United States v. Lee

This opinion is subject to administrative correction before final disposition.

Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges

_________________________

UNITED STATES
Appellee

v.

Anthony W. LEE
Sergeant (E-5), U.S. Marine Corps
Appellant

No. 202000239

_________________________

Decided: 5 April 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges:
Michael D. Libretto (arraignment and motions)
Kyle G. Phillips (motions and trial)

Sentence adjudged 24 June 2020 by a special court-martial convened at
Marine Corps Base Camp Lejeune, North Carolina, consisting of a mil-
itary judge sitting alone. Sentence in the Entry of Judgment: reduction
to paygrade E-1, confinement for 120 days, and a bad-conduct dis-
charge.

For Appellant:
Lieutenant Commander Megan P. Marinos, JAGC, USN

For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Lieutenant Gregory A. Rustico, JAGC, USN
 United States v. Lee, NMCCA No. 202100239
Opinion of the Court

Judge HOUTZ delivered the opinion of the Court, in which Senior Judge
GASTON and Judge MYERS joined.

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

HOUTZ, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of indecent conduct and adultery in violation of Article 134,
Uniform Code of Military Justice [UCMJ]. 1 Appellant asserts eight assign-
ments of error [AOE], which we renumber as follows: (1) that the evidence for
Specification 1 of the Charge (indecent conduct) is legally and factually insuf-
ficient; (2) that the evidence for Specification 2 of the Charge (adultery) is le-
gally and factually insufficient; (3) that the offense of indecent conduct in Spec-
ification 1 of the Charge is preempted by Article 120b(c), UCMJ; (4) that the
military judge erred when he denied the Defense motion to suppress evidence;
(5) that the military judge erred when he ruled that the Defense was not enti-
tled to certain evidence in discovery; (6) that the Entry of Judgment as written
is deficient; (7) that the Government committed a discovery violation when it
failed to provide the Defense with certain impeachment evidence in discovery;
and (8) that the military judge effectively acquitted Appellant of Specification
1 of the Charge when he acquitted him of the word “persuade.”
We find merit in Appellant’s first AOE because the evidence for Specifica-
tion 1 of the Charge is legally insufficient, 2 and we set aside the guilty finding
and dismiss this specification. While we do not find merit in Appellant’s second
AOE, we do find merit in Appellant’s fourth AOE, set aside the guilty finding
for Specification 2 of the Charge, and authorize a rehearing for this specifica-
tion. In light of these conclusions and action, we also set aside the sentence and
do not reach the remaining AOEs.

1 10 U.S.C. § 934.
2Because we find the evidence legally insufficient to sustain this conviction, we do
not reach the question of whether it is factually insufficient.

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Opinion of the Court

I. BACKGROUND

In April 2019, Appellant responded to an advertisement posted on the web-
site, “Doublelist.” 3 The advertisement was posted by a user, “Watching Dad,” 4
and was entitled “Family fun (st aug)” with the description: “discreet males
only. VERY open minded. hit me for details.” 5 When Appellant responded to
the advertisement, Watching Dad explained that his intention was to watch
Appellant have sex with his girlfriend’s 13-year-old daughter. Appellant indi-
cated his interest in the offer and asked for a “clean photo” of the minor. 6 Ap-
pellant also asked Watching Dad whether the minor was actually interested
and not being forced. After Watching Dad confirmed that no force was allowed,
Appellant replied, “Hell I don’t want anything to be forced. If she’s down, id
like to just make her happy.” 7 Appellant described to Watching Dad the sexual
acts he intended to engage in with the minor, including “p[***] eating, mission-
ary, [and] letting her ride.” 8 After first communicating via email, Appellant
continued the conversation with Watching Dad by text message.
During the text-message exchange, Appellant voiced his concern that the
situation might be a trap and asked Watching Dad if he could prove this was
“legit.” 9 Watching Dad sent Appellant a picture of what appears to be the
clothed shoulder and breast of a female. Appellant asked, “Which area do you
guys live in again?” 10 Watching Dad replied, “St aug.” 11 Appellant then asked
Watching Dad, “Forgive me. . . . One more question. What does her a[**] look
like?” 12 Watching Dad did not immediately send a picture, but instead at-

3 Doublelist is a website that is very similar to Craigslist, for personal advertise-
ments. R. at 212. It came about shortly after the casual encounters section of Craigslist
went away. Id. Doublelist advertises itself in part as the place for people who are
straight, gay, bi, curious, etc. to be sexually free with no judgment. Id.
4 R. at 481.
5 Pros. Ex. 1, at 1.
6 Id. at 2.
7 Id. at 1.
8 Id.
9 Pros. Ex. 5, at 2.
10 Id. at 3.
11 Id.
12 Id. at 4 (ellipses in original).

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Opinion of the Court

tempted to clarify whether Appellant was going to come over that night. Ap-
pellant said he was not available that night, but asked what Watching Dad’s
schedule was like the following day. Watching Dad asked, “8 good?” to which
Appellant responded, “I’m good with whatever as long as she isn’t forced and
no one is being recorded or arrested.” 13 Appellant then asked, “Does she know
you’re talking to me?” 14 Watching Dad told Appellant to text him the following
day, then said, “she don’t ask.” 15 Appellant’s final texts of the night asked, “Is
she wearing panties? Right now?” and, after Watching Dad confirmed she was,
“Can I see? Last request I promise I’ll stop.” 16 Watching Dad responded with a
picture of what appears to be a young woman shown from the waist down,
wearing only underwear. He told Appellant to contact him the following day
around 6:00 p.m., but received no response.
The following day Appellant did not text Watching Dad. Instead, Watching
Dad texted Appellant that evening, “Hey man you ready? We’re home.” 17 Ap-
pellant told Watching Dad that he was not interested. When Watching Dad
asked Appellant, “Like not anymore even a different time?” Appellant ex-
plained:
Like . . . I responded to several ads last night and received three
responses. All of them were soliciting minors. I entertained the
conversation because I was curious to see how far it would go,
truthfully that many at one time can’t be a coincidence. It’s ei-
ther a police sting or people are seriously messed up. Either way
I’m not cool with it. It’s your daughter man . . . . 18
Watching Dad clarified, “Girlfriend daughter, but ok. Hit me back if you
change mind. We’re together a lot.” 19 Appellant responded in what was his final
text to Watching Dad, “Dude, look at it this way. I’m not down with the idea.
But . . . I had multiple people approach me last night. If it was police activity

13 Id. at 5.
14 Id.
15 Id.
16 Id.
17 Id. at 6.
18 Id. at 7 (ellipses in original).
19 Id. at 8.

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Opinion of the Court

might be something for you to think about.” 20 Watching Dad thanked Appel-
lant and the two did not communicate again.
Watching Dad was, in fact, Special Agent [SA] Mike 21 of the Federal Bu-
reau of Investigation, acting as part of an undercover sting operation to appre-
hend child sex offenders. After Appellant’s initial response to the advertise-
ment, SA Mike began investigating Appellant’s email address in an effort to
determine Appellant’s identity. After finding a similar email address on a Ma-
rine-affiliated website, SA Mike suspected Appellant may be associated with
the Marine Corps and contacted the Naval Criminal Investigative Service
[NCIS], which was able to link Appellant with the email address in question.
After identifying Appellant, NCIS contacted Appellant’s wife, who signed a
permissive authorization for search and seizure [PASS] for the cellular phone
she shared with Appellant. Pursuant to the PASS, NCIS began its search of
Appellant’s cellular phone, but was only partially successful in attempting to
download its contents. Two days later, Appellant and his wife revoked the
PASS for the phone.
NCIS then obtained a Command Authorization for Search and Seizure
[CASS] to search the phone for evidence of sexual crimes involving minors.
During the search, SA Golf, NCIS, observed sexually explicit thumbnail im-
ages of what appeared to be an adult female with Appellant. SA Golf clicked
on the images and confirmed that the female was not a minor. SA Golf then
located additional thumbnail images in close proximity to the first images that
appeared to be of the same adult female, including one of her in the uniform of
a Marine captain. Upon seeing the additional images, SA Golf suspected Ap-
pellant was engaging in fraternization. Despite suspecting that the thumbnail
image of the female in uniform was evidence of a crime not contemplated by
the CASS, SA Golf did not stop to obtain a modification of the CASS. Instead,
he clicked on the image to enlarge it, confirmed the female’s rank, and included
the enlarged image in his report, which was used to identify the female as Cap-
tain Roberts and led to other evidence that formed the basis for Appellant’s
conviction for adultery.
Prior to trial, Appellant moved to suppress the images of Captain Roberts
and any evidence derived therefrom, arguing that SA Golf had exceeded the
scope of the CASS when he clicked on the image of Captain Roberts in uniform

20 Id. at 8 (ellipses in original).
21All names used in this opinion, other than those of Appellant, the judges, and
counsel, are pseudonyms.

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Opinion of the Court

despite having already determined that she was an adult. The military judge
agreed that SA had exceeded the scope of the CASS, finding that when SA Golf
decided to click on the image “it would have been unreasonable for him to be-
lieve that it was in any way evidence of an offense which SA [Golf] was author-
ized to search for.” 22 The military judge further found that neither the plain
view exception nor the good faith exception applied in these circumstances,
since the identity of Captain Roberts was not apparent from the thumbnail
image of her in uniform and SA Golf knew that in clicking on the image to
enlarge he was investigating “a separate (and ‘superfluous’) offense” that was
beyond the scope of the CASS. 23 Nonetheless, the military judge found that
under the balancing test of Military Rule of Evidence [Mil. R. Evid.] 311(a)(3),
the benefits of suppressing the evidence were outweighed by “the cost of exclu-
sion—the inability of the government to independently identify Captain [Rob-
erts] and prosecute the offense”—and on that basis denied Appellant’s motion
to suppress. 24

II. DISCUSSION

A. Legal and Factual Sufficiency
Appellant asserts the evidence is legally and factually insufficient to sup-
port his convictions. We review such questions de novo. 25
To determine legal sufficiency, we ask whether, “considering the evidence
in the light most favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable doubt.” 26 In conduct-
ing this analysis, we must “draw every reasonable inference from the evidence
of record in favor of the prosecution.” 27

22 App. Ex. XXXV, at 10.
23 Id. at 10–11.
24 Id. at 12–13.
25 Article 66(d)(1), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
26 United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)).
27 United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and internal
quotation marks omitted).

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Opinion of the Court

In evaluating factual sufficiency, we determine “whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, [we] are . . . convinced of the [appellant’s] guilt
beyond a reasonable doubt.” 28 In conducting this unique appellate function, we
take “a fresh, impartial look at the evidence,” applying “neither a presumption
of innocence nor a presumption of guilt” to “make [our] own independent de-
termination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” 29 Proof beyond a “[r]easonable doubt, how-
ever, does not mean the evidence must be free from conflict.” 30

1. Attempted Indecent Conduct
The general elements of the offense of indecent conduct are: (1) that Appel-
lant engaged in certain conduct; (2) that the conduct was indecent; and (3) that,
under the circumstances, the conduct was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring discredit upon the
armed forces, or both. 31 However, in this case the offense of which Appellant
was convicted in Specification 1 of the Charge alleges that he attempted to in-
duce and entice a minor to engage in sexual activity. 32 Specifically, as excepted
and substituted in the military judge’s guilty finding, the charge states:
In that Sergeant Anthony W. Lee, United States Marine Corps,
on active duty, did, at or near Jacksonville, Florida, on or about
1 July 2019, commit indecent conduct, to wit: attempting to in-
duce, entice, one minor to engage in sexual activity with the said
Sergeant Lee, and that said conduct was of a nature to bring
discredit upon the armed forces. 33

28 Turner, 25 M.J. at 325.
29 Washington, 57 M.J. at 399.
30 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
31 Manual for Courts-Martial, United States (2019 ed.) [MCM (2019)], pt. IV,
¶ 104.b. “‘Indecent’ means that form of immorality relating to sexual impurity which
is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite
sexual desire or deprave morals with respect to sexual relations.” MCM, pt. IV,
¶ 104.c.(1).
32 App. Ex. XL, at 2.
33 Id.

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Opinion of the Court

a. Elements
Appellant contends that although the charge is drafted as a violation of
Article 134, UCMJ, the use of the word “attempt” in the specification requires
the Government to prove the elements of attempt under Article 80, UCMJ.
Those elements are: “(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
UCMJ; (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.” 34
“To constitute an attempt there must be a specific intent to commit the offense
accompanied by an overt act which directly tends to accomplish the unlawful
purpose.” 35 Thus, the offense requires proof that Appellant committed an overt
act with the intent to commit all the elements of indecent conduct.
The Government responds that Appellant “mistakenly conflates Articles 80
and 134” and argues that it must only prove the indecent conduct. According
to the Government, “That the conduct in question was Appellant’s attempt to
induce or entice a thirteen-year-old child to engage in sexual activity with him
does not change the nature—or elements—of the offense.” 36 The Government
would have us conclude that, because Appellant was charged under Article 134
instead of Article 80, it was not required to prove that Appellant committed
any overt act that was a substantial step toward inducing or enticing a minor
to engage in sexual activity with him.
We do not find the Government’s attempt to avoid the burden of proving an
overt act persuasive for a number of reasons. First, the Government’s argu-
ment on appeal ignores concessions already made at trial. In its response to
Appellant’s motion for a finding of not guilty of this offense under Rule for
Courts-Martial [R.C.M.] 917, the Government did not argue that it was not
required to prove an overt act, but instead argued that “the substantial step
for an attempt can be satisfied by words alone.” 37 Allowing the Government “to
tell the military judge one thing . . . and then . . . assert something else on ap-
peal . . . would go against the general prohibition against taking inconsistent
litigation positions.” 38

34 MCM (2019), pt. IV, ¶ 4.b.
35 Id. at pt. IV, ¶ 4.c.(1).
36 Govt. Br. at 34 (emphasis added).
37 R. 464–65.
38 United States v. Schmidt, ___ M.J. ___, No. 21-0004, 2022 CAAF LEXIS 139, at
*32-33 (C.A.A.F. Feb. 11, 2022) (Maggs, J., concurring) (citing 18B Charles Alan

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Opinion of the Court

Second, when an accused is charged with attempting certain behavior that
would constitute a criminal offense if completed, the requirement of proving
an overt act “ensures that mere thought crimes are not prosecuted.” 39 That is
why “[t]he overt act required goes beyond preparatory steps and is a direct
movement toward the commission of the offense.” 40 “Accordingly, the substan-
tial step must unequivocally demonstrate that the crime will take place unless
interrupted by independent circumstances.” 41 Courts must be cautious about
“treating speech (even obscene speech) as the ‘substantial step’ because it
would abolish any requirement of a substantial step.” 42
Finally, as both this Court and our superior court have previously found,
“an attempted enticement offense charged under Article 134, UCMJ, . . . must
incorporate some of the elements that would have been present had an Article
80, UCMJ, offense been alleged.” 43 These elements include that “(1) the ac-
cused specifically intended to commit the substantive offense; and (2) that the
accused took a substantial step toward persuading, inducing, or enticing a mi-
nor to engage in illegal sexual activity.” 44 While the military judge did not issue
special findings, it appears based on his written denial of the Defense R.C.M.
917 motion that he did not consider a substantial step to be a required element
of Specification 1 of the Charge. 45 We find this to be an erroneous view of the
law under the controlling case precedent. 46

Wright et al., Federal Practice and Procedure § 4477 (2d ed. 1992 & Supp. 2021) (“Ab-
sent any good explanation, a party should not be allowed to gain an advantage by liti-
gating on one theory, and then seek an inconsistent advantage by pursuing an incom-
patible theory.”).
39 United States v. Schell, 72 M.J. 339, 344 (C.A.A.F. 2013).
40 MCM (2019), pt. IV, ¶ 4.c.(2).
41United States v. Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011) (internal punc-
tuation and citation omitted).
42Id. at 407 (quoting United States v. Gladish, 536 F.3d 646, 650 (7th Cir. 2008)
(internal punctuation and citation omitted)).
43United States v. Hoffmann, No. 201400067, 2020 CCA LEXIS 198, *17 (N-M Ct.
Crim. App. June 10, 2020) (unpublished) (citing Schell, 72 M.J. 339).
44 Id. at *17 (quoting Schell, 72 M.J. at 345-46) (internal punctuation omitted).
45 See App. Ex. XLII.
See Schell, 72 M.J. at 346 (setting aside a guilty plea to attempting to persuade,
46

induce or entice a minor to engage in sexual activity in violation of Article 134, UCMJ,
where the military judge failed to inform the accused of the “substantial step” element);

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Opinion of the Court

b. Substantial Step Analysis
Assuming the military judge correctly understood the elements required
for this offense, the Government argues here, as it did at trial, that words alone
can be enough to prove an overt act. Our superior court explained in United
States v. Winckelmann that “online dialogue must be analyzed to distinguish
‘hot air’ and nebulous comments from more concrete conversation that might
include making arrangements for meeting the (supposed) minor, agreeing on a
time and place for a meeting, making a hotel reservation, purchasing a gift, or
traveling to a rendezvous point.” 47 Even where travel is not involved, a course
of conduct that constitutes “grooming” the victim can suffice to prove a sub-
stantial step. 48
This case contains no evidence of any of these things. There is no evidence
that Appellant attempted to make a hotel reservation, purchase a gift, pur-
chase condoms, travel to a rendezvous point, or even obtain a physical address.
Unlike the appellant in Winckelmann, Appellant never communicated, directly
or indirectly, with a minor, either real or purported. There is no evidence that
Appellant engaged in any acts that could be characterized as an overt act or
substantial step other than his online conversations. When we analyze the
online conversations to determine whether any constitute the sort of “concrete

United States v. Brooks, 60 M.J. 495, 498–99 (C.A.A.F. 2005) (discussing “the issue of
intent and the substantial step necessary” for a charge of attempting to persuade, in-
duce, and entice a minor to engage in illegal sexual activity).
47 Winckelmann, 70 M.J. at 407-08 (quoting United States v. Zawada, 552 F.3d 531,
534-35 (7th Cir. 2008) (internal quotations omitted); see also United States v. Nestor,
574 F.3d 159, 161 (3rd Cir. 2009) (posting an advertisement online seeking sexual con-
tact with children, repeatedly discussing such activity with an adult intermediary, ar-
ranging a rendezvous for the sexual encounter, and discussing ways to avoid police
detection “constitute[d] a substantial step.”); United States v. Thomas, 410 F.3d 1235,
1246 (10th Cir. 2005) (“Thomas crossed the line for ‘harmless banter’ to inducement
the moment he began making arrangements to meet [the victim].”).
48 See Winckelmann, 70 M.J. at 408 (“Where an accused has not traveled to a ren-
dezvous point and not engaged in such ‘concrete conversation,’ courts have nonetheless
found that defendants have taken a substantial step toward enticement of a minor
where there is a course of more nebulous conduct, characterized as ‘grooming’ the vic-
tim.”) (citing United States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007) (finding a
substantial step when the defendant mailed letters that “flattered” a minor, “described
sex acts,” and “encouraged” the victim to visit him again); United States v. Bailey, 228
F.3d 637, 639 (6th Cir. 2000) (affirming a § 2422(b) conviction where the defendant
repeatedly “contacted” a minor, “urged her to meet him, and used graphic language to
describe how he wanted to perform oral sex on her”)).

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Opinion of the Court

conversation” required under Winckelmann, we conclude that the dialog be-
tween Appellant and Watching Dad never rose to more that “hot air.”
The Government relies on United States v. Nestor 49 to argue that Appel-
lant’s conversation with Watching Dad constituted a substantial step. In Nes-
tor, the accused posted an online advertisement seeking sexual contact with
children; engaged in repeated conversation with a man who responded to his
ad, discussing having sexual contact with children; arranged a rendezvous for
the sexual encounter; and discussed ways to avoid police detection. 50 The Third
Circuit Court of Appeals held that “[i]ndividually, each of these actions could
constitute a substantial step . . . [and] when examined together, there is no
question that Nestor . . . [took] a substantial step towards persuading, induc-
ing, enticing, or coercing a child to engage in sexual activity.” 51
Appellant’s case is distinguishable from Nestor. Unlike the evidence pre-
sented in Nestor, the evidence presented in this case shows only that Appellant
engaged Watching Dad in a conversation, albeit an obscene one. Appellant did
not himself post an advertisement seeking sexual contact with minors, though
he did respond to Watching Dad’s advertisement for “family fun.” Despite
Watching Dad’s attempts to have Appellant arrange a meeting, Appellant
avoided making any specific plans or commitments, and no location or time for
a rendezvous was ever agreed upon. When Watching Dad texted Appellant the
following day to continue the conversation, Appellant unequivocally stated he
was not interested in sexual activity with the minor in question. While Appel-
lant did express his concern this might be a police trap, he did not “discuss
ways to avoid police detection.” 52
In our view, the evidence presented in this case is “simply too preliminary
to constitute a substantial step.” 53 We conclude that, even in the light most
favorable to the Prosecution, the evidence is insufficient for a reasonable fact-
finder to have found all the legally required elements beyond a reasonable
doubt. We therefore find the evidence legally insufficient to support Appellant’s
conviction. We take action in our decretal paragraph.

49 574 F.3d 159 (3rd Cir. 2009).
50 Id. at 161.
51 Id. (emphasis added).
52 Id.
53 Winckelmann, 70 M.J. at 408 (internal quotation omitted).

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2. Adultery
The elements of adultery are: (1) that Appellant had sexual intercourse
with a certain person; (2) that, at the time, Appellant or the other person was
married; and (3) that, under the circumstances, the conduct of Appellant was
to the prejudice or good order and discipline or was of a nature to bring dis-
credit upon the armed forces. 54
Appellant does not dispute that he had a sexual relationship with Captain
Roberts while he was married to another person. He does, however, argue that
the Government failed to prove that his conduct was prejudicial to good order
and discipline or service discrediting.
Having reviewed the entire record in this case, we find that the evidence
presented at trial was sufficient to find Appellant guilty of adultery beyond a
reasonable doubt. Thus, Appellant’s argument that the evidence was legally
and factually insufficient to support his conviction for adultery lacks merit.
However, because we find that much of the critical evidence presented against
Appellant relevant to this finding was the result of an unreasonable search and
should have been suppressed, we refrain from commenting on the specific
strengths and weaknesses of the Government’s case.

B. Motion to Suppress
Appellant argues that the military judge abused his discretion when he de-
nied Appellant’s motion to suppress the photos and identification of Captain
Roberts and other evidence obtained by the search of his cellular phone. We
review a military judge’s ruling on a motion to suppress evidence for abuse of
discretion and consider the evidence in the light most favorable to the party
that prevailed on the motion. 55 A military judge abuses his discretion if the
findings of fact upon which he predicates his ruling are not supported by the
evidence in the record, if he uses incorrect legal principles, or if he applies the
legal principles to the facts in a way that is clearly unreasonable. 56 The deci-
sion must be “arbitrary, fanciful, clearly unreasonable or clearly erroneous.” 57
The Fourth Amendment provides, “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and

54 Manual for Courts-Martial, United States (2016 ed.) [MCM (2016)], pt. IV, ¶ 62.b.
55 United States v. Blackburn, 80 M.J. 205, 210–11 (C.A.A.F. 2020).
56 United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).
57 United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (citation omitted).

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Opinion of the Court

seizures, shall not be violated; and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched and the persons or things to be seized.” 58 A search conducted
pursuant to a warrant or search authorization is presumptively reasonable. 59
However, search authorizations must “describe the things to be seized with
sufficient particularity to prevent a general exploratory rummaging in a per-
son’s belongings.” 60 As the Supreme Court has explained, “[b]y limiting the au-
thorization to search to the specific areas and things for which there is probable
cause to search, the [particularity] requirement ensures that the search will be
carefully tailored to its justifications, and will not take on the character of the
wide-ranging exploratory searches the Framers intended to prohibit.” 61 As an
exception to the warrant requirement, “evidence of a search conducted without
probable cause is admissible if conducted with lawful consent.” 62
Data stored within a cell phone falls within the Fourth Amendment’s pro-
tection. Such devices present “distinct issues,” and “[t]he prohibition of general
searches is not to be confused with a demand for precise ex ante knowledge of
the location and content of evidence.” 63 Given “the dangers of too narrowly lim-
iting where investigators can go,” such searches may be properly limited “to
evidence of specific federal crimes or specific types of material” without neces-
sarily “requir[ing] particular search methods and protocols.” 64 However, such
searches remain subject to an “ex post reasonableness analysis” to assess
whether they have struck the appropriate balance between being “expansive
enough to allow investigators access to places where incriminating materials
may be hidden, yet not so broad that they become the sort of free-for-all general
searches the Fourth Amendment was designed to prevent.” 65

58 U.S. Const. amend. IV.
59 See United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (citing Katz v. United
States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)).
60 United States v. Richards, 76 M.J. 365, 369 (C.A.A.F. 2017) (quoting United
States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)).
61 Maryland v. Garrison, 480 U.S. 79, 84 (1987).
62 Wicks, 73 M.J. at 99.
63 Richards, 76 M.J. at 369–70 (citation omitted).
64 Id. at 370 (citation omitted).
65 Id. (citations omitted).

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Opinion of the Court

Evidence obtained as a result of an unlawful search or seizure is generally
inadmissible against an accused if:
(1) the accused makes a timely motion to suppress or an ob-
jection to the evidence . . .
(2) the accused had a reasonable expectation of privacy in the
person, place, or property searched; . . . or the accused would oth-
erwise have grounds to object to the search or seizure under the
Constitution of the United States as applied to members of the
Armed Forces; and
(3) exclusion of the evidence results in appreciable deter-
rence of future unlawful searches or seizures and the benefits of
such deterrence outweigh the costs to the justice system. 66
Once the defense makes an appropriate motion or objection, the prosecution
bears the burden of proving the evidence was lawfully obtained. 67 “Evidence
derivative of an unlawful search, seizure, or interrogation is commonly re-
ferred to as the ‘fruit of the poisonous tree’ and is generally not admissible at
trial.” 68
“The exclusionary rule is not an individual right and applies only where it
results in appreciable deterrence.” 69 Rather than applying the exclusionary
rule automatically, the Supreme Court has “focused on the efficacy of the rule
in deterring Fourth Amendment violations in the future.” 70 As the Court ex-
plained in Herring v. United States,
[t]o trigger the exclusionary rule, police conduct must be suffi-
ciently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid
by the justice system. As laid out in our cases, the exclusionary
rule serves to deter deliberate, reckless, or grossly negligent con-
duct, or in some circumstances recurring or systemic negli-
gence. 71

66 Mil. R. Evid. 311(a).
67 Mil. R. Evid. 311(d)(5)(A).
68 United States v. Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006).
69 Herring v. United States, 555 U.S. 135, 141 (2009).
70 Id.
71 Id. at 144.

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 United States v. Lee, NMCCA No. 202100239
Opinion of the Court

The primary costs of exclusion are letting the guilty party go free, as well as
the toll upon truth-seeking and law enforcement objectives. 72 “The extent to
which the exclusionary rule is justified by these deterrence principles varies
with the culpability of the law enforcement conduct.” 73 “Evidence should be
suppressed only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” 74 This understanding of the
Fourth Amendment is the basis for the exceptions to the warrant requirement,
such as good faith and inevitable discovery. 75
In this case, Appellant made a timely motion to suppress the photographs
of Captain Roberts found during the search of his cellular phone. The military
judge made detailed findings of fact, including the following specifically rele-
vant to our analysis here:
On 29 April 2019, the accused’s wife granted a permissive
authorization for search and seizure (PASS) of a cellular phone
jointly used by her and the accused which was associated with
the phone number suspected to be utilized to send text messages
charged in Specification 1 of Charge I. There was no express or
implied limitations placed on the PASS. 76
On 1 May 2019, the accused and his wife revoked the PASS
for the cellular phone. 77
On 1 May 2019, SA [Golf] received a command authorized
search and seizure (CASS) for the cell phone. The CASS permit-
ted law enforcement agents to search the cellular device for evi-
dence that relates to violations of Articles 120B (sexual abuse of
a child), 134 (child pornography), 82 (soliciting commission of of-
fenses), and 80 (attempts); and Title 18 U.S.C. 2256 (child por-
nography); Title 18 U.S.C. 2422 (coercion and enticement); Title
U.S.C. 2423 (Transportation of minors), Title 18 U.S.C. 2425 (us-
ing interstate facilities to transmit details about a minor), and

72 Id. at 141.
73 Id. at 143.
74 Id. (internal quotation and citation omitted).
75 Mil. R. Evid. 311(c)(2)–(3).
76 App. Ex. XXXV, at 1.
77 Id. at 2.

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 United States v. Lee, NMCCA No. 202100239
Opinion of the Court

Florida Statute 847.0315 (computer pornography, prohibited
computer usage, travelling to meet a minor). 78
During a manual review of the image files located on the
phone, SA [Golf] observed images of a female he later learned to
be Captain [Roberts], USMC. These first photos of Captain [Rob-
erts] that SA [Golf] found did not attribute any military status
to her (i.e. none were in uniform). They were of her alone or with
the accused and some of them were sexual in nature. 79
SA [Golf] reviewed the image files on the screen in a gallery
format which displayed between 12 and 16 thumbnail images on
the screen at a time. When SA [Golf] first located the sexually
explicit images of Captain [Roberts] he clicked on the thumbnail
images to enlarge them to determine whether the person was a
minor or an adult. SA [Golf] quickly concluded that the person
who he later learned was Captain [Roberts] was an adult. 80
All of the photographs containing Captain [Roberts] were lo-
cated in close proximity to one another within the gallery display
on the cellular phone. 81
SA [Golf] could not remember when he first observed the
photographs of Captain [Roberts] or whether it was before the
time the PASS was revoked or after the CASS was signed. 82
SA [Golf] did not take any notes of when the images depict-
ing Captain [Roberts] were first located because they were “su-
perfluous” to the offenses he was investigating. 83

78 Id.
79 Id.
80 Id. at 3.
81 Id.
82 Id.
83 Id. at 4.

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 United States v. Lee, NMCCA No. 202100239
Opinion of the Court

When SA [Golf] observed the thumbnail image depicting
Captain [Roberts] in uniform he believed the person looked sim-
ilar to the person he had already observed in the sexually ex-
plicit images and with the accused. 84
Upon seeing the thumbnail image of Captain [Roberts] in
uniform, SA [Golf] suspected the accused had engaged in frater-
nization with her because he believed it was the same person he
saw in the other sexually explicit photos and with the accused
and because he could see her rank on her uniform. 85
Despite suspecting that the thumbnail image of Captain
[Roberts] in uniform was evidence of a crime not contemplated
by the search authorization, SA [Golf] did not stop his search to
seek a new authorization before clicking on the image to enlarge
it. 86
Before identifying Captain [Roberts] by way of the picture of
her in uniform, neither SA [Golf] nor any other government
agent had suspected the accused of committing an offense unre-
lated to those identified within the search authorization. 87
We find that these findings of fact are supported by the record in this case.
The military judge concluded that SA Golf’s actions in clicking on, enlarg-
ing, searching, and seizing the photographs of Captain Roberts depicted in her
uniform were unreasonable. 88 He explained that his “conclusion [was] based
on: (1) SA [Golf’s] belief that the female in uniform was the same person he
saw in the other images and (2) SA [Golf’s] previous determination that the
person in the other images was an adult.” 89 The military judge further ex-
plained that “when SA [Golf] enlarged the thumbnail image it would have been
unreasonable for him to believe that it was in any way evidence of an offense

84 Id.
85 Id.
86 Id.
87 Id.
88 Id. at 9–10.
89 Id. at 10.

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 United States v. Lee, NMCCA No. 202100239
Opinion of the Court

which SA [Golf] was authorized to search for. In fact, SA [Golf] testified that
he believed the image may be evidence of a wholly separate offense.” 90

1. The “Plain View” Exception
Evidence falling outside the scope of a warrant or search authorization may
be seized if “[t]he person while in the course of otherwise lawful activity ob-
serves in a reasonable fashion property or evidence that the person has proba-
ble cause to seize.” 91 As the military judge correctly explained, in order for this
plain view exception to apply “(1) the officer must not violate the Fourth
Amendment in arriving at the spot from which the incriminating materials can
be plainly viewed; (2) the incriminating character of the materials must be im-
mediately apparent; and (3) the officer must have lawful access to the object
itself.” 92
Here, the military judge determined that enlarging and seizing the image
of Captain Roberts in uniform was did not fall within the plain view exception,
because, “by SA [Golf’s] own admission, the incriminating character of the im-
age was not ‘immediately and plainly apparent’ when he viewed the thumbnail
image in gallery view along with 12 to 16 other images on the page.” 93 In ex-
amining the issue, the military judge first noted that the CASS permitted
SA Golf to search through the image files on the phone in order to look for
evidence of the suspected offenses relating to minors. He then engaged in an
“ex post reasonableness analysis” in analyzing the actual actions taken by
SA Golf. 94 In doing so, he concluded that it was unreasonable for SA Golf to
“click on, enlarge, search, and seize the photograph of Capt [Roberts] depicted
in her uniform.” 95 The military judge based his conclusion on “(1) SA [Golf’s]
belief that the female in uniform was the same person he saw in the other
images and (2) SA [Golf’s] previous determination that the person he saw in
the other images was an adult.” 96

90 Id.
91 Mil. R. Evid. 316(c)(5)(C).
92 App. Ex. XXXV, at 8 (citing Richards, 76 M.J. at 371).
93 App. Ex. XXXV, at 10.
94 Id. at 7, 9–10 (citing Richards, 76 M.J. at 370).
95 App. Ex. XXXV, at 9–10.
96 Id. at 10.

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 United States v. Lee, NMCCA No. 202100239
Opinion of the Court

The Supreme Court has noted that the “distinction between looking at a
suspicious object in plain view and moving it even a few inches is much more
than trivial for the purposes of the Fourth Amendment.” 97 The military judge’s
conclusion that clicking on and enlarging a thumbnail image is a meaningful
distinction under the plain view analysis is in accordance with United States
v. Osorio, in which our sister court found that an agent’s action of opening
thumbnail images is similar to moving an object for Fourth Amendment pur-
poses. 98 We agree with this view. While the agent’s observation of the thumb-
nail image, which was in plain view during a valid search, could potentially
serve as a basis to obtain a new search authorization, the enlargement of the
image itself must be consistent with the existing authorization in order to en-
sure that the Fourth Amendment’s prohibition of general warrants is not vio-
lated. 99
In this case, the military judge correctly concluded that SA Golf’s action of
clicking on and enlarging the initial images of Captain Roberts that were of a
sexual nature was consistent with the CASS, since this was done to ascertain
whether or not the images depicted a minor. The military judge also correctly
concluded that SA Golf’s action of clicking on and enlarging later images of
Captain Roberts that were nonsexual in nature constituted a search for evi-
dence not authorized by the CASS, because by that time SA Golf knew she was
not a minor and it was not immediately apparent that those photographs, in-
cluding that of Captain Roberts in uniform, constituted evidence of a crime.
And he correctly found that “SA [Golf] did not rely on the terms of the warrant
because he acknowledged that although he suspected that the accused had

97 Arizona v. Hicks, 480 U.S. 321, 325 (1987).
98United States v. Osorio, 66 M.J. 632, 637 (A.F. Ct. Crim. App. 2008); cf. United
States v. Washington, No. ARMY MISC 20100961, 2011 CCA LEXIS 18 (Army Ct.
Crim. App. Feb. 8, 2011) (unpublished) (finding agent’s seizure of child pornography
during authorized search of suspect’s computer for images of alleged victim was con-
sistent with the plain view exception because it was immediately apparent that the
videos in question contained child pornography and were therefore subject to seizure
and subsequent analysis without a separate warrant.).
99See Richards, 76 M.J. at 371 (finding that when agent discovered child pornog-
raphy during authorized search of the appellant’s digital media, “he properly stopped
his search and obtained a new authorization that allowed him to search specifically for
child pornography”); Osorio, 66 M.J. at 637 (holding that practitioners must “comply
with [the] specificity [of the warrant or search authorization] and then, if they come
across evidence of a different crime, stop their search and seek a new authorization.”).

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 United States v. Lee, NMCCA No. 202100239
Opinion of the Court

committed fraternization before clicking on and enlarging the thumbnail im-
age, he admitted it was a separate (and ‘superfluous’) offense other than those
which he was investigating or which was contemplated by the search authori-
zation.” 100

2. The Cost/Benefit Analysis of Exclusion
Nonetheless, the military judge denied Appellant’s motion to suppress,
finding “that the deterrence benefits of suppression do not outweigh its heavy
cost.” The military judge based his conclusion on four factors:
(1) despite exceeding the scope of the search authorization,
SA [Golf] was lawfully in the location where the picture of Cap-
tain [Roberts] in her uniform was discovered (i.e. looking
through images pursuant to a lawful search authorization in
search of child pornography), (2) SA [Golf] did not conduct addi-
tional searches for evidence related to the accused’s relationship
with Captain [Roberts] because he considered it to be ‘superflu-
ous’ to the intended object of his search activities, (3) SA [Golf]
recognized that the female in uniform was likely the same per-
son depicted in the intimate pictures of the accused even before
enlarging and capturing the photo, and (4) intimate images of
Capt [Roberts] with the accused were lawfully viewed in plain
view and within the scope of the search authorization before the
unlawful search occurred. 101
The military judge ruled that “[b]ased on those circumstances the Court finds
the deterrent effect of excluding the evidence to be minimal and the cost of
exclusion—the inability of the government to independently identify Captain
[Roberts] and prosecute the offense—to be high.” 102
While we agree with the military judge’s conclusion that SA Golf’s actions
constituted an unreasonable search, which the Government does not dispute,

100 App. Ex. XXXV, at 11. The military judge also properly concluded that the ex-
ception for good faith reliance on a search authorization did not apply, since once
SA Golf determined that Captain Roberts was not a minor, he was intentionally not
relying on the CASS to enlarge and seize the additional images of her, for which the
trial counsel conceded there was “no independent source or inevitable discovery.” R. at
123–24.
101 App. Ex. XXXV, at 12–13.
102 Id. at 13.

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Opinion of the Court

we find that in balancing the benefits of deterring future unreasonable
searches against the costs to the justice system, the military judge applied “the
legal principles to the facts in a way that is clearly unreasonable.” 103 The Gov-
ernment argues the military judge correctly admitted the evidence because
SA Golf’s actions amounted to “simple negligence,” making “the deterrent ef-
fect of the exclusion minimal while the cost was high.” 104 Although we recog-
nize that SA Golf’s conduct may not have been as flagrant a violation of the
Fourth Amendment as those found in the cases cited by the Government, the
question is not whether the search could have been more unreasonable, but
whether (1) exclusion of the evidence results in appreciable deterrence of fu-
ture unlawful searches or seizures and (2) the benefits of such deterrence out-
weigh the costs to the justice system.
In this case, contrary to the Government’s claims, SA Golf’s actions went
beyond mere negligence. As the military judge himself found, “SA [Golf] . . .
acknowledged that although he suspected that the accused had committed frat-
ernization before clicking on and enlarging the thumbnail image of Capt Rob-
erts in uniform, he admitted it was a separate (and ‘superfluous’) offense other
than those which he was investigating or which was contemplated by the
search authorization.” 105 While the test for “deterrence and culpability is ob-
jective, not an inquiry into the subjective awareness” of law enforcement, we
find that “a reasonably well trained officer would have known that the search
was illegal in light of all of the circumstances.” 106 Here, SA Golf’s decision to
investigate Appellant for an unrelated offense was an intentional violation of
the limits that he knew were contained in the CASS. This is exactly the sort of
law enforcement conduct that is “sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence is worth
the price paid by the justice system.” 107
Allowing Appellant to avoid an adultery conviction is clearly not too high a
price to deter law enforcement agents from pursuing a particular line of inves-
tigation where, as here, they fully realize that if they continue they will go
beyond the scope of their search authorization. Indeed, such deterrence in this
case means simply requiring law enforcement agents to do what they already

103 Ellis, 68 M.J. at 344.
104 Appellee’s Br. at 46 (internal quotation omitted).
105 App. Ex. XXXV, at 11.
106 Herring, 555 U.S. at 145 (internal citations and quotations omitted).
107 Id. at 144.

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Opinion of the Court

know they are supposed to be doing: obtain additional authorization to con-
tinue the search before proceeding past the limits of a CASS. If we were to
allow the use of evidence seized in such knowing violation of the Fourth
Amendment’s particularity requirement, not only would we be fostering the
sort of “wide-ranging exploratory searches the Framers intended to pro-
hibit,” 108 but “the protection of the Fourth Amendment declaring [a person’s]
right to be secure against such searches and seizures [would be] of no value,
and, so far as those thus placed are concerned, might as well be stricken from
the Constitution.” 109 And it would essentially allow the balancing test to be-
come an end-run around the limits of the plain view doctrine, which already,
as our superior court has noted, “in a digital context poses a serious risk that
every warrant for electronic information will become, in effect, a general war-
rant, rendering the Fourth Amendment irrelevant.” 110 Hence, while we find his
thorough, written ruling to be cogent in every other respect, based on the facts
of this particular case, we find the military judge clearly erred in finding that
the cost of exclusion to the justice system outweighs the benefits of deterring
future unlawful searches or seizures.

3. Prejudice
Having found error, we test for prejudice. “A constitutional error is harm-
less when it appears beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained,” meaning the error was “unim-
portant in relation to everything else the [trier of fact] considered on the issue
in question.” 111
We find that the error of admitting the photographs of Captain Roberts and
other evidence derived from them is not harmless beyond a reasonable doubt.
As the military judge pointed out in his ruling, “[b]efore identifying Captain
[Roberts] by way of the picture of her in uniform, neither SA [Golf] nor any
other government agent had suspected the accused of committing an offense

108 Garrison, 480 U.S. at 84.
109 Mapp v. Ohio, 367 U.S. 643, 648 (1961) (quoting Weeks v. United States, 232
U.S. 383, 393 (1914)).
110 United States v. Gurczynski, 76 M.J. 381, 387 (C.A.A.F. 2017) (citations and
internal quotation marks omitted).
111 United States v. Hoffmann, 75 M.J. 120, 128 (C.A.A.F. 2016) (citation and in-
ternal quotation marks omitted); see also Article 59(a), UCMJ (requiring error that
“materially prejudices the substantial rights of the accused.”).

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Opinion of the Court

unrelated to those identified within the search authorization.” 112 We agree
with the military judge that absent SA Golf’s unlawfully clicking on the photo-
graph in question to enlarge it for further investigation, the Government would
have been unable “to independently identify Captain [Roberts] and prosecute
the offense.” 113 Given the derivative nature of the other evidence for this of-
fense, we find the unlawfully obtained evidence constituted an essential part
of the evidence against Appellant and was not “unimportant in relation to eve-
rything else the [military judge] considered on the issue in question.” 114
Accordingly, we conclude that Appellant’s conviction for adultery must be
set aside, and take such action in our decretal paragraph below.

III. CONCLUSION

The findings and sentence are SET ASIDE. Specification 1 of the Charge
is DISMISSED WITH PREJUDICE. A rehearing is authorized for Specifica-
tion 2 of the Charge. This case is remanded to the Judge Advocate General for
further proceedings not inconsistent with this opinion.
Senior Judge GASTON and Judge MYERS concur.

FOR THE COURT:

RODGER A. DREW, JR.
Clerk of Court

112 App. Ex. XXXV, at 4.
113 Id. at 13.
114 Hoffmann, 75 M.J. at 128 (citation and internal quotation marks omitted); see
also Article 59(a), UCMJ (requiring error that “materially prejudices the substantial
rights of the accused.”).

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