United States Court of Appeals for the Armed Forces
to Hear Arguments at Washburn Law, October 21, 2008
About the Court
The United States Court of Appeals for the Armed Forces exercises worldwide appellate jurisdiction over members of the armed forces on active duty and other persons subject to the Uniform Code of Military Justice. The Court is composed of five civilian judges appointed for 15-year terms by the President with the advice and consent of the Senate. Cases on the Court's docket address a broad range of legal issues, including constitutional law, criminal law, evidence, criminal procedure, ethics, administrative law, and national security law. Decisions by the Court are subject to direct review by the Supreme Court of the United States. Learn more about the history of the Court at its website.
Quick Reminders
Please be courteous and kind to the judges, clerks, attorneys, U.S. Marshals, and students that have worked to prepare for this event. Please remember to be quiet in the halls outside the courtroom and inside the courtroom at all times. Dress appropriately for court.
Washburn University School of Law and the Center for Law and Government will host the United States Court of Appeals for the Armed Forces on Tuesday, October 21, 2008 in Topeka, Kansas. The case on the docket is described below. Arguments will be held in the Robinson Courtroom and Bianchino Technology Center beginning at 9:30 a.m. The Court is visiting Washburn Law as part of its Project Outreach.
As part of Project Outreach, Washburn has been invited to file and argue an amicus brief on behalf of the appellant. Washburn students Kimberly M.J. Lynch, Lee Oliver and Mark Coulter will be preparing the brief.
Panel
Chief Judge Andrew S. Effron- Judge James E. Baker
- Judge Charles E. Erdmann
- Judge Scott W. Stucky
- Judge Margaret A. Ryan
Case on the Docket
The Court will hear arguments in United States v. Edward S. Macomber, a general courts martial conviction involving receipt and possession of child pornography. The issue on appeal is whether the military judge erred in denying Appellant's motion to suppress because the military magistrate had no probable cause to issue the search. Counsel for each side will be allowed 20 minutes to present oral argument.
Summary of Proceedings
Airman First Class Edward S. Macomber, United States Air Force, was convicted by a general court-martial at Minot Air Force Base, North Dakota, of receiving and possessing visual depictions of minors engaging in sexually explicit conduct. The court-martial sentenced him to a bad conduct discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the rank of E-1. The convening authority approved the sentences, and the Air Force Court of Appeals affirmed the findings and the sentence. The Court of Appeals for the Armed Forces granted review.
Facts
As the result of an ongoing investigation of child pornography, "Operation Falcon," the Appellant's name surfaced as a subscriber to a child pornography Web site. The evidence showed that the Appellant had accessed the Web site on April 18, 2003.
As a part of the investigation, Postal Inspector Rachel Griffin then sent a letter and a questionnaire to the Appellant's military mailbox address. The letter purported to be from Eclipse Films, a company specializing in illegal pornography. The letter clearly stated that the pornography offered by the company was "illegal" and "must be kept in strictest confidence." The questionnaire sent with the letter stated that it was a "Sexual Interest Questionnaire," and asked respondents to circle categories of interests.
The Appellant completed the questionnaire, listing "teen sex" and "pre-teen sex" among his sexual interests. He also indicated his interest in buying pornography from the company. Inspector Griffin then sent the Appellant a letter thanking him for his interest and describing available videos along with an order form. On June 14, 2004, Inspector Griffin received an order purporting to be from the Appellant containing a completed order form for two videos, as well as a money order purporting to be from the Appellant.
On June 21, 2004, law enforcement officials set up a controlled delivery of a package containing the two films. They also sought and obtained a search warrant for the Appellant's dorm room and automobile.
As officers watched, the Appellant picked up the package containing the films at the base Postal Service Center. Two agents drove by the Appellant as he walked out of the facility in an attempt to photograph him. As they took his picture, the flash on the camera went off. The Appellant went to his vehicle, sat inside, and then went back in to the Postal Service Center and attempted to return the package. He was apprehended at the Center.
The officials then executed the search warrant on the Appellant's dorm room. The resulting search revealed several pages of printed materials and photographs, as well as writings by the Appellant regarding specific child porn Web sites. Several hundred suspected child pornography images were retrieved from the Appellant's computer.
The United States Court of Appeals for the Armed Forces granted review on the following issue:
Whether the Military Judge Erred in Denying Appellant's Motion to Suppress Because the Military Magistrate Had No Probable Cause to Issue the Search.
- Counsel for Appellant: Capt. Tiaundra D. Sorrell, USAF
- Counsel for Appellee: Capt. Coretta E. Gray, USAF
- Amicus Curiae: Kimberly M.J. Lynch, Mark Coulter, E. Lee Oliver, Washburn University School of Law
Briefs
Viewing briefs requires Adobe Acrobat Reader.
- Brief of Appellant (1.1 MB PDF)
- Brief of Appellee (526 KB PDF)
- Amicus Brief in Support of Appellant (663 KB PDF) (prepared by Washburn Law students)
- Joint Appendix (3.9 MB PDF) (pages 60 and 66-68 redacted due to explicit content)
Biographies of Judges
Chief Judge Andrew S. Effron
Andrew S. Effron is the Chief Judge of the United States Court of Appeals for the Armed Forces.
Chief Judge Effron was appointed to the Court in 1996, and became Chief Judge in 2006.
Prior to joining the Court, Chief Judge Effron served in both the legislative and executive branches of government. He served as the General Counsel and Minority Counsel of the Senate Committee on Armed Services; as an attorney in the Department of Defense Office of General Counsel; as a judge advocate in the Army; and as a legislative aide to the late Representative William A. Steiger.
Chief Judge Effron was raised in Poughkeepsie, New York. He is a graduate of Harvard College, Harvard Law School, and the Judge Advocate General's School, U.S. Army.
Judge James E. Baker
James Baker was appointed to the United States Court of Appeals for the Armed Forces on September 19, 2000.
Judge Baker previously served as Special Assistant to the President and Legal Adviser to the National Security Council (NSC) (1997-2000), where he advised the President, the National Security Adviser and the NSC staff on U.S. and international law involving national security, including: use of force, the law of armed conflict, intelligence activities, foreign assistance, terrorism, arms control, human rights, and international law enforcement. Judge Baker also served as Deputy Legal Adviser to the National Security Council (1994-1997) and as Counsel to the President's Foreign Intelligence Advisory Board and Intelligence Oversight Board. As an attorney adviser in the Office of the Legal Advisor, Department of State, he provided advice on law enforcement, intelligence, and counter-terrorism a well a serving as legal adviser to U.S. delegations to various environmental negotiations. Judge Baker served as a legislative aide and acting Chief of Staff to Senator Daniel Patrick Moynihan (1985-1987). Judge Baker is the author of In the Common Defense: National Security Law for Perilous Times (Cambridge University Press: 2007) and, with Michael Reisman, of Regulating Covert Action (Yale University Press: 1992).
Upon graduating from college, Judge Baker received a Reserve commission as a Second Lieutenant in the Marine Corps. He subsequently earned a regular commission at The Basic School before joining the Fleet Marine Force where he served as a rifle platoon leader, weapons platoon leader, company executive officer and as an aide-de-camp. While an undergraduate, Judge Baker attended the Platoon Leaders Class. He finished first in his class at Officer Candidates School, for which Yale received the Commandant's Trophy. Judge Baker resigned his Reserve commission upon joining the United States Court of Appeals for the Armed Forces.
Judge Baker is the recipient of the 1999 Colonel Nelson Drew Memorial Award, the NSC's highest honor. The award recognizes "distinguished contributions to the formation of peaceful, cooperative relationships between states, and U.S. security policy for global peace." He is also the recipient of the Director of Central Intelligence's "Director's Award."
Judge Baker was born in New Haven, Connecticut, and raised in Cambridge, Massachusetts. He is a graduate of Yale College (1982) and Yale Law School (1990). He teaches national security law at the University of Iowa College of Law and Georgetown University Law Center. He is married to Lori Neal Baker of Springfield, Virginia. They live with their daughter, Jamie, and son, Grant, in Virginia.
Judge Charles E. Erdmann
Charles E. "Chip" Erdmann is a graduate of the Montana State University and the University of Montana School of Law. He interrupted his college studies in 1966 for a three-year enlistment in the U.S. Marine Corps. He resumed his military career in 1981 when he was commissioned as a JAG officer in the Montana Air National Guard. During his Reserve career, he held a variety of positions at the state and national levels. He retired from the Air Guard in 2002 as a Colonel.
Judge Erdmann commenced his civilian legal career as an assistant state attorney general in Montana. He subsequently opened a private practice of law in Helena, Montana, as a sole practitioner, eventually building a full service law firm which he operated until he was appointed to the Montana Supreme Court as an Associate Justice.
In 1998 Judge Erdmann joined the Office of High Representative (OHR) in Bosnia and Herzegovina and initially worked on establishing the first anti-corruption unit in Bosnia. He then coordinated the international community's judicial reform efforts and later was named the Head of the OHR Human Rights and Rule of Law Department. In that position he was responsible for: judicial reform/rule of law; support for human rights institutions, civil society and NGOs; public education; property rights; and domestic war crimes trials.
In 2000 he was appointed Chief Judge of the Bosnian Election Court, thus becoming the first American international judge in Bosnia. Judge Erdmann served as the Chief Judge until those responsibilities were transferred to the Bosnian Supreme Court in 2001. Judge Erdmann then worked as a judicial reform and international law consultant in Serbia and Bosnia.
He was appointed by President George W. Bush to the U.S. Court of Appeals for the Armed Forces in October 2002. Since his appointment, Judge Erdmann has remained active in a variety of international judicial reform/rule of law activities.
Judge Erdmann is married to the former Renee Jacques and they have four grown children, five grandchildren, and one dog, Jim.
Judge Scott W. Stucky
President George W. Bush appointed Scott W. Stucky to the United States Court of Appeals for the Armed Forces on December 19, 2006.
Judge Stucky was born in Hutchinson, Kansas, in 1948, and grew up on a family farm near Pretty Prairie, Kansas. He graduated from Wichita State University, where he received a commission as a second lieutenant, U.S. Air Force Reserve, through ROTC. He then attended Harvard Law School, from which he graduated in 1973. After his admission to the Kansas bar, Judge Stucky went on active duty as a judge advocate in the Air Force, serving in San Antonio, Texas; U-Tapao, Thailand; and Syracuse, New York. After leaving active duty, Judge Stucky practiced with a Washington, D.C., law firm and then served as a branch chief with the U.S. Nuclear Regulatory Commission.
In 1983, Judge Stucky became a civilian legislative counsel for the Department of the Air Force. Four years later, he became the Air Force's principal legislative counsel, responsible for its legislative drafting, statutory analysis, and related matters. As a legislative counsel, Judge Stucky worked on such matters as the Goldwater-Nichols Act and the legislative responses to the First Gulf War. He served as the principal draftsman for two consecutive quadrennial reviews of military compensation, and was responsible for the DOD Digest of War and Emergency Legislation, a mobilization compendium. He served as a member and panel chairman on the Air Force Board for Correction of Military Records. Judge Stucky was selected to serve as an OPM LEGIS Fellow, and to attend the Federal Executive Institute, the Harvard Program for Senior Officials in National Security, and the National War College.
In 1996, Judge Stucky became General Counsel of the Senate Committee on Armed Services. In this capacity, he was the principal legal officer for the majority side of the Committee, responsible for such matters as the Committee's internal rules and procedures, the Senate's rules, ethics and conflict of interest matters for Committee staff and nominees, statutory language in the annual defense authorization markup, floor procedure and liaison with floor staff, floor amendments to the annual defense authorization bill, and numerous other matters. Judge Stucky served two chairmen, Senators Thurmond and Warner; three staff directors; and was responsible as counsel for 10 consecutive national defense authorization acts. He served as Minority Counsel from 2001 to 2003, when the Republicans were in the minority and Senator Carl Levin was the Chairman of the Committee.
From 1982 to 2003, Judge Stucky served in the Air Force Reserve as a judge advocate individual mobilization augmentee (IMA). He was three times appointed as an appellate military judge on the Air Force Court of Criminal Appeals, serving for a total of almost seven years on that court. From 1999 to 2001, he was the senior IMA in Washington, D.C., responsible to the Judge Advocate General for the training and readiness of some 120 Reservists. Upon his retirement as a colonel in 2003, Judge Stucky was awarded the Legion of Merit for outstanding service.
In addition to his undergraduate and law degrees, Judge Stucky holds masters' degrees in history from Trinity University and in international law from George Washington University. He has lectured at all three of the service JAG schools, and was for 10 consecutive years a panelist at the ABA's annual Law and National Security Conference. He is a member of the boards of directors of ASIA, Inc. (a nonprofit adoption agency in Silver Spring, Maryland), and Omicron Delta Kappa (a college leadership society).
Judge Stucky is married to the former Jean Seibert. Jean Stucky, a graduate of Wellesley College and Cornell Law School, is Contractor Labor Counsel at the U.S. Department of Energy. The Stuckys have two children, Mary-Clare and Joseph.
Judge Margaret A. Ryan
Margaret A. "Meg" Ryan joined the United States Court of Appeals for the Armed Forces in December, 2006. Prior to her appointment, Judge Ryan was a Partner in the litigation and appellate practices of Wiley Rein & Fielding LLP and a litigation Partner at the law firm of Bartlit Beck Herman Palenchar & Scott LLP. Judge Ryan served as a law clerk to the Honorable Clarence Thomas, Associate Justice of the Supreme Court of the United States, and to the Honorable J. Michael Luttig, while he served as a judge on the U.S. Court of Appeals for the Fourth Circuit.
Before entering the private sector, Judge Ryan served on active duty in the United States Marine Corps. As a Communications Officer, Judge Ryan served in units within the II & III Marine Expeditionary Forces as a Staff Officer, Company Commander, Platoon Commander and Operations Officer. Judge Ryan's tours included deployments to the Philippines, during a coup attempt, and to Saudi Arabia during Desert Shield and Desert Storm.
Judge Ryan attended law school under the Marine Corps Law Education Program at the University of Notre Dame, where she as a member of the Notre Dame Law Review, received the William T. Kirby Legal Writing Award, and was the recipient of the Colonel William J. Hoynes Award for Outstanding Scholarship. As a judge advocate, Judge Ryan served within the Military Justice System as a Trial Counsel and Chief Trial Counsel in Okinawa, Japan and Quantico, Virginia. Judge Ryan was then selected by the 31st Commandant of the Marine Corps, General Charles C. Krulak, to serve as his Aide de Camp.
Judge Ryan was born in Chicago, Illinois. She is a graduate of Knox College, cum laude (1985) and the University of Notre Dame Law School, summa cum laude (1995). She resides with her husband, Michael J. Collins, and their Soft Coated Wheaten Terriers, Fiona, Reagan, and Dagny, in Arlington, Virginia.
