United States v. Larson

UNITED STATES, Appellee

v.

John R. LARSON, Major
U.S. Air Force, Appellant

No. 07-0263
Crim. App. No. 35934

United States Court of Appeals for the Armed Forces

Argued November 27, 2007

Decided April 25, 2008

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

Counsel

For Appellant: Captain Timothy M. Cox (argued); Lieutenant
Colonel Mark R. Strickland and Captain Christopher S. Morgan (on
brief); Captain Chadwick A. Conn.

For Appellee: Captain Jamie L. Mendelson (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).

Military Judges: Patrick M. Rosenow and James L. Flanary

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Larson, No. 07-0263/AF

Judge RYAN delivered the opinion of the Court.

A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of one specification

each of attempted carnal knowledge and attempted indecent acts

with a minor, violations of Article 80, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 880 (2000); one specification of

violating a lawful general regulation, a violation of Article

92, UCMJ, 10 U.S.C. § 892 (2000); and one specification each of

communicating indecent language and using a facility or means of

interstate commerce to attempt to entice a minor to engage in

sexual activity, violations of Article 134, UCMJ, 10 U.S.C. §

934 (2000).

The members sentenced Appellant to dismissal from the

service, confinement for nine years, and forfeiture of all pay

and allowances. The convening authority approved the dismissal

and forfeitures, but reduced Appellant’s confinement to six

years. The United States Air Force Court of Criminal Appeals

affirmed. United States v. Larson, 64 M.J. 559 (A.F. Ct. Crim.

App. 2006).

We granted review of the following issues:

I.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED IN HOLDING THAT APPELLANT HAD NO REASONABLE
EXPECTATION OF PRIVACY IN HIS GOVERNMENT COMPUTER
DESPITE THIS COURT’S RULING IN UNITED STATES v.
LONG, 64 M.J. 57 (C.A.A.F. 2006).

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II.

WHETHER THE APPELLANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH
AMENDMENT AND ARTICLE 27, UCMJ, WHEN HIS CIVILIAN
DEFENSE COUNSEL, IN HIS OPENING STATEMENT, DURING
FINDINGS, AND AGAIN IN CLOSING ARGUMENT, CONCEDED
THE APPELLANT’S GUILT TO VARIOUS CHARGES AND
SPECIFICATIONS.1

After oral argument in November 2007, this Court specified

the following related issues:

I.

IN THE MILITARY JUSTICE SYSTEM, IS THE DECISION
TO CONCEDE GUILT TO ONE OF MULTIPLE CHARGED
OFFENSES DURING ARGUMENT A TACTICAL DECISION THAT
COUNSEL MAY MAKE WITHOUT OBTAINING CONSENT OF THE
ACCUSED? SEE FLORIDA v. NIXON, 543 U.S. 175
(2004); UNITED STATES v. CARE, 18 C.M.A. 535, 40
C.M.R. 247 (1969); UNITED STATES v. BERTELSON, 3
M.J. 314 (C.M.A. 1977).

II.

ASSUMING, ARGUENDO, THAT COUNSEL MAY CONCEDE
GUILT AS A TACTICAL MATTER AFTER CONSULTATION BUT
WITHOUT CONSENT OF THE ACCUSED, DOES THE RECORD
IN THE PRESENT CASE SUPPORT A CONCLUSION THAT
COUNSEL CONSULTED WITH APPELLANT PRIOR TO MAKING
SUCH A CONCESSION? IF NOT, WAS THE FAILURE TO DO
SO PREJUDICIAL AS TO THE FINDINGS OR SENTENCE?
SEE STRICKLAND v. WASHINGTON, 466 U.S. 668
(1984).2

For the reasons stated below, we affirm the decision of the

lower court.

1
65 M.J. 253 (C.A.A.F. 2007).
2
65 M.J. 449 (C.A.A.F. 2007).

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I. Appellant’s Motion to Suppress

A. Factual Background

Appellant used the government computer in his military

office to obtain sexually explicit material, to include

pornographic images and video, from the Internet and to initiate

instant message conversations with “Kristin,” someone he

believed to be a fourteen-year-old girl. “Kristin” was actually

a civilian police detective working to catch online sexual

predators.

Civilian police and the Air Force Office of Special

Investigations (AFOSI) cooperated in the investigation of

Appellant. The police used a proposed meeting between Appellant

and “Kristin” at a local mall as a sting operation. When

Appellant arrived at the mall at the time he had arranged with

“Kristin,” the police arrested Appellant. While conducting a

search incident to arrest the police discovered a receipt for a

package of condoms purchased just fifteen minutes earlier in

Appellant’s pocket. During a consensual search of Appellant’s

car, police found a package of condoms and a book entitled

Sexaholics Anonymous.

After Appellant’s arrest, AFOSI continued to pursue its own

investigation. Appellant’s commander, using a master key to the

government office occupied by Appellant, allowed AFOSI agents to

enter and to seize the government computer in the office. A

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search of the computer’s hard drive revealed stored pornographic

material, a web browser history that showed Appellant visited

pornographic websites and engaged in sexually explicit chat

sessions in his office on his government computer, and other

electronic data implicating Appellant in the charged offenses.

At trial, Appellant asserted that the warrantless search of

his government computer violated the Fourth Amendment and that

the evidence obtained from it should be suppressed. The

military judge held an Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2000), session to determine the admissibility of the evidence.

Based on the testimony elicited at the Article 39(a), UCMJ,

session the military judge made initial findings of fact on the

record and later made detailed supplemental findings of fact.

The military judge found that Appellant was assigned to a

private office and had a key to lock the office, but other Air

Force personnel, including the fire department and the command’s

facility manager also had keys to his office. The office

contained a government computer that was provided to Appellant

to accomplish official business. The military judge found that

Appellant could secure the computer with a personal password,

but a system administrator could still access the computer.

When Appellant logged on to the computer, he was required to

click a button accepting conditions listed in a banner, which

stated that the computer was Department of Defense property, was

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for official use, and that he consented to monitoring. The

military judge found that, while Appellant “reasonably

understood that he was allowed to send personal e-mail or visit

the internet as long as it didn’t interfere with [his] duties,”

this did not change the fact that the government owned the

computer and had a right to access it. This finding was largely

based on the testimony of Appellant’s commander, who testified

that he could log onto Appellant’s computer with his own

password and access all portions of the hard drive unless

Appellant had protected something with his own password.

Although the military judge did not specifically reference the

commander’s access in his findings, this testimony adds further

support to the military judge’s ultimate ruling. Moreover, no

evidence was presented that any of the evidence recovered from

the hard drive was password protected.

In light of these facts, the military judge ruled that the

Government had established by a preponderance of the evidence

that Appellant had no reasonable expectation of privacy in the

government computer because the computer had a “consent to

monitoring” banner that had to be acknowledged with each log on,

the system administrator had access to every part of the

computer, including the hard drive, and the computer was

government property.

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B. Fourth Amendment Analysis

We review the denial of a motion to suppress for an abuse

of discretion. United States v. Khamsouk, 57 M.J. 282, 286

(C.A.A.F. 2002). Findings of fact are affirmed unless they are

clearly erroneous; conclusions of law are reviewed de novo.

United States v. Flores, 64 M.J. 451, 454 (C.A.A.F. 2007)

(citing Khamsouk, 57 M.J. at 286). We consider the evidence in

the light most favorable to the prevailing party. United States

v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996).

The military judge concluded that the Government had

carried its burden of establishing that Appellant had no

reasonable expectation of privacy in the government computer.

The lower court agreed, and held that the military judge did not

abuse his discretion. Larson, 64 M.J. at 563. We agree.

The Fourth Amendment of the Constitution generally requires

probable cause for searches of places and things in which people

have a reasonable expectation of privacy. U.S. Const. amend.

IV. In addressing Fourth Amendment privacy claims, the

threshold issue is whether the person has a legitimate

expectation of privacy in the invaded place. Rakas v. Illinois,

439 U.S. 128, 143 (1978). This inquiry invites a court to

address whether the individual had a subjective expectation of

privacy, and if so whether the subjective expectation of privacy

is one that society is prepared to accept as reasonable. Smith

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v. Maryland, 442 U.S. 735, 740 (1979), superseded by statute,

Electronic Communications Privacy Act of 1986, 18 U.S.C. §

3121(a) (2000) (prohibiting installation of a pen register

without a court order).

As the property searched here was a government computer,

Military Rule of Evidence (M.R.E.) 314(d), which addresses the

search of government property, pertains. It states:

Government property may be searched under this rule
unless the person to whom the property is issued or
assigned has a reasonable expectation of privacy
therein at the time of the search. Under normal
circumstances, a person does not have a reasonable
expectation of privacy in government property that is
not issued for personal use. . . .

Emphasis added. The discussion to this rule recognizes that the

presumption that there is no reasonable expectation of privacy

in government property is rebuttable. Manual for Courts-

Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-26 (2005 ed.). Whether there is a

reasonable expectation of privacy in government property is

determined under that totality of the circumstances, which

includes the rebuttable presumption. See, e.g., Samson v.

California, 547 U.S. 843, 848 (2006); M.R.E. 314(d).

In this case, based on the totality of circumstances

presented including the factors identified below, Appellant

fails to rebut and overcome the presumption that he had no

reasonable expectation of privacy in the government computer

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provided to him for official use. M.R.E. 314(d). There is no

evidence Appellant had a subjective expectation of privacy in

the government computer, and he did not testify that he did.

See Flores, 64 M.J. at 454 (factoring into the reasonable

expectation of privacy analysis the fact that the accused did

not testify on the motion to suppress). Moreover the access to

this computer by both Appellant’s commander and the system

administrator supports the validity of the presumption that he

had no reasonable expectation of privacy in the government

computer.

Finally, the military judge found as fact that when

Appellant used the computer “a banner appeared that state[d]

that it was a DOD computer, it [was] for official use, not to be

used for illegal activity. [And that] [i]t also had a statement

that users of the computer consent to monitoring.” This factual

finding is supported by the record, is not clearly erroneous

and, taking the facts in the light most favorable to the

prevailing party, establishes both that Appellant was put on

notice that the computer was not to be used for illegal activity

and that there could be third-party monitoring.

Appellant argues that this case is controlled by this

Court’s decision in United States v. Long, 64 M.J. 57 (C.A.A.F.

2006), which he claims establishes that he had a reasonable

expectation of privacy in his government computer. That

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reliance is misplaced. We made clear in Long that our decision

was rooted in the “particular facts of that case, [and] we

conclude[d] that the lower court was not clearly erroneous in

its determination that Appellee had a subjective expectation of

privacy in the e-mails she sent from her office computer and in

the e-mails that were stored on the government server.” Id. at

63.

The present case is factually distinguishable from Long.

Long rested in large part on the testimony of the command’s

network administrator: “the testimony of the network

administrator [as to the agency practice of recognizing the

privacy interests of users in their e-mail] is the most

compelling evidence supporting the notion that Appellee had a

subjective expectation of privacy.” Id.

Here, unlike in Long, Appellant presented no evidence that

he enjoyed an expectation of privacy in materials on his

government computer. And, unlike in Long, the testimony of

Appellant’s commander and the military judge’s findings of fact

established both monitoring of and command access to the

government computer.

Long does not control the decision here, and we agree with

the CCA that the military judge did not abuse his discretion in

concluding that Appellant had no expectation of privacy in the

government computer. Larson, 64 M.J. at 563.

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II. Appellant’s Ineffective Assistance of Counsel Claim

A. Factual Background

As the trial on the merits began, the military judge

instructed the panel that “the opening statements are the views

of what both counsel believe the evidence will show you. The

opening statements are not evidence in and of themselves.”

Included in Appellant’s civilian defense counsel’s opening

statement to the members were the following comments about

Appellant’s use of his government computer:

You’re going to see that Major Larson was employed and
used his computer in an inappropriate fashion.
There’s no question about that. That’s not going to
be an issue in this case. It’s going to be conceded.
Major Larson took his computer and used it
inappropriately.

You’re going to hear that there is a regulation
or rule that you are not to use your computer for
particular purposes. . . . [I]t’s not going to be the
defense contention in this case that Major Larson --
that it was ever intended for Major Larson to get on
the computer and start going into profiles and
contacting individuals in chat rooms, and profiles,
and downloading photos. . . . [T]hat is not going to
be an issue in this case.

Civilian defense counsel ended his opening statement in a

similar vein:

But, when it gets down to the truth of this case
-- and I’m not going to get up here and try to
represent something to you that’s not true -- Major
Larson is guilty of misusing his computer because it
was never anticipated by [Appellant’s superiors] that
he was to use that computer for those reasons. It
wasn’t, and he shouldn’t have done that . . . . But,
he certainly never attempted to do what they’re
claiming he did. And we’re going to ask you at the

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conclusion of this case to find him not guilty of
those charges and specifications.

As civilian defense counsel concluded his opening

statement, the military judge again instructed the panel that

“opening statements of both sides are simply their views and

they are not evidence in and of themselves.”

As the case approached its conclusion, and before closing

arguments, the military judge repeated his instruction about the

relationship of arguments and evidence in the case:

You will hear an exposition of the facts by
counsel for both sides as they view them. Bear in
mind that the arguments of counsel are not evidence.
Argument is made by counsel to assist you in
understanding and evaluating the evidence, but you
must make the determination of the issues in the case
on the evidence as you remember it and apply the law
as I instruct you.

In closing argument, civilian defense counsel argued, as

relevant to the granted issues:

In this case, Major Larson is presumed innocent. It’s
hard to think of innocence and the concept of being
presumptively innocent or free of any guilt after
you’ve had an opportunity to view some of [the] things
that you see in this case. The despicable
photographs, the downloaded pictures, some of the
chats, the indecent language that was communicated,
but the fact is, is that presumption of innocence is
there and remains there, unless the prosecution proves
every element of every charge beyond a reasonable
doubt.
. . . .
. . . Major Larson has a problem in viewing
sexually explicit materials. There’s no question
about that.

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I said to you in the opening that he violated --
he did not obey a lawful order and that’s viewing
sexually explicit material over the internet.
. . . .
. . . There are a lot of things that I’ve
forgotten and there are a lot of issues that I won’t
necessarily raise and bring up and for that I’m sorry.
And I apologize to my client if I forgot to mention
things that are important, certainly, that you might
feel they’re important. But I know that each and
every one [of] you are dedicated, your service here
and I know that each one of you believe that it in
order to do this job right, in order to make sure that
this officer, and yes, an officer that made bad
choices and bad decisions, and he disobeyed his lawful
orders, and certainly communicated indecent language
and he did things, and thinking this was in the
privacy of his own office, but certainly took
advantage of that and brought, I think, discredit upon
the service, you know, a disreputable situation and
for that I’m sure you can -- you know that this man is
embarrassed and sorry for that.

Appellant’s civilian counsel’s argument, both in opening

and closing, stressed that he did not contest the fact that

Appellant improperly used a government computer. Appellant

filed an affidavit with the CCA asserting that his civilian

defense counsel did not consult him before making the decision

to not contest that charge, and that this failure to consult

amounted to a violation of his Sixth Amendment right to counsel.

Appellant claimed that the arguments caused him to rule out the

option of testifying.

That court ordered trial defense counsel to answer four

specific questions, one of which was what specific discussions

occurred between trial defense counsel and Appellant regarding

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concessions of fact concerning Appellant’s guilt. Counsel

responded to the CCA’s order, but did not answer the question.

Puzzlingly, the CCA accepted trial defense counsel’s non-

response and proceeded to determine that Appellant’s counsel was

not constitutionally deficient. Larson, 64 M.J. 564. Relying

on an affidavit of civilian defense counsel that averred that

the defense team concluded that there was no plausible defense

to the Article 92, UCMJ, offense of wrongfully viewing sexually

explicit images on the government computer, the lower court

reasoned it would not “second-guess such tactical decisions made

to seize and retain credibility with the members, particularly

when, as here, the trial defense team’s efforts are directed

toward minimizing their clients punitive exposure.” Larson, 64

M.J. at 565.

B. Sixth Amendment Analysis

1.

Defense counsel “undoubtedly has a duty to consult with the

client regarding ‘important decisions,’ including questions of

overarching defense strategy.” Florida v. Nixon, 543 U.S. 175,

187 (2004) (citing Strickland v. Washington, 466 U.S. 668, 688

(1984)); see also Pineo v. State, 2006 ME 119, ¶¶ 12-16, 908

A.2d 632, 638-39 (applying Nixon in a non-capital case).

Whether the client must consent to the strategic decision made

by counsel before counsel may proceed is a different question.

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See Taylor v. Illinois, 484 U.S. 400, 417-18 (1988) (“Although

there are basic rights that the attorney cannot waive without

the fully informed and publicly acknowledged consent of the

client, the lawyer has -- and must have -- full authority to

manage the conduct of the trial.”) (footnote omitted).

In Nixon, the Supreme Court determined that, based on the

facts of that case, an attorney who consulted with his client

need not acquire the consent of the client before making the

strategic decision to concede some or all aspects of a crime at

trial in order to achieve an acceptable overarching strategic

goal as long as the defendant “retained the rights accorded a

defendant in a criminal trial.” 543 U.S. at 188. And federal

courts have consistently held that “conceding guilt to one count

of a multi-count indictment to bolster the case for innocence on

the remaining counts is a valid trial strategy which, by itself,

does not rise to the level of deficient performance.” United

States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002); see also

United States v. Swanson, 943 F.2d 1070, 1075-76 (9th Cir. 1991)

(recognizing “that in some cases a trial attorney may find it

advantageous to his client’s interests to concede certain

elements of an offense or his guilt of one of several charges”);

Clozza v. Murray, 913 F.2d 1092, 1100 (4th Cir. 1990) (holding

that because defense counsel’s “remarks were largely

attributable to trial strategy, we cannot, in keeping with

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Strickland, second-guess counsel’s tactical choices” to

concede).

Nor is it true, as Appellant contends, that this case falls

outside of Nixon because trial defense counsel’s actions in this

case foreclosed a contested trial on the charged offenses and

were tantamount to a confession.3 Just as in Nixon, the

Government was still required “to present during the guilt phase

competent, admissible evidence establishing the essential

elements of the crimes . . . charged . . . . [,] the defense

reserved the right to cross-examine witnesses . . . and . . .

[did] endeavor . . . to exclude prejudicial evidence.” 543 U.S.

at 188.

In this case, the Government presented evidence on all

charges, covered all charges in its opening and closing

argument, and the members were instructed on each charged

offense by the military judge. Moreover, as noted by the

military judge both before and after argument, counsel’s

statements during argument were not evidence; his statements did

not relieve the Government of its burden of proof, inject new

3
Nothing in United States v. Bertelson, 3 M.J. 314 (C.M.A.
1977), or United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247
(1969), dictates a different result. In this case there was
nothing analogous to a guilty plea or confessional stipulation
that might have allowed the members to abdicate their duty to
find Appellant guilty of every element of each of the charged
offenses.

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factual matters into the trial, or stand as the legal equivalent

of a confession.

2.

If the evidence showed trial defense counsel had an in-

depth discussion with Appellant regarding counsel’s strategic

choice, this might be a very different case. See Davenport v.

Diguglielmo, 215 F. App’x 175, 181 (3d Cir. 2007) (stating

“[t]he Court in Nixon held ‘counsel’s strategic choice is not

impeded by any blanket rule demanding the defendant’s explicit

consent’ as long as counsel informed the defendant of the

strategy before he proceeded and it satisfied the Strickland

standard” (quoting Nixon, 543 U.S. at 192)). But the response

requested, and non-response accepted, at the lower court on the

question whether such consultation took place do not inform this

Court as to what, if any, discussions occurred, and if they did

occur, what was said. Therefore we will assume deficient

performance of counsel for failure to consult on the strategic

decision to concede guilt in argument to one of the offenses

charged and move on to determine whether Appellant was

prejudiced. See Strickland, 466 U.S. at 697 (stating that a

court may “dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice”); United States v. McConnell, 55

M.J. 479, 481 (C.A.A.F. 2001) (stating the same).

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Appellant argues that he was prejudiced by his civilian

defense counsel’s decision to concede his improper use of a

government computer during argument because it ensured a guilty

verdict with respect to the Article 92, UCMJ, charge and

effectively prevented him from taking the stand in his own

defense. Whether there was prejudice depends on whether there

is “a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.”

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (citations

and quotation marks omitted). The appellant bears the burden of

demonstrating that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at

694.

Appellant has not met his burden. We are convinced beyond

a reasonable doubt there was no prejudice and that there is no

reasonable probability that the factfinder would have had a

reasonable doubt respecting Appellant’s guilt but for his

civilian defense counsel’s error. Based on the evidence adduced

at trial there was no question that Appellant had in fact

attempted carnal knowledge and indecent acts with a child,

attempted to entice a minor, violated an order regarding the use

of his government computer, and used indecent language.

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First, the evidence supporting the charged offenses was

overwhelming. The prosecution presented pornographic material

taken from Appellant’s computer, sexually explicit chat sessions

between Appellant and an individual who said she was underage,

Appellant’s online profile, which included his picture,

testimony that showed Appellant was apprehended at a rendezvous

based on a meeting set up in the aforementioned chat sessions,

and evidence that Appellant had purchased a package of condoms

only fifteen minutes before the meeting. Second, no plausible

defense to the Article 92, UCMJ, offense of wrongful use of a

computer or other offense has been raised by Appellant.

Relatedly, Appellant fails to tell us what he would have

testified to absent his counsel’s comments. Third, Appellant

does not argue that his defense at trial to the remaining

charges –- that he believed he was actually talking to someone

of a more appropriate age –- was in any way undercut by

counsel’s strategic choice. And finally, the military judge

instructed the members three times that the arguments of counsel

were not evidence.

While, post hoc, Appellant may wish that his attorney had

engaged in a “useless charade,” United States v. Cronic, 466

U.S. 648, 656 n.19 (1984), given the facts of this case we

conclude that there was no prejudice stemming from the fact that

he did not.

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III. Decision

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

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EFFRON, Chief Judge (concurring):

With respect to Appellant’s claim that counsel was

ineffective by conceding guilt in his opening statement and

closing argument as to a charge in a case involving multiple

offenses, I agree that any error was not prejudicial under the

second prong of Strickland v. Washington, 466 U.S. 668, 687

(1984). The question of whether, in the military justice

system, the consent of an accused is required prior to such a

concession is a matter that may be deferred until a case

presents a more clearly developed record on that issue. See

Article 45(a), Uniform Code of Military Justice, 10 U.S.C. §

845(a) (2000); United States v. Honeycutt, 29 M.J. 416, 419 n.4

(C.M.A. 1990); United States v. Haye, 29 M.J. 213, 215 (C.M.A.

1989); United States v. Bertelson, 3 M.J. 314, 317 (C.M.A.

1977); United States v. Care, 18 C.M.A. 535, 538-39, 40 C.M.R.

247, 250-51 (1969); Rule for Courts-Martial (R.C.M.) 811(c);

R.C.M. 906(b)(10); R.C.M. 910.