16 July 2007

Air Force Releases 2 Opinions

The Air Force appears to have dropped the practice of holding opinions for a once or twice a month dump. This is certainly a welcome change.

After the experience of the past couple of years, it should be plain to everyone that the campaign against child pornography has complicated the lives of prosecutors everywhere. United States v. Fiorey, ACM 36319 (A.F. Ct. Crim. App. Jul. 16, 2007) is such a case.

During a child pornography investigation an FBI agent purchased access to what turned out to be a defunct website. When he complained to the company that processed the credit card charge, they offered him access to 50 alternate sites the company claimed contained similar content. The FBI agent purchased access to 13 of the sites, all of which contained child pornography, and reviewed the cover page (home page) of the 37 other sites, all of which suggested the sites contained child pornography. The FBI obtained a warrant for the records of the credit card processor. Appellant's name appeared among those who purchased access to sites that "appeared to contain child pornography." The names of suspects were distributed to local law enforcement.

Local police obtained a warrant and search Appellant's home and found no child pornography. But Appellant admitted that in 2001 he had downloaded some child porn. Credit card records showed he had completed transactions with companies in Latvia and Russia known by the detectives for involvement in child pornography, but none were for the 50 sites reviewed by the FBI.

The appellant claimed his confession was not corroborated. Noting that the corroboration need be only slight, the AFCCA disagreed and found three reasons to sustain the admission of the confession: (1) the extensive involvement of the credit card processor with child pornography sites; (2) several companies listed on his credit card records were known by the detectives to be purveyors of child porn; and (3) the names of some of the sites he frequented vaguely suggested they concerned child pornography involving young males.

The second case is United States v. Burton, ACM 36296 (A.F. Ct. Crim. App. Jul. 16, 2007). A rape charge was referred to a GCM after an Article 32 investigation. The convening authority withdrew and dismissed a charge and promptly repreferred that charge (indicating the appellant was then assigned to a different organization) and several other charges including the rape of another woman. Although the defense so requested, the Article 32 IO was not permitted to conduct an investigation on the renewed first charge. Instead, he was allowed to attach the previous Article 32. The military judge denied the defense motion to dismiss.

The AFCCA held that the judge erred, that R.C.M. 405(c) required that upon the defense request a new Article 32 be held on the charge (Article 32(c), but that the error was harmless beyond a reasonable doubt. All of the impeachment info that the defense wanted to present to the convening authority was presented to him before referral and the defense had a full opportunity to cross examine the complaining witness at trial.

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