United States v. Monroe

50 M.J. 550, 1999 CCA LEXIS 31, 1999 WL 80155
CourtUnited States Air Force Court of Criminal Appeals
DecidedFebruary 5, 1999
DocketACM 32592 (f rev)
StatusPublished
Cited by4 cases

This text of 50 M.J. 550 (United States v. Monroe) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Monroe, 50 M.J. 550, 1999 CCA LEXIS 31, 1999 WL 80155 (afcca 1999).

Opinion

OPINION OF THE COURT UPON FURTHER REVIEW

SNYDER, Senior Judge:

Consistent with his conditional pleas of guilty, appellant was convicted by a general court-martial of violating a lawful general regulation, wrongfully and knowingly possessing three or more visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a), and using a common carrier to transmit and receive, via interstate and foreign commerce, obscene writings and computer graphics, in violation of 18 U.S.C. § 1462. Articles 92(a)(1) and 134, UCMJ, 10 U.S.C. §§ 892(a)(1) and 934. The military judge sentenced him to a bad-conduct discharge, confinement for 4 months, and reduction to E-l. The convening authority approved the sentence as adjudged, but waived the automatic forfeitures for the benefit of appellant’s dependents. Appellant asserts two assignments of error. We grant relief on one but otherwise affirm.

In our original review of this case, we returned it for a new staff judge advocate recommendation and action of the convening authority. United States v. Monroe, ACM 32592, 1998 WL 378258 (AF.Ct.Crim.App. May 14, 1998). Those actions having been accomplished, we now address the remaining assignments of error.

I. Conditional Guilty Plea

Before addressing the assignments of error, we deem it necessary to comment on another facet of this case. Appellant’s offer to the convening authority to plead guilty was conditioned upon his being able to plead conditionally so that he could preserve appellate review of a motion to suppress the results of a search. The convening authority accepted the offer. During the inquiry into appellant’s understanding of his plea agreement with the convening authority, see United States v. Green, 1 M.J. 453 (C.M.A.1976); [553]*553United States v. King, 3 M.J. 458 (C.M.A. 1977), the military judge stated as follows:

Okay. It also states that you are making a conditional guilty plea. That is, you are basically preserving your Motion to Suppress the evidence and, as you already know, I’ve denied that motion, but that motion is preserved on appeal now. Do you understand that?

This is the only place in the record where the military judge addressed the fact that appellant entered a conditional guilty plea. As a result, the military judge did not comply with Rule for Courts-Martial (R.C.M.) 910(a)(2), which reads in part as follows:

With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review the adverse determination of any specified pretrial motion ....

(Emphasis added).

If the accused prevails on the motion on appeal, he is entitled to withdraw the plea of guilty. Id. As the rule clearly states, R.C.M. 910(a)(2) does not give an accused an absolute right to enter a conditional guilty plea. United States v. Forbes, 19 M.J. 953, 954 (A.F.C.M.R.1985). Even if the government consents to a conditional guilty plea, the accused still must obtain the approval of the military judge. The clear intent of the rule is to conserve judicial resources. As such, we believe the drafters of R.C.M. 910(a)(2) contemplated the military judge’s approval as being more than just a ministerial act. See Drafters Analysis, MCM, A21-56-57. Therefore, the military judge should, at a minimum, make findings on the record that:

(1) The offer is in writing and clearly details the motion which the accused wishes to preserve on appeal;
(2) The government’s consent is in writing and signed by an official authorized to consent;
(3) The particular motion was fully litigated before the military judge; and,
(4) The motion is case dispositive.

With regards to (1), the motion also should clearly set forth all the grounds on which it is based in order to hone the issue at the appellate level. See, e.g., United States v. Tarleton, 47 M.J. 170, 172-73 (1997). The Secretary has directed that a conditional guilty plea will be accepted only “when the issue preserved for appeal is case dispositive.” Air Force Instruction (AFI) 51-201, Administration of Military Justice, 118.2 (3 October 1997). AFI 51-201 does not define “case dispositive.” The term normally denotes that nothing remains to be resolved after resolution of the issue in controversy. Therefore, if a conditional guilty plea is to less than all specifications and charges, or the issue sought to be preserved does not render all of the government’s available evidence inadmissible, then the issue in question is not case dispositive, and, if nonetheless approved by the military judge, the military judge should specifically state on the record why the conditional guilty plea is approved contrary to AFI 51-201. See Drafters Analysis, MCM at A21-56-57; United States v. Maio, 34 M.J. 215, 219 n. 3 (C.M.A.1992); United States v. Pond, 36 M.J. 1050, 1060 (A.F.C.M.R.1993); United States v. Phillips, 32 M.J. 955, 956 (A.F.C.M.R.1991). Further, the military judge also should ascertain the parties’ positions with regards to subsequent proceedings and any remaining charge and specification should the accused prevail on appeal.

In the instant case, Charge I and its specification were not impacted by the motion to suppress, but, as noted, the record is silent on how the parties anticipate the ease will proceed if appellant ultimately prevails. Appellant has two tiers of appeal remaining. For now, however, the case is not impacted by this matter. However, to insure that conditional guilty pleas accomplish their purpose, military judges should be sensitive to all of the requirements of R.C.M. 910(a)(2) and AFI 51-201. We now address the motion to suppress.

II. Legality of Search

This case requires the law to add another paragraph to the “rules of the road” for the “information superhighway” and cyberspace. It is yet another testimony to the resiliency [554]*554and flexibility of the case-by-case incremental development concept we inherited from the Common Law, which emphasizes adherence to stare decisis. As our superior court noted in United States v. Maxwell, 45 M.J. 406, 410 (1996), new technologies present new challenges, but they are met by adapting existing legal concepts to them. Maxwell presented the issue of the expectation of privacy, if any, an electronic mail (e-mail) subscriber has vis-a-vis the contractual host server, which in Maxwell’s case was America Online. In the instant case, we examine the expectation of privacy where the Government is the host server.

A. Facts

Prior to appellant entering his pleas, trial defense counsel presented a timely motion to suppress the results of the search of appellant’s dormitory room, in which his personal computer and accessories were seized.

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