Court of Appeals for the Armed Forces

United States v. Brinkman-Coronel.

Appellant pled not guilty, elected military judge alone and was convicted of attempted sexual assault of a child who has attained the age of twelve years, attempted sexual abuse of a child, absence from place of duty, communication of indecent language, two specifications of wrongful possession of child pornography, and three specifications of wrongful distribution of child pornography. The military judge sentenced him to dismissal and nine years and ten days confinement. ACCA, in a divided opinion, affirmed. On appeal, there are two issues:

1. Did ACCA err in finding there was no abuse of discretion by the military judge in failing to recuse himself based on "the appearance of bias?"

2. Did the military judge abuse his discretion in denying a motion to suppress evidence discovered from the search of Appellant’s ‘vacuum phone’ and all derivative evidence?”

Recusal

Appellant argues that the military judge should have recused himself because Appellant’s charged offenses occurred during the military judge’s tenure as the SVP and in the same jurisdiction where he served as the “subject matter expert for all of Hawai‘i.” This provided the military judge, or so Appellant argues, with a unique perspective regarding “tactics and techniques” used by law enforcement.

The relevant facts.

​At Appellant’s arraignment, prior to inviting either side to inquire whether there were grounds to challenge his qualifications to sit as military judge, the military judge sua sponte disclosed that he served as the “special victim prosecutor for Hawai‘i from 2018 until approximately May of 2021.” In that capacity, he worked with both the detailed trial and defense counsel and assisted them with investigations involving sexual assault, child abuse, and domestic violence. The military judge also worked professionally with the assistant trial counsel who was a special victim’s counsel from 2020 until 2021. However, he had not supervised any of the three counsel and classified his relationship with them as “professional.” The military judge clarified that he “[knew] nothing of [the] case except what’s been provided to [him] by counsel through the course of this court-martial referral process. And . . . just to be sure, [he] checked files.” During voir dire, the military judge repeatedly affirmed that he knew nothing of the case. The military judge volunteered that, from the context of Charge I, he assumed the charge was related to Operation Keiki Shield.1 Although Appellant’s misconduct occurred toward the end of the military judge’s tenure as special victim prosecutor (SVP), he was not present in any meetings regarding Appellant’s case. The military judge was confident that this was so because he kept files on cases that he reviewed and because he was “sectioned off” during this time, presumably to avoid conflicts of interest. The military judge confirmed that neither trial counsel nor any other member of the government sought his advice on Appellant’s case when he was the SVP.

At ACCA.

The Court gave "little deference [to the military judge's decision not to recuse] because he failed to provide his rationale" for denying recusal. However, the Court found no abuse of discretion. Had the military judge provided a robust of his rationale for non-recusal, maybe we would read the abuse of discretion must strike the court with "the force of a five-week-old unrefrigerated dead fish” test applied. See United States v. Rivera, 80 M.J. (N-M. Ct. Crim. App. 2022) quoting United States v. Cooper, 80 M.J. 664, 672 n.41 (N-M. Ct. Crim. App. 2020); Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F. 2d 228, 233 (7th Cir. 1988). Rather, the Court seemed to apply the intermediate test of having a thrashing member of the phylum Chordata on the line. Perhaps the best test for the appellant would be that of a jerking float and maybe something on the line with nothing show whether it was a fish or discarded boot on the line--or if you watch enough detective shows--a body.

At CAAF.

In starting to read this case, I was instantly reminded of Jones.

Appellant asserts that Judge D. should have recused himself from the panel of the Court of Criminal Appeals reviewing his case. Prior to his appointment to the Court of Criminal Appeals, Colonel D. served as the Director of the Appellate Government Division of the Navy-Marine Corps Appellate Review Activity (Appellate Government Division [Code-46]). He served as Director from July 1995 to May 26, 1998. On June 16, 1998, Col. D. was sworn in as a judge on the lower court.

United States v. Jones, 55 M.J. 317 (C.A.A.F. 2001). Have you ever wondered about the detailing policy of judges in situations like Jones, where the military judge comes from a (sometimes local) prosecution shop/SJA in the same circuit? There can be an interesting issue. See, e.g., United States v. Harris, 66 M.J. 781 (N-M. Ct. Crim. App. 2008); United States v. Al Bahlul, 807 F. Supp. 2d 1115 (U.S.C.M.C.R. 2011).

The Colonel Court agrees there is no  actual bias reason for recusal and moves to "whether, taken as a whole in the context of this trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.” United States v. Tapp, 85 M.J. 19, 27 (C.A.A.F. 2024) (alteration in original) (internal quotation marks omitted) (quoting Martinez, 70 M.J. at 157-58)."

There were two principal (sic) reasons advanced for recusal under the appearance test:

(1) [T]he military judge should have recused himself because Appellant’s charged offenses occurred during the military judge’s tenure as the SVP and in the same jurisdiction where he served as the “subject matter expert for all of Hawai‘i.” This provided the military judge, or so Appellant argues, with a unique perspective regarding “tactics and techniques” used by law enforcement."

(2) Wait for it, "[T]he military judge’s recusal was warranted based on his supervisory prosecutorial position before joining the bench. In essence then, Appellant invites this Court to apply the vertical imputation standard examined in United States v. Jones, 55 M.J. 317, 319 (C.A.A.F. 2001), under which the knowledge and actions of subordinates are attributed to their superiors."

Similar to Jones, the Court looks to specific facts or absence of facts and finds several relevant points which support non recusal.

• No indication that the military judge played any role in Appellant’s case before becoming a judge.
• Appellant has identified no other basis warranting the military judge’s recusal.
• As a part of the reassignment process, he sectioned himself off from investigations.
• [T]he military judge said that he had not worked on Appellant’s case in any capacity.
• The military judge also worked professionally with the assistant trial counsel who was a special victim’s counsel from 2020 until 2021. However, he had not supervised any of the three counsel and classified his relationship with them as “professional.”
• The military judge clarified that he “[knew] nothing of [the] case except what’s been provided to [him] by counsel through the course of this court-martial referral process. And . . . just to be sure, [he] checked files.” (A conflicts check.)
• During voir dire, the military judge repeatedly affirmed that he knew nothing of the case. The military judge volunteered that, from the context of Charge I, he assumed the charge was related to Operation Keiki Shield. (This would come out during evidence presentation?)
• Although Appellant’s misconduct occurred toward the end of the military judge’s tenure as special victim prosecutor (SVP), he was not present in any meetings regarding Appellant’s case.
• The military judge was confident that this was so because he kept files on cases that he reviewed and because he was “sectioned off” during this time, presumably to avoid conflicts of interest.
• The military judge confirmed that neither trial counsel nor any other member of the government sought his advice on Appellant’s case when he was the SVP.

​The Court finds that there was no need for recusal in this case.

Suppression

The relevant facts.

A military magistrate denied CID’s verbal request to search the phone for evidence of child pornography. The commander of Joint Base Pearl Harbor-Hickam later authorized a search of the seized phone.

Appellant was placed in some form of restriction.

Appellant sent four messages to his spouse telling him to immediately come and find a phone located inside a vacuum cleaner (vacuum phone), and look for videos in a specific folder on the phone. This didn't happen. But then Appellant became unaccounted for and a search for him began, including a search of his home.

While there, the spouse told CID about the vacuum phone which they then seized. With the spouse's assistance they were able to access the phone and did a very cursory search of it. "The agent at the scene said he did not search beyond the farewell messages because he did not want to “alter too much data” so that the phone could be reviewed in the most “forensically sound” manner."

After this "​ a CID digital forensic examiner found images and videos of suspected child pornography. After a military magistrate’s search authorization, additional searches of this phone revealed that Appellant distributed videos containing child pornography and chatted with others about his interest in young boys."

The military judge concluded that the spouses "common authority over the dwelling extended to the vacuum phone. There exists some uncertainty about whether [the spouse]  had actual authority to consent to a search of the vacuum phone in part because of Appellant’s contention that he revoked access to the phone. However, there is no doubt that the common authority over [the spouse's and] Appellant’s home gave him the apparent authority to consent to the search."

At CAAF.

Although the vacuum phone was Appellant’s exclusive property, the CID agents had reason to believe that Appellant had given permission to authorize a search of the vacuum phone. In Gallagher, the issue was whether the appellant’s spouse’s common authority to consent to a search of their joint residence extended to an unmarked, unlocked, briefcase kept in a common area of the home. 66 M.J. at 251-52. Quoting the military judge’s conclusion, this Court noted that the officer “possessed no facts that reasonably should have caused him to believe the briefcase was the exclusive domain of the appellant. In fact, it would have been just as reasonable to conclude the briefcase was primarily used by Mrs. Gallagher.” This Court determined that the appellant’s wife had common authority over the home, which extended to apparent authority over the briefcase. Here, Appellant and spouse did not share a cell phone plan, the cell phone was hidden away in a vacuum, and the spouse was not aware that the vacuum phone was different from Appellant’s primary phone. However, the searching officer was aware of only some of this information. All the officer knew at that moment was that the spouse identified the location of the vacuum phone and had the passcodes necessary to access it. Thus, as in Gallagher, the spouse had the apparent authority to consent to a search of the vacuum phone.

The question still remains as to whether the Government exceeded the scope of its authority in conducting its search of the phone. As established above, the spouse had apparent authority to consent to the search and provided CID with “broad consent regarding the time, place, and manner of the CID search.” The only limiting term was that the search must be related to actions intended to locate Appellant.
. . .
​“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness.” Jimeno, 500 U.S. at 251. While the scope of consent can be limited by the consenter, if said consent “would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.” Id at 252. Appellant’s husband instructed CID to take any action necessary to find Appellant. Thus, CID had broad apparent authority to search the vacuum phone as it could have contained clues as to Appellant’s travel or communications, which could be used to help locate Appellant. 

As to the forensic examiner the Court finds that,

Like Shields, the forensic analyst’s search of the vacuum phone was broadly limited to anything that could help in locating Appellant. He located the apparent child pornography “in the same pane” or “next to . . . the suicide. While it may have been wiser for the forensic analyst to further limit the scope of his search in some manner, this Court’s precedent does not find this disqualifying.

Bottom line--no error in declining to suppress the evidence from the vacuum phone.