United States v. Staff Sergeant LADONIES P. STRONG

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before the Court Sitting En Banc!

UNITED STATES, Appellee
v.
Staff Sergeant LADONIES P. STRONG
United States Army, Appellant

ARMY 20200391

Headquarters, Fort Stewart
G. Bret Batdorff, Military Judge
Colonel Joseph M. Fairfield, Staff Judge Advocate

For Appellant: Major Brian A. Osterhage, JA (argued); Colonel Michael C. Friess,
JA; Jonathan F. Potter, Esquire; Captain Joseph A. Seaton, Jr., JA (on brief and
reply brief); Major Joyce C. Liu, JA (on reply brief).

For Appellee: Captain Timothy R. Emmons, JA (argued); Colonel Christopher B.
Burgess, JA; Lieutenant Colonel Craig J. Schapira, JA; Major Mark T. Robinson,
JA; Captain Timothy R. Emmons, JA (on brief).

6 January 2023

BROOKHART, Senior Judge:

At a general court-martial, a panel of officers and enlisted members found
appellant guilty of one specification of prevention of authorized seizure of property
and one specification of negligent homicide in violation of Articles 131e and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 931e and 934.(2019) [UCMJ],
respectively. Appellant was sentenced to a bad-conduct discharge, confinement for
three years, and reduction to the grade of E-1. The convening authority approved
the findings and sentence.

Appellant’s lone assignment of error is that all of her convictions are both
legally and factually insufficient. We find appellant’s conviction for the negligent
homicide specification is both legally and factually sufficient and requires no further
discussion. Appellant’s conviction on the lone specification alleging prevention of

' Judge ARGUELLES decided this case while on active duty.
STRONG—ARMY 20200391

an authorized seizure bears further examination due to the unique nature of the
property subject to that seizure, but ultimately warrants no relief.”

BACKGROUND

Appellant was a motor transport operator assigned to a transportation unit at
Fort Stewart, Georgia. In the summer of 2019, appellant and members of her
company were on temporary duty to the United States Military Academy at West
Point, New York. Their mission was to support cadets who were performing a
number of year-end training events in a mountainous training area near the
Academy.

On 6 June 2019, appellant was part of a group tasked with transporting several
dozen cadets in M1085 medium tactical vehicles to a land navigation course in the
mountainous training area. The route selected for the mission was an unpaved single
switchback road known as Firebreak 20. The firebreak cut through the downward
slope of the mountain so that as one traveled towards the top of the mountain, the
terrain on the left, or driver’s side, sloped upward going away from the road. In
turn, the terrain on the right, or passengers’ side, sloped downward and dropped off
steeply at various points. Trees and loose rocks, interspersed by gaps, lined both
sides of the road. Since the route was not wide enough to accommodate two-way
traffic, in the event drivers encountered oncoming traffic they were instructed to pull
over to the “high side,” meaning the upward sloping side, rather than towards the
downward sloping side with frequent drop-offs, to allow the other vehicle to pass.
While it was not ideal, appellant’s command reconnoitered the route and determined
it to be the best option available to accomplish the mission.

That morning, eight M1085s formed a convoy and departed the Academy
grounds for the training exercise. Appellant’s vehicle was last in the convoy and
carried approximately twenty personnel. The vehicle immediately in front of
appellant’s had its rear flap open so that the cadets sitting in the back could see
appellant’s vehicle following behind them. At one point, the cadets in the vehicle
ahead of appellant saw her vehicle strike a tree along the side of the road. At around
that same time, some cadets in appellant’s vehicle reported being jostled. Later, a
cadet in the vehicle in front of appellant’s vehicle grew concerned when he saw her
vehicle drift toward the right, or drop-off side of Firebreak 20 before correcting
back toward the middle of the road.

Shortly thereafter, the cadets in the preceding vehicle again saw appellant’s
vehicle veer toward the drop-off. This time, appellant was unable to correct course

* We have also given full and fair consideration to the matters submitted personally
by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find they lack merit and warrant neither discussion nor relief.
STRONG—ARMY 20200391

and her vehicle slowly slid sideways down the embankment before rolling over onto
its top. The rollover injured a number of cadets in the back of appellant’s vehicle.
It also killed one cadet who was trapped between the bed of the truck and a boulder
that protruded through the canvas top.

A relatively junior and inexperienced Private First Class served as the truck
commander in appellant’s vehicle. That particular duty required him to sit in the
passenger seat and serve as an observer for the driver, warning her of any hazards
she might not be able to see. Not seriously injured in the rollover, the truck
commander was able to get out of the cab relatively quickly. However, other
witnesses described him as somewhat hysterical due to the shocking experience.
Nonetheless, the truck commander almost immediately reported that appellant had
been on her phone at the time the vehicle rolled over. He later clarified that rather
than using her phone, she was manipulating a smart watch on her wrist at the time of -
the accident. Smart watches typically display data relayed from the wearer’s
cellular phone.

Due to the loss of life, Criminal Investigation Command (CID) handled the
investigation with assistance from the New York State police. Based on the truck
commander’s statements, CID agents obtained a warrant to seize appellant’s Apple
brand cell phone and smart watch for the purpose of extracting data. Later that
evening, the CID Acting Senior Agent in Charge (“Agent”) executed the warrant at
appellant’s billeting area on the Military Academy grounds.

The Agent, accompanied by a Noncommissioned Officer (“NCO”) from
appellant’s unit, located appellant in her sleeping area, at which time the Agent
identified herself to appellant as a CID agent. She further told appellant she had a
warrant to seize appellant’s cellular phone and smart watch. The Agent briefly left
appellant alone with the NCO while appellant was getting dressed, instructing the
NCO not to let appellant use her phone or watch. After the Agent heard the NCO
say “you’re not allowed to be on the phone” several times, she entered the room and
saw appellant attempting to use her phone. Indeed, even after the Agent seized the
phone, appellant tried multiple times to physically snatch the phone back out of the
Agent’s hands. Specifically, the Agent testified that appellant was “belligerent” in
trying to take back her phone, such that the Agent finally had to tell her “at ease,
Sergeant.” The Agent also described how that was the only time in her career that
she had to give such an admonishment to the subject of a seizure warrant.

After obtaining appellant’s phone and watch, the Agent attempted to prevent
any subsequent wireless signal alteration of the phone by placing it in airplane
mode. Unable to get the phone in airplane mode, she instead placed it in what she
believed was a “Faraday Bag,” which was described as a container made of material
designed to block incoming and outgoing electronic signals. The Agent then
STRONG—ARMY 20200391

transported the phone and watch to the nearest CID office with the personnel and
equipment necessary to exploit any relevant digital media from electronic devices.

The evidence at trial demonstrated that a common feature of appellant’s Apple
iPhone and Apple account allowed her to remotely reset the phone to its original
factory settings, effectively erasing all of the data stored on the phone. When the
forensic analysts at the CID office began the process of extracting data from
appellant’s phone, they discovered that it had been remotely reset to factory
conditions, and that all of the data on the phone had been erased. Upon further
examination, the CID agents discovered that the Faraday Bag thought to have
secured the phone was mislabeled by the manufacturer and did not actually have any
capacity to block electronic signals. With respect to her Apple watch, the agents
were unable to penetrate the device’s security in order to search it.

After discovering that the phone was “wiped,” CID agents obtained
subsequent search warrants and served them on Apple and Verizon, which was
appellant’s cell phone carrier, in an effort to obtain appellant’s account data. They
also obtained a warrant for any other electronic devices appellant owned. The latter
yielded an Apple iPad tablet and another Apple iPhone. A forensic analysis of the
account data provided by Apple and the digital content of the newly seized devices
revealed that shortly after her original cell phone was seized, appellant used her
MacBook from a location near West Point to access her Apple account and initiate
the remote factory reset. The factory reset process required knowledge of
appellant’s account credentials to include her password. At trial, the government’s
forensic expert explained that appellant was able to use the “Find My iPhone”
application on her MacBook to access the backup data on the iCloud and remotely
wipe her phone. Although not entirely clear, the forensic expert’s testimony at trial
appeared to confirm that appellant only had the ability to remotely wipe her entire
phone, as opposed to manipulating specific pieces of data on the phone.

The investigation also discovered several internet searches initiated from
appellant’s internet protocol (ip) address for information on how to reset an Apple
iPhone remotely. Finally, the forensic expert also testified that roughly 90 percent
of the data he needed in order to determine whether appellant was on her watch or
phone at the time of the fatal rollover would have been contained on her cell phone.
Accordingly, appellant was charged with prevention of an authorized seizure under
Article 13le, UCMJ.
STRONG—ARMY 20200391

On appeal, appellant avers that her cell phone was already seized at the time
she remotely disposed of the data stored thereon, placing her conduct beyond the
reach of the statute. We disagree.’

LAW AND DISCUSSION
A. Law

This court reviews questions of legal and factual sufficiency de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual
sufficiency is “whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, the members of
the service court are themselves convinced of appellant’s guilt beyond a reasonable

3 We are unpersuaded by the dissenter’s argument that appellant’s conviction under
Article 131e is factually insufficient because the government did not admit the
warrant or evidence of its specific contents, thereby creating reasonable doubt as to
whether the cell phone data or just the cell phone was the authorized target of the
seizure. As the dissent aptly notes, neither the warrant nor its contents are required
elements of the offense as defined by the statute. Nor does the model specification
in the Manual for Courts-Martial require any reference to a warrant or its contents.
Instead, the statute requires only that appellant know that a person authorized to
make seizures is seizing, about to seize, or endeavoring to seize certain property.
The discussion to Article 131(e) refers to Military Rule of Evidence [Mil. R. Evid.]
316(d) for a list of persons authorized to conduct seizures. That list includes
criminal investigators. See Manual for Courts-Martial, United States [MCM], pt.
IV, | 86; Mil. R. Evid. 316(d). In this case, the agent conducting the seizure
testified that she identified herself to appellant as a CID agent who was there to
seize her cell phone and smart watch as part of the fatal rollover investigation.
Although the Agent did not specifically reference cell phone data, the record is
replete with evidence that the Agent was endeavoring to seize appellant’s cell phone
data, rather than just the husk of the cell phone as the dissenters would have it.
Most importantly to the government’s burden, the evidence makes it quite clear
appellant knew the data was the “certain property” targeted by the seizure because it
was the data, rather than the cell phone, she undertook to dispose of using the
remote reset feature. See United States v. Braddock, No. ACM 39465, 2019 CCA
LEXIS 441, at *13 (A.F. Ct. Crim. App. Oct. 29, 2019) (citing State v. Casady, 491
N.W.2d 782, 787 (Iowa 1992)) (state of mind can be established by inferences
reasonably drawn from the conduct of the accused); Dep’t of Army Pam. 27-9, Legal
Services: Military Judges’ Benchbook, para 7-3 (10 September 2014) (knowledge
and intent can be proven by circumstantial evidence). Finally, it is worth noting that
discussion to Article 131(e) also states that it is not a defense to violation of the
statute that a search or seizure was defective, further belying the necessity of a
warrant to prove the charge.
STRONG—ARMY 20200391

doubt.” United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citations and
internal quotation marks omitted) (emphasis in original). This court applies “neither
a presumption of innocence nor a presumption of guilt” but “must make its own
independent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. In
reviewing for factual sufficiency, we are limited to the facts introduced at trial and
considered by the court-martial. United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F.
2007).

“In contrast, the federal civilian corollary to Article 13le, UCMJ, criminalizes
similar conduct which occurs “before, during, or after any search for or seizure of
property ....” 18 U.S.C. § 2232(a) (emphasis added).

° Prevention of Authorized Seizure of Property became an enumerated article with
the passage of the Military Justice Act of 2016 on 1 January 2019. See National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5448, 130
Stat. 2957. Previously, a nearly identical offense was among those listed in the
general article.

7 With respect to the second element of the offense: (1) the Charge Sheet uses the
words “obstruct” and “obscure,” in addition to “dispose of” to define appellant’s
conduct even though the former two words are not specifically set forth as means of
violating Article 131e, UCMJ; and (2) the military judge likewise included these two
terms, along with definitions, in his panel instructions. Nonetheless, given that a
statutory means of violation was charged and instructed upon, the alternate terms are
similar in meaning to those enumerated, and neither side objected to the Charge
Sheet or the instructions, we find no error in the inclusion of these alternate terms.
STRONG—ARMY 20200391

retrieve his stolen property. Jd. When appellant arrived shortly thereafter and took
the property to his car, the surveilling agents quickly arrested him. Id.

On appeal, appellant argued that the agents constructively took possession of
the property by identifying it as stolen and setting up the sting, and therefore the
seizure was complete before he arrived to retrieve the property. Jd. at 362. The
CAAF disagreed, finding that the ease with which appellant was able to gather up
the property and move it to his car negated any claim that there was a meaningful
interference with his possessory interest. Id. The CAAF explained that “[t]he
record does not reflect that these agents seized or even touched the property in
question,” and that appellant’s theory “would require a holding that whenever a law
enforcement agent observes stolen or contraband property and has the opportunity to
wrest exclusive physical custody of it, as a matter of law the agent thereby has
seized it at that moment.” Jd.

The reasoning in Hahn is ultimately applicable to this case even though here
we confront digital data, which can be moved, stored, and disposed of in ways
unique to its non-physical nature. Indeed, we recognize that incredible amounts of
personal data are routinely stored on or accessed through modern smart phones.
Riley, 573 U.S. at 393-94 (citing Kerr, Foreword: Accounting for Technological
Change, 36 Harv. J. L. & Pub. Pol’y 403, 404-405 (2013); United States v Flores-
Lopez, 670 F.3d.803, 806 (7th Cir. 2012)). In order to protect that data, a common
feature of many cell phones, including appellant’s Apple iPhone, allows users with
internet access to remotely reset the phone to its original factory settings even if the
phone is not in their possession. Resetting the phone effectively wipes all of the
data stored on the phone at the time of the reset. See e.g. Flores-Lopez, 670 F.3d at
808 (stating remote wiping is available on all major platforms or can be bought
separately). Testimony at trial also indicated that many cell phones, including
appellant’s, have the capacity, through a wireless connection, to automatically back-
up data from the phone to a storage location separate from the phone itself, such as
the iCloud. This wireless back-up function can be programmed to happen
automatically at predetermined intervals, or when certain commands are entered by a
user in possession of the phone. Like the factory reset, this back-up function
protects user data by storing copies of data in the event the phone is lost, stolen, or
simply stops functioning. Finally, although not at issue in this case, some cell
phones can be enabled to automatically encrypt all the stored data on the phone if
certain conditions are met, such as too many attempts to guess a phone’s password.
This feature also protects data on a lost or stolen phone. See Riley, 573 U.S. at 389.

Unfortunately, these practical privacy enhancements are equally useful to
someone seeking to destroy incriminating data on a cell phone or remove it beyond
the reach of law enforcement, even when they do not have physical possession of the
phone. Given the capacity of these common features to impact potential evidence, it
is no longer enough for law enforcement officials executing a warrant for digital
STRONG—ARMY 20200391

media to simply take possession of the physical device containing the media. To
ensure the digital media is not remotely altered, destroyed, or rendered inaccessible
after the physical device containing the data is lawfully seized, those executing
seizures must take additional protective measures. See Dept. of Commerce, National
Institute of Standards and Technology, R. Ayers, S. Brothers, & W. Jansen,
Guidelines on Mobile Device Forensics 29 (SP 800-101 Rev. 1 May 2014); Interpol,
Guidelines for Digital Forensics First Responders, Best Practices for Search and
Seizure of Electronic and Digital Devices, (2021).

As described at trial, the protocols for seizing cell phones include placing the
device in airplane mode and/or placing the seized device in a specialized container,
such as a Faraday bag, designed to block incoming and outgoing wireless signals.
These measures allow the seized device to be securely transported to a location
where the digital media identified in the warrant can be securely extracted or copied.
However, the testimony at trial revealed that these protocols are not foolproof.
Faraday bags do not always block all incoming and outgoing signals. See Ashleigh
Lennox-Steele & Alastair Nisbet, A Forensic Examination of Several Mobile Device
Faraday Bags and Materials to Test Their Effectiveness (2016) (on file with Edith
Cowan University Research Online); Eric Katz, A Field Test of Mobile Shielding
Devices (Dec. 10 2010) (unpublished Purdue University College of Technology
Masters Theses) (on file with Purdue University). Moreover, as the forensic
examiner testified at trial, functions such as airplane mode can be password
protected to prevent anyone other than the user from isolating the device from
wireless signals. Accordingly, even when the physical device containing the data is
in the hands of those authorized to seize it, the targeted data will often remain
subject to active and passive alteration up until the time it is copied or extracted.

Based upon the foregoing, we find that the routine efforts of law enforcement
to protect digital media on a seized physical device are part and parcel of the seizure
of digital media. Under this analysis, a seizure is ongoing while those authorized to
seize the property execute the protocols necessary to isolate and preserve the digital
media. For purposes of Art. 131e, UCMJ, we further find that digital media is
“seized,” and beyond the reach of the statute, when the device containing it is secure
from passive or active manipulation, even if that does not occur until the targeted
data is copied or otherwise transferred from the seized device at some other location.

This framework is necessary to address both evolving technology and the
ethereal nature of digital evidence. Moreover, it is consistent with the holding in
United States v. Hahn, 44 M.J. 360 (C.A.A.F. 1996), because the only “possessory
interest” of any relevance to Article 131e, UCMJ, is the capacity to destroy, remove,
or otherwise dispose of the putative evidence. The law is unconcerned with whether
Hahn still had sufficient possessory interest in stolen stereo equipment to listen to
music on it, or whether appellant might be able to complete the day’s Wordle on her
cell phone. Rather, the only question for purposes of Article 131e, UCMJ, is
STRONG—ARMY 20200391

whether appellant maintained sufficient possessory interest in the item seized to
destroy its evidentiary value; the very harm the statute is designed to prevent. In
Hahn, the court found that the agents had not meaningfully interfered with Hahn’s
possessory interest in the stolen property precisely because he was still able to
“remove” it, something also prohibited by the statute. Jd. at 362.8 Likewise, a
suspect may maintain the capacity to effectively “gather up...and move” digital
evidence even when the physical device containing it is in police hands. Jd.

This framework is also consistent with the language of the statute which we
are bound to honor. Hamilton, 82 M.J. at 531. Seize is a verb meaning to “take
possession of by legal process.”? “Endeavor,” when used as a verb means to
“attempt ... by exertion of effort.”!© Both “seizing” and “endeavoring” are present
participles, which are verbs that form a continuous tense. Present participles
describe actions that are ongoing, such as running, lifting, or writing.'' As such,
“endeavoring to seize” describes someone exerting effort to seize an item.

It is a basic tenet of statutory construction that the language of the statute
must be interpreted such that each clause has independent meaning. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 174
(2012) (defining the “Surplusage Canon” as the requirement that “[i]f possible,
every word and every provision is to be given effect,” and “[n]one should be
ignored”). Accordingly, “seizing,” “about to seize,” and “endeavoring to seize”
must be read to have independent meanings and operate to criminalize distinct
conduct. To that end, we believe Congress intended “seizing” to criminalize
intentional efforts to destroy, remove, or otherwise dispose of property at the time
when authorized officials are in the act of physically taking control of the evidence,
such as when a suspect swallows evidence or flushes it down a toilet as agents
attempt to take it from his person. We further find “endeavoring to seize” addresses
situations where the seizure has progressed to the point where the authorized persons
have some degree of physical control over the seized evidence but are still actively
securing it in accordance with their applicable procedures. An example of

§ Presumably, had Hahn destroyed the evidence in the apartment’s living room while
the NIS agents waited outside, he would have been equally guilty of violating the
former Article 131le.

° Merriam-Webster Online Dictionary, https://merriam-webster.com/dictionary/seize
(last visited 29 Sep 2022).

'© Merriam-Webster Online Dictionary, https://merriam-webster.com/dictionary/endeavor
(last visited 29 Sep 2022).

'' Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/present%20participle (last visited 29 Sep 2022)

10
STRONG—ARMY 20200391

endeavoring to seize physical evidence would be when agents are preserving,
marking, and packaging evidence for removal from the scene of the seizure and
transportation to the facility where it will be stored or analyzed.”

In this case, persons authorized to seize appellant’s phone and the digital
media contained therein physically seized the phone and according to their protocol
for such evidence, attempted to turn-off the phone’s wireless communications
function. When that effort failed, the agent further endeavored to secure the seized
data by placing the phone in a container designed to block wireless signals. '* The
fact that the container was mislabeled and had no capacity to block wireless signal
does not relieve appellant of her criminal liability because even a properly marked
and functioning Faraday container is not foolproof. Therefore, even though the
physical device was in law enforcement custody, the seizure was Ongoing because
like Hahn, appellant still had sufficient access to the data on the phone, whether
“authorized”"4 or not, to dispose of it in precisely the manner the seizing authority
sought to prevent. As the Court in Hahn might say, “witness the ease with which

2 Although not at issue in this case, we believe “about to seize” encompasses
scenarios where the subject is aware that authorized persons intend to seize the
property but have not yet arrived at the location of the property or otherwise began
their efforts. The scenario in Hahn, where Hahn sought to remove the evidence
when he learned law enforcement would soon be coming, is such an example.

'3 The unique nature of digital media often defies hypotheticals premised on physical
property. United States v Wicks, 73 MJ 93, 102 (C.A.A.F. 2014) (“not good enough”
to analogize a cell phone to a container for 4" Amendment purposes). Nonetheless,
we agree that the dissent’s example describes the facts of this case, although here
appellant did not need to physically remove the cell phone from the trunk of the law
enforcement vehicle in order to dispose of its contents because through an inherent
feature of her cell phone, she maintained sufficient possessory interest in the data to
access it remotely. Accordingly, we are unmoved.

4 The dissent concludes that once the physical device was in the Faraday bag, the
seizure was complete because appellant no longer had “authorization” to access it.
However, we find the concept of “authorization” is ultimately at odds with a statute
criminalizing the destruction of evidence even before its seizure. Hahn did not have
authorization to remove the stolen property from his associate’s apartment as
evidenced by his arrest as soon as he did so. Nonetheless, our superior court upheld
his guilty plea for violating the predecessor to Art. 13le, UCMJ. Conversely, during
the timeframe that investigators were “about to seize” appellant’s phone, she
seemingly had authorization to possess both it and the data on it, however, it would
have still been a violation of Art. 131e for her to destroy either. Accordingly, the
question is not whether appellant had “authorization” to access the phone or the
data, but whether agents were still endeavoring to seize it when she did.

11
STRONG—ARMY 20200391

appellant was able to delete the digital media.” Accordingly, we find the evidence
demonstrated appellant intentionally destroyed the data on her phone while law
enforcement agents were still “endeavoring to seize” it by transporting it to a
location where the data could be securely extracted or copied. Appellant’s
conviction is both legally and factually sufficient.!>

CONCLUSION
The findings of guilty and sentence are AFFIRMED.

Senior Judge WALKER, Senior Judge FLEMING, Judge HAYES, Judge MORRIS,
and Judge PARKER concur;

ARGUELLES, Judge, joined by SMAWLEY, Chief Judge, and PENLAND, Judge
dissenting;

I concur with the majority’s ruling as to the negligent homicide specification.
For three reasons, however, I respectfully disagree with my colleagues’
determination that Appellant’s conviction on The Specification of Charge III was
legally and factually sufficient. First, there was insufficient evidence as to what the

‘5 In addition to finding the Article 131e conviction legally and factually
insufficient, the dissent would exercise our statutory “should be approved” power to
set aside that conviction due to a waived instructional error. Contra United States v
Nalezynski, ARMY 20200038, 2021 CCA LEXIS 509 at *9 (Army Ct. Crim. App. 30
Sep. 2021) (mem. op.). However, where the military judge otherwise correctly
defined the elements, we find no error in his use of the colloquial “cell phone”
rather than the expansive “digital content of her cell phone” in his charge to the
panel. While careful distinction between the two might be necessary in the Fourth
Amendment context, “syntactical nicety is not the standard for instructional
adequacy.” United States v Alford, 31 M.J. 814, 819 (A.F.C.M.R. 1990) (citing
United States v. Truman, 19 U.S.C.M.A. 504, 507, 42 C.M.R. 106, 109 (1970)).
Accordingly, we are confident that the instructions as a whole were legally correct
and did not mislead the panel. Alford, 31 M.J. at 819. See also United States v.
Prather, 69 M.J. 338, 344 (C.A.A.F. 2011) (quoting Humanik v. Beyer, 871 F.2d
432, 441 (3d Cir. 1989)) (instructions are reviewed in the “context of the overall
message conveyed to the [panel].”). Further, irrespective of waiver, we find no
reasonable possibility that the findings or sentence would be any different had the
instructions included the words “digital content of her cell phone” as the dissenters
believe was required. United States v Wolford, 62 MJ 418, 420 (C.A.A.F. 2006). In
the absence of error or any arguable prejudice there are no permissible grounds to
exercise our twilighting “should be approved” authority under Article 66. See
National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, §
542(b), 134 Stat. 3611.

12
STRONG—ARMY 20200391

Agent was “authorized” to search for, and in any event, appellant’s destruction of
the cell phone data did not occur as agents were “about to seize” the data.
Alternatively, because the military judge’s instructional errors on this specification
were not harmless beyond a reasonable doubt, the Article 131e specification must be
set aside.

LAW AND DISCUSSION
A. Law

This court reviews questions of legal and factual sufficiency de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual
sufficiency is “whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, the members of
the service court are themselves convinced of appellant’s guilt beyond a reasonable
doubt.” United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citations and
internal quotation marks omitted) (emphasis in original). This court applies “neither
a presumption of innocence nor a presumption of guilt” but “must make its own
independent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. In
reviewing for factual sufficiency, we are limited to the facts introduced at trial and
considered by the court-martial. United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F.
2007).

“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Rosario, 76 M.J.at
117 (quoting United States v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)).

The elements of Article 131e, UCMJ, are:

1. That one or more persons authorized to make searches
and seizures were seizing, about to seize, or endeavoring to
seize certain property;

2. That the accused destroyed, removed, or otherwise
disposed of that property with intent to prevent the seizure
thereof; and

3. That the accused then knew that person(s) authorized to
make searches were seizing, about to seize, or endeavoring
to seize the property.

Manual for Courts-Martial, United States (MCM), pt. IV, 986.b.

13
STRONG—ARMY 20200391

The statute criminalizes actions taken by an accused to prevent the authorized
seizure of property. “Prevent” means to keep something from happening or arising.
Therefore, by definition, any action to “prevent” a seizure must occur before the
seizure of the property. As such, the statutory phrase, “seizing, are about to seize,
or are endeavoring to seize” contemplates the destruction, removal, or disposal of
the targeted property either before the seizure or while the seizure is ongoing.

B. Factual Sufficiency Based on Missing Evidence at Trial

For appellant’s actions related to the phone and watch, the panel returned a
guilty verdict on The Specification of Charge III, a violation of Article 131e, UCMJ.
As noted above, the Charge Sheet alleged that:

[Appellant], U.S. Army, did, at or near West Point, New York, on or about 7
June 2019, with intent to prevent its seizure, obstruct, obscure, and dispose of
the digital content of her cell phone, property [appellant] then knew a person
authorized to make searches and seizures was endeavoring to seize.

Although the specification alleged that appellant acted with the intent to
prevent the seizure of “the digital content of her cell phone,” the actual warrant
authorizing such a seizure was not introduced into evidence, nor is it anywhere in
the Record of Trial. To the contrary, the only evidence introduced at trial pertaining
to the scope of the warrant was the Agent’s testimony that “[w]e applied for a search
authorization — a search warrant to seize” appellant’s watch and phone. On cross-
examination, the Agent also explained why it was important to preserve digital
evidence when seizing a cell phone, to include placing the phone into airplane mode
and properly securing it in a Faraday Bag. The Agent did not, however, provide any
further testimony about whether the warrant in this case authorized the seizure of:
(1) the “cell phone” itself; (2) the cell phone and its digital content (as charged by
the Government); or (3) the cell phone, its data, and any data simultaneously stored
in the iCloud.

Likewise, trial counsel told the panel in his opening statement that the Agent
executed “a search warrant to seize the phone from” appellant, and argued in his
closing that the Agent “seized that watch, seized the cell phone.” Conversely, there
was no evidence introduced at trial that the applicable warrant in any way authorized
the seizure of the data on appellant’s phone, much less any of her backup data that
might be stored or accessible in the iCloud.

While the government could have charged appellant with interfering with the
physical seizure of the phone based on her interaction with the Agent at the
barracks, it instead elected to allege that she interfered with the seizure of “the
digital content of her cell phone” in order to capture her subsequent conduct in
digitally “wiping” her phone after it was taken. This is a significant point of

14
STRONG—ARMY 20200391

departure from the majority’s reasoning: the phone’s digital content is different
from the phone itself. As such, the government was bound by its charging decision
to prove that there was in fact authorization for the seizure of the digital content of
appellant’s phone. United States v. English, 79 M.J. 116, 120 (C.A.A.F. 2019)
(holding that government is bound to prove the facts as alleged).

With respect to the basis for such a lawful seizure, there is no dispute that in
the military context there are multiple sources of “authorization” for such a seizure,
to include a search warrant, lawful inspections and inventories, exigent
circumstances, and/or searches and seizures conducted upon entry to an installation.
In the instant analysis, however, we are not suggesting that Article 13le contains an
additional search warrant or probable cause element, but rather take issue with any
argument that the first element of that statute requires only a “general” or free-
floating authorization to conduct seizures, untethered to any specific lawful basis for
such a seizure.

Put another way, because the “authorization of the person” to seize the item at
issue is a mandatory condition precedent to examining the accused’s knowledge and
intent, absent evidence that there was some specific lawful basis for the seizure, be
it via search warrant, inspection, or otherwise, there is simply no basis to establish
the first element of Article 13le. To interpret the first element of the statute as
requiring only a “general” authorization would mean that an accused could be found
guilty for resisting a CID agent who simply walked up to her on the street and
attempted to seize her phone without any lawful authorization. As such a result
would defy both logic and common sense, we cannot accept such an interpretation of
Article 13le. Cf United States v. Cote, 72 M.J. 41, 42 (C.A.A.F. 2013) (holding
that in general “the search and seizure conducted under the warrant must conform to
the warrant or some well-recognized exception”) (citations omitted); Dep’t of Army
Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3-96-1 (10 Sep. 2014)
(in the context of obstruction of justice, “‘criminal proceedings’ includes lawful
searches”) (emphasis added). Finally, for the same reasons, it follows that in the
absence of evidence of the source for a lawful seizure, any “good faith” on the part
of the Agent is entirely irrelevant. !®

'6 Military Rule of Evidence [Mil.R.Evid.] 316 does not provide the “free-floating”
source of authorization for the first element of Article 131le. To the contrary, this
evidentiary rule pertains only to the “admissibility” of seized evidence, providing
that even absent a warrant or other lawful authorization, evidence of a crime seized
by a CID agent acting in good faith may still be admissible at trial. Mil.R.Evid.
316(c)(1), (d). But interpreting such an evidentiary rule regarding the admissibility
of seized property as definitively settling the question of what authority is required
for a seizure under Article 13le is a non sequitur. Indeed, given that Mil.R.Evid.

(continued .. .)

15
STRONG—ARMY 20200391

We further recognize that when viewing the evidence in the light most
favorable to the government, an argument can be made that the panel may have
reasonably inferred that the warrant also authorized the seizure of the “digital
content” of appellant’s phone. Indeed, although the government elected to charge
the object of the offense as “the digital content of her cell phone” and conceded at
oral argument that there is a distinction between a cell phone and its digital contents,
counsel also argued that we can infer from the Agent’s testimony that the missing
warrant must have authorized seizure of the phone’s digital content. First, to the
extent the government is asking us to draw such inferences from the evidence, that is
relevant only to our /egal sufficiency review. See Rosario, 76 M.J.at 117 (holding
that the test for legal sufficiency is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”). In making our factual
sufficiency determination, we apply no presumptions as to guilt or innocence, but
are instead required to make our own “independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399.

As such, the fact that the Agent apparently recognized the need to preserve
digital content when seizing cell phones, and/or may have had a “good faith” belief
that she was authorized to seize the data, does not answer the question of what the
scope of the warrant was in this case, nor is it enough to conclusively establish that
the warrant expressly authorized the seizure of “the digital content of [appellant’s]
cell phone.” Indeed, numerous federal courts have recognized that there is a
distinction between a warrant authorizing seizure of a phone, and a warrant
authorizing seizure of its digital contents. See e.g. United States v. Wecht, 619
F.Supp.2d 213, 247 (W.D. Pa. 2009) (“[T]he law recognizes a distinction between
the seizure of computer equipment on one hand and, on the other hand, the seizure of
information stored within the computer equipment .... when the government seeks
to seize the information stored on a computer, as opposed to the computer itself, that
underlying information must be identified with particularity”) (emphasis in original)
(citation omitted); Cf Riley v. California, 573 U.S. 373, 401 (2014) (“Our holding,
of course, is not that the information on a cell phone is immune from search; it is
instead that a warrant is generally required before such a search, even when a cell

(. . . continued)

316(d) expressly limits its application to property seized “pursuant to this rule”, any
assertion that the definitions in Mil.R.Evid. 316 govern the “authorization”
requirement of Article 131le is ambiguous at best, and would violate the rule of
lenity. See United States v. Davis, 139 S.Ct. 2319, 2333 (2019) (the rule of lenity
requires that ambiguities concerning the breadth of a criminal statute be resolved in
the defendant’s favor); United States v. Thomas, 65 M.J. 132, 135 n.2 (C.A.A.F.
2007) (“We have long adhered to the principle that criminal statutes are to be
strictly construed, and any ambiguity resolved in favor of the accused.”).

16
STRONG—ARMY 20200391

phone is seized incident to arrest.”); United States v. Wicks, 73 M.J. 93, 102
(C.A.A.F. 2014) (“Because of the vast amount of data that can be stored and
accessed, as well as the myriad ways they can be sorted, filed, and protected, it is
not good enough to simply analogize a cell phone to a container”).

Finally, accepting the government’s invitation to find factual sufficiency on
the grounds that there is no real difference between the term “cell phone” and its
digital content would require us to except the words “digital content” out of the
specification, an action we are precluded from taking under prior CAAF precedent.
See English, 79 M.J. at 121 (holding that “there is no authority, statutory or
otherwise, that permits the ACCA to except language from a specification in such a
way that creates a broader or different offense than the offense charged at trial.”).

In short, given the context of this case, we cannot make a factual sufficiency
determination without knowing the specific wording of the warrant authorizing the
seizure. If, as described by the Agent at trial, the warrant authorized the seizures of
only the watch and the phone, appellant cannot be guilty of interfering with those
seizures by wiping the phone of its digital content after it was no longer in her
possession. On the other hand, if the warrant more broadly authorized the seizure of
the phone, the data contained on the phone, and any of the phone’s backup data in
the iCloud, there would likely be no factual sufficiency issue. And, if as expected,
the actual authorization of the language of the missing warrant was somewhere in
between these two extremes, our factual sufficiency determination would necessarily
turn on the exact words used. See Cote, 72 M.J. at 42 (holding that in general “the
search and seizure conducted under the warrant must conform to the warrant”).

In sum, since the only evidence pertaining to the actual scope of the warrant’s
seizure authorization was the Agent’s testimony that she “applied for a search
authorization — a search warrant to seize” appellant’s watch and phone, combined
with the fact that the government’s opening statement/closing argument focused the
panel members on the phone itself, and not its digital content, the government failed
to meet its burden of proof as to the “condition precedent” for the first element of
Article 131le. In other words, the government failed to prove beyond a reasonable
doubt that the Agent was in fact authorized “to seize certain property.” Indeed,
because we can only speculate about the extent of the authorized seizure and what
“certain” property was at issue, we are not convinced that the evidence at trial
“constitutes proof of each required element beyond a reasonable doubt.”
Accordingly, the guilty finding on The Specification of Charge III is factually
insufficient. See United States v. Christensen, ARMY 20190197, 2021 CCA LEXIS
159 at *4-5 (Army Ct. Crim. App. 29 Mar. 2021) (mem op.) (holding that a lack of
evidence supporting the panel’s finding renders appellant’s conviction factually
insufficient); United States v. Brown, ARMY 20180176, 2019 CCA LEXIS 313 at
*4-5 (Army Ct. Crim. App. 31 Jul. 2019) (mem op.) (same).

17
STRONG—ARMY 20200391
C. Remote Deletion of Data on Phone

Alternatively, and even setting aside the evidentiary issue discussed above,
because appellant’s destruction of the cell phone data did not occur as agents were
“about to seize” the data, the evidence is still factually insufficient to support the
guilty verdict for the Article 131e specification.

Neither the text of Article 131le, UCMJ, nor the explanation in Part IV of the
MCM, define when a seizure is complete. However, in a different factual context,
the Court of Appeals for the Armed Forces (CAAF) held that property is seized for
purposes of the statute in question when there is “meaningful interference with an
individual’s possessory interest in that property.” United States v. Hahn, 44M.J.—
360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113
(1984)). In Hahn, agents found in a third-party sailor’s house property that they
suspected appellant had stolen. Hahn, 44 M.J. at 361. In order to confirm their
suspicions, the agents directed the third-party to call appellant and tell him that,
since agents were going to search his house that night, appellant should come right
away and retrieve his stolen property. Jd. When appellant arrived shortly thereafter
and took the property to his car, the surveilling agents quickly arrested him. Jd.

On appeal, Hahn argued that the agents constructively took possession of the
property by identifying it as stolen and setting up the sting, and that the seizure was
complete before he arrived to retrieve it. Id. at 362. The CAAF disagreed, finding
that the ease with which appellant was able to gather up the property and move it to
his car negated any claim that there was a meaningful interference with his
possessory interest. Jd. The CAAF explained that “[t]he record does not reflect that
these agents seized or even touched the property in question,” and that appellant’s
theory “would require a holding that whenever a law enforcement agent observes
stolen or contraband property and has the opportunity to wrest exclusive physical
custody of it, as a matter of law the agent thereby has seized it at that moment.” Jd.

This case is distinguishable from Hahn on multiple levels, including the fact
that we are dealing here with “data” potentially stored on the phone and elsewhere.
Indeed, we recognize that incredible amounts of personal data are routinely stored
on or accessed through modern smart phones. Riley, 573 U.S. at 393-94 (citing
Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y
403, 404-405 (2013); United States v Flores-Lopez, 670 F.3d.803, 806 (7th Cir.
2012)). In this case, the evidence at trial revealed that appellant’s Apple iPhone and
accompanying Apple account had a commonly available feature that allowed an
owner not in possession of the phone to access the account through another device
and remotely delete all of the data, or digital media, by restoring factory settings.
See e.g. Flores-Lopez, 670 F.3d at 808 (stating remote wiping is available on all
major platforms or can be bought separately). The obvious benefit of this feature is

18
STRONG—ARMY 20200391

that if the phone is lost or stolen, the owner can prevent exposure of any personal
data on it.

Given this common feature on cellular phones, law enforcement officials
executing a warrant for digital media stored on an electronic device generally take
measures to prevent the alteration or destruction of the digital media after the device
is lawfully seized. See, e.g., Dept. of Commerce, National Institute of Standards and
Technology, R. Ayers, S. Brothers, & W. Jansen, Guidelines on Mobile Device
Forensics 29 (SP 800-101 Rev. 1 May 2014); Interpol, Guidelines for Digital
Forensics First Responders, Best Practices for Search and Seizure of Electronic and
Digital Devices, (2021). As noted above, testimony at trial revealed that Army law
enforcement agents generally follow several protocols to protect digital media from
active or passive manipulation after seizure of the physical device. For cellular
phones, one step involves placing the device in airplane mode, which effectively
prevents the device’s communication with wireless data streams. Additionally, CID
agents will often place seized devices in Faraday bags, or similar containers, to
block wireless signals from accessing or leaving the devices. These preventative
measures generally allow for secure transportation of a device to an appropriate
location for search and extraction of relevant digital media.

Finally, in Jacobsen, the case cited in Hahn, the Supreme Court held that “the
agents’ assertion of dominion and control over the package and its contents”
constituted a seizure. 466 U.S. at 120. Likewise, in United States v. Eugene,
ARMY 20160438, 2018 CCA LEXIS 106, at *7 (Army Ct. Crim. App. 28 Feb. 2018)
(mem. op.), we reiterated that with respect to a seizure, there is a meaningful
interference with an individual’s possessory interest when “law enforcement []
exercise[s] a fair degree of dominion and control over the property.” As such, we
held that because “meaningful interference” occurred when appellant’s wife
consented to the seizure of the cell phone and provided it to CID, the “seizure was
therefore complete.” Jd.; Cf Cote, 72 M.J. at 45 (seizure of appellant’s electronics
interfered with his possessory interest in the noncriminal matters that were part of
the digital content); Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999) (“[T]he
Fourth Amendment protects an individual’s interest in retaining possession of
property .... Once that act of taking the property is complete, the seizure has
ended and the Fourth Amendment no longer applies.”) (emphasis added); Texas v.
Brown, 460 U.S. 730, 747 (1983) (stating a seizure threatens a citizen’s interest in
“retaining possession of property”) (Stevens, J., concurring) (emphasis added).

Appellant now contends that her conviction under Article 131e, UCMJ, is
legally and factually insufficient because CID agents had already seized her phone
and its digital content by the time she remotely destroyed the data. We agree.

Simply put, and notwithstanding her testimony that Faraday Bags are “not
completely” foolproof, once the Agent put appellant’s phone into the Faraday Bag,

19
STRONG—ARMY 20200391

the seizure was for all intents and purposes complete, because appellant no longer
had authorization to possess either the phone or its digital contents. While the
defective Faraday Bag may have provided appellant with the opportunity to destroy
the data remotely, the Agent’s negligence is simply not the legal equivalent of
providing appellant with meaningful access to her phone and its data. To the
contrary, in order to uphold appellant’s Article 131e, UCMJ, conviction based on her
conduct in deleting the data after the Agent took her phone, we would have to
conclude that the Agent’s negligence in failing to properly secure the phone
necessitated a finding that the government was still somehow unknowingly and
inadvertently “endeavoring” to seize the phone and its data, up until the point when
the agents finally got around to attempting to extract the data. That is a leap of
logic we are not willing to make, as we decline to read Hahn as standing for the
proposition that, for a seizure to be complete, law enforcement agents must
eliminate any and all possible access to the seized item or items. Rather, once the
Agent put the phone in the Faraday Bag and secured it, law enforcement asserted a
“fair degree” of dominion and control over both the phone and its data, such that the
seizure was complete. Jacobsen, 466 U.S. at 120; Eugene, 2018 CCA LEXIS 106, at
*7,

To the extent the government argues that as a result of the Agent’s
negligence, and/or because Faraday Bags are not completely foolproof, there was no
“meaningful interference” with appellant’s “possessory interest” as Hahn defined
that term, we disagree. First, in Hahn the appellant was able to physically pick up
and move the property into his car before the agents took physical possession of it,
and the CAAF specifically noted “[t]he record does not reflect that these agents
seized or even touched the property in question [before appellant moved it].” 44
M.J. at 362. Moreover, the core holding in Hahn was that a law enforcement agent
did not as a matter of law seize property the moment he observed it. Jd. Unlike in
Hahn, in this case there is no dispute that the Agent “seized or even touched” the
phone. Nor is there any claim the Agent “seized” appellant’s phone before taking
physical custody of it. Likewise, because Hahn is silent on the issue of what
happens when law enforcement physically takes an item but negligently fails to
secure it, that case is inapposite.

A hypothetical example is illustrative. First, assume that appellant in this
case was not present when the search occurred, and that after finding the phone, the
agents put it in their trunk, failed to close the trunk, and then went back into
barracks to search for more electronic devices. Then assume that upon her return
while the agents were still executing the warrant, appellant saw the agents heading
back into the barracks, and reached into the open trunk to take back her phone. In
such a case, we would give short shrift to any claim that the agents’ negligence in
failing to shut the trunk meant that they were still somehow “endeavoring” to seize
the phone and/or that the government failed to assert a “fair degree” of dominion

20
STRONG—ARMY 20200391

and control over the phone and its data. There is no meaningful difference between
the hypothetical and the facts of this case.!”

In sum, because appellant’s phone and its data were already seized when she
remotely “wiped” the phone, her conduct cannot legally or factually support the
panel’s finding of guilty on The Specification of Charge III. While such a
conclusion may appear to give appellant a windfall, it was the Government who
decided to “push the envelope” by grounding their Article 131e, UCMJ, charge on
the tenuous theory that the agents were still “endeavoring” to seize the phone, even
after it was in the Government’s physical possession. '®

D. Instructional Error

In United States v. Wolford, the CAAF reiterated that the military judge’s
obligation to assure the accused receives a fair trial includes the duty to “provide
appropriate legal guidelines to assist the jury in its deliberations.” 62 M.J. 418, 419
(C.A.A.F. 2006) (citing United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975);
United States v. McGee, 1 M.J. 193, 195(C.M.A. 1975)). As such, the failure to
provide correct and complete instructions to the panel before deliberations begin
may amount to a denial of due process. Wolford, 62 M.J. at 419, citing United
States v. Jackson, 6 M.J. 116, 117 (C.M.A. 1979).

Although the charge sheet alleged that appellant obstructed, obscured, and
disposed of the “digital content of her cell phone,” when instructing on the Article
131e specification the military judge only used the term “cell phone,” and made no
mention of the charged term “digital content:”

In order to find the accused guilty of this offense, you must be
convinced by legal and competent evidence beyond a reasonable doubt:

'7 It is also worth contrasting the first warrant (at issue) in this case with the
warrants subsequently served on Apple. With respect to the warrants served on
Apple, if appellant had been able to delete her data remotely while the agents were
still waiting for Apple to respond, such conduct would fit the Article 131e, UCMJ,
definition of “endeavoring” to seize because the data was not yet in the agent’s
possession. That, however, is not our case.

'8 Along the same lines, it is worth noting that this undertaking is so many angels on
the head of a pin given the availability of another punitive article, Article 131b,
UCM, Obstruction of Justice, which would unambiguously cover appellant’s
conduct with respect to her cell phone data should a similar scenario arise in the
future.

21
STRONG—ARMY 20200391

One, that persons authorized to make searches and seizures were
endeavoring to seize certain property, to wit: the accused's cell phone;

Two, that at or near West Point, New York, on or about 7 June 2019,
the accused obstructed, obscured, and disposed of her cell phone with
the intent to prevent its seizure;

Three, that the accused then knew that persons authorized to make
searches and seizures were endeavoring to seize her cell phone.

(emphasis added). As noted above, however, in the context of search and seizure,
there is a clear distinction between a “cell phone” and its digital contents. See
Wicks, 73 M.J.at 102 (“Because of the vast amount of data that can be stored and
accessed, as well as the myriad ways they can be sorted, filed, and protected, it is
not good enough to simply analogize a cell phone to a container”); Wecht, 619
F.Supp.2d at 247 (“[T]he law recognizes a distinction between the seizure of
computer equipment on one hand and, on the other hand, the seizure of information
stored within the computer equipment.”); Riley, 573 U.S. at 401.

In this case, given defense counsel’s acquiescence at trial to this discrepancy
between the charge sheet and the instructions, any challenge to the military judge’s
instructional error is waived and must be considered “correct in law” under the
applicable version of Article 66, UCMJ. See United States v. Davis, 79 M.J. 329,
331 (C.A.A.F. 2020) (holding that by “‘expressly and unequivocally acquiescing’ to
the military judge’s instructions, [a]ppellant waived all objections to the
instructions”); United States v. Conley, 78 M.J. 747, 749 (Army Ct. Crim. App.
2019) (a waived claim is “correct in law” for purposes of our Article 66 review when
a valid waiver applies to what would otherwise be prejudicial error).

In Conley, however, we held that even where an issue is both correct in fact
and correct in law, the third “should be approved” prong of Article 66, UCMJ
“allows us to, in our discretion, treat a waived or forfeited claim as if it had been
preserved at trial.” Jd. at 750-51, citing United States v. Britton, 26 M.J. 24, 27
(C.M.A. 1988).'? We further explained that while this “safety valve” of last resort
was in “no way limited to certain issues,” on a practical level the exercise of this
unique power “is more likely to be found in certain military circumstances.”
Conley, 78 M.J. at 752. See also United States v. Nalezynski, ARMY 20200038,
2021 CCA LEXIS 509 at * 9 (Army. Ct. Crim. App. 30 Sep. 2021) (mem. op.)
(holding that “a dispute about findings instructions is not the type of issue ‘born

'? We are cognizant that under the current version of Article 66, effective 1 January
2021, we no longer retain the “should be approved” discretion to reach waived
claims. This case, however, is governed by the prior version of Article 66 in effect
at the time of referral.

22
STRONG—ARMY 20200391

from uniquely military origins’” warranting Article 66 relief). Nevertheless, given
the unique circumstances before us, to include the interplay between the lack of any
evidence authorizing the seizure the digital contents of the phone and the military
judge’s erroneous instructions, we find that this is the rare case that warrants
exercise of our Article 66 “should be approved” authority to reach the waived
instructional error.

With respect to the standard of review, as noted above in Conley we held that
the “should be approved” prong of Article 66, UCMJ, allows us to treat a waived
claims “as if it had been preserved at trial.” 78 M.J. at 751-52. On the other hand, in
the context of forfeited, but not waived, instructional errors, the CAAF has applied a
plain error standard of review. United States v. Davis, 76 M.J. 224, 229 (C.A.A.F.
2017). In order to prevail under a plain error analysis, an appellant must show that
(1) there is error; (2) the error is plain or obvious; and (3) the error results in
material prejudice to a substantial right of the accused. United States v. Harcrow,
66 M.J. 154, 158 (C.A.A.F. 2008) (citations omitted). In Wolford, 62 M.J. at 420,
the CAAF held that under the plain error standard, claimed instructional errors
“must be tested for prejudice under the standard of harmless beyond a reasonable
doubt,” and that such inquiry is “whether, beyond a reasonable doubt, the error did
not contribute to the defendant’s conviction or sentence.” (citations omitted); see
also United States v. Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019) (holding the
plain error harmless beyond a reasonable doubt prejudice standard “is met where a
court is confident that there was no reasonable possibility that the error might have
contributed to the conviction”) (citing Chapman v. California, 386 U.S. 18, 24
(1967)).

Regardless of whether we treat the instructional error in this case as preserved
at trial under our Article 66, UCMJ “should be approved” authority, or under the
more rigorous plain error standard applicable to forfeited claims, the results are the
same. In short, based on this inconsistency between the charge sheet and the
instructions, there are at least three separate theories under which the panel could
have returned their guilty verdict. First, if the panel followed the instructions as
written, as they were required to and we presume they did, they could not have
found appellant guilty based on her subsequent remote wiping since at that point the
Agent had already taken possession of the “cell phone.” Second, it is possible that,
notwithstanding the lack of any argument on this theory, the panel followed the
instructions and found appellant guilty based on her conduct at the barracks, when
she physically resisted the Agent as she tried to seize the phone. Third, it is
conceivable that the panel went beyond the language of the instructions by
interpreting the word “cell phone” to include digital content, and convicted appellant
based on the government’s theory at trial.

At this point, however, it is impossible for us to determine which, if any, of
these theories formed the basis for appellant’s conviction. Indeed, because at least

23
STRONG—ARMY 20200391

one of these theories has no factual or legal basis, we cannot be confident that there
was no reasonable possibility that the error might have contributed to the conviction,
nor are we convinced beyond a reasonable doubt that the instructional error did not
contribute to the appellant’s conviction. This is especially true given that trial
counsel compounded the instructional error by only telling the panel in his opening
statement that the Agent executed “a search warrant to seize the phone from”
appellant, and arguing in his closing that the Agent “seized that watch, seized the
cell phone.” As such, the Article 131e specification must be set aside. See United
States v. Harville, 14 M.J. 270, 270 (C.M.A. 1982) (holding that where evidence and
testimony at trial fails to exclude any fair and reasonable doubt except that of guilt,
guilty finding must be reversed); Cf. United States v. Upshaw, 81 M.J. 71, 76
(C.A.A.F. 2021) (holding that where trial counsel “exploited” the confusion created
by the erroneous instructions and it is not certain if the instructional error affected
the members’ ultimate determination of guilt, “we cannot conclude that the military
judge’s error was harmless beyond a reasonable doubt”); United States v. Cherry, 14
M.J. 251, 252 (C.M.A. 1982) (finding error where “correct instruction could have
led to a different verdict”)(emphasis in original); United States v. Livingston, No.
ARMY 20190587, 2022 CCA LEXIS 145 at *15 (Army Ct. Crim. App. 8 Mar.
2022)(finding error where “we cannot say with confidence that the instructional
error did not contribute to appellant’s conviction for the offense in question”);
People v. Hendrix, 515 P.3d 22, 34 (2022) (“Because there is at least a reasonable
probability a jury making that assessment would have given a different answer had it
received correct instructions in this case, we conclude the instructional error was
prejudicial and requires reversal.”).

CONCLUSION

For the reasons set forth above, I respectfully disagree with my colleagues in
the majority and would set aside the finding of guilty of The Specification of Charge
III.

SMAWLEY, Chief Judge, joined by PENLAND, Judge, and ARGUELLES, Judge
Dissenting:

I join my colleagues in the Dissent. I write separately to emphasize the vital
importance of specificity in charging language related to searches and seizures in the
context of digital evidence. I would set aside the finding of guilty of The
Specification of Charge III based on a factual landscape entirely of the government’s
own creation.

The majority maintains the legal and factual sufficiency analysis for offenses
under Article 131e, UCMJ, does not require proof of either the warrant or evidence
of its specific contents. I disagree. The antecedent authority for a person
conducting a seizure of individual property in this case is a duly issued search

24
STRONG—ARMY 20200391

authorization, which trial testimony acknowledged. The majority concludes that the
authorization of a Criminal Investigation Command (CID) agent to conduct searches
and seizures in the general sense is sufficient to satisfy the element of the offense; it
is not. Article 131e, UCMJ requires proof “[t]hat one or more persons authorized to
make searches and seizures were seizing, about to seize, or endeavoring to seize
certain property.” Manual for Courts-Martial, United States (MCM), pt. IV, 986.b.
That a CID agent is among the persons generally authorized by Military Rule of
Evidence 316(d) to seize property does not constitute authority to seize certain
property. The “authority to conduct a seizure” of property under the facts of the
case presupposes the legality of the seizure itself. The seizure, to be lawful, must
cross the basic threshold of actually identifying the specific items authorized to be
seized. The issue therefore remains the scope of the authorization, which in the
instant case was never offered into evidence.

While seizing a cell phone necessarily involves the incidental seizure of any
digital content stored within, a cell phone and its digital data are not synonymous for
purposes of seeking and obtaining search and seizure authorizations. See Riley v.
California, 573 U.S. 373, 401 (2014). The government must be precise regarding
the language in the authorization during the course of an operation to search and
seize a cell phone and its digital contents. A cell phone differs from many other
physical objects in that the physical device itself is often of little to no import when
compared to the digital content stored within. See Id. at 393-94.

As mentioned by my colleague supra, the government is bound in this case by
its own charging decision to prove that appellant acted to prevent the seizure of “the
digital content of her cell phone.” See United States v. English, 79 M.J. 116, 120
(C.A.A.F. 2019). Compounding the issue regarding the specificity of language in
the context of digital evidence in this case is the government’s failure to introduce
or admit into evidence at trial the authorization for the seizure in question. The
absence of the authorization leaves this court guessing as to the specific property
authorized for seizure. In place of the authorization, we have instead the testimony
of the Agent regarding her application for authorization to seize appellant’s Apple
Watch and iPhone to convince us of the sufficiency of appellant’s conviction beyond
a reasonable doubt. While the majority, and the military judge’s instruction at trial,
use the terms “cell phone” and “cell phone data” as though the former implies with it
the latter, this is inconsistent with the holding from Riley. 573 U.S. at 401. We
cannot infer that authorization to seize a phone automatically included authorization
to seize the digital contents of that phone.

As it stands, the record is devoid of sufficient evidence to support a
conclusion that persons authorized to make searches and seizures were seizing, about
to seize, or endeavoring to seize the digital content of appellant’s cell phone. The
majority turns to Mil. R. Evid. 316(d) as proof of the requisite authorization,
however a Military Rule of Evidence is not synonymous with an authorization to

25
STRONG—ARMY 20200391

conduct a search. A rule of evidence and a search authorization are two distinct
concepts, each with distinct constitutional underpinnings. Put simply, a rule of
evidence discussing authorized seizures and the admissibility of evidence is not a
substitute for the actual authorization to conduct a specific search.

Left only with the Agent’s testimony that the search authorization at issue
gave agents authority to seize appellant’s Apple Watch and iPhone and with no
mention of the digital contents of either device, the analysis turns to whether
authorized persons were still seizing, about to seize, or endeavoring to seize the
iPhone at the time of appellant’s misconduct. They were not. Every seizure must
logically have a start and end point, and even in the context of the digital contents of
a phone, this principle is no different. Seizure of a cell phone is legally complete
when there is “meaningful interference with an individual’s possessory interest in
that property.” United States v. Hahn, 44 M.J. 360, 362 (C.A.A.F. 1996) (citing
United States v. Jacobsen, 466 U.S. 109, 113 (1984)). In the instant case, the
seizure of appellant’s iPhone was complete as soon as the Agent departed the
encounter with iPhone in hand. When appellant remotely wiped the data on her
iPhone some twelve hours later, no persons authorized to make searches and seizures
were seizing, about to seize, or endeavoring to seize the cell phone, rendering her
conviction for The Specification of Charge III factually insufficient. See United
States v. Christensen, ARMY 20190197, 2021 CCA LEXIS 159 at *4-5 (Army Ct.
Crim. App. 29 Mar. 2021) (mem op.).

FOR THE COURT:

JAMES W. HERRING, JR.
Clerk of Court

26