United States v. Garlick , 61 M.J. 346 ( 2005 )

UNITED STATES, Appellee
v.
Jason P. GARLICK, Senior Airman
U.S. Air Force, Appellant
No. 04-0669
Crim. App. No. 35298
United States Court of Appeals for the Armed Forces
Argued April 12, 2005
Decided August 25, 2005
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.
Counsel
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.
United States v. Garlick, No. 04-0669/AF
Judge CRAWFORD delivered the opinion of the Court.
Sitting as a general court-martial, a military judge
convicted Appellant, pursuant to his pleas, of one specification
of wrongful possession of visual depictions of minors engaged in
sexually explicit conduct, in violation of clauses 1 and 2,
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934 (2000). The military judge sentenced Appellant to be
reduced to E-1, to be confined for ten months, and to be
discharged with a bad-conduct discharge. The convening
authority reduced Appellant’s sentence to confinement for 199
days, but otherwise approved the sentence. On June 10, 2004,
the Air Force Court of Criminal Appeals modified the findings:
[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. Crim. App. June 10, 2004).
That court reassessed and affirmed the sentence. On December 10,
2004, this Court granted review of the following issue:
WHETHER APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED
BY THE PROSECUTION’S FAILURE TO DISCLOSE DISCOVERABLE
INFORMATION PRIOR TO TRIAL.1
1
We heard oral argument in this case at The George Washington
University School of Law, Washington, D.C., as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58
2
United States v. Garlick, No. 04-0669/AF
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.
FACTS
The court below summarized the facts, as follows:
The appellant was a member of an Internet group
(Egroup) called Candyman, an electronic forum devoted
to child pornography. The appellant was a subscriber
from 15 January 2001 to 28 January 2001. An
investigation by the Federal Bureau of Investigation
(FBI) revealed that the appellant was in possession of
numerous images of child pornography at his home near
Eglin Air Force Base, Florida. These images were
discovered during a search authorized by a civilian
federal magistrate pursuant to a probable cause
affidavit submitted by the FBI. Trial in the case
took place on 5 August 2002.2
The appellant avers that on 12 August 2002, a week
after his court-martial ended, the trial counsel
notified the trial defense counsel by memorandum that
a statement contained in the FBI’s probable cause
affidavit was untrue. Trial defense counsel appended
this memorandum to the appellant’s clemency
submissions, which are attached to the record of
trial. The statement in question is as follows:
“Every e-mail sent to the [Candyman] group was
distributed to every member automatically. Therefore,
when an individual transmitted child pornography to
M.J. 346, 347 n.1 (C.A.A.F. 2003). The amici curiae appeared
pursuant to Rule 13A of the Court’s Rules of Practice and
Procedure.
2
There is no dispute that Appellant timely received (at or
before the Article 32 investigation) the search warrant and
supporting affidavit of Special Agent [SA] Kerry Davis.
3
United States v. Garlick, No. 04-0669/AF
the Candyman group via e-mail, those images were
transmitted to every one of the group members.”
According to the trial counsel’s memorandum, however,
automatic receipt of e-mails was only the default
setting for subscribers to the group, and individuals
were able to elect not to receive emails if they so
chose. According to this memorandum, this information
was known to the FBI prior to trial in the appellant’s
case.
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:
4
United States v. Garlick, No. 04-0669/AF
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.]
29. Images Posted on the Website: The primary
feature of the Candyman Egroup’s website was the
‘Files’ section. This allowed members to upload and
download images directly to and from the website. SA
Binney was a member of the Egroup from January 2,
2001, through February 6, 2001, when Yahoo! closed
down the Egroup. During that period of time, SA
Binney captured approximately one hundred images and
video clips that had been uploaded to the website.
The images and video clips can be broken into three
categories: 1) the majority depicted prepubescent
minors engaged in different sexual activities; 2) a
large number of the images focused on the genitalia of
the nude minors; 3) the remainder were considered
child erotica. Yahoo was unable to tell the FBI who
downloaded images or video clips from the Egroup.
5
United States v. Garlick, No. 04-0669/AF
However, when someone uploaded a file to the website,
the Egroup was set up such that a notice was sent via
e-mail to all members advising them of the name of the
file, which folder it had been posted in, the e-mail
address of the individual who posted it and, in some
cases, a description of the file. In other words,
child pornography posted to the website was
automatically distributed to the members, each of
which had knowingly joined an Egroup devoted to the
trading of child pornography. [emphasis added to
indicate factually misleading material.]
30. E-mail received: From January 2, 2001, through
February 6, 2001, SA Binney received approximately 498
e-mail messages from the Candyman Egroup, most of
which contained images of child pornography or child
erotica or information concerning those subjects or
the operation of the Egroup. During this period, SA
Binney received a total of approximately 183 child
erotica images and 105 child pornography images
through these e-mails. The last e-mail containing
child pornography SA Binney received from the group he
received on February 6, 2001 –- the date that Yahoo!
closed down the Egroup. This e-mail contained two
child pornography images. The first image depicts a
nude female approximately ten years of age performing
oral sex on an adult male while the second shows the
same female straddling an adult male while
masturbating him.
31. On January 22, 2001, SA Binney served a federal
grand jury subpoena on Yahoo Services, the owner and
operator of Egroups. Yahoo responded with a list of
approximately 3397 e-mail addresses of Candyman Egroup
members. Specifically, the e-mail address
garlickjason@hotmail.com, was listed on the Candyman
Egroup list.
. . . .
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.
6
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Affidavit For Search Warrant, Investigating Officer’s Report,
June 28, 2002, Allied Papers. See also Garlick, 2004 LEXIS 183,
at *3, 2004 WL 1539576, at *1.
SA Davis did not append these “subscription logs” to the
affidavit and did not aver any dates and times pertaining to
Appellant’s alleged activity with the Egroup, or that Appellant
was a member of the Egroup on any date other than January 22,
2001.3 After documenting that “garlickjason@hotmail.com” was
Appellant’s “username” and that Appellant lived at the address
to be searched, SA Davis added:
44. On August 31, 2001, pursuant to the court order,
Yahoo! provided a zip disk to the Houston Division of
the FBI containing all log files from the three
Egroups [“Candyman,” “Shangri_la,” and “Girls 12-16”].
Houston analyzed and copied all information
referencing garlickjason@hotmail onto a CD which was
forwarded to the Pensacola Resident Agency of the FBI.
. . . .
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.
Affidavit For Search Warrant, Investigating Officer’s Report,
June 28, 2002, Allied Papers.
3
January 22, 2001, is the date the FBI’s subpoena was served on
Yahoo; the affidavit does not give the date of Yahoo’s response
or the effective date of the information contained therein.
7
United States v. Garlick, No. 04-0669/AF
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
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.
5
Request for Delay, dated August 14, 2002.
6
See Rule for Courts-Martial (R.C.M.) 1102(b)(2).
7
See R.C.M. 1210; United States v. Scaff, 29 M.J. 60 (C.M.A.
1989).
8
United States v. Garlick, No. 04-0669/AF
DISCUSSION
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.
As detailed above, the affidavit of SA Davis raised several
concerns, which, taken together with Appellant’s admitted
8
373 U.S. 83 (1963).
9
59 M.J. 323 (C.A.A.F. 2004).
10
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
11
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969);
R.C.M. 910.
9
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familiarity with the Candyman website and its operation, cannot
have escaped the notice of both Appellant and his counsel.
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 garlickjason@hotmail.com, 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
12
In a Stipulation of Fact, Appellant acknowledges receipt of
only ninety-six images, indicating his awareness of the factual
inaccuracy of that portion of SA Davis’s affidavit.
10
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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
13
See R.C.M. 1102(b)(2); Military Rule of Evidence 311(d)(2)(A).
11
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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.
CONCLUSION
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).
12
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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.
Waiver
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.”).
An unconditional guilty plea “waives any objection,
whether or not previously raised, insofar as the objection
relates to the factual issue of guilt of the offense(s) to
which the plea was made.” R.C.M. 910(j). But a valid
guilty plea must be intelligent and voluntary. United
United States v. Garlick, No. 04-0669/AF
States v. Roeseler, 55 M.J. 286, 289 (C.A.A.F. 2001);
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
“Misapprehension of the strength and extent of the
prosecution's case which is engendered by misrepresentation
or other impermissible government conduct is a matter which
clearly could impact on the voluntariness of the decision
by appellant . . . to plead guilty.” United States v.
Payton, 23 M.J. 379, 381 (C.M.A. 1987). See also Von
Moltke v. Gillies, 332 U.S. 708, 720 (1948).
Here, the Government failed to fulfill an affirmative
duty to disclose a known factual misrepresentation in the
search warrant affidavit. That affidavit asserted that
Candyman list members automatically received all materials,
including child pornographic images, distributed to the
list. In reality, subscribers chose from among three
different delivery options, two of which did not
automatically distribute pornographic images to list
members. Indeed, the majority of subscribers elected one
of the “non-automatic” options. United States v. Perez,
247 F. Supp. 2d 459, 467-68 (S.D.N.Y. 2003); United States
v. Strauser, 247 F. Supp. 2d 1135, 1137 (E.D. Mo. 2003).
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
2
United States v. Garlick, No. 04-0669/AF
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.
Harmless Error
Ultimately, however, I conclude that Appellant’s
conviction must survive because, even absent the false
material, the remaining information in the warrant
affidavit continues to establish probable cause. At the
threshold, “[t]he duty of a reviewing court is simply to
ensure that the magistrate had a ‘substantial basis for . .
. concluding’ that probable cause existed.” United States
v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001) (quoting
Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal
citations omitted).
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:
3
United States v. Garlick, No. 04-0669/AF
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).
Proceeding to the second step of the analysis,
erroneous nondisclosure will generally entitle an 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 disclose discoverable evidence in response to a
specific request, the burden shifts to the Government to
demonstrate the nondisclosure was harmless beyond a
reasonable doubt. Id. at 327.
4
United States v. Garlick, No. 04-0669/AF
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.
The probable cause predicate in the search warrant
would be invalid if the Court were to conclude that the
Government included the defective material in the
supporting affidavit “knowingly and intentionally, or with
reckless disregard for the truth,” and that the affidavit’s
remaining material was inadequate to establish probable
cause after the false information was set aside. Franks v.
Delaware, 438 U.S. 154, 155-56 (1978). Because the
erroneous Candyman affidavit was used to support search
warrants in literally hundreds of investigations of list
5
United States v. Garlick, No. 04-0669/AF
members around the world, this precise issue has been
repeatedly litigated in other courts. At least three
federal district courts decided that the Government acted
recklessly and that the remaining information in the
affidavit was insufficient to establish probable cause.
United States v. Kunen, 323 F. Supp. 2d 390 (E.D.N.Y.
2004); Perez, 247 F. Supp. 2d 479-85; Strauser, 247 F.
Supp. 2d 1135.
Consistent with the majority of courts considering
this issue, however, I conclude that, regardless of the
Government’s knowledge or recklessness regarding the
erroneous material, the information remaining in the
warrant affidavit was adequate to demonstrate probable
cause. See United States v. Froman, 355 F.3d 882 (5th Cir.
2004); United States v. Hutto, 84 F.App’x. 6 (10th Cir.
2003); see also United States v. Schmidt, 373 F.3d 100 (2d
Cir. 2004) (stating in dicta that the affidavit continued
to establish probable cause, but deciding case on other
grounds). While the allegation that Appellant
automatically received pictures of child pornography in his
e-mail was a significant component of the warrant
affidavit’s probable cause predicate, it was not the only
one. In particular, the affidavit asserted that the
“website had several different features” including a
6
United States v. Garlick, No. 04-0669/AF
“‘Files’ section [which] provided an area for members to
post images or video files for others to upload.” Indeed,
the affidavit described the Files section as the “primary
feature” of the website, and noted that the agent
investigating the case downloaded approximately one hundred
images of child pornography and erotica over a one month
period. The affidavit also quoted the website’s
description of itself as a “group for people who love kids”
and invitation to “post any type of messages you like too
[sic] or any type of pics and vids you like too [sic].”
Appellant does not challenge these portions of the
affidavit.
As we recently reiterated in United States v. Bethea:
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.
7
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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
8
United States v. Garlick, No. 04-0669/AF
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.
In sum, Appellant alleges that the contested warrant
lacks probable cause, and consequently, that his guilty
plea was improvidently entered. Because I disagree with
Appellant regarding his first proposition, I conclude that
there is no substantial basis in law or fact to question
the providence of his guilty plea. United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991).
9