UNITED STATES, Appellee
Jason P. GARLICK, Senior Airman
Crim. App. No. 35298
CRAWFORD, J., delivered the opinion of the Court, in which GIERKE, C.J., and EFFRON and ERDMANN, JJ., joined. BAKER, J., filed a separate concurring opinion.
For Appellant: Captain L. Martin Powell(argued); Colonel Carlos L. McDade and Major Sandra K. Whittington (on brief); Major Terry L. McElyea.
For Appellee: Major John C. Johnson (argued); Lieutenant Colonel Gary F. Spencer and Lieutenant Colonel Robert V. Combs (on brief).
Amicus Curiae for Appellant: Melissa R. Covolesky (law student) (argued).
Amicus Curiae for Appellee: David Hartnagel (law student) (argued).
Military Judge: Ann D. Shane
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Judge CRAWFORD delivered the opinion of the Court.
a general court-martial, a military judge convicted Appellant, pursuant
pleas, of one specification of wrongful possession of visual depictions
minors engaged in sexually explicit conduct, in violation of clauses 1
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934
The military judge sentenced Appellant to be reduced to E-1, to
confined for ten months, and to be discharged with a bad-conduct
discharge. The convening authority reduced Appellant’s sentence
confinement for 199 days, but otherwise approved the sentence. On
[E]xcepting the phrases “on divers occasions” and “visual depictions of a minor engaging in sexually explicit conduct” from the finding of guilty, substituting therefore “thirty-four visual depictions of minors engaged in sexually explicit conduct, as referenced in Prosecution Exhibit 1 and as illustrated by the thirteen attachments to that exhibit.
United States v. Garlick, No. ACM
35298, 2004 CCA LEXIS 183, at *8, 2004 WL 1539576, at *3 (A.F. Ct.
June 10, 2004). That court reassessed and affirmed the
WHETHER APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED BY THE PROSECUTION’S FAILURE TO DISCLOSE DISCOVERABLE INFORMATION PRIOR TO TRIAL.1
We conclude that any error that may have resulted from a failure to disclose information was harmless beyond a reasonable doubt, and that Appellant’s guilty plea was knowing and voluntary. Finding no basis in fact and law to question the providence of that plea, we affirm.
The court below summarized the facts, as follows:
appellant was a member of an
Internet group (Egroup) called Candyman, an electronic forum devoted to
pornography. The appellant was a subscriber from
during a search authorized by a civilian federal magistrate pursuant to
probable cause affidavit submitted by the FBI. Trial in the case
appellant avers that on
Garlick, 2004 LEXIS 183, at *2, 2004 WL 1539576, at *1 (footnote added).
The eleven-page affidavit of Special Agent (SA) Davis, upon which the U.S. Magistrate Judge’s search warrant was based, included brief details of SA Davis’s five-year FBI career; described the premises and items to be seized; provided definitions from the Child Pornography Prevention Act, 18 U.S.C. §§ 2251-2260 (2000), and other sources; explained basic workings of computers and peripheral devices; explained how the internet is used as a medium for traffic in child pornography and how internet sites and user addresses work, including that even on-line storage can leave detectable traces on the individual computer used to effect that storage. This section also explained that those interested in child pornography tend to collect, trade, and preserve the images on computers, disks, etc., and usually retain the images for long periods of time. The affidavit then provided nearly four pages of information specific to operation of the Candyman Egroup and to Appellant’s involvement therein:
25. . . . The purpose of the Candyman Egroup, as stated on its own website, was as follows:
“This group is for People who love kids. You can post any type of messages you like too [sic] or any type of pics and vids you like too [sic]. P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.”
. . . .
27. Voluntary Egroup Membership: In order to join the Egroup, a person had to visit the URL . . . and send an e-mail to the group moderator requesting permission to join. The moderator would then send a confirmation notice to the requestor’s e-mail account, advising him that he now had access to the Egroup. There was no fee to join. In addition, at the bottom of each e-mail were directions instructing a member what to do if he wanted to stop receiving e-mails from the group and no longer desired to be a member of the group.
28. . . . Second, all new members of the Egroup were immediately added to the Candyman e-mail list. Every e-mail sent to the group was distributed to every member automatically. Therefore, when an individual uploaded and transmitted child pornography to the Candyman group, those images were transmitted to every one of the group members . . . . [emphasis added to indicate factually misleading material.]
Images Posted on the
Website: The primary feature of the Candyman Egroup’s website
‘Files’ section. This allowed members to upload and download
directly to and from the website. SA Binney was a member of the
. . .
33. . . . Yahoo provided subscription logs (indicating the dates and times subscribers requested to subscribe and/or unsubscribe to the different Egroups), and post logs indicating the dates and times members posted images and/or text messages to the Egroups.
Search Warrant, Investigating Officer’s Report,
did not append these “subscription logs” to the affidavit and did not
dates and times pertaining to Appellant’s alleged activity with the
that Appellant was a member of the Egroup on any date other than
. . . .
46. Attached to this affidavit are copies of 15 photographs which were received by Jason P. Garlick while he was a member of the Candyman e-group. These photographs are a sample of the 116 photographs that Jason P. Garlick received while a member of that e-group.
Search Warrant, Investigating Officer’s Report,
After receiving formal, post-trial notice of misstatements in the search affidavit,4 Appellant’s trial defense counsel requested a ten-day delay in the submission of clemency matters:
On 12 Aug 02, the defense was informed that a factual inconsistency existed in the affidavit submitted by SA Kerry Davis in obtaining the search warrant for SrA Garlick’s home. In order to effectively advise my client and prepare an adequate clemency request or take other appropriate action, I require additional time to investigate and research this matter.5
After this delay, the defense counsel submitted clemency matters to the convening authority on Appellant’s behalf, to which she appended trial counsel’s notice of “factual inconsistencies.” Defense counsel requested no relief related to these “inconsistencies,” nor does the appellate record indicate that defense counsel requested either a post-trial Article 39(a) session6 or a new trial.7
Appellant contends that Brady v. Maryland8 and R.C.M. 701(a)(6) compel disclosure of exculpatory evidence, including impeachment evidence, for use at trial, and that the Government failed to make such disclosure. Further, because the Government cannot demonstrate beyond a reasonable doubt that the results of trial would not have been different, Appellant argues that he is entitled to a new trial under this Court’s decision in United States v. Roberts.9
Assuming that the Government had a duty to disclose the information at issue in a timely manner, the distinctive facts set forth below would still compel us to evaluate Appellant’s claims in light of whether there is a “‘substantial basis’ in law and fact for questioning [Appellant’s] plea.”10 In determining whether Appellant’s plea was knowing and voluntary,11 we look to the record of trial and the documents considered by the court below.
the affidavit of SA
There is no indication that SA Davis included the zip drive with his affidavit or catalogued its contents, and while paragraphs 44 and 46 of the affidavit could be read to imply otherwise, the actual language of those paragraphs fails to allege that the “Houston Division” found any e-mails, uploads, or downloads bearing firstname.lastname@example.org, or that that office attributed any images of child pornography to Appellant’s possession, control, or usage. Finally, the presumptive support for SA Davis’s conclusion that the fifteen photographs attached to the affidavit “were received by Jason P. Garlick while he was a member of the Candyman e-group,” or for SA Davis’s further conclusion that those photographs “are a sample of the 116 photographs that Jason P. Garlick received while a member of that e-group,” is SA Davis’s earlier, erroneous description of the “automatic e-mail” system of the website.12
Nothing in Appellant’s pretrial agreement precluded a suppression motion to contest either the factual sufficiency of the affidavit or any other perceived defect in the warrant or subsequent authorization. Appellant made no motions. Even without the “factual inconsistencies” provided by the Government, this was an affidavit ripe for litigation, yet Appellant and his counsel declined to litigate the issue prior to Appellant’s guilty plea.
If there remained a question regarding Appellant’s knowledge of the necessary factual support for such a motion, that question was emphatically resolved by his counsel’s later fully informed and well-considered declination either to raise the motion in a post-trial Article 39(a) session,13 or request a new trial from the convening authority.
During the Care inquiry, the following colloquy occurred:
MJ: I just want to make sure that none of these . . . images that you’ve pled guilty to possessing weren’t delivered to your computer by mistake . . . . So what you’re telling me is there was no mistake?
ACC: Yes, Ma’am.
MJ: So you intentionally downloaded the images, knowing what they were?
ACC: Yes, Ma’am.
Further, the Stipulation of Fact, knowingly and willingly entered into by Appellant, describes Appellant’s subscription to the Candyman Egroup and the Egroup’s e-mail options, but makes no mention of any “automatic e-mail” option. That omission, as well as the stipulation’s inclusion of a corrected figure for the number of photographs Appellant downloaded from the Candyman website, Appellant’s admission to the military judge that he had purposely and intentionally downloaded these images, and Appellant’s post-trial decision not to litigate when presented with the opportunity to do so, detract significantly from Appellant’s claim that he was not already aware of the “factual inconsistencies” disclosed by the Government, as well as other errors in SA Davis’s affidavit.
The information not disclosed by the Government was within Appellant’s knowledge well before trial. Even after being formally notified after trial of a disclosure error, and obtaining a delay to consider legal options, Appellant’s counsel declined to litigate the issue or advocate its importance to the convening authority in her R.C.M. 1105 submission. Under these unique circumstances, any error that may have resulted from a failure to disclose such information is harmless beyond a reasonable doubt. Accordingly, we find no basis in law or fact to question the providence of Appellant’s voluntary plea, and we affirm the decision of the United States Air Force Court of Criminal Appeals. In so doing, however, we do not retreat from our established practice of urging trial counsel to execute diligently their continuing duty to disclose discoverable information to the defense. See R.C.M. 701(d).
heard oral argument in this case at The George Washington University
Law, Washington, D.C., as part of the Court’s “Project Outreach.”
4 According to this memorandum, trial counsel received notice of the defective search affidavit two days after Appellant’s trial. Trial counsel’s notice to defense counsel was delivered seven days after trial, on the same day the record of trial was authenticated. The memorandum avers that the affidavit’s defects were “known to the FBI prior to trial in the Appellant’s case.” Garlick, 2004 LEXIS 183, at *3, 2004 WL 1539576, at *1. Nonetheless, this memorandum reflects only one failed attempt by the FBI to FAX notice of these defects to military authorities prior to trial.
BAKER, Judge (concurring):
I concur in the Court’s decision affirming Appellant’s conviction. I write separately, however, because I believe that the Court’s analysis should focus on the effect of the violation of Brady v. Maryland, 373 U.S. 83 (1963), in the warrant affidavit, rather than on the Appellant’s imputed pretrial knowledge of that error.
The majority disposes of Appellant’s claim principally based upon his failure to act on imputed knowledge of the misrepresentation in the warrant affidavit prior to entry of his guilty plea. Although the lead opinion never uses the term “waiver,” its analysis is strongly redolent of that concept. See, e.g., Black’s Law Dictionary 1611 (8th ed. 2004) (defining “waiver” as “the voluntary relinquishment or abandonment -- express or implied -- of a legal right or advantage. . . . The party alleged to have waived a right must have had both knowledge of the existing right and the intention of foregoing it.”).
guilty plea “waives any objection, whether or not previously raised,
the objection relates to the factual issue of guilt of the offense(s)
the plea was made.” R.C.M. 910(j).
valid guilty plea must be intelligent and voluntary.
Government failed to fulfill an affirmative duty to disclose a known
misrepresentation in the search warrant affidavit. That affidavit
asserted that Candyman list members automatically received all
including child pornographic images, distributed to the list. In
subscribers chose from among three different delivery options, two of
not automatically distribute pornographic images to list members.
the majority of subscribers elected one of the “non-automatic”
The majority contends that Appellant and his counsel must have been aware of these errors prior to entry of Appellant’s guilty plea. But it seems illogical to impute such knowledge to the Appellant where the government agent preparing the actual warrant affidavit was himself apparently oblivious to the error. And once the Government did become aware of its misrepresentation, it failed to provide Appellant notice of the defect until several days after he entered his unconditional guilty plea and was sentenced. Because Appellant’s plea was entered without notice of a potentially fatal misrepresentation in the search warrant, I do not believe that he waived his right to challenge that warrant for probable cause.
however, I conclude that Appellant’s conviction must survive because,
absent the false material, the remaining information in the warrant
continues to establish probable cause. At the threshold, “[t]he
duty of a
reviewing court is simply to ensure that the magistrate had a
basis for . . . concluding’ that probable cause existed.” United
States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001) (quoting Illinois
As we recently stated in United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004), “[o]ur review of discovery/disclosure issues utilizes a two-step analysis: first, we determine whether the information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of such information, we test the effect of that nondisclosure on the appellant’s trial.” As indicated above, and conceded by the Government, the Government’s knowledge of the false information in the warrant affidavit was clearly material to Appellant’s defense, and consequently, subject to disclosure under Brady, Article 46, UCMJ, 10 U.S.C. § 846 (2000), and R.C.M. 701. Moreover, the Government’s duty to diligently disclose newly discovered evidence continued throughout the duration of the court-martial proceedings. R.C.M. 701(d).
second step of the analysis, erroneous nondisclosure will generally
appellant to relief only where the appellant demonstrates a reasonable
probability of a different result at trial had the evidence been
disclosed. Roberts, 59 M.J. at 326-27.
But where an appellant establishes that the Government failed to
discoverable evidence in response to a specific request, the burden
the Government to demonstrate the nondisclosure was harmless beyond a
Here, Appellant’s counsel served a fairly detailed discovery request to trial counsel asking for, among other things:
[A]ll personal or business notes, memoranda, and writings prepared by investigators incident to said case (including FBI or other civilian law enforcement) which are not furnished pursuant to any other provisions of this request . . .[;] any known evidence tending to diminish credibility of . . . all potential witnesses . . .[; and] any and all evidence in the possession of the Government or otherwise known to Trial Counsel which reasonably may tend to: 1) negate the guilt of the Accused; 2) reduce the guilt of the Accused to the offenses charged; or 3) reduced the punishment.
I conclude that the Government’s failure to disclose the erroneous information pursuant to this request shifts the burden to the Government to demonstrate that the error was harmless beyond a reasonable doubt.
probable cause predicate in the search warrant would be invalid if the
were to conclude that the Government included the defective material in
supporting affidavit “knowingly and intentionally, or with reckless
for the truth,” and that the affidavit’s remaining material was
establish probable cause after the false information was set aside.
with the majority of courts considering this issue, however, I conclude
regardless of the Government’s knowledge or recklessness regarding the
erroneous material, the information remaining in the warrant affidavit
adequate to demonstrate probable cause. See
recently reiterated in
A probable cause determination is a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the issuing judge], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
The Supreme Court has emphasized that probable cause is a flexible, common-sense standard. A probable cause determination merely requires that a person of reasonable caution could believe that the search may reveal evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. So even though people often use probable to mean more likely than not, probable cause does not require a showing that an event is more than 50% likely.
61 M.J. 184, 187 (C.A.A.F. 2005) (internal citations and quotation marks omitted) (emphasis in original).
I think it is a reasonable inference from the uncontested information in the warrant affidavit that a probable purpose of Candyman membership was to gain access to the child pornography available on the website. Someone joining the site was likely to download and trade in child pornography. Thus, I am satisfied beyond a reasonable doubt that the unchallenged portion of the warrant affidavit constituted a substantial basis for the issuing magistrate to conclude that there was probable cause that Appellant had downloaded child pornography from the Candyman website, and retained such images in his possession.
My conclusion is further ratified by two additional considerations. First, in those cases where courts have suppressed the fruits of the Candyman warrant, the defendants demonstrated that they had elected a non-automatic distribution option. Perez, 247 F. Supp. 2d at 471; Strauser, 247 F. Supp. 2d at 1137. Thus, the erroneous information in the warrant affidavit was not only false, but demonstrably misleading as applied to those defendants’ receipt of child pornography. Here, Appellant does not claim that he chose one of the non-automatic delivery options. Thus, there is no basis for an inference of actual prejudice.
Finally, I find it significant that Appellant did not assert his plea was improvident in the clemency package or in a post-trial session in front of the military judge. He raised the issue as a legal concern only after it became apparent that other Candyman defendants were having some success raising the issue.
alleges that the contested warrant lacks probable cause, and
his guilty plea was improvidently entered. Because I disagree
Appellant regarding his first proposition, I conclude that there is no
substantial basis in law or fact to question the providence of his