United States v. Larson , 66 M.J. 212 ( 2008 )

UNITED STATES, Appellee
v.
John R. LARSON, Major
U.S. Air Force, Appellant
No. 07-0263
Crim. App. No. 35934
United States Court of Appeals for the Armed Forces
Argued November 27, 2007
Decided April 25, 2008
RYAN, J., delivered the opinion of the Court, in which BAKER,
ERDMANN, and STUCKY, JJ., joined. EFFRON, C.J., filed a
separate concurring opinion.
Counsel
For Appellant: Captain Timothy M. Cox (argued); Lieutenant
Colonel Mark R. Strickland and Captain Christopher S. Morgan (on
brief); Captain Chadwick A. Conn.
For Appellee: Captain Jamie L. Mendelson (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).
Military Judges: Patrick M. Rosenow and James L. Flanary
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Larson, No. 07-0263/AF
Judge RYAN delivered the opinion of the Court.
A general court-martial composed of officer members
convicted Appellant, contrary to his pleas, of one specification
each of attempted carnal knowledge and attempted indecent acts
with a minor, violations of Article 80, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 880 (2000); one specification of
violating a lawful general regulation, a violation of Article
92, UCMJ, 10 U.S.C. § 892 (2000); and one specification each of
communicating indecent language and using a facility or means of
interstate commerce to attempt to entice a minor to engage in
sexual activity, violations of Article 134, UCMJ, 10 U.S.C. §
934 (2000).
The members sentenced Appellant to dismissal from the
service, confinement for nine years, and forfeiture of all pay
and allowances. The convening authority approved the dismissal
and forfeitures, but reduced Appellant’s confinement to six
years. The United States Air Force Court of Criminal Appeals
affirmed. United States v. Larson, 64 M.J. 559 (A.F. Ct. Crim.
App. 2006).
We granted review of the following issues:
I.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED IN HOLDING THAT APPELLANT HAD NO REASONABLE
EXPECTATION OF PRIVACY IN HIS GOVERNMENT COMPUTER
DESPITE THIS COURT’S RULING IN UNITED STATES v.
LONG, 64 M.J. 57 (C.A.A.F. 2006).
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II.
WHETHER THE APPELLANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH
AMENDMENT AND ARTICLE 27, UCMJ, WHEN HIS CIVILIAN
DEFENSE COUNSEL, IN HIS OPENING STATEMENT, DURING
FINDINGS, AND AGAIN IN CLOSING ARGUMENT, CONCEDED
THE APPELLANT’S GUILT TO VARIOUS CHARGES AND
SPECIFICATIONS.1
After oral argument in November 2007, this Court specified
the following related issues:
I.
IN THE MILITARY JUSTICE SYSTEM, IS THE DECISION
TO CONCEDE GUILT TO ONE OF MULTIPLE CHARGED
OFFENSES DURING ARGUMENT A TACTICAL DECISION THAT
COUNSEL MAY MAKE WITHOUT OBTAINING CONSENT OF THE
ACCUSED? SEE FLORIDA v. NIXON, 543 U.S. 175(2004); UNITED STATES v. CARE, 18 C.M.A. 535, 40
C.M.R. 247 (1969); UNITED STATES v. BERTELSON, 3
M.J. 314 (C.M.A. 1977).
II.
ASSUMING, ARGUENDO, THAT COUNSEL MAY CONCEDE
GUILT AS A TACTICAL MATTER AFTER CONSULTATION BUT
WITHOUT CONSENT OF THE ACCUSED, DOES THE RECORD
IN THE PRESENT CASE SUPPORT A CONCLUSION THAT
COUNSEL CONSULTED WITH APPELLANT PRIOR TO MAKING
SUCH A CONCESSION? IF NOT, WAS THE FAILURE TO DO
SO PREJUDICIAL AS TO THE FINDINGS OR SENTENCE?
SEE STRICKLAND v. WASHINGTON, 466 U.S. 668(1984).2
For the reasons stated below, we affirm the decision of the
lower court.
1
65 M.J. 253 (C.A.A.F. 2007).
2
65 M.J. 449 (C.A.A.F. 2007).
3
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I. Appellant’s Motion to Suppress
A. Factual Background
Appellant used the government computer in his military
office to obtain sexually explicit material, to include
pornographic images and video, from the Internet and to initiate
instant message conversations with “Kristin,” someone he
believed to be a fourteen-year-old girl. “Kristin” was actually
a civilian police detective working to catch online sexual
predators.
Civilian police and the Air Force Office of Special
Investigations (AFOSI) cooperated in the investigation of
Appellant. The police used a proposed meeting between Appellant
and “Kristin” at a local mall as a sting operation. When
Appellant arrived at the mall at the time he had arranged with
“Kristin,” the police arrested Appellant. While conducting a
search incident to arrest the police discovered a receipt for a
package of condoms purchased just fifteen minutes earlier in
Appellant’s pocket. During a consensual search of Appellant’s
car, police found a package of condoms and a book entitled
Sexaholics Anonymous.
After Appellant’s arrest, AFOSI continued to pursue its own
investigation. Appellant’s commander, using a master key to the
government office occupied by Appellant, allowed AFOSI agents to
enter and to seize the government computer in the office. A
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search of the computer’s hard drive revealed stored pornographic
material, a web browser history that showed Appellant visited
pornographic websites and engaged in sexually explicit chat
sessions in his office on his government computer, and other
electronic data implicating Appellant in the charged offenses.
At trial, Appellant asserted that the warrantless search of
his government computer violated the Fourth Amendment and that
the evidence obtained from it should be suppressed. The
military judge held an Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2000), session to determine the admissibility of the evidence.
Based on the testimony elicited at the Article 39(a), UCMJ,
session the military judge made initial findings of fact on the
record and later made detailed supplemental findings of fact.
The military judge found that Appellant was assigned to a
private office and had a key to lock the office, but other Air
Force personnel, including the fire department and the command’s
facility manager also had keys to his office. The office
contained a government computer that was provided to Appellant
to accomplish official business. The military judge found that
Appellant could secure the computer with a personal password,
but a system administrator could still access the computer.
When Appellant logged on to the computer, he was required to
click a button accepting conditions listed in a banner, which
stated that the computer was Department of Defense property, was
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for official use, and that he consented to monitoring. The
military judge found that, while Appellant “reasonably
understood that he was allowed to send personal e-mail or visit
the internet as long as it didn’t interfere with [his] duties,”
this did not change the fact that the government owned the
computer and had a right to access it. This finding was largely
based on the testimony of Appellant’s commander, who testified
that he could log onto Appellant’s computer with his own
password and access all portions of the hard drive unless
Appellant had protected something with his own password.
Although the military judge did not specifically reference the
commander’s access in his findings, this testimony adds further
support to the military judge’s ultimate ruling. Moreover, no
evidence was presented that any of the evidence recovered from
the hard drive was password protected.
In light of these facts, the military judge ruled that the
Government had established by a preponderance of the evidence
that Appellant had no reasonable expectation of privacy in the
government computer because the computer had a “consent to
monitoring” banner that had to be acknowledged with each log on,
the system administrator had access to every part of the
computer, including the hard drive, and the computer was
government property.
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B. Fourth Amendment Analysis
We review the denial of a motion to suppress for an abuse
of discretion. United States v. Khamsouk, 57 M.J. 282, 286
(C.A.A.F. 2002). Findings of fact are affirmed unless they are
clearly erroneous; conclusions of law are reviewed de novo.
United States v. Flores, 64 M.J. 451, 454 (C.A.A.F. 2007)
(citing Khamsouk, 57 M.J. at 286). We consider the evidence in
the light most favorable to the prevailing party. United States
v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996).
The military judge concluded that the Government had
carried its burden of establishing that Appellant had no
reasonable expectation of privacy in the government computer.
The lower court agreed, and held that the military judge did not
abuse his discretion. Larson, 64 M.J. at 563. We agree.
The Fourth Amendment of the Constitution generally requires
probable cause for searches of places and things in which people
have a reasonable expectation of privacy. U.S. Const. amend.
IV. In addressing Fourth Amendment privacy claims, the
threshold issue is whether the person has a legitimate
expectation of privacy in the invaded place. Rakas v. Illinois,
439 U.S. 128, 143 (1978). This inquiry invites a court to
address whether the individual had a subjective expectation of
privacy, and if so whether the subjective expectation of privacy
is one that society is prepared to accept as reasonable. Smith
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United States v. Larson, No. 07-0263/AF
v. Maryland, 442 U.S. 735, 740 (1979), superseded by statute,
Electronic Communications Privacy Act of 1986, 18 U.S.C. §
3121(a) (2000) (prohibiting installation of a pen register
without a court order).
As the property searched here was a government computer,
Military Rule of Evidence (M.R.E.) 314(d), which addresses the
search of government property, pertains. It states:
Government property may be searched under this rule
unless the person to whom the property is issued or
assigned has a reasonable expectation of privacy
therein at the time of the search. Under normal
circumstances, a person does not have a reasonable
expectation of privacy in government property that is
not issued for personal use. . . .
Emphasis added. The discussion to this rule recognizes that the
presumption that there is no reasonable expectation of privacy
in government property is rebuttable. Manual for Courts-
Martial, United States, Analysis of the Military Rules of
Evidence app. 22 at A22-26 (2005 ed.). Whether there is a
reasonable expectation of privacy in government property is
determined under that totality of the circumstances, which
includes the rebuttable presumption. See, e.g., Samson v.
California, 547 U.S. 843, 848 (2006); M.R.E. 314(d).
In this case, based on the totality of circumstances
presented including the factors identified below, Appellant
fails to rebut and overcome the presumption that he had no
reasonable expectation of privacy in the government computer
8
United States v. Larson, No. 07-0263/AF
provided to him for official use. M.R.E. 314(d). There is no
evidence Appellant had a subjective expectation of privacy in
the government computer, and he did not testify that he did.
See Flores, 64 M.J. at 454 (factoring into the reasonable
expectation of privacy analysis the fact that the accused did
not testify on the motion to suppress). Moreover the access to
this computer by both Appellant’s commander and the system
administrator supports the validity of the presumption that he
had no reasonable expectation of privacy in the government
computer.
Finally, the military judge found as fact that when
Appellant used the computer “a banner appeared that state[d]
that it was a DOD computer, it [was] for official use, not to be
used for illegal activity. [And that] [i]t also had a statement
that users of the computer consent to monitoring.” This factual
finding is supported by the record, is not clearly erroneous
and, taking the facts in the light most favorable to the
prevailing party, establishes both that Appellant was put on
notice that the computer was not to be used for illegal activity
and that there could be third-party monitoring.
Appellant argues that this case is controlled by this
Court’s decision in United States v. Long, 64 M.J. 57 (C.A.A.F.
2006), which he claims establishes that he had a reasonable
expectation of privacy in his government computer. That
9
United States v. Larson, No. 07-0263/AF
reliance is misplaced. We made clear in Long that our decision
was rooted in the “particular facts of that case, [and] we
conclude[d] that the lower court was not clearly erroneous in
its determination that Appellee had a subjective expectation of
privacy in the e-mails she sent from her office computer and in
the e-mails that were stored on the government server.” Id. at
63.
The present case is factually distinguishable from Long.
Long rested in large part on the testimony of the command’s
network administrator: “the testimony of the network
administrator [as to the agency practice of recognizing the
privacy interests of users in their e-mail] is the most
compelling evidence supporting the notion that Appellee had a
subjective expectation of privacy.” Id.Here, unlike in Long, Appellant presented no evidence that
he enjoyed an expectation of privacy in materials on his
government computer. And, unlike in Long, the testimony of
Appellant’s commander and the military judge’s findings of fact
established both monitoring of and command access to the
government computer.
Long does not control the decision here, and we agree with
the CCA that the military judge did not abuse his discretion in
concluding that Appellant had no expectation of privacy in the
government computer. Larson, 64 M.J. at 563.
10
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II. Appellant’s Ineffective Assistance of Counsel Claim
A. Factual Background
As the trial on the merits began, the military judge
instructed the panel that “the opening statements are the views
of what both counsel believe the evidence will show you. The
opening statements are not evidence in and of themselves.”
Included in Appellant’s civilian defense counsel’s opening
statement to the members were the following comments about
Appellant’s use of his government computer:
You’re going to see that Major Larson was employed and
used his computer in an inappropriate fashion.
There’s no question about that. That’s not going to
be an issue in this case. It’s going to be conceded.
Major Larson took his computer and used it
inappropriately.
You’re going to hear that there is a regulation
or rule that you are not to use your computer for
particular purposes. . . . [I]t’s not going to be the
defense contention in this case that Major Larson --
that it was ever intended for Major Larson to get on
the computer and start going into profiles and
contacting individuals in chat rooms, and profiles,
and downloading photos. . . . [T]hat is not going to
be an issue in this case.
Civilian defense counsel ended his opening statement in a
similar vein:
But, when it gets down to the truth of this case
-- and I’m not going to get up here and try to
represent something to you that’s not true -- Major
Larson is guilty of misusing his computer because it
was never anticipated by [Appellant’s superiors] that
he was to use that computer for those reasons. It
wasn’t, and he shouldn’t have done that . . . . But,
he certainly never attempted to do what they’re
claiming he did. And we’re going to ask you at the
11
United States v. Larson, No. 07-0263/AF
conclusion of this case to find him not guilty of
those charges and specifications.
As civilian defense counsel concluded his opening
statement, the military judge again instructed the panel that
“opening statements of both sides are simply their views and
they are not evidence in and of themselves.”
As the case approached its conclusion, and before closing
arguments, the military judge repeated his instruction about the
relationship of arguments and evidence in the case:
You will hear an exposition of the facts by
counsel for both sides as they view them. Bear in
mind that the arguments of counsel are not evidence.
Argument is made by counsel to assist you in
understanding and evaluating the evidence, but you
must make the determination of the issues in the case
on the evidence as you remember it and apply the law
as I instruct you.
In closing argument, civilian defense counsel argued, as
relevant to the granted issues:
In this case, Major Larson is presumed innocent. It’s
hard to think of innocence and the concept of being
presumptively innocent or free of any guilt after
you’ve had an opportunity to view some of [the] things
that you see in this case. The despicable
photographs, the downloaded pictures, some of the
chats, the indecent language that was communicated,
but the fact is, is that presumption of innocence is
there and remains there, unless the prosecution proves
every element of every charge beyond a reasonable
doubt.
. . . .
. . . Major Larson has a problem in viewing
sexually explicit materials. There’s no question
about that.
12
United States v. Larson, No. 07-0263/AF
I said to you in the opening that he violated --
he did not obey a lawful order and that’s viewing
sexually explicit material over the internet.
. . . .
. . . There are a lot of things that I’ve
forgotten and there are a lot of issues that I won’t
necessarily raise and bring up and for that I’m sorry.
And I apologize to my client if I forgot to mention
things that are important, certainly, that you might
feel they’re important. But I know that each and
every one [of] you are dedicated, your service here
and I know that each one of you believe that it in
order to do this job right, in order to make sure that
this officer, and yes, an officer that made bad
choices and bad decisions, and he disobeyed his lawful
orders, and certainly communicated indecent language
and he did things, and thinking this was in the
privacy of his own office, but certainly took
advantage of that and brought, I think, discredit upon
the service, you know, a disreputable situation and
for that I’m sure you can -- you know that this man is
embarrassed and sorry for that.
Appellant’s civilian counsel’s argument, both in opening
and closing, stressed that he did not contest the fact that
Appellant improperly used a government computer. Appellant
filed an affidavit with the CCA asserting that his civilian
defense counsel did not consult him before making the decision
to not contest that charge, and that this failure to consult
amounted to a violation of his Sixth Amendment right to counsel.
Appellant claimed that the arguments caused him to rule out the
option of testifying.
That court ordered trial defense counsel to answer four
specific questions, one of which was what specific discussions
occurred between trial defense counsel and Appellant regarding
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concessions of fact concerning Appellant’s guilt. Counsel
responded to the CCA’s order, but did not answer the question.
Puzzlingly, the CCA accepted trial defense counsel’s non-
response and proceeded to determine that Appellant’s counsel was
not constitutionally deficient. Larson, 64 M.J. 564. Relying
on an affidavit of civilian defense counsel that averred that
the defense team concluded that there was no plausible defense
to the Article 92, UCMJ, offense of wrongfully viewing sexually
explicit images on the government computer, the lower court
reasoned it would not “second-guess such tactical decisions made
to seize and retain credibility with the members, particularly
when, as here, the trial defense team’s efforts are directed
toward minimizing their clients punitive exposure.” Larson, 64
M.J. at 565.
B. Sixth Amendment Analysis
1.
Defense counsel “undoubtedly has a duty to consult with the
client regarding ‘important decisions,’ including questions of
overarching defense strategy.” Florida v. Nixon, 543 U.S. 175,
187 (2004) (citing Strickland v. Washington, 466 U.S. 668, 688
(1984)); see also Pineo v. State, 2006 ME 119, ¶¶ 12-16, 908
A.2d 632, 638-39 (applying Nixon in a non-capital case).
Whether the client must consent to the strategic decision made
by counsel before counsel may proceed is a different question.
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See Taylor v. Illinois, 484 U.S. 400, 417-18 (1988) (“Although
there are basic rights that the attorney cannot waive without
the fully informed and publicly acknowledged consent of the
client, the lawyer has -- and must have -- full authority to
manage the conduct of the trial.”) (footnote omitted).
In Nixon, the Supreme Court determined that, based on the
facts of that case, an attorney who consulted with his client
need not acquire the consent of the client before making the
strategic decision to concede some or all aspects of a crime at
trial in order to achieve an acceptable overarching strategic
goal as long as the defendant “retained the rights accorded a
defendant in a criminal trial.” 543 U.S. at 188. And federal
courts have consistently held that “conceding guilt to one count
of a multi-count indictment to bolster the case for innocence on
the remaining counts is a valid trial strategy which, by itself,
does not rise to the level of deficient performance.” United
States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002); see also
United States v. Swanson, 943 F.2d 1070, 1075-76 (9th Cir. 1991)
(recognizing “that in some cases a trial attorney may find it
advantageous to his client’s interests to concede certain
elements of an offense or his guilt of one of several charges”);
Clozza v. Murray, 913 F.2d 1092, 1100 (4th Cir. 1990) (holding
that because defense counsel’s “remarks were largely
attributable to trial strategy, we cannot, in keeping with
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United States v. Larson, No. 07-0263/AF
Strickland, second-guess counsel’s tactical choices” to
concede).
Nor is it true, as Appellant contends, that this case falls
outside of Nixon because trial defense counsel’s actions in this
case foreclosed a contested trial on the charged offenses and
were tantamount to a confession.3 Just as in Nixon, the
Government was still required “to present during the guilt phase
competent, admissible evidence establishing the essential
elements of the crimes . . . charged . . . . [,] the defense
reserved the right to cross-examine witnesses . . . and . . .
[did] endeavor . . . to exclude prejudicial evidence.” 543 U.S.
at 188.
In this case, the Government presented evidence on all
charges, covered all charges in its opening and closing
argument, and the members were instructed on each charged
offense by the military judge. Moreover, as noted by the
military judge both before and after argument, counsel’s
statements during argument were not evidence; his statements did
not relieve the Government of its burden of proof, inject new
3
Nothing in United States v. Bertelson, 3 M.J. 314 (C.M.A.
1977), or United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247(1969), dictates a different result. In this case there was
nothing analogous to a guilty plea or confessional stipulation
that might have allowed the members to abdicate their duty to
find Appellant guilty of every element of each of the charged
offenses.
16
United States v. Larson, No. 07-0263/AF
factual matters into the trial, or stand as the legal equivalent
of a confession.
2.
If the evidence showed trial defense counsel had an in-
depth discussion with Appellant regarding counsel’s strategic
choice, this might be a very different case. See Davenport v.
Diguglielmo, 215 F. App’x 175, 181 (3d Cir. 2007) (stating
“[t]he Court in Nixon held ‘counsel’s strategic choice is not
impeded by any blanket rule demanding the defendant’s explicit
consent’ as long as counsel informed the defendant of the
strategy before he proceeded and it satisfied the Strickland
standard” (quoting Nixon, 543 U.S. at 192)). But the response
requested, and non-response accepted, at the lower court on the
question whether such consultation took place do not inform this
Court as to what, if any, discussions occurred, and if they did
occur, what was said. Therefore we will assume deficient
performance of counsel for failure to consult on the strategic
decision to concede guilt in argument to one of the offenses
charged and move on to determine whether Appellant was
prejudiced. See Strickland, 466 U.S. at 697 (stating that a
court may “dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice”); United States v. McConnell, 55
M.J. 479, 481 (C.A.A.F. 2001) (stating the same).
17
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Appellant argues that he was prejudiced by his civilian
defense counsel’s decision to concede his improper use of a
government computer during argument because it ensured a guilty
verdict with respect to the Article 92, UCMJ, charge and
effectively prevented him from taking the stand in his own
defense. Whether there was prejudice depends on whether there
is “a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (citations
and quotation marks omitted). The appellant bears the burden of
demonstrating that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at
694.
Appellant has not met his burden. We are convinced beyond
a reasonable doubt there was no prejudice and that there is no
reasonable probability that the factfinder would have had a
reasonable doubt respecting Appellant’s guilt but for his
civilian defense counsel’s error. Based on the evidence adduced
at trial there was no question that Appellant had in fact
attempted carnal knowledge and indecent acts with a child,
attempted to entice a minor, violated an order regarding the use
of his government computer, and used indecent language.
18
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First, the evidence supporting the charged offenses was
overwhelming. The prosecution presented pornographic material
taken from Appellant’s computer, sexually explicit chat sessions
between Appellant and an individual who said she was underage,
Appellant’s online profile, which included his picture,
testimony that showed Appellant was apprehended at a rendezvous
based on a meeting set up in the aforementioned chat sessions,
and evidence that Appellant had purchased a package of condoms
only fifteen minutes before the meeting. Second, no plausible
defense to the Article 92, UCMJ, offense of wrongful use of a
computer or other offense has been raised by Appellant.
Relatedly, Appellant fails to tell us what he would have
testified to absent his counsel’s comments. Third, Appellant
does not argue that his defense at trial to the remaining
charges –- that he believed he was actually talking to someone
of a more appropriate age –- was in any way undercut by
counsel’s strategic choice. And finally, the military judge
instructed the members three times that the arguments of counsel
were not evidence.
While, post hoc, Appellant may wish that his attorney had
engaged in a “useless charade,” United States v. Cronic, 466
U.S. 648, 656 n.19 (1984), given the facts of this case we
conclude that there was no prejudice stemming from the fact that
he did not.
19
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III. Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
20
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EFFRON, Chief Judge (concurring):
With respect to Appellant’s claim that counsel was
ineffective by conceding guilt in his opening statement and
closing argument as to a charge in a case involving multiple
offenses, I agree that any error was not prejudicial under the
second prong of Strickland v. Washington, 466 U.S. 668, 687
(1984). The question of whether, in the military justice
system, the consent of an accused is required prior to such a
concession is a matter that may be deferred until a case
presents a more clearly developed record on that issue. See
Article 45(a), Uniform Code of Military Justice, 10 U.S.C. §
845(a) (2000); United States v. Honeycutt, 29 M.J. 416, 419 n.4
(C.M.A. 1990); United States v. Haye, 29 M.J. 213, 215 (C.M.A.
1989); United States v. Bertelson, 3 M.J. 314, 317 (C.M.A.
1977); United States v. Care, 18 C.M.A. 535, 538-39, 40 C.M.R.
247, 250-51 (1969); Rule for Courts-Martial (R.C.M.) 811(c);
R.C.M. 906(b)(10); R.C.M. 910.