
court members that appellant committed prior crimes, wrongs
or acts?

2. What fact of consequence is made more or less probable by
the existence of this evidence?

3. Is the probative value substantially outweighed by the
danger of unfair prejudice?

29 M.J. 105, 109 (C.M.A. 1989) (citations, quotation marks, and ellipses omitted).

The appellant argues, as he did at trial, that the “child erotica” evidence failed the
second and third prongs of the Reynolds test and should have been excluded.3

It is not unusual for this type of “child erotica”—images and stories—to be found
in conjunction with images of child pornography (or, as charged in this case, visual
depictions of minors engaging in sexually explicit conduct). As decades of military

3
The appellant admitted to investigators that he downloaded the child erotica images and wrote the stories, thus
satisfying the first Reynolds prong.

3 ACM 38424
jurisprudence indicate, possession of this type of material can satisfy the second Reynolds
prong, in that this evidence can tend to indicate knowledge of the nature of the
contraband material and negate the possibility that the files were downloaded by accident
or mistake. See United States v. Sanchez, 59 M.J. 566, 570 (A.F. Ct. Crim. App. 2003)
(allowing subscriptions “to numerous e-groups described as nude teen sites” as evidence
of knowing possession of child pornography), rev’d in part on other grounds, 60 M.J.
329 (C.A.A.F. 2004); United States v. Mann, 26 M.J. 1, 2–4 (C.M.A. 1985) (providing
that possession of magazines were admissible to prove the accused’s intent to satisfy his
sexual desires); United States v. Rhea, 29 M.J. 991, 998 (A.F.C.M.R. 1990) (providing
that possession of books describing sexual exploitation of young girls was probative of
motive), set aside on other grounds, 33 M.J. 413 (C.M.A. 1991); United States v. Lips,
22 M.J. 679, 682 (A.F.C.M.R. 1986) (holding that possession of graphically posed
photographs showing women being sexually abused was a clear indication of the
appellant’s penchant for sexual aberration); United States v. Woodyard, 16 M.J. 715
(A.F.C.M.R. 1983) (holding that possession of homosexual magazines was probative of
intent to commit sodomy).

Our civilian colleagues have reached similar conclusions. As observed by one
federal district court: “[A] number of courts have upheld the admission of evidence that
a defendant facing charges of possessing child pornography also possessed pornographic
stories about children, reasoning that it shows the defendant’s ‘knowledge that the images
he possessed contained pornography featuring children, and [are] thus admissible under
Rule 404(b).’” United States v. Tanguay, 982 F.Supp. 2d 119, 123 (D.N.H. 2013)
(quoting United States v. Phipps, 523 Fed. Appx. 498, 500 (9th Cir. 2013)). See also
United States v. Stewart, 729 F.3d 517, 529 (6th Cir. 2013); United States v. Shaffer,
472 F.3d 1219, 1226 (10th Cir. 2007); United States v. Grimes, 244 F.3d 375, 384
(5th Cir. 2001).

Our superior court recently cited, with approval, a decision by the United States
Court of Appeals for the Third Circuit holding that, in a prosecution for possession of
child pornography, images of “child erotica,” while legal to possess, may nonetheless be
admitted to show intent to commit the charged offense. United States v. Warner,
73 M.J. 1, 3 (C.A.A.F. 2013) (citing United States v. Vosburgh, 602 F.3d 512, 538
(3d Cir. 2010)).

Against this legal backdrop, we consider whether the military judge erred in
finding that, in this case, the “child erotica” evidence met the second Reynolds prong.
The threshold inquiry for this prong is whether this evidence is probative of a material
issue other than the accused’s character. United States v. McDonald, 59 M.J. 426, 429
(C.A.A.F. 2004). It must be logically relevant to a fact of consequence in the case by
making that fact “more probable or less probable.” United States v. Staton, 69 M.J. 228,
230–31 (C.A.A.F. 2010); Mil. R. Evid. 401. The defense theory at trial was that the
appellant sought out and knowingly possessed images of minors who were nude and in

4 ACM 38424
suggestive poses, but that he did not knowingly possess any images of minors engaging
in sexually explicit conduct. The “child erotica” evidence directly contradicted that
theory. Several of the images contained captions—written by the appellant—suggestive
of sexually explicit activity between adults and minors. The “modeling agency” stories
written by the appellant referenced models with the same names as the minors in the
images depicting sexually explicit conduct. We conclude that the military judge did not
abuse his discretion in concluding that this evidence satisfied the second Reynolds prong
and thus was admissible to show the appellant’s knowledge and the absence of mistake.

We likewise conclude that the military judge did not abuse his discretion in
finding that the probative value was not substantially outweighed by the danger of unfair
prejudice (the third Reynolds prong). This evidence was highly probative as it went to
the heart of the key contested issues: knowledge and absence of mistake. Moreover, the
military judge gave an appropriate limiting instruction to ensure the members would
place the evidence in proper context, telling them that they could only consider the
evidence for the specific limited purposes of knowledge and lack of mistake and for no
other purpose. Court members are presumed to follow the military judge’s instructions
absent evidence to the contrary. United States v. Rushatz, 31 M.J. 450, 456 (C.M.A.
1990).

We therefore reject this assignment of error.

Factual and Legal Sufficiency

We review claims of factual insufficiency de novo. United States v. Turner,
25 M.J. 324 (C.M.A. 1987). The test for factual sufficiency is “whether, after weighing
the evidence in the record of trial and making allowances for not having personally
observed the witnesses,” we are convinced of appellant’s guilt beyond a reasonable
doubt. Id. at 325. Review of the evidence is limited to the entire record, which includes
only the evidence admitted at trial and exposed to the crucible of cross-examination.
Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Bethea, 46 C.M.R. 223,
224–25 (C.M.A. 1973). The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the prosecution, a reasonable fact-finder could
have found all of the essential elements proven beyond a reasonable doubt. United States
v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002).

The elements of each offense were:

(1) that at the time and place alleged, the appellant knowingly
and wrongfully possessed on an identified storage medium,
visual depictions of minors engaging in sexually explicit
conduct, and;

5 ACM 38424
 (2) that under the circumstances, the appellant’s conduct was
prejudicial to good order and discipline and of a nature to
bring discredit upon the armed forces.

See Manual for Courts-Martial (MCM), United States, pt. IV, ¶ 60.b. (2008 ed.).

Before us, the appellant challenges the factual and legal sufficiency only with
respect to the second element, arguing that the prosecution failed to introduce any
evidence that his conduct was prejudicial to good order and discipline and/or service
discrediting. The Government argues that prejudice to good order and discipline was
established by the following evidence: (1) the appellant possessed the contraband images
in Government quarters on a military installation; (2) the appellant began downloading
images within the continental United States and exported them overseas when he was
reassigned to Japan; and (3) the appellant’s possession of contraband images would
render him ineligible to maintain the security clearance necessary to perform his military
duties. The Government further argues that, under the facts and circumstances of this
case, the appellant’s conduct was service discrediting.

“Conduct prejudicial to good order and discipline” is conduct which causes a
reasonably direct and obvious injury to good order and discipline. See MCM, pt. IV,
¶ 60.c.(2)(a). “Service discrediting conduct” is conduct which tends to harm the
reputation of the service or lower it in public esteem. See MCM, pt. IV, ¶ 60.c.(3).
Although almost any irregular or improper act on the part of a servicemember could be
regarded as prejudicial in some indirect or remote sense, only those acts in which the
prejudice is reasonably direct and palpable are punishable under Article 134. MCM,
pt. IV, ¶ 60.c.(2)(a). Similarly, only those acts which would have a tendency to bring the
service into disrepute or which tend to lower it in public esteem constitute service
discrediting conduct. MCM, pt. IV, ¶ 60.c(3).

A “low evidentiary threshold” is required to satisfy the so-called “terminal
element(s)” of an Article 134 offense. See United States v. Goings, 72 M.J. 202, 206 n.5
(C.A.A.F. 2013) (citing United States v. Phillips, 70 M.J. 161, 163 (C.A.A.F. 2011)
(“evidence that the public was actually aware of the conduct is not necessarily required”
to support clause 2 of Article 134’s terminal element); United States v. Irvin,
60 M.J. 23, 26 (C.A.A.F. 2004) (finding a sufficient factual basis to support clause 1 and
clause 2 of Article 134’s terminal element despite no evidence that any other
servicemembers were aware of, or saw, the child pornography)).

As our superior court said in Phillips:

The focus of [Article 134’s] clause 2 is on the “nature” of the
conduct, whether the accused’s conduct would tend to bring
discredit on the armed forces if known by the public, not

6 ACM 38424
 whether it was in fact so known. The statute, which requires
proof of the “nature” of the conduct, does not require the
government to introduce testimony regarding views of “the
public” or any segment thereof. The responsibility for
evaluation of the nature of the conduct rests with the trier of
fact.

70 M.J. at 165–66.

We have reviewed the record of trial, paying particular attention to the evidence
and reasonable inferences that can be drawn therefrom with respect to whether the
appellant’s conduct was prejudicial to good order and discipline and service discrediting.
In viewing the evidence in the light most favorable to the Government, we conclude that
a rational factfinder could have found beyond a reasonable doubt that the appellant’s
conduct met both definitions. He began downloading, storing, and organizing images of
minors engaging in sexually explicit conduct at Whiteman Air Force Base in Missouri,
retained the images during his permanent change-of-station move to Kadena Air Base,
Japan, and possessed and viewed the images in government-owned housing at Kadena, an
installation on foreign soil regulated by international agreements. We also conclude that
a rational factfinder could have found beyond a reasonable doubt that the nature of the
appellant’s conduct would have brought the service into disrepute had it been known by
the public. Finally, having reviewed the entire record and making allowances for not
personally observing the witnesses, we ourselves are convinced of the appellant’s guilt
beyond a reasonable doubt. We therefore reject this assignment of error.

Admission of Statement to Investigators

The appellant alleges, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), that the military judge erred in not suppressing his statements to investigators, and
the evidence derived therefrom, because he was not initially advised of his rights
pursuant to Article 31, UCMJ.

When there is a motion to suppress a statement on the grounds that rights warnings
were not given, we review the military judge’s findings of fact under a clearly erroneous
standard and his conclusions of law de novo. United States v. Jones, 73 M.J. 357, 360
(C.A.A.F. 2014). On a mixed question of law and fact, a military judge abuses his
discretion when his findings of fact are clearly erroneous or his conclusions of law are
incorrect. Id.

In this case, the military judge made extensive findings of fact which are amply
supported by the record, not meaningfully contested upon appeal, and which we adopt
and summarize here.

7 ACM 38424
 Prior to the CSP, the polygraph examiner was advised that the appellant was a
maintainer on a national security asset, was not under investigation, and possessed an
active top secret security clearance. The appellant signed an AFOSI Form 74, Consent
for Polygraph Examination, prior to the CSP.

During the polygraph, the examiner concluded the appellant was exhibiting a
“significant response” to certain espionage-related questions. The examiner was initially
unsure whether the appellant misunderstood the questions, was nervous, or had other
issues. He then paused the CSP, left the room, and reviewed data sources in an attempt to
ascertain the reason for the appellant’s significant responses. He found none and, at that
point, did not suspect the appellant of a crime.

When the examiner continued the discussion with the appellant, the appellant told
him he had downloaded movies, music, and pornography. 4 In response to a question, the
appellant said that the pornography consisted of teenagers and internet models. The
examiner pressed the appellant to be more specific about the pornography, saying, “Talk
to me. There’s not a damn thing you can say that’s going to shock the hell out of me,
trust me. I’ve been doing this s[**]t too far [sic] long.” The examiner said there was
“nothing [he] ain’t heard,” “[j]ust let it go[,]” “come on,” and “what is it?” He further
added: “We both know, just go ahead and tell me. Tell me. You are not telling me
something I probably don’t know, trust me. Go for it. You have no idea how much
better you’ll feel once you say it . . . .” Shortly thereafter, the appellant told the examiner
he had downloaded child pornography.

The examiner then stopped the interview, removed the polygraph instrument
components from the appellant, and terminated the CSP. He advised the appellant of his
Article 31 rights, which the appellant waived both orally and in writing. The appellant
then made several oral and written admissions about the images and videos he
downloaded from the Internet. He also provided investigators consent to search his
dormitory room, work center, storage units, vehicle, and locker. Later that day,
investigators sought and received search authorizations from the appropriate authorities
to search and seize property from the appellant’s vehicle and dormitory room. During
these searches, media containing child pornography was found.

The military judge cited and discussed the law applicable to these facts. He
concluded that a reasonable investigator would have suspected the appellant of an offense
by the time the examiner made the statements that immediately preceded the appellant’s
first admission. Because the appellant’s statement that he downloaded child pornography
was not preceded by Article 31 warnings, the military judge suppressed it. See United
States v. Duga, 10 M.J. 206 (C.M.A. 1981), overruled in part by United States v. Jones,

4
Video and audio recordings of this interview were reviewed by the military judge during the Article 39(a), UCMJ,
10 U.S.C. § 839(a), session.

8 ACM 38424
73 M.J. 357, 361–62 (C.A.A.F. 2014); United States v. Morris, 13 M.J. 297 (C.M.A.
1982); United States v. Leiffer, 13 M.J. 337 (C.M.A. 1982).

However, the military judge also concluded that the subsequent Article 31 rights
advisement was properly administered and that the appellant’s later oral and written
statements were not coerced. He admitted those statements and the evidence derived
therefrom. The appellant contends this ruling was an abuse of discretion.

As the military judge properly noted, when an earlier statement was “involuntary”
only because the accused had not been properly warned of his Article 31(b), UCMJ,
rights, the voluntariness of the second statement is determined by the totality of the
circumstances. United States v. Brisbane, 63 M.J. 106, 114 (C.A.A.F. 2006). “The
earlier, unwarned statement is a factor in this total picture, but it does not presumptively
taint the subsequent statement,” id. (quoting United States v. Cuento, 60 M.J. 106, 109
(C.A.A.F. 2004), and the absence of a cleansing statement in the later interrogations is
not necessarily fatal to a finding of voluntariness. Id. The appropriate legal inquiry is
whether the second confession was voluntary “considering all the facts and circumstances
of the case including the earlier technical violation of Article 31(b).” United States v.
Phillips, 32 M.J. 76, 80 (C.M.A. 1991).

We find no abuse of discretion in the military judge’s rulings. While the examiner
urged the appellant to waive his Article 31 rights, there was no evidence the examiner
threatened, coerced, or otherwise unlawfully induced the appellant to do so. In
considering the totality of the circumstances and finding the second confession to be
voluntary, the military judge properly weighed the appellant’s age, intelligence, and
education; the length, nature, and tenor of the interview; the conduct of the interrogator;
and the effect of the prior, unwarned statement upon the appellant’s subsequent waiver of
his rights. We therefore reject this assignment of error.

Conclusion

The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are
AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN
Deputy Clerk of the Court

9 ACM 38424