Aliens did it--lost the evidence

On March 24, 2021, in an unpublished opinion, AFCCA affirmed the findings and sentence in United States v. Rothe. (Opinion here.)
 
Appellant connected with a girl who he thought was a 14-year-old high school freshman named “Amanda.” However, “Amanda” was an online persona developed by AFOSI agents as part of a child sex sting operation. Over the next two months, Appellant continued to engage in sexual conversations with “Amanda,” including sending explicit photos of himself. The Appellant was arrested and charged with two specifications of attempting to commit a lewd act on a child under the age of 16 in violation of Article 80, UCMJ. A general court-martial composed of officer members convicted Appellant of both specifications and sentenced him to dismissal from the Air Force. On appeal, Appellant raised two issues.
 
First, Appellant claimed that the military judge should have abated the proceedings after the Government inadvertently deleted raw data from the iPad that AFOSI agents used when posing as “Amanda,” instead of only relying on a PDF file composed of screenshots of their conversations and raw data from Appellant’s phone. For the military judge to abate the proceedings under R.C.M. 703(f)(2), Appellant was required to show that there was no adequate substitute for the missing evidence, that the evidence was essential to a fair trial, and that the defense was not at fault for the missing evidence. See also United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015).
 
[Insert hyperbole and cynicism] Let us generally look at how the analysis of lost evidence works.

• Because the defense has not had access to the lost material, they cannot articulate any relevance or importance of the missing material—they lose.
• The military judge can, however (as suggested in Rothe), discern that nothing in the lost evidence was exculpatory or of other investigative value—the defense loses.

 
OK, thinking about this some more,

• The defense cannot say what of importance is missing—they lose.
• The military judge knows, however, nothing important was lost—the defense loses.

 
OK, let us try another way.

• The defense does not know what was lost—the military judge applies a rebuttable presumption of prejudice—the defense wins when the prosecution cannot rebut the presumption.
• No, wait, that would be a win for the defense—so, on second thoughts—they lose because that would otherwise impose a burden on the prosecution.

[Back to a critical point or so for Rothe] AFCCA held that the defense had “an adequate, and potentially better substitute” for the deleted raw data. At trial, following the defense team’s motion to abate the proceedings, the military judge considered written filings, oral arguments, and expert testimony on the lost data. Based on this evidence, the military judge determined that the PDF file accurately reflected Appellant’s conversations. The raw data from Appellant’s phone would “substantially match[]” the PDF's information.

Unlike Simmermacher, where CAAF found that a urinalysis lab report could not fulfill the same purpose as the sample itself, AFCCA found that the PDF file and Appellant’s phone together adequately fulfilled the same evidentiary purpose as the deleted raw data. Further, AFCCA agreed with the military judge that the data from Appellant’s phone was a potentially better source than the deleted data because it could reveal messages sent by Appellant but not received by “Amanda.”
 
Additionally, AFCCA acknowledged (in a footnote) that it was possible for particular messages sent by Appellant only to be stored in the iPad’s raw data and not in the PDF file or Appellant’s phone. However, expert testimony established that the chance of these messages existing was small. Also, the military judge held that the potential for the lost messages to be essential to a fair trial was merely speculative when the defense could not show that the “exculpatory value of the [missing] items was apparent before being lost.” The military judge also found “no malign efforts by the Government” or the defense and that no evidence “was lost to gain a tactical advantage.” AFCCA held then that the military judge did not abuse his discretion in failing to abate the proceedings.
 
Second, Appellant argued that his defense of entrapment should have prevailed when he was not predisposed to commit the offense and because the Government engaged in conduct that “shocked the conscience.” At trial, the military judge found that Appellant presented sufficient evidence to raise the affirmative defense of entrapment, shifting the burden to the Government to prove that it did not originate the criminal design of the offense and that it did subject Appellant to “extraordinary inducement.” See R.C.M. 916(g); United States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). In particular, “Amanda” initially posted an open message soliciting an “Air Force Pilot” and was fictitiously represented by a picture of a 20-year-old female, rather than the 14-year-old she claimed to be. However, because Appellant initiated the sexual nature of their conversations and because evidence revealed that Appellant had engaged other girls under the age of 16, AFCCA found that he was predisposed to committing the offenses. Additionally, AFCCA held that Appellant’s willingness to engage in sexual conversations showed that he was not coerced, and therefore the Government did not engage in behavior that “shocked the conscience.”
  
On the question of fault, we might revisit United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003), for an analogy where the issue in that case was about discovery. The court said that trial counsel’s malice or lack thereof was irrelevant; what was important was the impact on the defense in presenting its case. See also, Smith v. Phillips, 455 U.S. 209, 219 (1982) (the “touchstone of due process analysis of prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Courts should gauge the overall effect of counsel’s conduct on the trial and the personal blameworthiness.”). While the loss does not appear to be directly attributable to the trial counsel here, Thompkins and Smith are reasonable analogies for analyzing other actors' actions in the investigative and prosecutorial process.

​By Christopher Clifton, a person of sound mind (with a bit of hyperbole and cynicism thrown in by someone else).