Monday, December 03, 2012

The Court-martial, Child Pornography and “Original Images”


After being convicted by a military judge “sitting as a general court-martial” of “knowingly and wrongfully possess[ing] eleven (11) images of child pornography, which conduct was prejudicial to good order and discipline in the Armed Forces and was of a nature to bring discredit upon the Armed Forces,” in violation of Article 134 of the Uniform Code of MilitaryJustice, Craig Rankins appealed.  U.S. v. Rankins, 2012 WL 5077656 (U.S. Army Court of Criminal Appeals 2012). 

More precisely, Rankins appealed after he was convicted and sentenced to “a bad-conduct discharge, confinement for nineteen months, and reduction to the grade of E–1.”  U.S. v. Rankins, supra.  (He was apparently a Specialist when the events described below occurred.  U.S. v. Rankins, supra.)

As Wikipedia notes, the Uniform Code of Military Justice “is the foundation of military law in the United States.”  The UCMJ is codified in Title 10 of the U.S. Code.  As Wikipedia explains, Congress created the UCMJ

in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that `The Congress shall have Power . . .To make Rules for the Government and Regulation of the land and naval forces.’

Article 134 of the UCMJ is codified as 10 U.S. Code § 934 and provides as follows:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Rankin raised three issues on appeal:  (i) that the military judge erred in not suppressing evidence seized from his computer; (ii) that he erred in not suppressing a statement to an Agent of the U.S. Army Criminal Investigative Division Command because it was “coerced”; and (iii) that the evidence was “legally and factually insufficient to support the finding of guilty for knowingly and wrongfully possessing child pornography images. U.S. v. Rankins, supra. 

To understand the first issue, it is necessary to understand how the child pornography on Rankins’ computer came to light.  On September 25, 2008, Rankins

brought his personal laptop computer to his place of duty, the `fuel standby shack’ on Forward Operating Base (FOB) Iskan, Iraq. [His] duties at that location included standing by to issue fuel to those who might need it. Around 1200 that day, SPC TM temporarily relieved [Rankins], and [he] left the shack to update his Servicemembers Group Life Insurance (SGLI) form. When [Rankins] left, his computer was open and running in plain view.

Specialist TM sat down at the desk with [Rankins’] laptop computer and saw it was playing a `Japanimation video.’ After `roughly five minutes,’ SPC TM closed the` Japanimation video’ to look for something else to play on [Rankins’] computer. 

Specialist TM clicked on a folder titled `recently changed’ in order to find a movie to play. Instead, SPC TM viewed `thumbnail images of child pornography’ and saw film titles that indicated the files contained child pornography.

[At the court-martial], Specialist TM testified that it was common for soldiers to use another's computer to watch movies. This was done to help pass the time during a standard twelve hour shift at the fuel shack. 

Specialist TM's squad leader, SGT MS, entered the fuel shack that day minutes after SPC TM found the images on [Rankins’] computer. When SGT MS entered the shack, SPC TM showed him what he had found on [the] computer.

U.S. v. Rankins, supra.

In addressing Rankins’ first argument, the Court of Appeals explained that under the

4th Amendment, a `search’ constitutes `a government intrusion into an individual's reasonable expectation of privacy.’ U.S. v. Daniels, 60 M.J. 69, 71 (U.S. Court of Appeals for the Armed Forces 2004). To determine if [Rankin] had a reasonable expectation of privacy in his computer files . . . we must ask `first, whether the individual by his conduct has exhibited an actual (subjective) expectation of privacy and, second, [whether] the expectation [is] one that society is prepared to recognize a reasonable.’  Id. (quoting Katz v. United States, 389 U.S. 347 (1967)).

U.S. v. Rankins, supra.  (For more on the Katz test, check out this prior post.)

The Court of Appeals found that Rankins did not have a reasonable expectation of privacy in the files on his computer, for two reasons:

First, [he] never prohibited SPC TM from using his computer or otherwise took measures to restrict the use of his computer by another fellow soldier. While the computer may have had a password protection feature, [Rankins] did not activate this feature prior to leaving the shack. In fact, he did not turn his computer off, carry his computer with him, or take any other steps to prevent third-party use of his computer prior to leaving the fuel shack. Thus, [his] conduct did not subjectively exhibit any actual expectation of privacy. . . .

Second, [Rankins’] failure to take affirmative measures to limit a fellow soldier's access to his computer in an area readily accessible by others makes any expectation unreasonable. See U.S. v. Barrows, 481 F.3d 1246 (U.S. Court of Appeals for the 10th Circuit 2007) (stating `[t]hose who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private’). . . .

U.S. v. Rankins, supra.  The court therefore rejected Rankins’ first argument.  U.S. v. Rankins, supra. 

And the Court of Appeals quickly rejected Rankins’ argument that the statement he gave to the investigator was coerced.  It noted that the interrogation was relatively short and the investigator (SA MH) gave Rankins the Miranda warnings, added to which his “age (28), education (high school graduate), military experience (over five years), intelligence (103 GT score)” indicated that his will was not easily overborne, which is what is needed to show that a confession was coerced and therefore violated due process of law. The court therefore rejected Rankins’ second argument.

Finally, the Court of Appeals rejected Rankins’ argument that the evidence was “legally and factually insufficient to support the finding of guilty”.  U.S. v. Rankins, supra.  It noted, first, that Rankins admitted to his interrogator, SA MH, that he

`did possess child pornography’ and recognized in August 2008 that the images depicted in files on his computer constituted child pornography. He admitted he moved these files into a separate folder on his computer. 

While [Rankins] stated he intended to delete the images in this separate folder at a later time, he admitted he maintained them for at least a month and that the images of child pornography could still be found on his computer despite the fact he eventually deleted the folder.

U.S. v. Rankins, supra. 

The Court of Appeals also cited the testimony of Special Agent BM,

an expert in the field of computer forensic examinations. Special Agent BM found child pornography images in a folder titled `original images,’ which is hidden from the user under the normal, default computer settings. An image goes into the `original images’ folder only after the user edits the original condition of a file. 

Thus, the `original images’ hidden folder only contains copies of images in their original, unedited version, and SA BM testified that the images in the `original images’ folder were created on 28 August 2008.

Moreover, SA BM testified even if a user deletes an image, it will remain in the unallocated space of the computer until it is overridden by other files. Thus, SA BM expected to find images in the unallocated space of [Rankins’] computer. 

However, SA BM did not find a single image (child pornography or otherwise) in the unallocated space of [the] computer. This led SA BM `to conclude that more than likely an application of some sort had been run to wipe the unallocated space, to render files unrecoverable that were perhaps resident in [the] unallocated space.’

U.S. v. Rankins, supra. 

The Court of Appeals therefore found that Rankins’
statement and SA BM's testimony regarding his forensic examination of [Rankins’] computer provide ample support for the finding that [he] knowingly possessed images of child pornography. [Rankins] admitted to possessing child pornography, edited images of child pornography, and then took steps to delete the images from the unallocated space of his computer.
U.S. v. Rankins, supra. 

So the court found “the findings of guilty and the sentence as approved by the convening authority to be correct in law and fact”, and so affirmed both.  U.S. v. Rankins, supra. 

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