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CAAFlog

DFE of the victim's cellphone

4/7/2026

13 Comments

 

Friday, April 3, 2026

 
Order Granting Petition for Review
 
No. 26-0062/AR. U.S. v. Brady T. Wicks. CCA 20230171. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT'S MOTION TO COMPEL DISCOVERY OF THE LOGICAL EXTRACTION OF THE ALLEGED VICTIM'S CELLPHONE LOCATED IN A CID EVIDENCE LOCKER.
 
No briefs will be filed under Rule 25.

Braum at AFCCA

​Briefs at CAAF: Appellant, Appellee, Reply

A military judge sitting at a general court-martial at Fort Drum convicted First Lieutenant Brady T. Wicks of one specification of sexual assault under Article 120, UCMJ, contrary to his pleas. The judge acquitted him of a second sexual assault specification and one domestic violence specification. The court sentenced Wicks to dismissal from the service and three days of confinement.
On appeal to ACCA, Wicks one assignment of error: the military judge wrongly denied his motion to compel discovery of the full logical extraction of the victim's cell phone, which CID held in an evidence locker. The victim had consented only to a search of text messages between herself and Wicks. Because CID's Cellebrite software at the time could not perform a targeted extraction, agents extracted the phone's entire contents but limited their review to the authorized text messages.
The Army Court of Criminal Appeals, affirmed. The court held that the military judge did not abuse his discretion for several reasons: the full extraction never entered the government's possession, custody, or control for discovery purposes because the victim only granted limited consent; the victim retained a reasonable expectation of privacy in the remaining phone data under the Fourth Amendment; the defense failed to show the full extraction would provide relevant evidence that could impeach any witness; and adequate substitutes — including the text messages and victim-provided screenshots — already existed in the record. Even assuming the judge erred, the court found no prejudice under a harmless-beyond-a-reasonable-doubt standard.

Seems CAAF could affirm ACCA and avoid the harder questions, because

(2) The defense had not met its burden under R.C.M. 701(a)(6) to show that the provision of the full extraction would provide any evidence that would adversely affect the credibility of the victim.

(
4) The defense had not established that the remaining data on the cell phone was relevant and necessary. Many of the text message chains provided by the victim pre-dated the charged offense; they did not establish a motive to fabricate, and the text messages did not confirm the sexual acts themselves.
(5) The defense argument on the full extraction being subject to compulsory process fell short because the defense could not establish any evidence that the full extraction would be of such central importance to the defense and that no adequate substitute existed.

No harm, no foul.

13 Comments
Anonymous
4/8/2026 02:57:47

The Court may be waiting for the release of its opinion in United States v. Braum. In Braum, the question presented assumes the Government is in the possession, custody, or control of the victim's data but refused to hand it over because of the victim's limited consent. Here, the main difference appears to be how ACCA held the evidence was not in "possession, custody, or control" because of the limited consent rather than other constitutional arguments.

Reply
Phil Cave link
4/8/2026 14:57:15

Certainly. But regardless of the result in Braum, I think we still see a summary disposition with a cite to Baum. That's because, as I read the case, the defense didn't even crack the door open on the why-what questions, let alone kick it in.

Reply
Anonymous
4/9/2026 09:17:19

Can/will the Court cite to Braum? If so, to which opinion? In Wicks, ACCA held (1) not in possession, custody, or control and (2) even if it was, harmless beyond a reasonable doubt. There is no clear majority for either side for either question in Braum.

Sparks/Maggs - na / no prejudice
Hardy/Johnson - MJ did not err / na
Ohlson - na / prejudice

Issue (1) - 3 NA / 2 no error
Issue (2) - 2 NA / 2 no prejudice / 1 prejudice

I'm not discounting that it could still be a summary disposition and cite to one of the opinions. But what would be the point of that? They granted this case 5 days before releasing Braum. By that point, the votes are in and opinions fully drafted. If they were going to affirm ACCA without discussion, would there be a need to grant at all? There's also the element that at least 2 of the judges disagree with ACCA's reasoning. And that could be enough to justify granting, especially since there seems to be appreciation for how this is a meaningful issue in criminal procedure.

I could be wrong though. Those are just some thoughts and likely expressed not precisely enough for some on this thread.

Strange Case
4/8/2026 13:08:08

What a strange case to have the accuser’s phone extracted and have that be relevant? Because when you say “accuser” you must certainly mean the person named on block 11a of the Charge Sheet. Or maybe you really mean victim as defined by 10 USC 806b(b), but you just can’t get the moral courage to afford her the dignity to properly refer to her.

Reply
Anonymous
4/8/2026 13:36:40

I prefer to refer to "victims" as the "convening authority," since their complaint to law enforcement is the reason the court has been convened. I've never found that to cause confusion. Obviously, the term "victim" - even used after a conviction affirmed on appeal - by anyone who has ever been associated with military justice in any capacity constitutes egregious and intractable UCI.

Reply
Tami a/k/a Princess Leia
4/8/2026 17:43:35

Braum got decided today. Reading the opinion now.

Reply
Phil Cave link
4/8/2026 17:53:01

Well, BLUF, no need to discuss because even if error it was harless.

Reply
Tami Mitchell
4/8/2026 18:10:09

Seems like this would be a good case for SCOTUS to take up, highlighting the tensions between the accuser's (or complainant's) Fourth Amendment right and the accused's 5th Amendment right to a fair trial for being denied access to evidence in the Government's possession.

Reply
Seriously?
4/8/2026 21:05:02

Are you actually a military justice practitioner? Who is an “accuser” other than the person who swears to the charges? The word “complainant” does not appear in the UCMJ, so could you please define?

Anonymous
4/9/2026 05:13:31

It could be had the issues been framed differently. As it stands though, the issue the Appellant raised and CAAF addressed was based on the extent of the RCMs (at least for the Concurrence, the lead plurality and dissent focus on prejudice). I could be wrong but I don't think the Appellant raised whether their right to a fair trial was violated by the failure to turn this evidence over.

It would be interesting to see though. I'd also be interested to see if CAAF/federal appellate caseload surrounding the 4th Amendment applies to witnesses as well. My gut reaction says yes. So, if for example, the lab analysts are sorting through evidence in perhaps not the best way but a not unreasonable way, and they come across a text where the witness admits the allegation is false but it falls outside the scope of consent, must that be turned over? Could you get around it by having the lab analyst testify to it? (Though, then its hearsay but maybe the rationale of Maebane applies.)

Cloudesley Shovell
4/8/2026 21:39:39

Complaining witness is a good term.

Kind regards,
CS

Reply
Tami a/k/a Princess Leia
4/8/2026 21:45:50

@Seriously, yes I am a military justice practitioner. I also have done some Title IX defense work. Some people in this blog refer to the "victim" as the "accuser," since the "victim" is the one who launches the accusations against the accused. I also use the term "complainant" to refer to the "victim," since the "victim" is the one complaining about the accused's conduct.

The "victim" is not entitled to "victim" status until the findings stage of the court-martial. Even then, during the appeals, it's pretty standard practice for defense attorneys to continue to refer to the "victim" as the accuser or complainant. And if you read C.J. Ohlson's dissent in Braum, and the briefs, you'd understand why defense-minded people continue questioning whether the "victim" in Braum was truly a "victim."

Reply
But that is Inaccurate
4/9/2026 07:48:23

As lawyers, words have meaning. Accuser is defined in Chapter 47 of title X. So is “victim”. As lawyers we should use statutorily defined terms. Just like an “Appellant” is referred to as such and not “convicted assailant” or “convicted child rapist”.

Reply



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