United States v. Gallo

55 M.J. 418, 2001 CAAF LEXIS 1163, 2001 WL 1111255
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 20, 2001
Docket00-0560/AF
StatusPublished
Cited by42 cases

This text of 55 M.J. 418 (United States v. Gallo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gallo, 55 M.J. 418, 2001 CAAF LEXIS 1163, 2001 WL 1111255 (Ark. 2001).

Opinions

Chief Judge CRAWFORD

delivered the opinion of the Court.

Contrary to his pleas, appellant was convicted of dereliction of duty, in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892, and advertising, transporting, receiving, possessing, and placing on the Internet child pornography, in violation of 18 USC §§ 2251(c), 2252(a)(1), (2), and (4), and 1462(a). The convening authority approved the sentence of a dishonorable discharge, 42 months’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals set aside the finding of guilty to possession of child pornography, affirmed the remaining findings, and reassessed and affirmed the sentence as approved by the convening authority. 53 MJ 556 (2000).

We granted review of the following issue: WHETHER APPELLANT’S FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED WHEN FEDERAL LAW ENFORCEMENT OFFICERS EXECUTED A WARRANT TO SEARCH HIS HOME THAT WAS ISSUED BASED SOLELY ON AN AFFIDAVIT FROM A UNITED STATES CUSTOMS AGENT WHICH CONTAINED ONLY A PEDOPHILE BEHAVIORAL PROFILE, AN ALLEGATION THAT APPELLANT HAD “CHILD PORNOGRAPHY” IMAGES ON HIS WORK SITE COMPUTER, AND OTHER EVIDENCE THAT FAILED TO LINK APPELLANT’S HOME TO EVIDENCE OF A CRIME.1

For the reasons set forth below, we affirm the decision of the Court of Criminal Appeals.

FACTS

Because of a decline in appellant’s work performance, in mid-July 1996, appellant’s supervisor, Master Sergeant Schipani, examined his work station. On his computer, she found a number of sexually explicit images and subsequently issued a letter of reprimand for the misuse of a government computer.

On October 22, 1996, a computer security monitor, Staff Sergeant Martin, received information from an Internet service provider that a person with a certain Internet Protocol (IP) address was “trading child pornography.” Sergeant Martin traced the IP address to appellant’s government-issued, work-station computer. He then provided this information to the Office of Special Investigations (OSI).

The next day, Special Agent Schwartz of the OSI, utilizing the information provided by Sergeant Martin, obtained a search warrant to seize a “mirror image” of a hard disk from appellant’s government computer. That evening, Special Agents Schwartz and Merkel executed the warrant and made a copy of appellant’s hard drive on his government-issued computer. An analysis of this [420]*420disk revealed 262 graphic images of children “in various sexual encounters, along with some text files.” This search revealed that at least the text files had been viewed from or transferred to computer diskettes.

About 2 weeks later, Special Agent Schwartz interviewed Master Sergeant Sehi-pani and asked if appellant had a computer at home. Some time later, without advising appellant of his rights, Master Sergeant Schipani asked appellant if he had a home computer, and he said he did. When the agents received this information, they contacted Mr. Putnoky, who sought the search warrant. At that time, Mr. Putnoky had been a United States Customs Service agent for 26 years. Mr. Putnoky had participated in numerous child pornography investigations. He had spent the previous 3¡é years in an undercover capacity for the Customs Service, which plays a lead role in investigating child pornography that enters the United States through the mail or the Internet. “Commercially produced child pornography historically has been and continues to be a product of foreign distributors____” (From Mr. Putnoky’s affidavit, infra). Mr. Putnoky prepared an affidavit and submitted it to a federal magistrate judge, who then issued a search warrant for appellant’s residence and his personal computer. The affidavit also contained the following:

6. Based on my training and experience, I have learned that:
A. The term “pedophile” (preferential child molester) is a psychiatric diagnostic term which refers to persons who have a sexual attraction to children. These persons are also referred to as “preferential child molesters.” I have attended both formal training and seminars in the field involving child pornography investigations, importation and distribution of child pornography and obscene materials given by the U.S. Customs Service, the Federal Bureau of Investigation and numerous State and Local law enforcement agencies/departments. I have participated in the interviews of pedophiles____
B. Pedophiles collect sexually explicit or suggestive materials involving children such as photographs, magazines, video tapes, books, computer disks....
C. Pedophiles rarely, if ever, dispose of their sexually explicit materials____
D. It has been my experience that pedophiles almost always maintain and possess their materials (pictures, films, video tapes, computer disks, correspondence and photographs) in a place considered secure, frequently within the privacy and security of their own homes. It has been my experience that pedophiles residing with parents, other family members, or any other person not aware of their activities, will often conceal their child pornography and related materials within their residence, secreted and concealed in locations known only by them and no one else cohabiting in the same residence.
7. My belief [is] that this property is located within the premises to be searched [ (appellant’s home) ].
8. On October 23, 1996, the United States Air Force, Office of Special Investigations (OSI), Maxwell Air Force Base, Montgomery, Alabama, commenced an investigation into the possible trafficking of child pornography over the computer internet systems. This investigation involved the soliciting and advertising of child pornography on the DALnet IRC network by Gino GALLO. A systems administrator associated with the DALnet IRC discovered computer traffic indicating the trading of child pornography.
9. Tracy REED, DALnet systems administrator located at San Diego, California, researched the source of the solicitations/advertisements and identified Gino GALLO’s Internet Protocol (IP) address (143.158.38.2) as the source of the solicitation/advertisement. This Internet Protocol (IP) address is assigned to the computer that subject GALLO operates in room 122, building 856, which is located at Maxwell Air Force Base, Gunter Annex, Montgomery, Alabama. Mr. REED notified of[421]*421ficials in the United States Air Force of his findings.
13..... The analysis of the hard drive ... disclosed that on several instances, files were either downloaded or uploaded from the hard drive to a diskette[.]
14. Based on the facts presented in this Affidavit, your affiant has probable cause to believe that presently, and/or at the time of this warrant’s execution, there is property contained within the place to be searched, which is evidence of violations of Title 18, United States Code, Sections 2251, et seq. and/or 1462, as well as other documents, records, correspondence, receipts, order forms and/or other materials reflecting the importation, purchase, receipt and/or possession of child pornography.

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Cite This Page — Counsel Stack

Bluebook (online)
55 M.J. 418, 2001 CAAF LEXIS 1163, 2001 WL 1111255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gallo-armfor-2001.