No. ______
`_______________
`
`IN THE
`Supreme Court of the United States
`
`_______________
`
`JAMES W. RICHARDS IV,
` Petitioner,
`
`v.
`
`DEBORAH LEE JAMES,
`SECRETARY OF THE AIR FORCE,
`
`BRIAN S. GREENROAD,
`COLONEL, COMMANDER,
`AIR FORCE SECURITY FORCES CENTER,
`
`D.L. HINTON,
`COLONEL, COMMANDANT,
`UNITED STATES DISCIPLINARY BARRACKS,
` Respondents.
`_______________
`
`Application for Extension of Time to File
`a Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Armed Forces
`_______________
`
`
`MARK C. BRUEGGER
` Counsel of Record
` Senior Counsel
` Appellate Defense Division
` Air Force Legal
` Operations Agency
` United States Air Force
` 1500 West Perimeter Road
` Suite 1100
` Joint Base Andrews, MD
` 20762
` (240) 612-4770
` mark.c.bruegger.civ@mail.mil
`
`

`

`
`
`No. ______
`_______________
`
`IN THE
`Supreme Court of the United States
`
`_______________
`
`JAMES W. RICHARDS IV,
` Petitioner,
`
`v.
`
`DEBORAH LEE JAMES,
`SECRETARY OF THE AIR FORCE,
`
`BRIAN S. GREENROAD,
`COLONEL, COMMANDER,
`AIR FORCE SECURITY FORCES CENTER,
`
`D.L. HINTON,
`COLONEL, COMMANDANT,
`UNITED STATES DISCIPLINARY BARRACKS,
` Respondents.
`_______________
`
`Application for Extension of Time to File
`a Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Armed Forces
`_______________
`
`To the Honorable John G. Roberts, Jr., Chief Justice of the United States:
`
`
`
`Pursuant to Supreme Court Rules 13.5, 22, and 30.2, the Petitioner,
`
`Lieutenant Colonel James W. Richards, respectfully requests a 40-day extension of
`
`time, to and including July 9, 2019, to file a Petition for a Writ of Certiorari. In
`
`support of this application, Petitioner states the following:
`
` 
`
`2
`
`

`

`1. On February 21, 2013, a general court-martial sentenced Petitioner to a
`
`dismissal, confinement for 17 years, and forfeiture of all pay and allowances. The
`
`United States Air Force Court of Criminal Appeals (AFCCA) affirmed the findings
`
`and sentence of Petitioner’s court-martial on May 2, 2016. On June 4, 2017, while
`
`Petitioner’s appeal was pending review before the United States Court of Appeals for
`
`the Armed Forces (CAAF), Petitioner filed a Petition for Extraordinary Relief in the
`
`Nature of a Writ of Mandamus with the AFCCA. On July 13, 2017, the CAAF
`
`rendered a decision in Petitioner’s case. On August 27, 2018, following this Court’s
`
`denial of certiorari but prior to the AFCCA’s action on the mandamus petition, the
`
`Secretary of the Air Force ordered Petitioner’s dismissal executed. On October 19,
`
`2018, the AFCCA issued a decision on the mandamus petition. In that decision, the
`
`AFCCA determined that jurisdiction existed to hear the writ, but denied the writ on
`
`its merits. On December 6, 2018, Petitioner appealed the AFCCA decision to the
`
`CAAF. On January 31, 2019, the CAAF ruled that it did not have jurisdiction to hear
`
`the writ-appeal. On February 8, 2019, Petitioner timely moved for reconsideration,
`
`which the CAAF denied on March l, 2019.
`
`2. Attached to this application are copies of the CAAF’s initial decision, the
`
`AFCCA’s decision on the writ-appeal, the CAAF’s ruling on the writ-appeal, and the
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`CAAF’s denial of reconsideration.
`
`3. Because the CAAF granted review of his case, Petitioner respectfully
`
`submits that this Honorable Court has jurisdiction under 28 U.S.C. § 1259(3).
`
` 
`
`3
`
`

`

`4. This case presents an excellent vehicle to examine the jurisdictional scope
`
`of Article I military courts as provided for by Congress in Articles 66 and 67, Uniform
`
`Code of Military Justice (UCMJ), 10 U.S.C. §§ 866-67. Specifically, this case asks
`
`whether the Executive Branch can divest jurisdiction from an Article I military court
`
`of appeals over an extraordinary writ brought under the All Writs Act, 28 U.S.C. §
`
`1651(a), after jurisdiction has vested under the UCMJ. Correspondingly, this Court
`
`can determine whether the CAAF has gone too far in limiting its jurisdiction and the
`
`jurisdiction of military appeals courts to hear appeals. This latter question falls on
`
`the other end of the spectrum from Clinton v. Goldsmith, 526 U.S. 529, 119 S. Ct.
`
`1538, 143 L. Ed. 2d 720 (1999), where this Court held the CAAF went too far in
`
`asserting jurisdiction over cases. Given the CAAF’s recent trend in limiting its
`
`jurisdiction, military inmates have been forced to seek relief in the Federal court
`
`system and will continue to do so in increasing numbers. Consequently, the Federal
`
`court system may soon find itself mired in military-specific issues and become the
`
`final arbiter over countless military claims. This is not a fate envisioned by Congress,
`
`which justifiably tasked the CAAF with the responsibility of maintaining uniformity
`
`in military decisions.
`
`5. Petitioner bases his request for an extension of time on his retention of new
`
`counsel. The Air Force Appellate Defense Division recently assigned undersigned
`
`counsel to represent Petitioner following previously assigned counsel’s separation
`
`from active duty military service. The issues presented in this case are factually and
`
`procedurally complex, and undersigned counsel was not involved in any of the
`
` 
`
`4
`
`

`

`previous trial or appellate proceedings.
`
` Undersigned counsel is currently
`
`representing seventeen clients before the AFCCA and five clients before the CAAF,
`
`and supervises the filings and caseloads of eight attorneys in the Appellate Defense
`
`Division. Although undersigned counsel may be able to prioritize this case to a
`
`degree, his other commitments prevent him from sufficiently assisting Petitioner in
`
`this matter prior to May 30, 2019 – the due date for the Petition for a Writ of
`
`Certiorari.
`
`WHEREFORE, Petitioner respectfully requests 40 additional days for
`
`undersigned counsel to familiarize himself with the relevant materials so that he can
`
`assist Petitioner in preparing an appropriate petition for consideration by this
`
`Honorable Court.
`
`
`Respectfully Submitted,
`
`
`
`MARK C. BRUEGGER
`Senior Counsel
`Air Force Appellate Defense Division
`1500 West Perimeter Road, Suite 1100
`Joint Base Andrews NAF, MD 20762-6604
`Office: (240) 612-4770
` E-Mail: mark.c.bruegger.civ@mail.mil
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Filed on: May 20, 2019
`
` 
`
`5
`
`

`

`UNITED STATES COURT OF APPEALS
`FOR THE ARMED FORCES
`_______________
`UNITED STATES
`Appellee
`v.
`James W. RICHARDS IV, Lieutenant Colonel
`United States Air Force, Appellant
`No. 16-0727
`Crim. App. No. 38346
`Argued March 15, 2017—Decided July 13, 2017
`Military Judge: Mark L. Allred
`For Appellant: William E. Cassara, Esq. (argued); Major
`Johnathan D. Legg, Major Thomas A. Smith, and Captain
`Patrick A. Clary.
`For Appellee: Major Mary Ellen Payne (argued); Colonel
`Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
`Judge SPARKS delivered the opinion of the Court, in
`which Chief Judge ERDMANN, and Judges STUCKY,
`RYAN, and OHLSON, joined.
`_______________
`
`Judge SPARKS delivered the opinion of the Court.
`This case arises out of the conviction of Lieutenant Colo-
`nel James W. Richards IV (Appellant), contrary to his pleas,
`of one specification of possession of child pornography and
`five specifications of indecent acts with a male under sixteen
`years of age, both in violation of Article 134, Uniform Code
`of Military Justice (UCMJ), 10 U.S.C. § 934 (2012); and four
`specifications of failing to obey a lawful order in violation of
`Article 92, UCMJ, 10 U.S.C. § 892 (2012). A military judge,
`sitting alone, sentenced Appellant to a dismissal, seventeen
`years confinement, and forfeiture of all pay and allowances.
`The convening authority approved the adjudged sentence.
`
`Appellant raised numerous issues before the United
`States Air Force Court of Criminal Appeals and, on May 2,
`2016, the lower court affirmed the findings and sentence.
`Appellant then filed a petition for review with this Court.
`We granted review on the issue of whether the November 9,
`
`
`
`
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`2011, search authorization was overly broad in failing to
`limit the dates of communications being searched.1
`
`Upon review of this issue, we agree with the lower court
`that the November 9, 2011, search authorization was suffi-
`ciently particularized and that investigators did not exceed
`the scope of that authorization in searching the electronic
`devices in question.2
`
`
`Facts
`In April 2011, the Air Force Office of Special Investiga-
`tions (AFOSI) at Tyndall Air Force Base in Florida initiated
`an investigation into Appellant based on notification from
`the National Center for Missing and Exploited Children that
`one of Appellant’s former “little brothers”3 from the Big
`Brothers Big Sisters program had alleged Appellant sexually
`abused him between 1993 and 1997, prior to Appellant join-
`ing the Air Force. Several months into their investigation,
`agents received permission to place a GPS tracking device
`on Appellant’s car, through which they learned that on a
`number of occasions he had signed a seventeen-year-old boy
`onto Tyndall Air Force Base. Agents interviewed the boy,
`AP, who told them he and Appellant had met online, devel-
`oped a sexual relationship, and continued to communicate
`
`1 Without briefs, the Court granted review of an issue ad-
`dressing the constitution of the lower court. That issue is
`moot per our holding in United States v. Dalmazzi, 76 M.J.
`1, 3 (C.A.A.F. 2016). The exact issue granted was:
`Whether the 9 November 2011 search authoriza-
`tion was overbroad in failing to limit the dates of
`the communications being searched, and if so,
`whether the error was harmless.
`
`2 On May 11, 2017, Appellant filed two additional motions re-
`questing that the Court consider whether Appellant’s counsel was
`ineffective in failing to file in a timely manner Appellant’s addi-
`tional issues pursuant to United States v. Grostefon, 12 M.J. 431
`(C.M.A. 1982). These motions are denied. On May 24, 2017, Appel-
`lant filed a motion for leave to correct errata in a previous motion.
`This motion is granted. On May 24, 2017, and May 25, 2017, Ap-
`pellant filed two separate motions for leave to supplement the rec-
`ord. These motions are denied.
`3 Children in the Big Brothers Big Sisters program are commonly
`referred to as “little brothers” and “little sisters.”
`
`
`
`2
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`online as their relationship evolved. Several weeks later AP
`recanted the portion of his statement about himself and Ap-
`pellant having a sexual relationship.
` AFOSI coordinated with the local sheriff’s office who as-
`sumed the primary investigative role in Appellant’s rela-
`tionship with AP. However, AFOSI agents did utilize infor-
`mation from AP’s statement to obtain a search authorization
`for Appellant’s residence and person for items used to elec-
`tronically communicate with AP, requesting the seizure of
`“[a]ll electronic media and power cords for devices capable of
`transmitting or storing online communications.” The affida-
`vit accompanying the search request stated that AFOSI, in
`tandem with the Bay County Sherriff’s Office, was investi-
`gating Appellant’s violation of a Florida statute “Computer
`Pornography; Traveling to meet a minor.”4 The affidavit de-
`tailed the investigation into Appellant’s relationship with
`AP, including the fact that the sexual relationship had been
`ongoing since approximately April 2011 with sexually explic-
`it online communications starting about a year earlier. The
`affidavit did not mention Appellant’s history or any poten-
`tial allegations connected with the Big Brothers Big Sisters
`program.5 On November 9, 2011, agents seized a number of
`electronic devices from Appellant’s home. The following day,
`the Bay County Sherriff’s Office arrested Appellant and
`seized all electronic devices on his person. Among the items
`seized from Appellant himself was a personal laptop, which
`was handed over to AFOSI on November 24, 2011.
`
`
`AFOSI agents sent the electronic devices they had col-
`lected to the Defense Computer Forensic Laboratory (DCFL)
`so that DCFL could extract data to be searched. The DCFL
`
`4 The lower court summarized the relevant section of the Florida
`statute as follows:
`
`
`The Florida state statute defines “traveling to meet
`a minor” as, inter alia, a person who travels within
`the state in order to engage in an illegal sexual act
`with a child under the age of 18 years after using a
`computer online or Internet service to seduce, solic-
`it, lure or entice the child to do so.
` At one point, Special Agent Nishioka testified that he was
`searching for communication between Appellant and AP or the
`“little brothers.” However, there was no mention of communication
`with “little brothers” in the warrant or affidavit.
`
` 5
`
`
`
`3
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`application form required submission of both case back-
`ground information and a copy of the search authority doc-
`umentation. The case background information provided by
`AFOSI agent Sara Winchester included the accusations of
`the former “little brother” which formed the genesis of the
`investigation and detailed how this led to the identification
`of an investigation into Appellant’s relationship to AP and
`the subsequent seizure of the electronic materials. Agent
`Winchester requested that DCFL:
`
`
`Search SUBJECT’s Cell Phones, laptop computers,
`digital cameras and memory cards for all videos,
`images and possible online communication. To in-
`clude, but not limited to the following: any and all
`information saved or maintained on SUBJECT’s
`cellular telephones, laptop computers or hard
`drives; all associated SIM cards, components, pe-
`ripherals or other data, relating to the matter being
`investigated.
`
`
`Unfortunately, SA Winchester’s request did not clarify that
`the “matter being investigated” was Appellant’s communica-
`tion with AP between 2010 and 2011, not the earlier accusa-
`tion by the “little brother.” DCFL created a mirror image of
`the data on the devices and placed that data on a forensic
`data extraction (FDE). As Mr. Kleeh, the forensics examiner,
`described the extraction process, “it goes through the image
`– the mirrored copy of the drive, it looks for those files, pic-
`tures, chat logs, Word documents, Internet history, and it
`pulls them all out and throws them into a directory on a new
`drive.”
`
` The first batch of extracted data (FDE #1) was returned
`to AFOSI on December 23, 2011, and around January 4,
`2012, Special Agent Nishioka conducted a search of the data.
`FDE #1 contained materials found on Appellant’s personal
`laptop as well as from two seized loose hard drives. Agent
`Nishioka described in his statement that “DCFL simply
`dumped all pictures and on-line chats from these drives onto
`one big drive for review.” Agent Nishioka plugged the FDE
`into a stand-alone laptop and, utilizing a graphic user inter-
`face or GUI, opened the FDE in which all the materials ex-
`tracted were arranged in folders and subfolders. He testified
`that he worked through the FDE folders in the order they
`were listed, beginning with the “pictures” folder. Agent
`Nishioka stated that he started by going through the “at-
`
`
`
`4
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`tributable” folder. He then moved on to the folders of
`“unattributable” material. It appears that by using the term
`“unattributable” Agent Nishioka was referring to what Mr.
`Kleeh testified to as unallocated or deleted material. Mr.
`Kleeh testified that unallocated materials are deleted files
`that remain in the system but potentially without dates and
`times attached.
`
`the unallocated pictures, Agent
` While searching
`Nishioka encountered an image that appeared to be child
`pornography. He stopped his search and sought an addition-
`al authorization to search for child pornography. A search of
`the remainder of FDE #1, pursuant to the additional author-
`ization, turned up thousands of suspected child pornography
`images. The discovery of child pornography on these devices
`formed the basis for additional search authorizations, turn-
`ing up more images which led to the charges of possessing
`child pornography and indecent acts of which Appellant was
`ultimately convicted.
`
` At trial, Appellant moved to suppress the evidence de-
`rived from the November 9, 2011, search authorization be-
`cause it was overbroad. The military judge denied Appel-
`lant’s motion. The scope and propriety of that initial search
`authorization is now at issue in this appeal.
`
`
`Discussion
`“A military judge’s decision to admit evidence is reviewed
`for an abuse of discretion.” United States v. Hills, 75 M.J.
`350, 354 (C.A.A.F. 2016). “An abuse of discretion occurs
`when we determine that the military judge’s findings of fact
`are clearly erroneous or that he misapprehended the law.”
`United States v. Clayton, 68 M.J. 419, 423 (C.A.A.F. 2010).
`When we review a decision on a motion to suppress, we con-
`sider the evidence in the light most favorable to the prevail-
`ing party. United States v. Cowgill, 68 M.J. 388, 390
`(C.A.A.F. 2010). We review de novo questions regarding
`whether a search authorization is overly broad. United
`States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996). “Evi-
`dence derivative of an unlawful search, seizure, or interroga-
`tion is commonly referred to as the ‘fruit of the poisonous
`tree’ and is generally not admissible at trial.” United States
`v. Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006) (citing Wong
`Sun v. United States, 371 U.S. 471, 488 (1963)).
`
`
`
`
`5
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`A search authorization, whether for a physical location or
`for an electronic device, must adhere to the standards of the
`Fourth Amendment of the Constitution. The Fourth
`Amendment states that “no Warrants shall issue, but upon
`probable cause, supported by Oath or affirmation, and par-
`ticularly describing the place to be searched, and the per-
`sons or things to be seized.” U.S. Const. amend. IV. This in-
`sistence on particularity is a defining aspect of search and
`seizure law.
`
`
`The manifest purpose of this particularity require-
`ment was to prevent general searches. By limiting
`the authorization to search to the specific areas and
`things for which there is probable cause to search,
`the requirement ensures that the search will be
`carefully tailored to its justifications, and will not
`take on the character of the wide-ranging explora-
`tory searches the Framers intended to prohibit.
`
`
`Maryland v. Garrison, 480 U.S. 79, 84 (1987). “The Fourth
`Amendment requires that a search warrant describe the
`things to be seized with sufficient particularity to prevent a
`general exploratory rummaging in a person’s belongings.”
`United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999).
`
`
`Despite the importance of preserving this particularity
`requirement, considerable support can be found in federal
`law for the notion of achieving a balance by not overly re-
`stricting the ability to search electronic devices.
`
`
`The prohibition of general searches is not to be con-
`fused with a demand for precise ex ante knowledge
`of the location and content of evidence .... The prop-
`er metric of sufficient specificity is whether it was
`reasonable to provide a more specific description of
`the items at that juncture of the investigation.
`
`
`United States v. Richards, 659 F.3d 527, 541 (6th Cir. 2011)
`(alteration in original) (quoting United States v. Meek, 366
`F. 3d 705, 716 (9th Cir. 2004)); see id. at 540–42 (court al-
`lowing the search of an entire server known to contain web-
`sites harboring child pornography). “[I]t is folly for a search
`warrant to attempt to structure the mechanics of the search
`and a warrant imposing such limits would unduly restrict
`legitimate search objectives.” United States v. Burgess, 576
`F.3d 1078, 1094–95 (10th Cir. 2009) (court upholding a war-
`rant to search “all computer records” for evidence of drug
`
`
`
`6
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`trafficking). Instead of attempting to set out bright line rules
`for limiting searches of electronic devices, the courts have
`looked to what is reasonable under the circumstances. “As
`always under the Fourth Amendment, the standard is rea-
`sonableness.” United States v. Hill, 459 F.3d 966, 974–77
`(9th Cir. 2006) (court upholding an off-site search of all of
`the defendant’s computer storage media for evidence of child
`pornography).6
`
`
`Searches of electronic devices present distinct issues sur-
`rounding where and how incriminating evidence may be lo-
`cated. While we support the notion that “warrants for com-
`puter searches must affirmatively limit the search to
`evidence of specific federal crimes or specific types of mate-
`rial,” United States v. Riccardi, 405 F.3d 852, 862 (10th Cir.
`2005), we also recognize the dangers of too narrowly limiting
`where investigators can go. As stated by the United States
`Court of Appeals for the Seventh Circuit, “[u]nlike a physical
`object that can be immediately identified as responsive to
`the warrant or not, computer files may be manipulated to
`hide their true contents.” United States v. Mann, 592 F.3d
`779, 782 (7th Cir. 2010). “[I]n the end, there may be no prac-
`tical substitute for actually looking in many (perhaps all)
`folders and sometimes at the documents contained within
`those folders, and that is true whether the search is of com-
`puter files or physical files. It is particularly true with image
`files.” Burgess, 576 F.3d at 1094; see also United States v.
`Williams, 592 F.3d 511, 521–22 (4th Cir. 2010) (positing an
`implied authorization for officers to open each file on the
`computer and view its contents, at least cursorily, to deter-
`mine whether it falls within the scope of the warrant’s au-
`thorization. “To be effective, such a search could not be lim-
`ited to reviewing only the files’ designation or labeling,
`because the designation or labeling of files on a computer
`can easily be manipulated to hide their substance”). Of
`course our reluctance to prescribe ex ante limitations or re-
`quire particular search methods and protocols does not ren-
`der them immune from an ex post reasonableness analysis.
`See, e.g., United States v. Christie, 717 F.3d 1156, 1167 (10th
`Cir. 2013) (“[E]ven if courts do not specify particular search
`protocols up front in the warrant application process, they
`retain the flexibility to assess the reasonableness of the
`
`6 Obviously, what is reasonable in one instance may not be so in
`another.
`
`
`
`7
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`search protocols the government actually employed in its
`search after the fact, when the case comes to court, and in
`light of the totality of the circumstances.”).
`In charting how to apply the Fourth Amendment to
`searches of electronic devices, we glean from our reading of
`the case law a zone in which such searches are expansive
`enough to allow investigators access to places where incrim-
`inating materials may be hidden, yet not so broad that they
`become the sort of free-for-all general searches the Fourth
`Amendment was designed to prevent.
`
`
`On one hand, it is clear that because criminals
`can—and often do—hide, mislabel, or manipulate
`files to conceal criminal activity, a broad, expansive
`search of the hard drive may be required.... On the
`other hand, ... granting the Government a carte
`blanche to search every file on the hard drive im-
`permissibly transforms a “limited search into a
`general one.”
`
`
`United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (ci-
`tations omitted).
`
`
`Appellant argues that the November 9, 2011, authoriza-
`tion was overbroad because it did not contain a temporal
`limitation when that information was available and known
`to investigators. Applying the above Fourth Amendment
`law, we conclude that the authorization did not require a
`date restriction because it was already sufficiently particu-
`larized to prevent a general search. Though a temporal limi-
`tation is one possible method of tailoring a search authoriza-
`tion,
`it
`is by no means a requirement. Here, the
`authorization and accompanying affidavit did not give au-
`thorities carte blanche to search in areas clearly outside the
`scope of the crime being investigated. They were entitled to
`search Appellant’s electronic media for any communication
`that related to his possible violation of the Florida statute in
`his relationship with AP.
`
`We also conclude that the authorization allowed for a
`search of the unallocated space and through potential
`communications materials that did not have an immediately
`clear date associated with them. The precise extraction
`process utilized by Agent Kleeh and the accessibility of
`metadata on unallocated materials was not fleshed out in
`trial or anywhere on the record. However, we deduce from
`
`
`
`8
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`Mr. Kleeh’s testimony that metadata for unallocated
`materials often does not exist or is difficult to extract. We
`conclude that the possibility that relevant communications
`could have existed among the unallocated materials
`provided sufficient basis to subject those materials to an
`authorized and particularized search.
`
`The record also does not disclose the origin of the first
`image of child pornography encountered by Agent Nishioka.
`Though he indicates he saw it in the folder of unallocated or
`unattributable materials, we do not know whether the spe-
`cific image was drawn from the laptop or one of the two ex-
`ternal hard drives. A list of images compiled by the Govern-
`ment as potential Rule for Courts-Martial 404(b) evidence
`indicates that child pornography from both the laptop and
`one of the external hard drives appeared in the unallocated
`folder viewed around January 4, 2012. This is supported by
`testimony from Mr. Kleeh. Neither Agent Nishioka nor trial
`counsel indicated any obvious delineation between materials
`found on individual devices in their description of what was
`contained on FDE #1. The issue of the shutdown dates of the
`two loose hard drives was raised during oral argument and
`addressed by both parties in subsequent motions. The FDE
`lists the shutdown dates for the hard drives as 2006 and
`2008, years before Appellant initiated his relationship with
`AP. Assuming the shutdown dates were indicative of the
`timing of their last use, these materials were outside the
`scope of the search authorization, which described criminal
`activity dating no earlier than approximately April 2010.
`However, because images of child pornography from the lap-
`top, with a last shutdown date in 2011, appeared in the un-
`allocated materials Agent Nishioka searched, we conclude
`that he either did discover or inevitably would have discov-
`ered child pornography that validly lay within the scope of
`the search regardless of the significance of the shutdown
`dates on the two loose hard drives.
`
`Agent Nishioka’s discovery of the child pornography im-
`ages within the folder of unallocated materials was con-
`sistent with Horton v. California and the plain view excep-
`tion to the Fourth Amendment. 496 U.S. 128 (1990). Under
`Horton, in order for the plain view exception to apply: (1) the
`officer must not violate the Fourth Amendment in arriving
`at the spot from which the incriminating materials can be
`plainly viewed; (2) the incriminating character of the mate-
`
`
`
`9
`
`

`

`United States v. Richards, No. 16-0727/AF
`Opinion of the Court
`rials must be immediately apparent; and (3) the officer must
`have lawful access to the object itself. Id. at 136–37. Here,
`Agent Nishioka was lawfully searching through the extract-
`ed files based on what we have determined to be a valid au-
`thorization when he encountered what appeared to be child
`pornography among the unallocated materials. Upon spot-
`ting the child pornography, he properly stopped his search
`and obtained a new authorization that allowed him to search
`specifically for child pornography.
`
`We hold that the November 9, 2011, search authorization
`was sufficiently particularized to avoid any violation of Ap-
`pellant’s Fourth Amendment rights and uphold the military
`judge’s decision not to suppress evidence derived from the
`fruits of that authorization.
`
`
`Decision
`
` The decision of the United States Air Force Court of
`Criminal Appeals is affirmed.
`
`
`
`10
`
`

`

`UNITED STATES AIR FORCE
`COURT OF CRIMINAL APPEALS
`________________________
`
`Misc. Dkt. No. 2017–04
`________________________
`
`James W. RICHARDS, IV
`Lieutenant Colonel (O-5), U.S. Air Force, Petitioner
`v.
`Deborah Lee JAMES
`Secretary of the Air Force
`
`Brian S. GREENROAD
`Colonel (O-6), United States Air Force
`Commander, Air Force Security Forces Center
`
`D. L. HILTON
`Colonel (O-6), United States Army
`Commandant, United States Disciplinary Barracks
`Respondents
`________________________
`
` Review of Petition for Extraordinary Relief in the Nature of
`a Writ of Mandamus
`Decided 19 October 2018
`________________________
`
`Military Judge: Mark L. Allred.
`Approved sentence: Dismissal, confinement for 17 years, and forfeiture
`of all pay and allowances. Sentence adjudged 21 February 2013 by
`GCM convened at Tyndall Air Force Base, Florida.
`For Petitioner: Lieutenant Colonel Nicholas W. McCue, USAF; Lieu-
`tenant Colonel Shane A. McCammon, USAF.1
`For Respondent: Colonel Katherine E. Oler, USAF; Lieutenant Colonel
`Joseph J. Kubler, USAF; Mary Ellen Payne, Esquire.
`
`1 Petitioner’s initial petition was filed pro se.
`
`

`

`Richards v. James, et al., Misc. Dkt. No. 2017–04
`
`Before MAYBERRY, HARDING, and MINK, Appellate Military Judges.
`Senior Judge HARDING delivered the opinion of the court, in which
`Chief Judge MAYBERRY and Judge MINK joined.
`________________________
`
`This is an unpublished opinion and, as such, does not serve as
`precedent under AFCCA Rule of Practice and Procedure 18.4.
`________________________
`
`HARDING, Senior Judge:
`Petitioner submitted a Petition for Extraordinary Writ in the Nature of a
`Writ of Mandamus alleging that Respondent’s calculation of Petitioner’s good
`conduct time (GCT) confinement credits violates Article I, Section 9, Clause 3
`of the United States Constitution—the Ex Post Facto Clause. To remedy the
`alleged ex post facto application of the rule for GCT calculations, Petitioner
`requests that this court issue a writ of mandamus ordering Respondent to
`calculate his GCT credits in accordance with a prior and more favorable rule.
`For the reasons set forth below, we deny the petition.
`
`I. BACKGROUND
`Contrary to his pleas, Petitioner was convicted of one specification of pos-
`session of child pornography and five specifications of indecent acts with a
`male under sixteen years of age, both in violation of Article 134, Uniform
`Code of Military Justice (UCMJ), 10 U.S.C. § 934; and four specifications of
`failing to obey a lawful order in violation of Article 92, UCMJ, 10 U.S.C. §
`892. Important to the resolution of this petition for relief, the earliest of Peti-
`tioner’s offenses were committed by him on or about 10 June 2005. On 21
`February 2013, a military judge, sitting alone, sentenced Petitioner to a dis-
`missal, seventeen years confinement, and forfeiture of all pay and allowanc-
`es. The convening authority approved the adjudged sentence. This court af-
`firmed the findings and sentence. United States v. Richards, No. ACM 38346,
`2016 CCA LEXIS 285 (A.F. Ct. Crim. App. 2 May 2016) (unpub. op.), aff’d, 76
`M.J. 365 (C.A.A.F. 2017), cert. denied, ___U.S.___, 138 S. Ct. 2707 (2018).
`On 26 March 2013, Petitioner was transferred to the United States Disci-
`plinary Barracks (USDB) at Fort Leavenworth, Kansas. Petitioner’s Mini-
`mum Release Date (MRD), as determined by USDB officials on 1 July 2015,
`is 1 January 2026. Petitioner’s MRD was determined in part by the applica-
`tion of GCT credits to his sentence to confinement at a rate of five days per
`month. Petitioner contends that using the rate of five days per month was an
`ex post facto application of a rule changed after the