UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, K.J. BRUBAKER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
MATTHEW P. HOFFMANN
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201400067
GENERAL COURT-MARTIAL
Sentence Adjudged: 23 August 2013.
Military Judge: LtCol Nicole Hudspeth, USMC. 1
Convening Authority: Commanding General, II Marine
Expeditionary Force, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj C.G. Tolar,
USMC.
For Appellant: LT Jessica Ford, JAGC, USN.
For Appellee: Capt Cory Carver, USMC; LT Ann Dingle, JAGC,
USN.
11 December 2014
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PUBLISHED OPINION OF THE COURT
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KING, Judge:
A general court-martial, consisting of members with
enlisted representation, convicted the appellant, contrary to
his pleas, of one specification each of attempted sodomy of a
child, indecent liberties with a child, child enticement, and
possession of child pornography, in violation of Articles 80,
1
Major N.A. Martz, USMC, presided over the motions session at which the
appellant’s motion to suppress was litigated and he ruled on that motion.
120, and 134, Uniform Code of Military Justice.2 The appellant
was sentenced to confinement for seven years, reduction to pay
grade E-1, total forfeiture of pay and allowances, and a
dishonorable discharge. The convening authority approved the
sentenced as adjudged.
The appellant now raises four assignments of error (AOE):
(1) the search authorization that lead to the discovery of child
pornography was defective; (2) the attempted sodomy conviction
is legally and factually insufficient; (3) the military judge
who presided at trial should have recused herself; and (4) the
appellant was subjected to illegal pretrial punishment.3 Upon
review of the record, this court, sua sponte, raised a related
issue of whether the seizure of the appellant’s laptop computer,
purportedly founded upon consent, was valid.4
After carefully considering the record of trial, the
parties’ pleadings, and oral argument, we conclude that the
findings and the sentence are correct in law and fact and that
no error materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Background
On the afternoon of 27 September 2011, while walking home
from school on board Camp Lejeune, AL, a thirteen-year-old boy,
saw a man in a light colored sport utility vehicle (SUV) slowly
drive by twice while making a gesture with his hand that AL took
to indicate fellatio. The third time the man drove by, he made
the same gesture and then asked AL if he wanted to go for a
ride. AL declined and the man drove away.
On 1 November 2011, AL saw the same SUV in the same
vicinity and immediately called his mother, who promptly drove
to his location to pick him up. While returning home, AL and
his mother passed the SUV, turned around, and began following
it. A high speed chase ensued and AL’s mother was unable to
keep up with the SUV. However, AL was able to write down the
SUV’s license plate number.5 AL’s mother notified her husband
2
10 U.S.C. §§ 880, 920, and 934.
3
We have considered AOEs 3 and 4 and find no error. United States v.
Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
4
The parties provided supplemental briefs on this issue.
5
The license plate number recorded by AL matched the appellant’s plate number
exactly, with the exception of one letter. Record at 428, 439.
2
who soon thereafter located the SUV and followed it to a work
site on board the base and notified security. Minutes later
security arrived, identified the vehicle as belonging to the
appellant, entered the appellant’s work site and took the
appellant into custody.
After being read his rights, the appellant provided Agent
Rivera of the Criminal Investigation Division consent to search
his barracks room and seize any evidence found therein. Upon
arriving at the appellant’s room, Agent Rivera began searching
the appellant’s desk. However, during the search, the appellant
revoked his consent. Although Agent Rivera stopped searching,
he nevertheless removed several items from the appellant’s room,
including the appellant’s laptop.
On 4 Nov 2011, Special Agent (SA) Shutt of the Naval
Criminal Investigative Service (NCIS) assumed investigative
jurisdiction of the case and shortly thereafter discovered that
a similar crime occurred in the local civilian jurisdiction in
April 2011. Specifically, a man drove by another thirteen-year-
old boy, RW, several times while RW was walking home from
school. On the third time, the man in an SUV pulled up to RW
and asked RW if he wanted a “quickie.” RW said, “no,” and the
man asked if RW knew what a “quickie” was. RW said “no,” and
the man drove around the block again. The man drove up to RW a
fourth time and asked, “are you sure?” RW said, “yes.” The man
said, “you’ll like it,” but RW said, “no” a final time. The man
drove away and did not come back again.6 Additionally, SA Shutt
discovered that PM, a ten-year-old boy who also lived on Camp
Lejeune, similarly alleged that a man in an SUV drove by him in
September 2011 and made a similar indecent gesture.7
On 9 March 2012, the appellant’s Commanding Officer
(Commander) authorized a search of the appellant’s seized
digital media for evidence of child pornography. The search of
the appellant’s laptop revealed evidence of child pornography,
of which 18 images and two videos were admitted into evidence.
Additional facts necessary to resolve the issues are developed
below.
6
This incident eventually gave rise to three convictions: attempted sodomy of
a child, indecent liberties with a child, and child enticement.
7
The members acquitted the appellant of the specifications involving AL and
PM.
3
Seizure of the Appellant’s Property
Prior to requesting consent to search his barracks room,
Agent Rivera informed the appellant that he was investigating
the crime of “indecent liberty” and obtained the appellant’s
consent to search his barracks room and seize “all items used
for storage that are locked and unlocked.”8 When Agent Rivera
entered the appellant’s room, he went to the secretary and desk
and began to remove items from the desk drawers capable of
storing electronic media (e.g. thumb drives, DVDs, etc.),
placing those items on the desktop. Agent Rivera also located a
laptop computer as well as a desktop computer on or under the
desk.
When Agent Rivera began to unplug the desktop computer, the
appellant “withdrew his permission – the authorization to
search.”9 While Agent Rivera immediately discontinued his
search, he “seiz[ed] as evidence” all of the electronic storage
devices he had discovered, including the laptop and desktop
computers.10 The next day, the appellant delivered to Agent
Rivera a written revocation of his consent and a demand for the
immediate return of the seized property.
Prior to trial, the appellant moved to suppress evidence
discovered on the laptop, alleging the seizure was unreasonable
under the Fourth Amendment. At the motions hearing, the parties
focused on two issues: whether the seizure occurred before
consent was revoked and whether probable cause existed
sufficient for the Commander to later authorize a forensic
search of the seized laptop computer. The military judge found
the seizure to be lawful, as the appellant withdrew his consent
“after the investigators had already seized his digital media.”11
In the alternative, the military judge found that the evidence
of child pornography in the appellant’s laptop would have been
inevitably discovered. Accordingly, he denied the motion to
suppress and admitted the evidence of child pornography as well
as evidence that the appellant searched the internet for
information on “where sex with children is legal” and “lowest
age of consent.”12
8
Prosecution Exhibit 9.
9
Record at 100.
10
Id.
11
Appellate Exhibit LVIII at 5.
12
Record at 568.
4
On appeal, the parties briefed the issue of whether consent
was revoked prior to seizure. We need not address this debate
because, assuming arguendo a Fourth Amendment violation
occurred, we conclude that the evidence of child pornography was
admissible since the appellant’s laptop would have inevitably
been seized and the subsequent search for child pornography was
supported by probable cause.
Inevitable Discovery
Generally, “evidence obtained as a result of an unlawful
search or seizure . . . is inadmissible.” MILITARY RULE OF EVIDENCE
311(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). However,
an exception applies if the evidence “would have been obtained
even if [the] unlawful search or seizure had not been made.”
MIL. R. EVID. 311(b)(2). For this exception to apply, the
Government must show, by a preponderance of the evidence, that
“when the illegality occurred, the government agents possessed,
or were actively pursuing, evidence or leads that would have
inevitably led to the discovery of the evidence” in a lawful
manner. United States v. Dease, 71 M.J. 116, 122 (C.A.A.F.
2012) (quoting United States v. Kozak, 12 M.J. 389, 394 (C.M.A.
1982)). This exception only applies “[w]hen the routine
procedures of a law enforcement agency would inevitably find the
same evidence.” United States v. Owens, 51 M.J. 204, 210
(C.A.A.F. 1999) (citations omitted). “[M]ere speculation and
conjecture” as to the inevitable discovery of the evidence is
not sufficient when applying this exception. United States v.
Maxwell, 45 M.J. 406, 422 (C.A.A.F. 1996). In making this
determination, we consider the totality of the circumstances.
United State v. Weston, 66 M.J. 544, 549 (N.M.Ct.Crim.App.
2008), aff’d, 67 M.J. 390 (C.A.A.F. 2009).
Had the appellant declined consent to search his room,
Agent Rivera testified he would have secured the scene and tried
to obtain a search authorization. Securing the scene while law
enforcement officers pursue a warrant does not offend the Fourth
Amendment. See United States v. Hall, 50 M.J. 247, 250
(C.A.A.F. 1999) (“‘[W]hen officers have probable cause to
believe that evidence of criminal activity is on the premises,
the temporary securing of a dwelling to prevent the removal or
destruction of evidence’ is reasonable.” (quoting Segura v.
United States, 468 U.S. 796, 809 (1984) (Burger, C.J., and
O’Conner, J., plurality op.))).
5
Regarding the determination of probable cause to seize the
appellant’s laptop, Agent Rivera was “very aware”13 of the
previous allegations that an individual matching the appellant’s
description, in a vehicle similar to the appellant’s, was
driving slowly through base housing shortly after the local
school children were released and propositioning young boys to
engage in sexual activity. The record also indicates that the
following information was either known to or easily discovered
by Agent Rivera: (1) AL described the individual as a slim white
male with no facial hair and short blond hair; (2) AL described
the vehicle as a white, four-door SUV with a wheel on the back
with a cover over the wheel; (3) PM described the vehicle as a
silver SUV with a wheel on the back and a yellow and black
license plate; (4) PM described the driver as a white male with
short hair; (5) the appellant had fled housing at a high rate of
speed while being chased by AL’s mother after AL had identified
the appellant’s vehicle; (5) at the same time, PM’s mother had
seen the appellant’s vehicle in the neighborhood and immediately
contacted base security. In fact, PM’s mother was on the phone
with base security when she watched the appellant speed by with
AL’s mother in pursuit; (6) the vehicle pursued had a
distinctive license plate that, in the midst of the pursuit, AL
had written down exactly, with the exception of one letter; and
(7) in his barracks room, the appellant possessed several items
capable of storing electronic media. Additionally, the
appellant was a Caucasian male who owned a silver, four-door SUV
with a wheel attached to the back and a cover over that wheel;
the appellant’s SUV had New York plates, which were yellow and
black in color; and the appellant was in the vicinity of local
schools at the hours when the children were walking home. In
addition to this information, Agent Rivera testified that, in
his 40 months of handling sex crimes, 70-80 percent of those
cases involved “electronic evidence.”14 Finally, based upon his
“training and experience,” the agent opined that “[y]ou don’t go
directly to soliciting children . . . without doing some type of
researching or inquiring about it with media equipment.”15
Under these facts, we conclude that Agent Rivera would have
provided the available information to the Commander with a
request for authorization to seize and search the appellant’s
laptop. See Weston, 66 M.J. at 553 (finding it unreasonable to
13
Record at 450.
14
Id. at 115.
15
Id. at 113.
6
conclude that experienced agent would not have “applied her
superior knowledge and experience in using the existing and
available resources . . . to quickly obtain a search
authorization”).
We also conclude that the quantum of information available
to Agent Rivera was sufficient to establish probable cause to
seize the appellant’s laptop. Probable cause is a reasonable
belief that “requires more than bare suspicion, but something
less than a preponderance of the evidence.” United States v.
Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007); see also MIL. R. EVID.
315(f)(2). Probable cause is evaluated under the “totality of
the circumstances” and is a “practical, common-sense decision
whether, given all the circumstances . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Leedy, 65 M.J. at 212-13 (citations and
internal quotation marks omitted). “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.’” United States v.
Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005) (quoting Texas v.
Brown, 460 U.S. 730, 742 (1983)).
It is appropriate for those seeking authorization to search
and seize evidence to utilize their training and experience to
“shed important light on the facts presented.” Leedy, 65 M.J.
at 216. Agent Rivera’s training and experience led him to what
we believe is a conclusion supported by “common-sense,” namely
that those who attempt to locate and then engage in sexual
activity with children frequently first conduct some type of
computer-based research. Under these facts, where the appellant
was accused of multiple brazen attempts to engage in sexual
activity with several different boys in several different
locations, it is entirely reasonable to conclude that the
appellant’s laptop would contain evidence of the alleged crimes,
such as evidence of internet searches regarding the location of
schools, school release times, or base housing maps. Therefore,
under these circumstances, we conclude that probable cause to
seize the appellant’s laptop existed and that Agent Rivera would
have obtained a command authorization to search and seize the
laptop. Thus, the seizure of the laptop was inevitable. Once
seized, SA Shutt secured command authorization to search the
laptop for child pornography, requiring that we next analyze the
validity of that authorization.
7
Validity of the Search Authorization
The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation.” U.S. Const. amend. IV. Evidence obtained in
violation of the Fourth Amendment is generally inadmissible.
MIL. R. EVID. 311.
At trial, the appellant moved to suppress the evidence of
child pornography, claiming that the affidavit provided no
evidence that the appellant possessed child pornography other
than the “conclusory” statement of SA Shutt that, in her
“training and experience . . . there is an intuitive
relationship between acts such as enticement or child
molestation and the possession of child pornography.”16 We
disagree.
We review a military judge's denial of a motion to suppress
for an abuse of discretion. Leedy, 65 M.J. at 212. In
reviewing a probable cause determination, our task is simply to
determine whether the official issuing the search authorization
had a “substantial basis” to conclude that probable cause
existed. United States v. Huntzinger, 69 M.J. 1, 7 (C.A.A.F.
2010) (citations omitted). The Court of Appeals for the Armed
Forces (CAAF) has identified “four key principles” for reviewing
probable cause determinations: (1) we view the facts in the
light most favorable to the prevailing party; (2) we give
substantial deference to the probable cause determination made
by a neutral and detached magistrate; (3) we resolve close cases
in favor of the magistrate’s decision; and (4) we view the facts
in a commonsense manner. Id. (citing United States v. Macomber,
67 M.J. 214, 218 (C.A.A.F. 2009). The CAAF has interpreted the
Supreme Court's guidance to “require that ‘resolution of
doubtful or marginal cases . . . should be largely determined by
the preference . . . [for] warrants.’" United States v. Monroe,
52 M.J. 326, 331 (C.A.A.F. 2000) (quoting Maxwell, 45 M.J. at
423).
The request for authorization to search the appellant’s
laptop was supported by an affidavit from SA Shutt and a
conversation that she had with the appellant’s Battalion
Commander (Commander).17 The affidavit detailed the allegations
16
AE VI at 4.
17
Probable cause determinations may be supported by written or oral
statements. MIL. R. EVID. 315(f)(2).
8
that the appellant had, on three separate occasions, driven by
ten to thirteen-year-old boys and made sexual gestures and
comments to them. The affidavit also noted that law enforcement
had seized the appellant’s laptop. The affidavit further
stated:
The Affiant knows from training and experience that
there is an intuitive relationship between acts such
as enticement or child molestation and the possession
of child pornography. Child pornography is in many
cases simply an electronic record of child
molestation. For individuals seeking to obtain sexual
gratification by abusing children, possession of child
pornography may be a logical precursor to physical
interaction with a child and an individual who is
sexually interested in children is likely to be
predisposed to searching for and receiving child
pornography. Additionally, individuals sexually
interested in children frequently use child
pornography to reduce the inhibitions of those
children. Computers have revolutionized the way in
which those sources and users interact. Computers and
Internet connections are readily available and are
tools of the trade for individuals wishing to exploit
children and have greatly changed and added to the way
in which child pornography is disseminated, collected,
and viewed. The relative ease with which child
pornography may be obtained on the Internet might make
it a simpler and less detectable way of satisfying
pedophilic desires.18
The affidavit also set forth that SA Shutt joined NCIS in
2006 and possessed the following relevant credentials: certified
member of the Internet Crimes Against Children (ICAC) task force
(a national program dedicated to investigations of child
exploitation via the Internet); Defense Computer Forensic
Laboratory certified Digital Medial Collector; ICAC certified
Peer 2 Peer and undercover chat investigator; had received
advanced training in child sexual abuse investigations; and was
an NCIS Field Training Agent. SA Shutt also holds a Bachelor of
Arts degree in Psychology and a Master of Arts degree in
Forensic Psychology. SA Shutt testified that her experience
included spending seven years working on cases involving the
sexual exploitation of children during which she worked on
“hundreds” of child exploitation cases; of these cases, the
18
AE VI at 4-5.
9
“majority” involved digital media; she had created over 50
affidavits seeking command authorization involving media
devices; finally, all of the child enticement cases SA Shutt had
worked on involved evidence contained in digital media.
The Commander testified that SA Shutt helped him “draw a
direct line” between “someone who has solicited children . . .
to child pornography. She built a nexus for me that it’s a
precursor, it’s an enabler. . . . [t]hat it desensitizes the
target. . . . She provided me background on predators that
indicated that child pornography is a precursor to
solicitation.”19
Relying upon several federal circuit court decisions, the
appellant now argues that probable cause was lacking since the
“intuitive relationship” between child enticement and possession
of child pornography is nothing more than bare suspicion.20 This
appears to be an issue of first impression for the military and
federal circuits are split on whether evidence of a sexual
offense against a child is sufficient to establish probable
cause to search for child pornography.
For example, in Dougherty v. City of Covina, 654 F.3d 892
(9th Cir. 2011), cert. denied, 133 S. Ct. 1725 (2013), two sixth
graders alleged that their teacher touched them inappropriately
while they were at school. Other students alleged that the same
teacher had looked at them inappropriately. Based on this
evidence, the police sought a warrant to search the teacher’s
home for child pornography. In the affidavit supporting the
request, a police officer detailed his extensive training and
experience focused on investigating cases in which juveniles had
been sexually victimized. The officer then concluded that
“based upon my training and experience . . . I know subjects
involved in this type of criminal behavior, have in their
possession child pornography.” Id. at 896. The Ninth Circuit
held that this “conclusory statement” was insufficient to
support probable cause to search for child pornography. Id at
899. The affidavit contained “no facts tying the acts of
Dougherty as a possible child molester to his possession of
child pornography.” Id. at 898. In the absence of any such
facts, the warrant was defective.
Similarly, in United States v. Doyle, 650 F.3d 460 (4th
Cir. 2011), the affidavit detailed allegations that Doyle had
19
Record at 147-48.
20
Military courts have not definitively addressed this issue.
10
sodomized three children in his home. The Fourth Circuit held
that “evidence of child molestation alone does not support
probable cause to search for child pornography.” Id. at 472
(citation omitted). The Doyle court therefore found that the
warrant was not supported by probable cause, and the fruits of
the search were therefore inadmissible. Id. at 476. Yet the
Doyle opinion does not make clear whether, as in Dougherty and
the appellant’s case, the affidavit alleged a nexus between the
two crimes based on the affiant’s training and experience.
The appellant cites the Third Circuit’s opinion in Virgin
Islands v. John, 654 F.3d 412 (3d Cir. 2011). In John, the
affidavit concerned allegations that John had molested children
at the school where he worked. The affidavit made no mention of
child pornography whatsoever. Yet the warrant allowed police to
search John’s home for evidence of child pornography. Because
the affidavit left the supposed connection between evidence of
child molestation not only unsupported by evidence, but
completely unstated, the Third Circuit ruled that the warrant
was not supported by probable cause. Id. at 420. But even as
it did so, the Third Circuit acknowledged that “perhaps
extensive investigatory experience might reveal a pattern
substantial enough to support a reasonable belief on the part of
a police detective.” Id.
Likewise, in United States v. Falso, 544 F.3d 110 (2d Cir.
2008), the Second Circuit decided a case where the connection
between child sexual abuse and child pornography was left
unstated in the affidavit. There, the affidavit stated that
Falso “either gained access or attempted to gain access” to a
website that featured eleven images of child pornography and an
offer to sell access to a different website that contained more
child pornography. Id. at 114. Additionally, the affidavit
reported that Falso had, 18 years earlier, been convicted of
sexually abusing a 7-year-old girl. Id. The Second Circuit
held that Falso’s criminal history was insufficient to support a
finding of probable cause to search for child pornography and
that the district court had fallen prey to “an inferential
fallacy of ancient standing” by concluding otherwise. Id. at
122 (quoting United States v. Martin, 426 F.3d 68, 82 (2d Cir.
2005) (Pooler, J., dissenting)). Then-Judge Sotomayor wrote:
Although offenses relating to child pornography and
sexual abuse of minors both involve the exploitation
of children, that does not compel, or even suggest,
the correlation drawn by the district court. Perhaps
it is true that all or most people who are attracted
11
to minors collect child pornography. But that
association is nowhere stated or supported in the
affidavit.
Id. (footnote and citations omitted)
The Sixth Circuit faced a similar case in United States v.
Hodson, 543 F.3d 286 (6th Cir. 2008). There, the defendant said
on an internet chat that he had previously molested underage
boys and that he was willing to do so again. Based on this
evidence, a detective sought a warrant to search the defendant’s
house for child pornography. But the detective “offered no
assertion – in either the affidavit or any other evidence (e.g.,
expert testimony) then before the magistrate judge – of any
relational nexus between child molestation and child
pornography.” Id. at 289. Thus, the Sixth Circuit held that
the resulting warrant was defective. Id. at 292.
And so three of the cases the appellant cites – John,
Falso, and Hodson - are distinguishable in the same important
respect. Specifically, these three cases stand for the
unremarkable proposition that probable cause may not be
comprised of unstated assumptions. Had the nexus between child
molestation and child pornography been expressly alleged, the
magistrates in those cases would have been able to assess the
credibility of those allegations and make a common sense ruling
on the likelihood that the police would find child pornography.
Here, the nexus between child enticement and child pornography
was expressly alleged in the affidavit and supported by the SA’s
“training and experience.” The Commander was therefore able to
weigh the credibility of the information before deciding to
issue the search authorization. Thus, neither John, Falso, nor
Hodson are persuasive.21 Dougherty and Doyle serve as persuasive
authority in favor of the appellant’s position, but there is at
21
Another case cited by the parties that we find distinct from the case at
bar is United States v. Clark, 668 F.3d 934 (7th Cir. 2012). In Clark, the
Seventh Circuit held that there was probable cause to search Clark’s home for
child pornography when the affidavit supporting the request for a search
warrant contained: evidence that Clark had sexually assaulted his niece,
evidence that Clark had shown his niece child pornography at some point in
the past, and boilerplate language indicating that people who commit sexual
offenses against minors frequently collect and view child pornography on
their home computers. 668 F.3d at 939-40. The Government’s case in Clark
was much stronger than in the appellant’s case, because the affidavit in
Clark actually pointed to evidence that Clark had accessed child pornography
at some point in the past. Consequently, the fact that the Seventh Circuit
ruled that probable cause existed in Clark sheds little light on the
appellant’s case, in which the affidavit contained much less evidence
directly linking the appellant to child pornography.
12
least one case on the other side of the scales.
In United States v. Colbert, 605 F.3d 573 (8th Cir. 2010),
the defendant approached a 5-year-old girl at a playground and
invited her to come to his apartment and watch videos. That
same day, the police obtained a warrant to search Colbert’s
home, where they discovered child pornography. On appeal, the
Eighth Circuit rejected a challenge to the validity of the
search warrant, writing:
There is an intuitive relationship between acts
such as child molestation or enticement and possession
of child pornography. Child pornography is in many
cases simply an electronic record of child
molestation. Computers and internet connections have
been characterized elsewhere as tools of the trade for
those who sexually prey on children. For individuals
seeking to obtain sexual gratification by abusing
children, possession of child pornography may very
well be a logical precursor to physical interaction
with a child: the relative ease with which child
pornography may be obtained on the internet might make
it a simpler and less detectable way of satisfying
pedophilic desires. Cf. United States v. Byrd, 31
F.3d 1329, 1339 (5th Cir. 1994) (“[C]ommon sense would
indicate that a person who is sexually interested in
children is likely to also be inclined, i.e.,
predisposed, to order and receive child
pornography.”).
Id. at 578.22
We view the facts in a common sense manner when we review
probable cause determinations. Huntzinger, 69 M.J. at 7. Under
these facts, our common sense tells us that the Eighth Circuit’s
analysis is correct: an individual accused of deliberately
seeking out boys walking home alone and then engaging in brazen,
repeated attempts to entice those boys into sexual activity is
likely to possess child pornography, either as a means to
gratify their desires or as an aid in those activities.
Moreover, the rational link between child enticement and child
pornography was fully articulated by SA Shutt in the affidavit
that she presented to the Commander as well as during her
ninety-minute conversation with him, during which she utilized
22
It is not lost on this Court that the language in SA Shutt’s affidavit was
taken directly from the Eighth Circuit’s opinion in Colbert.
13
her training and experience to “shed important light on the
facts presented.” Leedy, 65 M.J. at 216.
The record supports that the Commander was in a position to
consider the totality of the circumstances, including any lack
of evidence in the affidavit tying the appellant directly to
child pornography. Weighing the totality of the circumstances,
he determined that probable cause existed, and we give
substantial deference to that determination. Therefore, we hold
that the Commander had a “substantial basis” to conclude
probable cause existed and the military judge did not abuse his
discretion by denying the defense motion to suppress the
evidence of child pornography.
Legal Sufficiency of the Attempt Conviction
The appellant next contends that his conviction for
attempting to commit sodomy with a minor is legally and
factually insufficient.23 We review legal and factual
sufficiency de novo.24 The test for legal sufficiency is whether
any rational trier of fact could have found that the evidence
met the essential elements of the charged offense, viewing the
evidence in a light most favorable to the Government. United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for
factual sufficiency is whether we are convinced of the
appellant’s guilt beyond a reasonable doubt, allowing for the
fact that we did not personally observe the witnesses. Id. at
325.
Article 80(a), UCMJ, provides that “[a]n act, done with
specific intent to commit an offense under this chapter,
amounting to more than mere preparation and tending, even though
failing, to effect its commission, is an attempt to commit that
offense.” The MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Part IV, ¶ 4b lists the elements of the offense of attempt as:
(1) That the accused did a certain overt act;
(2) That the act was done with the specific intent to
commit a certain offense under the code;
23
The relevant specification read as follows: “In that [appellant], U.S.
Marine Corps, 8th Communications Battalion, II Marine Expeditionary Force,
Camp Lejeune, North Carolina, did at or near Camp Lejeune, North Carolina, on
or about 18 April 2011, attempt to commit sodomy with R.W., a child who had
attained the age of 12 years, but had not attained the age of 16 years.”
24
See 10 U.S.C. § 866.
14
(3) That the act amounted to more than mere
preparation; and
(4) That the act apparently tended to effect the
commission of the intended offense.
The Manual also explains, “[p]reparation consists of
devising or arranging the means or measures necessary for the
commission of the offense. The overt act required goes beyond
preparatory steps and is a direct movement toward the commission
of the offense.” Part IV, ¶ 4c(2).
Here, the military judge instructed the members that the
elements of the offense were substantially as follows:
That the accused did a certain act, that is, ask RW
for a quickie, or words to that effect;
That the act was done with the specific intent to
commit the offense of sodomy with RW;
That the act amounted to more than mere preparation;
and
That such act apparently tended to effect the
commission of the offense of sodomy except for RW’s
declining to do so, which prevented completion of that
offense.
. . . .
Sodomy is unnatural carnal copulation. “Unnatural
carnal copulation” occurs when a person takes into his
mouth the reproductive sexual organ of another
person.25
The appellant now argues that his conviction of this offense is
legally and factually insufficient for two reasons: (1) the
question “do you want a quickie” is not a substantial step and
(2) the Government failed to prove the appellant had the
specific intent to engage in oral copulation.
Substantial Step
Admittedly, there is an “elusive line” between mere
preparation and a substantial step toward commission of a
25
Record at 595
15
predicate offense. United States v. Winckelmann, 70 M.J. 403,
407 (C.A.A.F. 2011) (citing United States v. Schoof, 37 M.J. 96,
103 (C.M.A. 1993); United States v. Resendiz-Ponce, 549 U.S.
102, 107 (2007) (“requiring a substantial step for criminal
attempt because ‘the mere intent to violate a federal criminal
statute is not punishable as an attempt unless it is also
accompanied by significant conduct’”)) (additional citations
omitted). As such, there is no hard and fast rule to determine
whether an act crosses the line between mere preparation and a
substantial step. However, “‘[a] substantial step must be
conduct strongly corroborative of the firmness of the
defendant's criminal intent.’” United States v. Byrd, 24 M.J.
286, 290 (C.M.A. 1987) (quoting United States v. Jackson, 560
F.2d 112, 116 (2d Cir. 1977). Because an act must be more than
“mere preparation,” the substantial step must “unequivocally
demonstrat[e] that the crime will take place unless interrupted
by independent circumstances.” Winckelmann, 70 M.J. at 407
(citations and internal quotation marks omitted).
In Wincklemann, the appellant was convicted of attempted
child enticement after he engaged in a sexually explicit
internet chat with a person he believed to be a fifteen-year-old
boy. Even though the conversation was sexually explicit, the
conversation ended without any concrete plans to meet in person
for sexual activity. Id. at 408. The closest the conversation
got to making such plans was a single message from the appellant
– “u free tonight” – to which the presumptive teenager replied,
“gotta go talk soon?” Id. at 406. CAAF overturned the attempt
conviction, noting that “there was no evidence when the chat
ended that either enticement or sexual activity with a minor
would take place unless interrupted by independent
circumstances.” Id. at 408. The court went on to caution
against “[t]reating speech (even obscene speech) as the
‘substantial step’ because it ‘would abolish any requirement of
a substantial step.’” Id. at 407-08 (quoting United States v.
Gladish, 536 F.3d 646, 650 (7th Cir. 2008)).
However, words can constitute such a step depending on the
particular facts of the case. Where the overt acts are words,
the “physical proximity and the presence or absence of
intervention -- play heavily in determining whether the acts
constitute a substantial step toward the commission of the
crime.” United States v. Williamson, 42 M.J. 613, 616
(N.M.Ct.Crim.App. 1995) (citations omitted). In United States
v. Brantner, the appellant was convicted of attempting to commit
an indecent assault by attempting to fondle a recruit’s
genitals. 28 M.J. 941 (N.M.C.M.R. 1989). The appellant did
16
this by asking the recruit to undergo a hernia examination
during questioning about the recruit’s medical history. Id. at
944. At issue was whether mere words can constitute an overt
act and this court held they could, especially when “the
proximity of the appellant’s request to conduct a hernia
examination to the completion of the indecent act, both
spatially and temporally, was such that the solicitation
constituted an attempt. Appellant’s incitement was not to
commit a crime in the future but at that moment. But for the
recruit’s negative response, the indecent assault would have
been completed.” Id. at 945.
We find Brantner’s analysis persuasive and apply it here to
conclude that the appellant went beyond mere preparation. He
travelled to the area where the local middle school was located
and drove by RW several times. After pulling his car up so that
he was face-to-face with RW, who was walking in the street, the
appellant asked RW if he “wanted a quickie.” Due to the
appellant’s efforts and proximity, this can only be considered
“direct movement toward the commission” of the offense. United
States v. Church, 32 M.J. 70, 72 (C.M.A. 1991) (“Between
preparation for the attempt and the attempt itself, there is a
wide difference. The preparation consists in devising or
arranging the means or measures necessary for the commission of
the offense; the attempt is the direct movement toward the
commission after the preparations are made” (citations omitted)
(citations omitted)). Indeed, had RW acquiesced, the crime
could have taken place right then and there in the appellant’s
SUV. United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012)
(verbal request for victim to expose her breasts sufficient
overt act to constitute attempt because “[b]ut for his
stepdaughter's refusal to lift her shirt, King would have
‘view[ed]’ his stepdaughter's breasts”).
Specific Intent
Regarding the sufficiency of evidence to prove the
appellant had the specific intent to commit sodomy, the
appellant contends that the Government failed to prove that by
“quickie” the appellant had the specific intent to engage in
oral copulation as opposed to other forms of sodomy. We
disagree.
The record contains ample evidence to support the members’
verdict that the appellant specifically intended to engage in
oral copulation with RW. First, we note that the majority of
child pornography located on the appellant’s computer consisted
17
of images of boys engaged in oral copulation with other boys or
men. Moreover, AL and PM both testified that the male matching
the appellant’s description who drove the SUV by both of them
made gestures indicative of oral copulation.26 The fact that the
appellant was acquitted of the offenses involving AL and PM does
not preclude the members from utilizing this evidence to
determine the appellant’s specific intent of asking RW if he
“wanted a quickie.” In United States v. Washington, 63 M.J.
418, 422 (C.A.A.F. 2006), the CAAF held that alleged acts of
sexual molestation charged on one date, for which the appellant
was acquitted during the same trial, were admissible to show the
appellant committed the act of sexual molestation on another
date provided the evidence satisfies the test for admissibility
under United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).
The Reynolds test consists, in relevant part, of the following
elements: (1) Does the evidence reasonably support a finding by
the court members that the appellant committed prior crimes,
wrongs or acts; (2) What fact of consequence is made more or
less probable by the existence of this evidence; and (3) Is the
probative value substantially outweighed by the danger of unfair
prejudice? Id.
Applying the first prong of the Reynolds test to the facts
of this case, we conclude that the members could have reasonably
found that the other acts occurred. Both AL and PM testified
regarding the acts and their testimony was supported by
corroborating evidence.
As for the second Reynolds prong, evidence is relevant
under MIL. R. EVID. 401 when it has “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” In this case, evidence that
the appellant made gestures of his desire to engage in oral
copulation with young boys under almost identical circumstances
during the same timeframe is relevant to the determination of
what the appellant’s intent was when he asked RW if he “wanted a
quickie.”
Finally, applying the MIL. R. EVID. 403 balancing test for
the third Reynolds prong, the probative value of this evidence
was not substantially outweighed by the danger of unfair
prejudice. See United States v. Berry, 61 M.J. 91, 95 (C.A.A.F.
2005). The evidence was already introduced as actual charged
26
AL and PM both simulated the gesture by bringing their closed right hands
to their mouths and moving it in an in and out fashion. Record at 375, 397.
18
misconduct and was “consistent in detail and tenor with the
evidence regarding” RW. Washington, 63 M.J. at 423.
Because the members could reasonably find that the other
prior acts occurred, and the other acts evidence is logically
and legally relevant, the members could properly consider the
evidence that the appellant made a gesture indicating oral sex
to AL and PM as evidence of his specific intent to engage in
oral copulation with RW.27
Accordingly, viewing the evidence in the light most
favorable to the government, we find a rational trier of fact
could have found that the evidence met the essential elements of
the charged offense and are ourselves convinced of the
appellant’s guilt beyond a reasonable doubt.
Conclusion
The findings and sentence as approved by the convening
authority are affirmed.
Senior Judge FISCHER and Judge BRUBAKER concur.
For the Court
R.H. TROIDL
Clerk of Court
27
Additionally, MIL. R. EVID. 414(a) provides that “[i]n a court-martial in
which the accused is charged with an offense of child molestation, evidence
of the accused's commission of one or more offenses of child molestation is
admissible and may be considered for its bearing on any matter to which it is
relevant.” This rule is “intended to provide for more liberal admissibility
of character evidence in criminal cases.” MCM, App. 22, at A22-38.
19