United States v. Buford

UNITED STATES, Appellant/Cross-Appellee

v.

Aaron M. BUFORD, Senior Airman
U.S. Air Force, Appellee/Cross-Appellant

No. 14-6010

Crim. App. No. 2013-26

United States Court of Appeals for the Armed Forces

Argued December 9, 2014

Decided March 24, 2015

OHLSON, J., delivered the opinion of the Court, in which BAKER,
C.J., and RYAN, J., joined. ERDMANN, J., filed a separate
dissenting opinion, in which STUCKY, J., joined.

Counsel

For Appellant/Cross-Appellee: Captain Thomas J. Alford
(argued); Colonel Don Christensen and Gerald R. Bruce, Esq.

For Appellee/Cross-Appellant: Captain Christopher D. James
(argued).

Military Judge: Lynn Schmidt

This opinion is subject to revision before final publication.
United States v. Buford, No. 14-6010/AF

Judge OHLSON delivered the opinion of the Court.

This case arises out of an interlocutory appeal under

Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

862 (2012), in a pending court-martial.

Appellee/Cross-Appellant (Appellee) was charged with a

single specification alleging indecent conduct under Article

120, UCMJ, 10 U.S.C. § 920 (2012), and six specifications

variously alleging possessing, accessing, receiving, and

distributing child pornography under Article 134, UCMJ, 10

U.S.C. § 934 (2012). These specifications were referred to

trial by general court-martial. Defense counsel subsequently

filed a motion to suppress evidence found on two laptop

computers and a flash drive, as well as related derivative

evidence. Upon conducting a motions hearing, the military judge

found that an individual who was involved in the initial viewing

and collecting of evidence in this matter was acting as an agent

of the Government, held that the actions of this individual

violated Appellee’s reasonable expectation of privacy under the

Fourth Amendment, and suppressed the evidence.

After the military judge denied a request for

reconsideration, the Government appealed her decision to the

United States Air Force Court of Criminal Appeals (CCA). United

States v. Buford, Misc. Dkt. No. 2013-26, 2014 CCA LEXIS 226,

2014 WL 2039102 (A.F. Ct. Crim. App. Apr. 4, 2014)

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(unpublished). The CCA denied in part and granted in part the

Government’s appeal, agreeing with the military judge that the

individual involved in the initial stages of the case was acting

as an agent of the Government and that evidence from one of the

laptops should consequently be suppressed, but overturning the

military judge’s decision to suppress the evidence from the

other laptop and from the flash drive. 2014 CCA LEXIS 226, at

*19-20, 2014 WL 2039102, at *6. Following the CCA’s denial of

the Government’s request for en banc reconsideration, the Judge

Advocate General of the Air Force certified the case to this

Court. The issue before us is whether the military judge abused

her discretion when she suppressed the evidence.

Based on the analysis provided below, we hold that the

military judge erred when she found that the individual involved

in the initial viewing and collecting of evidence in this matter

was acting as an agent of the Government. We further hold that

she abused her discretion when she used this erroneous

conclusion of law as the basis for suppressing the evidence from

the two laptop computers and flash drive. The CCA likewise

erred in proceeding from the same erroneous legal conclusion.

Accordingly, we summarily reverse the decision of the CCA and

the rulings of the military judge.

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BACKGROUND

In March 2012, Appellee’s wife, AB, discovered a “fake”

Facebook account associated with Appellee’s e-mail address.

This Facebook account appeared to have been created and

maintained by Appellee, but the photo and name on the account

were not Appellee’s. Two months later, in May 2012, following

an argument with Appellee, AB went to the home of a friend,

accessed this fake Facebook account on her Dell laptop computer,

and showed the friend some of the contents of the account, which

included sexually explicit images and messages.

At the time this incident occurred, Airman First Class

(A1C) Ryan Marlow also was at the home of AB’s friend. Marlow

was off duty and helping the friend’s husband repair a

lawnmower. Marlow was an E-3 Security Forces airman who

generally engaged in gate security and patrol duty, and he had

no training as a criminal investigator. Knowing that Marlow was

a Security Forces member, the distraught AB asked him to look at

the fake Facebook page on her Dell laptop. Marlow explored the

site and then entered Appellee’s e-mail account using a password

provided by AB. He next created “screen shots” of sexually

explicit images and messages on these sites which appeared to

involve underage females. Although Marlow encouraged AB to

report this matter to criminal investigators, he told her that

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it was “up to her” to decide what to do and that it was “her

decision.”

AB decided to report the matter, and Marlow escorted her to

the Security Forces office. An investigation was initiated and

AB consented to the search of her Dell laptop and provided

investigators with a written statement. The investigators found

what appeared to be child pornography on the laptop and obtained

a search authorization for Appellee’s residence. There they

seized, among other items, an HP laptop belonging to Appellee.

Several weeks later, AB discovered in her residence a flash

drive that apparently belonged to Appellee. The flash drive was

not password protected and Marlow examined its contents and

determined that it contained sexually explicit images of what

appeared to be underage females. The flash drive was then

turned over to investigators. Forensic imaging and analysis

later disclosed that child pornography was present on the Dell

laptop, the HP laptop, and the flash drive.

Following a motions hearing, the military judge suppressed

all of the images and chat logs found on AB’s Dell laptop,

Appellee’s HP laptop, and Appellee’s flash drive. She likewise

suppressed all derivative evidence from these items. The

military judge based her ruling on Fourth Amendment grounds,

finding that Marlow was acting as an agent of the Government

when he viewed and collected evidence from Appellee’s Facebook

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account, e-mail account, and flash drive without a warrant or

Appellee’s authorization, and that Marlow thereby violated

Appellee’s reasonable expectation of privacy. We are now

presented with the issue of whether the military judge abused

her discretion in suppressing this evidence.

STANDARD OF REVIEW

In an Article 62, UCMJ, appeal, this Court reviews the

military judge’s decision directly and reviews the evidence in

the light most favorable to the party which prevailed below.

United States v. Baker, 70 M.J. 283, 287-88 (C.A.A.F. 2011). In

this case, the prevailing party was Appellee. Further, “‘[i]n

reviewing a military judge’s ruling on a motion to suppress, we

review factfinding under the clearly-erroneous standard and

conclusions of law under the de novo standard.’” Id. at 287

(quoting United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.

1995)). When an appeal presents a mixed question of law and

fact, as this one does, this Court will find that a military

judge abused her discretion if her “findings of fact are clearly

erroneous or [her] conclusions of law are incorrect.” Ayala, 43

M.J. at 298. A finding by this Court that a military judge

abused her discretion requires “‘more than a mere difference of

opinion.’” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.

2010) (quoting United States v. McElhaney, 54 M.J. 120, 130

(C.A.A.F. 2000)).

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ANALYSIS

As the Supreme Court held in United States v. Jacobsen, 466

U.S. 109 (1984), the protections provided by the Fourth

Amendment do not apply to “‘a search or seizure, even an

unreasonable one, effected by a private individual not acting as

an agent of the Government or with the participation or

knowledge of any governmental official.’” Id. at 113-14

(quoting Walter v. United States, 447 U.S. 649, 662 (1980)

(Blackmun, J., dissenting)). Thus, the threshold question in

the instant case is whether A1C Marlow was acting as “an agent

of the Government” at the time he viewed and collected evidence

in this case. This Court’s recent and unanimous decision in

United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014), is

instructive on this point.

Although the Jones opinion was decided in a different

context, 1 its central tenets are applicable here. Namely, the

fact that an individual is affiliated with a law enforcement

organization is not, standing alone, determinative of the issue

of whether that individual was acting as an agent of the

government in any particular case. Rather, it is necessary to

1
In Jones, the accused was questioned about a robbery by a
military police (MP) augmentee who also was an acquaintance of
the accused. 73 M.J. at 359. The issue before the Court was
whether the accused’s incriminating statements to the MP
augmentee were admissible at trial despite the fact that the
accused had not been read his rights pursuant to Article 31(b),
UCMJ, 10 U.S.C. § 831(b) (2012). Id. at 360.

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examine “all the facts and circumstances” in a case when

“determining [an individual’s] authority as an agent of the

[Government].” Id. at 358, 362 (emphasis added).

Accordingly, although we certainly give some weight to the

fact that Marlow served as a member of the Security Forces, our

analysis does not stop there. Instead, we also note that there

is abundant additional evidence in the record that demonstrates

that Marlow was not acting on behalf of the Security Forces --

and was not acting in any other capacity as an agent of the

Government -- when he assisted AB with examining Appellee’s

Facebook page and e-mail account and making screenshots of

relevant portions thereof. Specifically, we note the following

points:

First, Marlow was off duty fixing a lawnmower at a friend’s

house at the time AB enlisted his aid in this matter.

Second, Marlow was not a criminal investigator. He was an

E-3 who served essentially as a “gate guard” who also had some

vehicle patrol responsibilities. The Government had never

provided him with training to be an investigator, nor had the

Government ever used him as an investigator. Further, the

Government had not provided him with any computer training that

he used in this case.

Third, the Government had no prior knowledge that Marlow

was involved in examining Appellee’s Facebook page or e-mail

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account or taking screenshots of them, and there was no

participation in, or approval of, these activities by duly

authorized agents of the Government.

Fourth, although Marlow’s actions of exploring Appellee’s

Facebook page, examining Appellee’s e-mail account with a

password provided by AB, and taking screenshots of relevant

portions thereof could be characterized as investigatory in

nature, these acts could also be characterized as little more

than the type of steps that a curious, tech-savvy individual

might take at the behest of a distraught friend in an effort to

assist her.

Fifth, once Marlow loaded the incriminating screenshots

onto a flash drive, he gave the flash drive to AB. He then said

it was “up to her” to decide what to do with the information and

that it was “her decision” whether to report the matter to

appropriate authorities. This laissez-faire approach to a

matter where there was strong evidence of criminal conduct is

hardly the hallmark of someone who was acting as an agent of the

Government.

Sixth, the record shows that once investigators learned of

this matter, they took steps to exclude Marlow from any further

involvement in the case. In fact, the record shows that

investigators initially pondered whether Marlow had “planted”

the evidence against Appellee because of a possible personal

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interest in AB, and they ordered him to discontinue his

involvement in the matter. Indeed, Marlow’s continued unwanted

interest in the case ultimately culminated in a no-contact order

with either AB or Appellee in the July/August time frame.

Seventh, upon review of the rest of the record, we have

discovered no other “‘clear indices of the Government’s

encouragement, endorsement, and participation’ in the challenged

search.” United States v. Daniels, 60 M.J. 69, 71 (C.A.A.F.

2004) (quoting Skinner v. Railway Labor Executives’ Ass’n, 489

U.S. 602, 615-16 (1989)).

Eighth, although AB sought Marlow’s involvement in this

matter knowing that he was a member of the Security Forces, and

although he may have wished to demonstrate some investigative

prowess to his assembled friends, “the question of whether a

private actor performed as a government agent does not hinge on

motivation.” Id. Thus, the military judge erred when she

applied a subjective test and relied on Marlow’s expectations

and motivations when making her determination, rather than

applying an objective test and weighing the totality of the

circumstances in determining whether Marlow was acting as a

government agent. Id.

Therefore, although we have viewed the evidence in the

light most favorable to Appellee, upon analyzing and weighing

all of the points cited above and making a de novo determination

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of this matter, we conclude that although Marlow was a member of

the Security Forces, he was not acting as an agent of the

Government during all relevant times in the instant case.

Therefore, we find that the military judge erred when she

reached a legal determination to the contrary. We further find

that her order suppressing the evidence of the Dell laptop, the

HP laptop, and the flash drive on that basis constituted an

abuse of discretion.

This Court’s review of the issues presented in this Article

62, UCMJ, appeal is now complete. However, the military judge

retains full authority to further rule on the admissibility of

the evidence in this case on other grounds not addressed in this

opinion. Specifically, the military judge may now consider

other evidentiary principles and jurisprudence, such as this

Court’s recent decision in United States v. Wicks, 73 M.J. 93

(C.A.A.F. 2014), in deciding whether to admit at trial the Dell

laptop, the HP laptop, and the flash drive, as well as all

derivative evidence.

CONCLUSION

Accordingly, upon de novo review, we conclude that the

military judge erred and abused her discretion in determining

that the evidence gathering in this case was a government search

within the meaning of the Fourth Amendment, and likewise erred

in applying the exclusionary rule on that basis. The CCA erred

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in proceeding from that same premise. The record of trial in

this case is returned to the Judge Advocate General of the Air

Force for further proceedings consistent with this opinion.

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ERDMANN, Judge, with whom STUCKY, Judge, joins

(dissenting):

This case calls on us to review a military judge’s decision

to suppress evidence, which the military judge held was seized

in violation of the Fourth Amendment guarantee against

unreasonable searches and seizures. Following a hearing on the

motion to suppress, the military judge concluded: the

government has not proven by a “preponderance of evidence that

the items seized and ultimately searched (the Dell Laptop, the

HP Laptop and the Centon thumb drive) were done so in accordance

with the Fourth Amendment and the MREs.” As I view this case

turning on the government’s initial burden of proof in

responding to a motion to suppress and the standard of review we

are required to apply to that decision, I respectfully dissent

from the majority opinion.

Background

While visiting a friend’s house, Senior Airman Buford’s

wife, AB, became distraught as she looked at a “fake” Facebook

account that was associated with her husband’s e-mail. Airman

First Class RM, a member of Security Forces, was also visiting at

the house and was asked by AB to take a look at the Facebook page

because she knew he was a “cop.”

When RM began looking at the Facebook page his initial

instinct was that it might contain evidence that Buford was
United States v. Buford, No. 14-6010/AF

cheating on his wife. He was aware at the time that adultery was

a Uniform Code of Military Justice (UCMJ) offense and he agreed

that his “cop” training kicked in and he began to gather

evidence. RM looked at multiple conversations on the Facebook

page. He then searched the messages folder of the Facebook page

and found pictures of male genitalia as well as sexually explicit

communications. RM began to take screen shots because he “knew

it could possible [sic] go some more places than just cheating.

And just in case that Facebook account was deleted or something

of the sort that we would have screenshots for proof.”

RM then asked AB to access the e-mail account used to create

the Facebook page. AB signed into her husband’s e-mail account

and RM specifically searched for messages with photo attachments.

He found pictures of what appeared to be underage nude females.

He took screenshots of the pictures because “there was something

a lot more than cheating and that because of the appearance of

the females looking under age [sic] that it should be taken to

investigations.”

RM placed the screenshots on a USB flash drive and gave the

flash drive to AB. RM then encouraged AB to take the evidence to

Security Forces investigations and, when she agreed, he drove her

there that night. Security Forces then contacted the Air Force

Office of Special Investigations (OSI).

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The next day, RM drove AB to OSI where she signed a consent

to search her Dell laptop, a flash drive, and 1 GB memory card.

The OSI searched AB’s house later that day. During the search RM

acted as a conduit between AB and the OSI. RM was told by the

OSI to discontinue his involvement in the investigation.

However, RM testified that at the same time he was also told “if

I did find something or something was brought to my attention, to

give them a call immediately and turn it into them and don’t do

anything myself.”

Later, AB and a friend approached RM with a Centon flash

drive they had found in the back of the TV entertainment center

at the Buford’s residence. RM testified that he wasn’t sure

whether it was AB or her friend who actually gave him the flash

drive. RM opened the flash drive on his personal laptop because

he wanted to ensure there was evidence on it. The drive

contained pornography that RM believed included images of

underage females. RM then called the OSI and after informing

them of the flash drive, he was directed to turn the drive over

to them, which he did the next day.

Standard of Review:

As the military judge correctly identified, when responding

to a motion to suppress evidence, the government has the “burden

of proving by a preponderance of the evidence that the evidence

was not obtained as a result of an unlawful search or seizure.”

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Military Rule of Evidence 311(e)(1). We review that ruling for

an abuse of discretion. United States v. Sullivan, 42 M.J. 360,

363 (C.A.A.F. 1995). I agree with the majority that “[w]hen an

appeal presents a mixed question of law and fact, as this one

does, this Court will find that a military judge abused her

discretion if her ‘findings of fact are clearly erroneous or

[her] conclusions of law are incorrect.’” United States v.

Buford, __ M.J. __, __ (6) (C.A.A.F. 2015) (quoting United

States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)) (second set

of brackets in original). “The abuse of discretion standard

calls for more than a mere difference of opinion. The

challenged action must be arbitrary[,] clearly unreasonable, or

clearly erroneous.” United States v. Wicks, 73 M.J. 93, 98

(C.A.A.F. 2014) (citations omitted) (internal quotations

omitted). As we are reviewing this matter in an interlocutory

Article 62, UCMJ, 10 U.S.C. § 862 (2012), appeal, we view the

evidence in the light most favorable to the prevailing party at

trial. United States v. Baker, 70 M.J. 283, 287–88 (C.A.A.F.

2011).

Discussion

I have no quarrel with the facts relied upon in the majority

opinion. However those facts, while supporting the majority’s

position, do not reflect the totality of the testimony heard by

the military judge, much of which was conflicting. The military

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judge’s opinions reflect that she considered these conflicts and

reached her factual findings after considering all of the

evidence. 1 For instance, the military judge found that:

Throughout the time [RM] acted, in his words, “as a
conduit” between [AB] and OSI, although he stated he
was not acting in an official capacity, his testimony
leads the court to believe otherwise. He stated “[AB]
asked him to look at the laptop because he was a cop;
that he began searching for and collecting evidence;
that he didn’t want evidence to get lost; that he was
going off his instincts as a SFS member; that he
searched the messages section because he knew that’s
where people hide stuff; that once he saw the names
associated with the pictures, he became more curious.”
At no time up to this moment, had [RM], then an active
duty SFS member, sought search authorization or even
requested search authorization. He further relayed to
the Court that “he encouraged [AB] to go to
investigations and that he felt responsible until the
laptop was turned over to SFOI and then OSI.”

. . . .

Based on the foregoing, this Court finds that [RM],
then an active duty Security Forces member with some,
all be it not nearly as extensive as an OSI agent,
training in conducting investigations, was acting as
an agent for Government at the time he searched the
Dell laptop and saved the evidence to a thumb drive.
His actions went far and beyond those expected of a
private citizen.

The military judge set forth her legal conclusion on this issue

in her ruling on the government’s motion for reconsideration:

In U.S. Volante, 16 C.M.R 263, 266, the Court of
Military Review found in 1954 that: “Plainly, not
every search made by persons in the military service
is under the authority of the United States. However,

1
The military judge issued a seven-page opinion on October 5,
2013, and a five-page opinion on October 7, 2013.

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we need not attempt to establish categories of persons
or situations which will make the search either
official or private. Certainly, a search by a person
duly assigned to law enforcement duty and made for the
sole purpose of enforcing military law, is conducted
by a person acting under the authority of the United
States.”

Emphasis in original.

Since Volante was decided, we have focused more on whether

the government authorized or participated in the search, but we

have not modified or overruled the holding in Volante. In

United States v. Daniels, 60 M.J. 69, 71 (C.A.A.F. 2004) we

specifically examined the issue of private actors/government

agents in the context of Fourth Amendment searches:

Moreover, the question of whether a private actor
performed as a government agent does not hinge on
motivation, but rather “on the degree of the
Government’s participation in the private party’s
activities, a question that can only be resolved ‘in
light of all the circumstances.’” Skinner v. Railway
Labor Executives’ Ass’n, 489 U.S. 602, 614-15, 103 L.
Ed. 2d 639, 109 S. Ct. 1402 (1989) (internal citations
omitted). To implicate the Fourth Amendment in this
respect there must be “clear indices of the
Government’s encouragement, endorsement, and
participation” in the challenged search. Id. at 615-
16.

While the identity and motivation of the individual conducting

the search is not determinative on its own as to the status of a

private actor, it is a circumstance that must be considered “in

light of all circumstances.”

In this case, it is clear that the government did not direct

RM to conduct the initial searches. It is also clear that while

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the government told RM to stop his involvement in the

investigation, at the same time the government told him: “if I

did find something or something was brought to my attention, to

give them a call immediately and turn it into them and don’t do

anything myself.” RM was later given the Centon flash drive and

after searching the drive for evidence, he contacted the OSI as

he had been directed to do and turned the drive over to them.

The question then becomes whether this later involvement by

the government, in combination with all other circumstances of

the search, is sufficient to constitute a government search for

Fourth Amendment purposes. This area was addressed in United

States v. Knoll, 16 F.3d 1313, 1320 (2d Cir. 1994):

The Supreme Court acknowledged in Lustig v. United
States that “a search is a search by a federal
official if he had a hand in it” and that “so long as
he was in it before the object of the search was
completely accomplished, he must be deemed to have
participated in it.” 338 U.S. 74, 78-79 (1949)
(plurality opinion). Lustig makes clear that it is
“immaterial” whether the government originated the
idea for a search or joined it while it was in
progress. Id. at 79. The government may become a
party to a search through nothing more than tacit
approval. See 1 Wayne R. LaFave, Search & Seizure §
1.8(b), at 180 (2d ed. 1987).

See also United States v. Coronna, 420 F.2d 1091, 1093 (5th Cir.

1970); United States v. Searp, 586 F.2d 1117, 1120 (6th Cir.

1978); United States v. Payne, 429 F.2d 169, 170 (9th Cir.

1970); United States v. Souza, 223 F.3d 1197, 1202 (10th Cir.

2000); Skinner, 489 U.S. at 615, 109 (finding the “[g]overnment

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did more than adopt a passive position toward the underlying

private conduct”).

The OSI told RM that if he received additional evidence, he

should turn it over to them. He was not told that if anyone

approached him with additional evidence he should direct that

individual to the OSI. The OSI’s investigation in Buford’s

activities was an ongoing effort when RM received the Centon

flash drive and turned it over to them, as the drive was the

basis for one of the charges against Buford. The purpose of the

OSI’s seizure -– to obtain incriminating evidence against Buford

-- had not yet been completely accomplished. Where the

government had accepted the initial evidence seized by RM, their

later direction to him to turn over any further evidence he

might obtain, which he did, reflects sufficient government

involvement to render the search a governmental search.

Given the initial burden of proof on the government,

reviewing the evidence in the light most favorable to Buford,

and applying our abuse of discretion standard to this mixed

question of law and fact, I conclude that the military judge did

not abuse her discretion in finding that RM was acting as a

government agent. I would therefore affirm the military judge’s

ruling to suppress the evidence. 2

2
While the military judge held that AB gave RM consent to search
her Dell laptop when she first asked him to look at the
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While in Article 62, UCMJ, appeals we review the military

judge’s decision directly, one of the CCA’s holdings deserves

comment. The military judge held that the Centon flash drive

should be suppressed as RM was acting as a government agent and

the government had not otherwise established that it would be

admissible. The CCA reversed this determination. The CCA found

that the Centon flash drive was given to RM by AB and although

the drive was used exclusively by Buford, it was not password

protected and was found in a common area of the house. The CCA

held that AB therefore had common control over the drive.

However, the CCA’s factual finding that the flash drive was

given to RM by AB is in conflict with a factual finding made by

the military judge that it was impossible to determine whether

the drive was given to RM by AB (who may have had common

control) or by her friend (who had no claim to common control).

computer, she also held that the consent did not extend to the
Facebook profile or Buford’s e-mail account. Although the
military judge did not discuss the admissibility of evidence
found on the Dell laptop hard drive, it appears she did not
intend for that evidence to be suppressed. That is the same
conclusion reached by the CCA:

We concur with the military judge’s determination on the
issue of consent. AB gave consent to the search of the
Dell laptop and had both actual and apparent authority over
that laptop. Nevertheless, we also agree that consent to
the search of the Dell laptop did not extend to the
Facebook and e-mail accounts of the appellee.

United States v. Buford, Misc. Dkt. No. 2013-26, slip op. at 6
(A.F. Ct. Crim. App. Apr. 4, 2014).
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The CCA cannot make findings of fact in direct conflict

with a factual finding of the military judge without holding

that the military judge’s finding was clearly erroneous. United

States v. Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008)

(“findings of fact are affirmed unless they are clearly

erroneous”); United States v. Martin, 56 M.J. 97, 106 (C.A.A.F.

2001) (“[F]indings of fact made by the trial judge shall not be

set aside unless clearly erroneous.” (quoting Main v. Taylor,

477 U.S. 131, 145 (1986)) (internal quotation marks omitted)).

Here the military judge’s finding was fairly supported by the

record. Given the government’s burden of proof, taking the

evidence in the light most favorable to Buford, the military

judge did not abuse her discretion in suppressing the flash

drive and the CCA’s factual findings and conclusion of law to

the contrary was in error. See Anderson v. Bessemer City, 470

U.S. 564, 574 (1985) (“Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”).

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