Petition for Writ of Certiorari — Jonel H. Guihama, Petitioner v. United States

1a

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

UNITED STATES

Appellee

v.

Jonel H. GUIHAMA, Master Sergeant

United States Air Force, Appellant

No. 23-0085

Crim. App. No. 40039

Argued February 7, 2024—Decided August 14, 2024

Military Judges: Jennifer E. Powell (motions) and

Colin

P. Eichenberger (trial)

For Appellant: Catherine M. Cherkasky,

(argued); Major Heather M. Caine (on brief).

Esq.

For Appellee: Colonel Zachary Eytalis (argued);

Colonel Matthew D. Talcott, Lieutenant Colonel

James P. Ferrell, and Mary Ellen Payne, Esq. (on

brief).

2a

Judge HARDY delivered the opinion of the Court, in

which Chief Judge OHLSON, Judge SPARKS, and

Judge JOHNSON joined. Judge MAGGS filed a

separate opinion concurring in part and in the

judgment.

3a

Judge HARDY delivered the opinion of the Court.

A general court-martial composed of a military judge

sitting alone convicted Appellant of, among other

offenses, aggravated sexual abuse of his nephew on

divers occasions, and aggravated sexual contact upon

his niece in violation of Article 120, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 920 (2006 &

Supp. IV 2007-2011). Those convictions stemmed from

statements Appellant made to federal agents in which

he admitted to fondling his niece and nephew. At trial,

Appellant moved to suppress those statements on the

basis that they were not adequately corroborated by

independent evidence as required by Military Rule of

Evidence (M.R.E.) 304(c). The miliary judge denied

Appellant’s motion, and the United States Air Force

Court of Criminal Appeals (AFCCA) affirmed. We

granted review to determine whether the military

judge abused her discretion by admitting Appellant’s

confession.

Although the military judge abused her discretion

with respect to her reliance on certain evidence, she

did not abuse her discretion with respect to her

ultimate conclusion that sufficient independent

evidence tended to establish the trustworthiness of

Appellant’s statements as required by M.R.E.

304(c)(1). Accordingly, we affirm the decision of the

AFCCA.

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I. Background

In 2018, the FBI suspected that Master Sergeant

Jonel Guihama (Appellant) was receiving and sharing

child pornography online. Agents from the Federal

Bureau of Investigation (FBI) and Air Force Office of

Special Investigations (AFOSI) conducted an early

morning raid at Appellant’s house and executed a

search warrant for his digital devices, electronic

storage media, and associated items. The agents

arrested Appellant, placed him in a government

vehicle outside of his residence, and advised him of his

Miranda rights,1 which he waived. The forensic

analysis that was later conducted on the digital

devices that were seized during the raid revealed that

Appellant possessed thousands of pornographic

pictures and videos of underage boys and girls.

A. Interviews with Appellant

Law enforcement agents first started questioning

Appellant while he was handcuffed and seated in the

government vehicle. Appellant admitted that he was

involved in group chats where he shared links of

naked boys and girls. When asked if he spent a lot of

time around kids, Appellant replied that he did not

have his own children but that he did have nieces and

nephews. Appellant denied ever having put his hands

on a child in a sexual way, but the questioning agent

later testified that while Appellant was being asked

about whether he had ever inappropriately touched

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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children, “it looked . . . like he was going to start

crying” and “his mouth was trembling a bit and his

eyes got kind of red and watery.” Near the conclusion

of the interview in the government vehicle, Appellant

consented to take a polygraph examination at an

AFOSI detachment.

At the conclusion of the polygraph, the agent

conducting the exam told Appellant that the

examination “did not go like I was hoping it was going

to go” because “Appellant was clearly responding to

some questions regarding sexual contact with a

minor.” Appellant initially remained steadfast that he

had never inappropriately touched a child, but during

the course of continued questioning, he admitted to

touching minors in an inappropriate way on various

occasions.

Appellant described—to the best of his memory—an

incident that occurred approximately seven years

earlier in about 2011 while he was stationed in Texas

but was visiting his wife’s family in Missouri.

Appellant explained how he and his two nieces and

nephew fell asleep on the floor of his inlaw’s living

room while watching movies. Appellant admitted that

he fondled his nephew—who was twelve or thirteen at

the time— when his nephew fell asleep. Appellant

said that his nephew did not wake up during the

incident and had “[n]o clue” that anything had

happened to him while he was sleeping. As the

interview continued, Appellant admitted that he also

fondled his preteen niece as she slept on the living

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room floor. Like her brother, Appellant said that his

niece was asleep during the incident and did not “see

or notice anything.”

After describing the incidents with his niece and

nephew to the agent, Appellant reconsidered the

timing and speculated that the incidents must have

occurred when he returned from deployment in

January or February of 2011. When the agent pressed

for more information, Appellant admitted that he

fondled his nephew again in 2012 in the same way as

before, after the boy fell asleep watching a movie at

his residence in Missouri.

B. Motion to Suppress

Before arraignment, Appellant moved to suppress his

statements about touching his nephew and niece in a

sexual manner on the basis that the statements were

not sufficiently corroborated by independent evidence

under M.R.E. 304(c). In response, the Government

pointed to statements made by Appellant’s family

members during sworn preliminary hearing

testimony and AFOSI interviews as well as other

supporting documentary evidence. The Government

argued that this evidence established the

trustworthiness of Appellant’s statements by

verifying the essential facts, including the identities

of the alleged victims and the circumstances, timing,

and location of the alleged assaults.

Appellant’s sister-in-law confirmed that she had two

daughters and one son whose ages were consistent

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with Appellant’s statement to law enforcement. She

also clarified that she and her family lived in Texas

until her family moved to Missouri in 2012 during her

overseas deployment. She verified that Appellant and

his wife would frequently visit them in Texas and

would occasionally stay overnight. She said that when

the families got together, the children slept in the

living room where they would watch movies before

falling asleep. Appellant’s sister-in-law did not know

whether Appellant ever joined the kids when they

watched movies, but she assumed that he did.

Appellant’s brother-in-law recalled that Appellant

came to visit in Missouri on two occasions. On his first

visit in May 2013, Appellant slept in the living room

with the children. But Appellant’s brother-in-law

could not remember the dates or sleeping

arrangements of Appellant’s second visit.

Appellant’s nephew remembered that his uncle

visited him frequently in Texas, but he had no

recollection of Appellant ever visiting him in Missouri.

The nephew confirmed that he, along with his two

sisters, would fall asleep while watching movies.

Although his memory was not clear, the nephew

believed that it was possible that Appellant joined

them. The nephew also recognized the possibility that

Appellant watched movies and slept in the living room

with the children while no other adults were present.

The nephew had no memory of Appellant sexually

abusing him.

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Appellant’s older niece also had no memory of

Appellant touching her inappropriately. But this

niece did confirm that Appellant would often visit

when she lived in Texas, and that Appellant, along

with his wife, would frequently join her and her

siblings to watch movies in the living room. But the

older niece did not remember Appellant ever visiting

her family when they lived in Missouri. The military

judge found, however, that Appellant’s younger niece

distinctly remembered sleeping in the living room in

Missouri with her older siblings and Appellant.

In addition to the testimony from Appellant’s family,

the Government also offered Appellant’s military

travel and leave records to corroborate Appellant’s

statements. For example, a travel voucher indicated

that Appellant re-deployed to Dyess Air Force Base in

Texas in January 2011, and other records showed that

Appellant took leave multiple times in 2011, 2012,

and 2013.

Based on this evidence, the military judge concluded

that Appellant’s statements about touching his niece

and nephew in a sexual manner were sufficiently

corroborated to satisfy the requirements of M.R.E.

304(c). Importantly for the purpose of this appeal, the

military judge rejected Appellant’s argument that his

niece’s and nephew’s lack of memory of any sexual

touching undermined the trustworthiness of

Appellant’s admission. To the contrary, the military

judge concluded that the alleged victims’ lack of

memory might justify an inference that Appellant’s

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statements were true given that Appellant had been

adamant that both children were asleep when

Appellant touched them. Based on this and the other

independent evidence presented by the Government,

the military judge denied Appellant’s motion to

suppress, and Appellant’s statements were admitted

at trial.

C. Trial and Appeal

A general court-martial composed of a military judge

sitting alone convicted Appellant, contrary to his

pleas, of possessing, viewing, and distributing child

pornography, in violation of Article 134, UCMJ, 10

U.S.C.

§ 934 (2012). Appellant was also convicted, contrary

to his pleas, of aggravated sexual abuse of his nephew

on divers occasions, and aggravated sexual contact

upon his niece in violation of Article 120, UCMJ. The

military judge sentenced Appellant to confinement for

ten years, forfeiture of all pay and allowances,

reduction to the grade of E-1, and a dishonorable

discharge.

Before the AFCCA, Appellant argued that the

military judge abused her discretion in denying the

defense’s motion to suppress Appellant’s confession

because it was not sufficiently corroborated as

required by M.R.E. 304(c)(1). United States v.

Guihama, No. ACM 40039, 2022 CCA LEXIS 672, at

*2, 2022 WL 17078714, at *1 (A.F. Ct. Crim. App. Nov.

18, 2022)(unpublished). In response, the Government

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relied on the same evidence that it presented to the

military judge and also offered, for the first time on

appeal, two additional pieces of evidence as

corroboration. Id. at *61, 2022 WL 17078714, at *20.

First, that the “vast amount of child pornography”

found on Appellant’s electronic devices “confirmed his

sexual interest in children and motive to commit the

offenses” against his niece and nephew. Id., 2022 WL

17078714, at *20 (internal quotation marks omitted).

And second, that Appellant’s emotional response to

the FBI’s questions about whether he had ever

touched a child—looking like he was going to cry, his

mouth trembling, and his eyes getting red and

watery—was evidence of his consciousness of guilt.

Id., 2022 WL 17078714, at *20.

The AFCCA declined to address whether Appellant’s

motive and intent to fondle his niece and nephew

could be shown by evidence of his possession of child

pornography. Id. at *65-67, 2022 WL 17078714, at

*21-22. But the AFCCA did conclude that Appellant’s

emotional

reaction

during

questioning

was

independent evidence that could bear on the

sufficiency of the corroboration. Id. at *67, 2022 WL

17078714, at *22.

Next, the AFCCA concluded that each piece of

independent evidence raised an inference of the truth

of Appellant’s confessions.2 Id. at *67-70, 2022 WL

2 The AFCCA was unconcerned with the discrepancies between

when and where Appellant said the fondling incidents occurred

and the testimony offered by his family as to the dates and

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17078714, at *23. With respect to the children’s lack

of memory, the AFCCA agreed with the military judge

that their lack of awareness “ ‘may justify a jury’s

inference that [Appellant]’s statements were true

given the specific way the accused claims to have

committed the charged offenses’ ” because Appellant’s

niece and nephew did not wake up when he allegedly

fondled them. Id. at *69, 2022 WL 17078714, at *23

(alteration in original). The AFCCA also held that

Appellant’s visibly emotional response to questions

about inappropriately touching children “permitted

the inference that he had touched a child in such a

manner.” Id., 2022 WL 17078714, at *23.

Finally, the AFCCA concluded that the military judge

did not abuse her discretion in applying the third step

under United States v. Whiteeyes, 82 M.J. 168, 174

(C.A.A.F. 2022), because the pieces of independent

evidence, considered together, tended to establish the

trustworthiness of Appellant’s confession. Id. at *7072, 2022 WL 17078714, at *23-24. We granted review

of the following issue:

Whether the military judge abused her

discretion by admitting a confession

locations of his visits. It stated that “the circumstances of these

visits—wherever and whenever they occurred—show that

Appellant had access to his nephew and niece and raise an

inference of the truth of Appellant’s admissions.” Guihama, 2022

CAAF LEXIS 672, at *67-68, 2022 WL 17078714, at *23.

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that was not trustworthy because it

lacked sufficient corroboration.

United States v. Guihama, 83 M.J. 454 (C.A.A.F.

2023) (order granting review).

II. Discussion

M.R.E. 304(c)(1) provides that “[a]n admission or a

confession of the accused may be considered as

evidence against the accused on the question of guilt

or innocence only if independent evidence, either

direct or circumstantial, has been admitted into

evidence that would tend to establish the

trustworthiness of the admission or confession.” The

rule further states that “[t]he independent evidence

necessary to establish corroboration need not be

sufficient of itself to establish beyond a reasonable

doubt the truth of facts stated in the admission or

confession. The independent evidence need only raise

an inference of the truth of the admission or

confession.” M.R.E. 304(c)(4) (emphasis added). This

Court reviews a military judge’s decision to admit a

statement under M.R.E. 304(c) for an abuse of

discretion. United States v. Jones, 78 M.J. 37, 41

(C.A.A.F.

2018).

Although the military justice system first adopted a

confession-corroboration rule in 1969,3 the President

3 See Manual for Courts-Martial, United States, para. 140a(5)

(1969 rev. ed.) (MCM) (“It is a general rule that a confession or

admission of the accused cannot be considered as evidence

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revised the current version of the rule—now

incorporated into the Military Rules of Evidence as

M.R.E. 304(c)—in 2016 to “bring[] military practice in

line with federal practice.” MCM, Analysis of the

Military Rules of Evidence app. 22 at A22-12 (2016

ed.). In Whiteeyes, this Court applied the updated

version of M.R.E. 304(c) to determine whether

individual pieces of evidence established the

trustworthiness of the appellant’s confession in that

case. 82 M.J. at 174. In doing so, the Court established

a three-part test that details the procedures and

standards that a military judge must follow when

deciding whether an accused’s admission or

confession is sufficiently corroborated. Id. The

Whiteeyes test closely tracks the language of M.R.E.

304(c) and can be summarized as follows:

First, the military judge must decide whether the

proffered evidence is in fact independent evidence. Id.

Independent evidence cannot consist of other

uncorroborated confessions of the accused that would

also require corroboration, but independent evidence

can be either direct or circumstantial. Id. (citing

M.R.E 304(c)(1)).

Second, the military judge must decide whether each

piece of independent evidence “raises an inference of

the truth of the admission or confession.” Id. (internal

against him on the question of guilt or innocence unless

independent evidence, either direct or circumstantial, has been

introduced which corroborates the essential facts admitted

sufficiently to justify an inference of their truth.”).

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quotation marks omitted) (quoting M.R.E. 304(c)(2)).

If the piece of evidence meets this threshold, the

military judge can use it to determine whether the

accused’s statement is corroborated. Id.

Third, the military judge must decide whether the

pieces of evidence, considered together, corroborate

the admission or confession of the accused. Id. In

doing so, the military judge must assess whether the

pieces of evidence “would tend to establish the

trustworthiness of the admission or confession.” Id.

(citation omitted) (internal quotation mark omitted).

In Whiteeyes, the Court also reaffirmed that under the

updated version of M.R.E. 304, the quantum of

evidence necessary to corroborate an accused’s

admissions or confession under M.R.E. 304(c) remains

“slight.” Id. at 174 n.6 (citations omitted) (internal

quotation marks omitted).

A. Voluntariness of Appellant’s Confession

We begin by addressing Appellant’s argument that his

confession was not trustworthy because of the context

in which it occurred. Appellant argues that his

“alleged confession was borne out of hours of

manipulative and repetitive questioning in four

different locations, amidst dozens of adamant denials,

and [it was] the stated intent of the FBI agent to not

stop questioning until [Appellant] confessed to a crime

of which they admittedly had no other evidence.”

If an accused makes a timely motion or objection

under M.R.E. 304(a), an involuntary statement will

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generally be inadmissible at trial.4 The voluntariness

of a confession turns on whether an accused’s “will has

been overborne.” Schneckloth v. Bustamonte, 412 U.S.

218, 225-26 (1973) (citation omitted) (internal

quotation

marks

omitted).

To

make

that

determination, this Court examines the totality of the

surrounding circumstances by “looking to both the

personal characteristics of the accused as well as the

circumstances of the interrogation.” United States v.

Nelson, 82 M.J. 251, 255 (C.A.A.F. 2022) (emphasis

added) (citation omitted) (internal quotation marks

omitted).

Appellant’s claims regarding the environment in

which he was questioned and the circumstances that

led to his confession would seem to relate to the

confession’s voluntariness. But as Appellant’s trial

defense counsel explained at the preliminary hearing

on his motion to suppress: “The defense is not

claiming that the confession was involuntary. We are

saying that it was false and it’s not supported by

corroboration . . . .”

Thus, because Appellant conceded that his confession

was voluntary and because the granted issue only

deals with corroboration, we have no reason to

address the length, location, or method of the

interrogation. Instead, we focus only on whether

Appellant’s statements that he fondled his niece and

4 Involuntary statements can be used against an accused only in

the rare circumstances provided in M.R.E. 304(e).

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nephew were sufficiently corroborated in accordance

with Whiteeyes.

B. Whiteeyes Analysis

1. Independent Evidence

Under the first Whiteeyes step, we must decide

whether the evidence proffered by the Government is

in fact “independent evidence.” 82 M.J. at 174

(citation omitted) (internal quotation marks omitted).

The corroborative evidence that the Government

presented to the military judge included statements

obtained from AFOSI interviews with the named

victims and Appellant’s in-laws, preliminary hearing

testimony, and Appellant’s military records. Because

none of this evidence consists of other uncorroborated

confessions or admissions made by Appellant that

would themselves require corroboration, the military

judge did not err in ruling that each piece was

independent. For the same reason—and because

independent

evidence

can

be

direct

or

circumstantial—the AFCCA did not err by labeling

Appellant’s emotional reaction to the FBI questioning

as independent evidence that could bear on the

sufficiency of corroboration.

2. Inference of the Truth

The second Whiteeyes step instructs military judges to

determine whether each piece of independent

evidence “raises an inference of the truth of the

admission or confession.” Id. (citation omitted)

(internal quotation marks omitted). Only if it meets

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this threshold test can the military judge then use

that evidence to determine whether the accused’s

statement is corroborated. Id. The government does

not face a weighty burden at this step. The standard

to raise an inference of a confession’s truth is only

marginally higher than the standard necessary to

show that evidence is relevant.

Only relevant evidence is admissible at courtsmartial. M.R.E. 402(b); United States v. Hendrix, 76

M.J. 283, 289 (C.A.A.F. 2017). To be relevant,

evidence need only have “any tendency to make a fact

more or less probable than it would be without the

evidence, and . . . the fact is of consequence in

determining the action.” M.R.E. 401(a)-(b). “The

relevance standard is a low threshold.” United States

v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (citing

United States v. Reece, 25 M.J. 93, 95 (C.M.A. 1987)).

Evidence at the second Whiteeyes step must be more

than just relevant. Instead of just having a tendency

to raise an inference of a confession’s truth, it must

actually raise an inference of its truth. If a piece of

evidence does not actually raise an inference of the

confession’s truth, then the military judge cannot use

it for corroboration purposes. While the difference

between the two standards is small, we underscore

the variance to point out that not all evidence that

meets the relevancy standard qualifies at Whiteeyes

step two. Thus, we review the independent evidence

that the Government presented to see if each piece in

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fact infers that Appellant fondled his niece and

nephew.

a. Appellant’s emotional reaction

The AFCCA concluded that Appellant’s emotional

response following the FBI’s questions about sexually

touching children raised an inference of the truth of

his confession. Before us, the Government contends

that Appellant’s emotional reaction was a

nontestimonial act that tended to show his

consciousness of guilt for fondling his niece and

nephew. We disagree.

Appellant’s emotional reaction does not raise an

inference of the truth of his confession because it is

susceptible to multiple explanations. Appellant’s

vague and subtle response—starting to cry, a

trembling mouth, and red, watery eyes—might have

indicated consciousness of guilt, but it just as easily

could have indicated something else. See United

States v. Clark, 69 M.J. 438, 445 n.1 (C.A.A.F. 2011)

(“Subtle physical demeanor is not admissible as

relevant to an accused’s consciousness of guilt,

because it is equally susceptible to other inferences.”

(citing United States v. Cook, 48 M.J. 64, 67 (C.A.A.F.

1998))). For example, Appellant might have simply

begun to realize the gravity of his situation. The

reaction occurred just after his home had been raided

by federal agents, while he was sitting handcuffed in

a government vehicle being asked about child

pornography and unlawful acts with children. More

importantly, if Appellant had never touched a child,

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being suspected of doing so by the federal agents

might have triggered the response. Because we do not

find Appellant’s reaction to be a reliable indication of

consciousness of guilt, it does not raise an inference of

the truth of Appellant’s admissions. We therefore

decline to use that evidence to determine whether

Appellant’s

admissions

were

sufficiently

corroborated.

b. Alleged victims’ lack of memory

The AFCCA also agreed with the military judge that

Appellant’s niece’s and nephew’s lack of any

knowledge or memory of Appellant’s actions raised an

inference of the truth of his admissions. The lower

court found that the children’s lack of awareness “

‘may justify a jury’s inference that [Appellant]’s

statements were true given the specific way the

accused claims to have committed the charged

offenses.’ ” Guihama, 2022 CCA LEXIS 672, at *69,

2022 WL 17078714, at *23 (alteration in original).

Essentially, the AFCCA agreed with the military

judge that because the children’s recollections were

consistent with Appellant’s description of his acts,

their statements corroborated his admissions. We

conclude, however, that the military judge abused her

discretion in reaching this finding.

Whether or not Appellant committed the acts as he

described, the children would have no memory of

being assaulted either way. If Appellant’s admissions

are true, the children would have been asleep and

would have been unaware of Appellant’s acts. If his

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admissions are false, then the events never happened,

and the children also would not have memory of his

acts. Because the children’s statements to the agents

would have been the same whether Appellant’s

confession was true or false, they do not raise an

inference of the truth of Appellant’s admissions.

Relying on United States v. Seay, 60 M.J. 73 (2004),

the Government argues that an absence of a fact may

help corroborate a confession. In Seay, the Court held

that the truth of an accused’s confession to

participating in the larceny of a murder victim’s

wallet could be inferred from the fact that “the victim

named in the confession knew the appellant, died as a

result of foul play, was found in a concealed place, and

did not have a wallet at the time or thereafter.” Id. at

80. We decline to extend the reasoning in Seay to the

facts of this case. Knowledge of the absence of the

murder victim’s wallet—an item that adults routinely

and habitually carry—differs significantly from

children having no memory of being inappropriately

touched by their uncle. It is reasonable to expect that

individuals would typically be in possession of their

wallet. So, when a murder victim’s body is found

without one, it can be inferred that the suspect who

confessed to the act is telling the truth when the

suspect knows that the victim’s wallet is missing. In

sharp contrast, an adult’s participation in lewd

conduct with a sleeping child is, thankfully, a rare

occurrence. It was therefore an abuse of discretion for

the military judge to use Appellant’s niece’s and

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nephew’s absence of knowledge to infer that Appellant

did in fact fondle them while they slept.5

c. Remaining independent evidence

We conclude that the military judge did not abuse her

discretion in considering the remaining statements

made by the named victims and Appellant’s in-laws,

preliminary hearing testimony, and Appellant’s

military records. Each piece of evidence allows an

inference that Appellant fondled his niece and

nephew.

3. Trustworthiness of Appellant’s Confession

Under the third Whiteeyes step, the military judge

must decide whether the remaining pieces of evidence,

considered together, “corroborate the accused’s

admission or confession.” 82 M.J. at 174. In doing so,

the military judge must assess whether the pieces of

We also decline to use the child pornography found on

Appellant’s phone to corroborate his confession. For the first time

on appeal, the Government argued that the “vast amount” of

pornography that Appellant possessed “confirmed his sexual

inter-est in children and motive to commit the offenses.”

Guihama, 2022 CCA LEXIS 672, at *61, 2022 WL 17078714, at

*20 (inter-nal quotation marks omitted). But at the motions

hearing, the Government only presented this evidence to bolster

the trustworthiness of Appellant’s confessions. It was not offered

in front of the trial court to show Appellant’s motive under

M.R.E. 404(b)(2). We therefore decline to draw the connection

between Appellant’s possession of child pornography and his

motive to commit child molestation where no testimony or

evidence was presented at trial to establish such a connection.

5

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independent evidence “would tend to establish the

trustworthiness of the admission or confession.” Id.

(citation omitted) (internal quotation marks omitted).

We conclude that the military judge did not abuse her

discretion because the remaining evidence sufficiently

corroborated Appellant’s confession.

In 2015, Congress directed the President to modify

M.R.E. 304(c), to the extent he considered practicable,

“to conform to the rules governing the admissibility of

the corroboration of admissions and confessions in the

trial of criminal cases in the United States district

courts.” National Defense Authorization Act for Fiscal

Year 2016, Pub. L. No. 114–92, § 545, 129 Stat. 726,

820 (2015). In the federal civilian courts,

corroboration has consistently been an easy bar for

the government to clear. “[C]orroborative evidence

does not have to prove the offense beyond a reasonable

doubt, or even by a preponderance . . . .” Smith v.

United States, 348 U.S. 147, 156 (1954). “Independent

evidence adequately corroborates a confession if it

‘supports the essential facts admitted sufficiently to

justify a jury inference of their truth.’ ” United States

v. Abu Ali, 528 F.3d 210, 235 (4th Cir. 2008) (quoting

Opper v. United States, 348 U.S. 84, 93 (1954)); see

also Wong Sun v. United States, 371 U.S. 471, 489

(1963) (stating “extrinsic proof [i]s sufficient which

merely fortifies the truth of the confession, without

independently establishing the crime charged”

(internal quotation marks omitted)). Independent

evidence need not be “overwhelming” to achieve

corroboration, but it must only support the

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truthfulness or reliability of the confession. United

States v. Taylor, 802 F.2d 1108, 1116-17 (9th Cir.

1986).

Our predecessor court noted that “[a]lthough no

mathematical formula exists to measure sufficient

corroboration, our review of the federal court decisions

. . . leads us to conclude that the amount of

corroboration generally needed is not great.” United

States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).

Based on this review, our predecessor concluded that

“the amount needed in military courts may be very

slight.” Id. This Court’s recent decision in Whiteeyes

reaffirmed that the President’s 2016 revisions to

M.R.E. 304(c) did not materially alter this low

standard. 82 M.J. at 174 n.6. We believe that even

without considering the children’s lack of memory or

Appellant’s emotional response while being

questioned, that low bar was cleared here.

Independent evidence establishes that: (1) Appellant

had a niece and nephew whose ages at the time the

alleged incidents took place were consistent with the

ages that Appellant provided to the FBI; (2) Appellant

visited his wife’s family during the time frame that he

said he committed the offenses; (3) records show that

Appellant was authorized to take leave at times where

he lived close to his wife’s family and could visit them;

and (4) Appellant’s niece and nephew recalled

watching movies with Appellant in the living room of

their home and then falling asleep. This evidence put

Appellant in the place that he claimed to have

24a

committed the crimes, with the children whom he

claimed to have victimized, and shows that he had the

opportunity to commit the crimes in the very specific

way that he described.

The minor discrepancies between the children’s

testimony and Appellant’s confessions—such as the

exact dates and locations of his visits that had

occurred years earlier—do not change that

Appellant’s family confirmed that he watched movies

with his underage nieces and nephew while they fell

asleep. Taken together, the independent evidence

meets the low corroboration standard because it tends

to establish the trustworthiness of Appellant’s

admissions. Accordingly, the military judge did not

abuse her discretion in finding corroboration and

allowing Appellant’s admission to be used against him

at trial.

III. Conclusion

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

25a

Judge MAGGS, concurring in part and concurring in

the judgment.

I join the Court’s opinion except for parts II.B.2.a. and

II.B.2.b. I do not join those two parts because they

involve difficult issues that the Court need not decide

in this appeal. Military Rule of Evidence 304(c)(1)

provides that “[a]n admission or a confession of the

accused may be considered as evidence against the

accused on the question of guilt or innocence only if

independent evidence . . . has been admitted into

evidence that would tend to establish the

trustworthiness of the admission or confession.” The

Court correctly determines that ample independent

evidence—

namely,

interview

statements,

preliminary hearing testimony, and Appellant’s

military records—supports an inference of the truth of

Appellant’s admissions in this case. Accordingly, it

does not matter whether the additional evidence that

the Court discusses at length in parts II.B.2.a. and

II.B.2.b. also supports, or does not support, an

inference of the truth of Appellant’s admissions. I

therefore respectfully concur in the opinion in part

and in the judgment.

26a

UNITED STATES AIR FORCE COURT OF CRIMINAL

APPEALS

No. ACM 40039

UNITED STATES

Appellee

v.

Jonel H. GUIHAMA

Master Sergeant (E-7), U.S. Air Force, Appellant

Appeal from the United States Air Force Trial

Judiciary

Decided 18 November 2022

Military Judge: Jennifer E. Powell (motions); Colin P.

Eichenberger.

Sentence: Sentence adjudged on 19 November 2020 by

GCM convened at Joint Base Lewis-McChord,

Washington. Sentence entered by military judge on 22

January 2021: Dishonorable discharge, confinement

for 10 years, forfeiture of all pay and allowances, and

reduction to E-1.

For Appellant: Lieutenant Colonel Kirk W. Albertson,

USAF; Catherine M. Cherkasky, Esquire.

27a

For Appellee: Lieutenant Colonel Matthew J. Neil,

USAF; Major Cortland T. Bobczynski, USAF; Major

John P. Patera, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and CADOTTE,

Appellate Military Judges.

Senior Judge POSCH delivered the opinion of the

court, in which Judge RICHARDSON and Judge

CADOTTE joined.

This is an unpublished opinion and,

as such, does not serve as precedent

under AFCCA Rule of Practice and

Procedure 30.4.

28a

POSCH, Senior Judge:

A general court-martial composed of a military

judge sitting alone convicted Appellant, contrary to

his pleas, of possessing, viewing, and distributing

child pornography, in violation of Article 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 934,

Manual for Courts-Martial, United States (2012 ed.)

(2012 MCM). The military judge also convicted

Appellant, contrary to his pleas, of aggravated sexual

abuse of his nephew on divers occasions, and

aggravated sexual contact upon his niece in violation

of Article 120, UCMJ, 10 U.S.C. § 920, Manual for

Courts-Martial, United States (2008 ed.) (2008

MCM).1,21,2 The adjudged and approved sentence

consisted of a dishonorable discharge, confinement for

ten years, forfeiture of all pay and allowances, and

reduction to the grade of E-1.

Except where indicated, references to the UCMJ, Rules for

Courts-Martial (R.C.M.), and Military Rules of Evidence (Mil. R.

Evid.) are to the Manual for Courts-Martial, United States (2019

ed.) (2019 MCM).

1

Appellant was convicted of two Article 120, UCMJ,

specifications alleged under separate charges that spanned

“between on or about 28 January 2011 and 27 June 2012.”

Consistent with his pleas, Appellant was found not guilty of one

specification each of sexual abuse of a child, his nephew and

niece, “between 28 June 2012 and on or about 27 August 2013,”

which were charged in the alternative as violations of Article

120b, UCMJ, 10 U.S.C. § 920b (2012 MCM).

2

29a

Appellant raises five assignments of error: (1)

whether the military judge abused her discretion in

denying Appellant’s motion to suppress the search

and seizure of digital devices3 from his home; (2)

whether the military judge abused her discretion in

denying Appellant’s motion to suppress statements he

made to law enforcement because they were not

shown to be sufficiently corroborated; (3) whether the

military judge abused her discretion in denying

Appellant’s motion for appointment of a polygraph

expert; (4) whether the evidence is legally and

factually sufficient to sustain Appellant’s convictions

for aggravated sexual abuse of his nephew and

aggravated sexual contact with his niece; and (5)

whether trial counsel committed prosecutorial

misconduct during closing argument. In addition to

these issues, the court considers whether Appellant

was denied a right to timely appellate review. The

court has evaluated Appellant’s arguments in support

of assignment of error (3) and finds neither discussion

nor relief warranted. See United States v. Matias, 25

M.J. 356, 361 (C.M.A. 1987).

We conclude that the search and seizure of digital

devices from Appellant’s home was lawful. We also

conclude that Appellant’s admissions to fondling his

nephew and niece were corroborated, and that the two

3 In this opinion, we use “digital devices” to include computers,

smartphones, mobile equipment that shares properties and

capabilities of computers and smartphones, and storage media

for such devices.

30a

convictions founded on those admissions are legally

and factually sufficient. We conclude, moreover, that

trial counsel did not commit prosecutorial misconduct

during closing argument. Lastly, we find that

Appellant has not shown prejudice during appellate

review. Finding no error materially prejudicial to a

substantial right of Appellant, we affirm the findings

and sentence.

I. Background

Appellant and his wife lived by themselves in a

single-family residence in Spanaway, Washington.

Their home was near Joint Base Lewis-McChord,

Washington, where Appellant worked. In May 2017,

special agents of the Federal Bureau of Investigation

(FBI) suspected Appellant used a group chat feature

in a smartphone application to share links to child

pornography with other members of the group. Each

link allowed a member to access pictures and videos

in Dropbox, a cloud-based file storage service

accessible via the Internet.

In August 2018, an FBI agent obtained a search

warrant for Appellant’s home from a United States

magistrate judge. The agent suspected he would find

evidence that Appellant possessed, viewed, and

distributed child pornography. In September 2018,

the FBI executed the warrant and seized several

digital devices belonging to Appellant. Forensic

analysis of those devices confirmed the agent’s

suspicion. Over 10,000 sexually explicit pictures and

videos of children matched files of child pornography

31a

on record in a digital catalogue maintained by the

National Center for Missing and Exploited Children

(NCMEC). Subsequent investigation by special agents

of the Air Force Office of Special Investigations

(AFOSI) would reveal that Appellant kept about 200

pictures and 400 videos of child pornography in a

Dropbox account he used to exchange links with

members of various messaging groups.

At the same time investigators collected evidence

from the residence, Appellant was interviewed by the

FBI agent who obtained the warrant and a second

agent. Appellant admitted he possessed, viewed, and

distributed child pornography using his smartphone,

a laptop computer, and files saved in Dropbox

accounts. At the conclusion of the interview,

Appellant agreed to take a polygraph. The polygraph

was administered the same day at an AFOSI

detachment on Joint Base Lewis-McChord,

Washington. The FBI agent who administered the

polygraph did not participate in the earlier interview

with Appellant or the search of his home.

During the post-polygraph interview, Appellant

admitted that he touched his nephew and niece in a

sexual manner. Appellant said this occurred as his

nephew and niece slept on the living room floor when

Appellant and his wife visited with his wife’s family

in the 2011 to 2012 timeframe. Appellant stated that

his nephew was about 12 or 13 years old at the time,

and his niece was two years younger than the nephew.

Appellant also admitted he touched his nephew in the

32a

same way on a subsequent visit with his wife’s family

sometime in summer of 2011 or 2012, before the

children returned to school. At trial, the Prosecution

introduced Appellant’s admissions and testimony

from members of his wife’s family as evidence that

Appellant abused his nephew and niece.

II. Discussion

A. Search of Appellant’s Digital Devices

Before trial, Appellant moved to suppress evidence

found on digital devices seized from his home. The

military judge denied the motion, ruling that the

evidence was admissible. At trial, the Government

relied on that evidence to prove that Appellant

committed seven child pornography offenses in

violation of Article 134, UCMJ (2012 MCM).

Appellant challenges that ruling.

1. Additional Background

In April and May 2017, Appellant was an active

member of various groups that used an application

called Kik. According to the record, Kik can only

operate from a smartphone or other mobile device.

During the relevant period, several members

identified by their Kik usernames would share files or

links to child pornography. One member, who

investigators later determined was Appellant, used

Kik’s messaging feature to share links to three

pictures depicting child pornography that were saved

to a Dropbox account.

33a

As part of its investigation, the FBI subpoenaed

Kik and learned the Internet Protocol (IP) address

associated with the Kik user who sent links to other

members of a group. The FBI determined the IP

address had been assigned by an Internet service

provider to a residence in Spanaway, Washington.

Further investigation revealed Appellant lived with

his wife at that residence.

a. Search Warrant Application

In time, an FBI agent sought a warrant to search

and seize items he believed would be found on

Appellant’s person or in his home. The agent

completed an affidavit in support of the warrant

application. Before presenting the affidavit to a

magistrate judge, the agent consulted with colleagues

who investigated child exploitation crimes, with

computer forensic experts, and with the Office of the

United States Attorney. The agent swore to and

signed his application and its attached affidavit in the

presence of the magistrate judge.

The FBI agent stated that his “investigation

involve[d] the use of the Kik messenger service.” He

explained that “Kik is a smartphone messenger

application based in Ontario, Canada.” He also

explained Kik “is well known to law enforcement and

commonly used for child exploitation.” He further

explained that Kik “uses an existing wireless

connection or data plan to communicate with other

users.” He stated that FBI agents had been

monitoring communications within a Kik messaging

34a

group “and saw numerous discussions related to the

sexual exploitation of children and the sharing of child

pornography.”

Importantly, the agent related in his affidavit that

he was aware of “numerous instances in which

members of the group chat posted child pornography

and/or links to child pornography to share with other

members.” The affidavit identified a Kik user who

“shared child pornography files through the group

chat, including three files of suspected child

pornography.” The FBI agent stated he had “reviewed

each of these files” and then described them in his

affidavit. The agent explained that “[i]n response to a

subpoena seeking subscriber information and IP

connection logs . . . , Kik reported that this user

accessed the Kik service from” the IP address

assigned by Appellant’s Internet service provider to

Appellant’s residence. The subscriber information

included an email address. Through investigation, the

FBI agent discovered that the same email address was

associated with a social media account that appeared

to belong to Appellant. The agent stated a belief “that

computers and other digital devices containing

evidence of child pornography [would] be located” at

Appellant’s home.

The agent explained “that cellular mobile phones

(often referred to as ‘smart phones’) have the

capability to access the Internet and store

information, such as images and videos.” Individuals

using a smartphone, the agent noted, can “also easily

35a

connect the device to a computer or other digital

device” and transfer files. The affidavit explained that

digital devices often access the Internet through

wireless networks typical in many homes.4 It also

illustrated how files can be transferred between

devices:

Based on my training and experience

and information provided to me by

computer forensic agents, I know that

data can quickly and easily be

transferred from one digital device to

another digital device. Data can be

transferred from computers or other

digital devices to internal and/or

external hard drives, tablets, mobile

phones, and other mobile devices via a

USB [Universal Serial Bus] cable or

other wired connection. Data can also be

transferred between computers and

digital devices by copying data to small,

portable data storage devices including

USB (often referred to as “thumb”)

drives, memory cards[,] . . . memory card

readers, and optical discs (CDs/DVDs)

4 The affidavit stated, “Based on my training and

experience,

today many residential Internet customers use a wireless router

to create a computer network within their homes where users

can simultaneously access the Internet (with the same public IP

address) with multiple digital devices.

36a

The affidavit described the capacity of digital

storage devices as repositories for child pornography:

Based on my training and experience, I

have learned that the computer’s ability

to store images and videos in digital

form makes the computer itself an ideal

repository for child pornography. The

size of hard drives used in computers

(and other digital devices) has grown

tremendously within the last several

years. . . . These drives can store

thousands of images and videos at very

high resolution.

The affidavit included a description of conduct that

the affiant understood is typical of collectors and

distributors of child pornography:

Based on my training and experience,

collectors and distributors of child

pornography also use online resources

to retrieve and store child pornography,

including services offered by companies

such as Google, Yahoo, Apple, and

Dropbox, among others. . . . A user can

set up an online storage account from

any computer with access to the

Internet. Evidence of such online

storage of child pornography is often

found on the user’s computer. Even in

cases where online storage is used,

however, evidence of child pornography

37a

can be found on the user’s computer in

most cases.

The

FBI

agent

also

described

known

“characteristics common to individuals who have a

sexualized interest in children and depictions of

children.” As he related in the affidavit, these

characteristics include: (1) “[t]hey may collect sexually

explicit or suggestive materials in a variety of media;”

(2) their “collections are often maintained for several

years and are kept close by, often at the individual’s

residence or some otherwise easily accessible location,

to enable the owner to view the collection, which is

valued highly;” and (3) “[t]hey also may correspond

with and/or meet others to share information and

materials.” The FBI agent averred that a member of

the Kik group chat under investigation, such as

Appellant, “likely has a sexualized interest in children

and depictions of children and that evidence of child

pornography is likely to be found on digital media

devices, including mobile and/or portable digital

devices” located in Appellant’s home or on his person.

b. Evidence Obtained from the Search

In reliance on the warrant, FBI agents

accompanied by at least one AFOSI agent seized items

in Appellant’s residence. Forensic analysis of those

items found child pornography on four devices: a

smartphone, a media card inside the phone, an Asusbrand laptop computer, and a Seagate-brand external

hard drive. The laptop stored most of the contraband.

It contained 6,798 pictures and 5,000 videos with hash

38a

values matching files of child pornography on record

in a NCMEC database.5 The Seagate external hard

drive was the only external drive seized from the

residence.

Forensic analysis of these four devices revealed

11,885 files of child pornography—6,821 pictures and

5,064 videos—that matched NCMEC hash values.6 Of

these files, 5,368 had unique hash values that were

not duplicates of other pictures and videos found on

Appellant’s devices. Appellant’s possession of child

pornography in online storage was not shown to be

tied to a specific device seized from his person or

5 The court understands that, in this context, a matching hash

value indicates a file that was previously identified as a copy of

a known image of child pornography.

6 As found by the military judge, the phone and its memory card

contained 23 pictures and 60 videos depicting child pornography,

but none with hash values matching the NCMEC database; and

the external hard drive contained “[f]our videos along with a Zip

archive containing files that appeared to depict child

pornography in a PDF [portable document file] format.” Analysis

showed the Zip archive was named “16E7 Study Guide.pdf” and

contained 49 video files which, in the opinion of an analyst,

“appeared to depict potential child pornography.” The analyst

concluded that “[t]he archive was likely copied to the External

HD [hard drive] on or about 9/18/2017 03:47:00 as part of a mass

copy of folders and files which appeared to include family photos

and work related documents.”

39a

home: each of the four devices contained files with

links to Dropbox and other file sharing services.7

c. Investigation during and after the Search

As other agents collected evidence, and before that

evidence was forensically analyzed, two FBI agents

sat Appellant in the front passenger seat of a sedan

that was parked outside his home. After rights

advisement and waiver of rights, the agents began to

question Appellant. We summarize Appellant’s

answers to those questions in some detail to evaluate

the Government’s claim that evidence seized from his

home would have been discovered even if the scope of

the warrant was unlawful because probable cause was

lacking.

Appellant admitted he used his Asus laptop

computer to view pornography, usually of “men and

women,” but a link would “pop[ ] up every now and

then” of someone who would “look younger.” As an

example, Appellant described how a website might

indicate that a person was 18 years old, “but they look

younger, like 14, [or] 15.” The laptop was the same

device he used “for finances and researching for work”

Two spreadsheet files found on the external hard drive

contained uniform resource locator links to Dropbox and other

file-sharing services. A text file on the same hard drive contained

login and password information for these and other user

accounts under headings, “BOY,” “GIRL,” “RANDOM,” and

“SORT.”

7

40a

and he protected it with a password. Importantly,

Appellant kept the password together with other

passwords in a spreadsheet he saved on a network

hard drive. Appellant told the agents he had two

wireless networks in his home, each with its own

router. One network included a hard drive connected

to a router. When asked whether he could access this

router “from anywhere anytime,” Appellant

responded that he could.

Appellant described to the FBI agents how he used

Kik to share links with other members. In Appellant’s

telling, each link allowed access to images of children

that someone else had saved in a Dropbox file.

Appellant acknowledged those links pointed to

“sexually explicit images” of children under the age of

18. He admitted forwarding those links to other

members:

Q [FBI agent]: Have you ever sent a

drop box link over Kik to share files?

A [Appellant]: Drop box, yes. Q: You

have, okay.

A: I did.

Q: And what type of files were in there?

A: It was bad stuff.

Q: What type of bad stuff?

A: It was, whatchamacallit,

younger folks.

some

41a

Q: How young?

A: Like in their teens.

Appellant further described how someone in a Kik

messaging group would send him a link to pictures of

boys and girls. Appellant described the photos as “just

kids like in shorts or whatever.” However, he

continued: “I mean, [the] bad part is some of them

were nude.” He acknowledged using his smartphone

to access a link in a Kik message, and then forwarding

that link so he could access it later on his laptop:

Q [FBI agent]: Okay. Did you--when you

clicked on the link, did you download

those photos to your computer?

A [Appellant]: No.

Q: No, you just had the link?

A: Yes.

Q: Okay. And was this on your Asus

computer?

A: Yes.

Q: Okay. And so you did Kik from your

Asus, or did you send the link---A: No, Kik is only on my phone.

Q: Okay, so that’s what I’m trying to

understand. So did you-- this link, did

you send it using your phone?

A: Yes.

42a

Q: Okay.

A: Like the link, yes, I used my phone

for that one.

(Emphasis added).

Appellant estimated a typical link would

reference about “30 or 40” files. Among the files

Appellant told the FBI agents he saw, there were

images of young boys and girls who were nude. In

Appellant’s telling, the ages of the children were

“young teens, it’s under age, I know that for sure.”

Some of the children, according to Appellant, were

ages 12 to 13. When asked whether these children

“were engaged in sex acts,” Appellant responded in

the affirmative. However, he maintained that such

acts were “[n]ot with other people.” After these

disclosures, the FBI agent asked Appellant if he would

be willing to let them take over his Kik accounts. They

advised him of his “right to refuse to allow the FBI to

assume [his] online identity,” after which Appellant,

in writing, authorized the FBI “to assume and use” his

online identity. The authorization allowed the FBI to

access Appellant’s Kik account.

The FBI agent asked Appellant, “How many times

would you say you sent a link on Kik that linked back

to photos or videos of children either nude or engaged

in sex acts?” In time, Appellant replied that between

sending his first link in February 2016 through the

spring of 2018, he shared child pornography within

various Kik messaging groups about 30 to 40 times.

43a

The FBI agent challenged Appellant with

“minimizing” his involvement, which prompted

Appellant to disclose that he distributed at least ten

different links on any given month. Towards the end

of the interview, Appellant acknowledged he “didn’t

really stop” even after “it got to a point of where [his]

wife was telling [him] [to] just get rid of this account

and everything.” The FBI agent suggested, “So it

hasn’t stopped.” Appellant replied, “Right.”8

Several times during the interview, the FBI agent

communicated with the search team. According to an

FBI report attached to Appellant’s pretrial motion,

the agent told the search team to look for an Asus

laptop and cell phone. According to that report,

moreover, an AFOSI agent who participated in the

search of the home “was able to identify sexually

explicit files of possible minors on the hard drive of the

A[sus] laptop.” As discussed above, the laptop and

smartphone were seized along with a media card

inside the phone and one external hard drive.

The day after the search, the FBI transferred the

evidence it collected to the AFOSI, which took the lead

in the investigation. AFOSI agents sent evidence

obtained from Appellant’s home for forensic analysis

while pursuing other leads. Those leads included

8 During the post-polygraph interview with the FBI on the

same day the search was conducted, Appellant admitted that his

wife had found links to “underage” pornography on his computer

and told him to “get rid of it.” Appellant said he “did to a point,

but then [he] never deleted everything.

8

44a

obtaining evidence of files saved in Appellant’s

Dropbox account, as well as his activities and contact

with the file storage service.

d. Suppression Hearing

Before trial, the military judge held an Article

39(a), UCMJ, 10 U.S.C. § 839(a), hearing to rule on

the suppression motion. In Appellant’s brief filed

before that hearing, he sought to suppress evidence

derived from the search of his home on two grounds.

First, he claimed that probable cause was stale due to

the passage of time. On appeal, Appellant does not

renew a staleness claim; nonetheless, we considered it

and find relief is not warranted on that basis. Second,

he argued that even if there was probable cause to

generally support a search warrant, there was no

probable cause to search and seize any device that was

not a Kik-capable mobile device. Appellant reasoned

that Kik was a smartphone application, and there was

no evidence to believe that he had possessed, viewed,

or distributed child pornography using a non-Kikenabled device such as those found by the FBI when

agents searched his home.

In a written opposition to the motion, the

Government argued the evidence should not be

suppressed because there was a sufficient

particularized nexus linking Appellant’s use of the

Kik application on his phone to digital devices found

in his home. In addition to arguing that the FBI had

probable cause, the Government argued that FBI

agents acted in good faith and that future deterrence

45a

would not outweigh the costs to the justice system

from suppression. At the hearing to decide the matter,

the Government argued, moreover, that the inevitable

discovery doctrine would permit admission of the

evidence.

The FBI agent who prepared and signed the

affidavit testified at the hearing. The genesis of his

investigation was a lead he received after Appellant

used Kik to share links to child pornography kept in a

Dropbox file. The agent explained how Dropbox can be

accessed from both computers and cell phones. He

described how someone could click on and follow a link

to files stored in a Dropbox account and would “see

whatever was stored in that Dropbox account,

whatever that link goes back to.” The FBI agent

described Kik as a messaging application used on

mobile devices like cell phones.9

The FBI agent explained his thought process in

obtaining a warrant to search Appellant’s home. Trial

counsel asked why the agent sought “to search all of

[Appellant]’s digital devices, given that [the FBI

agent] had information about [Appellant’s] Kik

conversations” from an application that resided on

Appellant’s smartphone. The agent answered that

there were

9 Trial counsel asked the FBI agent, “Can you use the Kik

application on a computer?” The agent replied, “I don’t believe

so.”

9

46a

[a] couple of reasons, one of which is it’s

very easy to transfer files or images

from one device to another, and in the

experience that [he] had to that point,

as well as discussions with other agents

and task force officers, it was clear that

in many cases these individuals who

collected these types of images and

videos did keep them on multiple

devices and multiple storage systems.

That would be reason one. Reason two is

that in the lead that [the agents] got, the

sharing in the Kik group was done with

Dropbox

links,

and

Dropbox

applications that could be used both on

a cellphone as well as any digital device,

including

a

computer,

desktop

computer, laptop, tablet, et cetera.

The agent also explained why he included digital

storage devices such as external hard drives in the

search warrant application. In the agent’s telling, “we

had, at the time, frequently seen if you’re viewing, or

downloading, or sharing child pornography images on

a computer or a phone, that you would store those

images and files on external storage devices like an

external hard drive, or a USB drive, or things of that

nature.”

e. Ruling

The military judge denied the motion. She

disagreed with Appellant’s contention that there was

47a

an insufficient particularized nexus linking

Appellant’s use of the Kik application on his phone to

the Asus laptop and Seagate external hard drive. She

concluded that the magistrate judge had a substantial

basis to find probable cause to search Appellant’s

digital devices beyond his Kik-capable smartphone.

The military judge found the magistrate judge

“could have reasonably inferred from the evidence

presented to him that if [Appellant] sent child

pornography through Kik, he likely could have

obtained such material from the digital devices within

his possession, including his laptop or external hard

drives.” She found it was reasonable to infer,

moreover, that “Kik was merely the medium by which

[Appellant] accomplished his distribution of child

pornography.” She also noted evidence presented in

the affidavit indicated that the images Appellant

shared “must be stored at another location,” and that

the magistrate judge could reasonably infer that this

could be “a secure and private location such as his

residence.” The military judge also found that

Appellant’s active participation in a Kik messaging

group “reflect[ed] at the very least an ongoing interest

in child pornography.” The military judge concluded

that the magistrate judge had a substantial basis for

finding probable cause to search Appellant’s home.

The military judge also determined that even if she

had found the search warrant was not supported by

probable cause, the evidence was admissible under

the good-faith exception to the exclusionary rule:

48a

Prior to submitting his search warrant

application, [the FBI agent] sought

guidance from FBI colleagues with

relevant experience and the United

States Attorney . . . . The information

included in the affidavit was neither

false nor reckless. Although the

Magistrate Judge did not ask [the FBI

agent] any follow up questions after his

review of the application, there is no

evidence he “rubber stamped” the

approval for a search warrant nor

abandoned his judicial role. Further, the

warrant was not so facially deficient

that [the FBI agent] and others

executing the search warrant could not

reasonably presume it to be valid. The

search team received specific guidance

of the restrictions of the search warrant

and had access to copies of the actual

document prior to executing the search.

As law enforcement executed the search

warrant, they spoke with [the FBI

agent] throughout and only seized the

evidence authorized. Finally, the

Magistrate Judge had a substantial

basis for finding probable cause, and it

was not unreasonable for law

enforcement to rely upon it.

The military judge also determined that the

evidence would be admissible under the inevitable-

49a

discovery doctrine. She found that “Government

agents possessed and were actively pursuing evidence

and leads that would have inevitably led to the

discovery of the evidence” at issue. In particular, she

found that Appellant made statements to the FBI

about the use of his laptop to access child pornography

at the same time as the search team collected evidence

from the home.10 Among those statements, Appellant

“spoke to them about his most frequently used

devices,” namely, his phone and laptop computer.

f. Evidence Admitted at Trial

At trial, the Prosecution presented evidence from

forensic analysis of Appellant’s phone and the media

card inside the phone, his laptop computer, and his

external hard drive. The trier of fact was informed

that 6,821 pictures and 5,064 videos contained unique

identifiers linked to a list of known child pornography

files on record in a NCMEC database. Most

contraband was stored on the laptop as described

above. The Prosecution introduced 6 pictures from

Appellant’s phone, 6 videos from the media card inside

the phone, 6 pictures and 22 videos from his laptop,

and 2 videos from his external hard drive.

10 The military judge also found that exclusion of the evidence

would not result in appreciable deterrence of future unlawful

searches or seizures and that the benefits of deterrence did not

outweigh the costs to the justice system. Mil. R. Evid. 311(a)(3).

We find it unnecessary to examine this aspect of the ruling below.

50a

Although not challenged by Appellant on appeal,

in the findings portion of the court-martial, the

Prosecution introduced evidence of files discovered in

Appellant’s Dropbox account. A subpoena confirmed a

Dropbox account was associated with Appellant’s

email address. As described earlier in this opinion, a

subsequent search warrant uncovered about 200

pictures and 400 videos of child pornography

Appellant kept online with the file storage service. A

number of images appeared to depict children under

the age of ten being anally penetrated by a penis or

showed a penis resting on a child’s vagina. Evidence

showed that Appellant maintained these images and

other material in folders with the names, “sex boy,”

“chubby punhetas,” “XXX boy,” “kid sex,” and “kid sex

by man.” At trial, the Prosecution introduced two

pictures and one video that it considered to be

representative of images obtained from Dropbox.

2. Law

A military judge’s ruling on a motion to suppress

evidence is reviewed for an abuse of discretion,

“viewing the evidence in the light most favorable to

the party prevailing below.” United States v.

Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016) (citation

omitted). The military judge’s findings of fact are

reviewed for clear error while conclusions of law are

reviewed de novo. Id. (citation omitted). An abuse of

discretion occurs when the military judge’s findings of

fact are clearly erroneous, or she misapprehends the

51a

law. See United States v. Clayton, 68 M.J. 419, 423

(C.A.A.F. 2010) (citation omitted).

A magistrate’s probable cause determination is not

reviewed de novo. Hoffmann, 75 M.J. at 125. Instead,

the court’s focus is whether a “magistrate had a

substantial basis for concluding that probable cause

existed.” United States v. Nieto, 76 M.J. 101, 105

(C.A.A.F. 2017) (quoting United States v. Rogers, 67

M.J. 162, 164–65 (C.A.A.F. 2009)). “The task of the

issuing magistrate is simply to make a practical,

common-sense decision whether, given all the

circumstances set forth in the affidavit before him . . .

there is a fair probability that contraband or evidence

of a crime will be found in a particular place.” Illinois

v. Gates, 462 U.S. 213, 238 (1983). Great deference is

given

to

the

magistrate’s

probable

cause

determination due to the Fourth Amendment’s11

strong preference for searches conducted pursuant to

a warrant. Id. at 236 (citations omitted). This

standard also “reflects the law’s preference for . . .

independent review by magistrates.” United States v.

Macomber, 67 M.J. 214, 218 (C.A.A.F. 2009).

However, a reviewing court’s deference is “not

boundless,” as the United States Supreme Court

observed in United States v. Leon, 468 U.S. 897, 914

(1984). Our probable cause analysis focuses on “the

evidence as set out in the four corners of the

requesting affidavit . . . illuminat[ed] by factors such

11 U.S. CONST. amend. IV.

52a

as the veracity, reliability, and basis of knowledge of

the individual presenting the evidence.” United States

v. Leedy, 65 M.J. 208, 214 (C.A.A.F. 2007) (alteration

in original) (internal quotation marks and citations

omitted). “[C]ourts should not invalidate warrants by

interpreting affidavits in a hyper-technical, rather

than a commonsense, manner.” United States v. Gallo,

55 M.J. 418, 421 (C.A.A.F. 2001) (quoting Gates, 462

U.S. at 236).

3. Analysis

Appellant renews the claim he first raised in a

pretrial motion that there was insufficient probable

cause for the FBI to search and seize digital devices in

his home where contraband was discovered. Appellant

contends that the FBI agent’s affidavit “failed to

present a substantial basis for the magistrate to find

probable cause to search and seize any non[-]Kikcapable or Dropbox[-]linked electronic devices” for

evidence of child pornography. To the extent

Appellant’s assignment of error may be understood to

challenge evidence obtained from his smartphone and

the media card inside the phone, we find the military

judge did not abuse her discretion in ruling that

evidence was admissible.

Our focus, like Appellant’s brief, is on the evidence

found on Appellant’s Asus laptop and Seagate

external hard drive. Appellant makes the point that

an FBI agent obtained a warrant “despite having a

singular piece of digital evidence in his possession – a

Kik message exchange with a Dropbox link.” On

53a

appeal, the Government argues that the search

should be upheld because Appellant fit a profile

described by the FBI agent in his affidavit. The

Government argues, also, that it was common sense

and reasonable for the magistrate judge to infer that

somebody who exchanged links to child pornography

using a mobile messaging application, such as a

smartphone, would store child pornography on other

devices at a secure and private location.

a. Probable Cause

We agree such an inference is reasonable here and

find that the FBI agent’s affidavit provided a

substantial basis for the magistrate judge to find

probable cause. As counsel for both sides

acknowledge, a central issue is the requirement that

a particularized nexus link Appellant’s misconduct

involving

a

Kik-capable

mobile

device—his

smartphone—and Dropbox to devices in his home

where substantially more contraband was discovered.

The military judge recognized this as well. Citing

Nieto, 76 M.J. at 106–07, Clayton, 68 M.J. at 424, and

Macomber, 67 M.J. at 220–21, the military judge was

satisfied the affidavit demonstrated the required

nexus, as are we. In that regard, we find the military

judge did not misapprehend the applicable law when

evidence found on one digital device is the basis for a

search warrant for another.

A nexus inquiry “focuses on whether there was a

fair probability that contraband or evidence of a crime

will be found in a particular place.” Nieto, 76 M.J. at

54a

106 (internal quotation marks and citation omitted).

“A nexus may be inferred from the facts and

circumstances of a particular case, including the type

of crime, the nature of the items sought, and

reasonable inferences about where evidence is likely

to be kept.” Id. (internal quotation marks and citation

omitted). When evaluating whether a nexus is shown

because an appellant fits the description of a valid

experience-based profile, a “‘profile alone without

specific nexus to the person concerned cannot provide

the sort of articulable facts necessary to find probable

cause to search’ or seize.” Id. at 106 (quoting

Macomber, 67 M.J. at 220).

In Nieto, the appellant was suspected of using a

camera on his cell phone to surreptitiously record

soldiers using the latrine. 76 M.J. at 103.

Investigators learned the appellant possessed a

laptop but had no “direct evidence” those recordings

would be transferable to the laptop or found on that

device. Id. at 103–04. In securing authorization to

search the laptop, an investigator informed the

magistrate that Soldiers “normally download[ ]” or

back up photos from their cell phones “to their

laptops,” to post on the Internet. Id. at 104. The

United States Court of Appeals for the Armed Forces

(CAAF) found the Government’s affidavit was

insufficient to establish a nexus to search the

appellant’s laptop; it noted that the affiant’s

“generalized profile about how servicemembers

‘normally’ store images was technologically outdated

and was of little value in making a probable cause

55a

determination.” Id. at 107. The CAAF further noted in

Nieto that no information was provided to the

magistrate that the appellant owned a device other

than his cell phone, that there had been data transfers

of any kind from his phone to another device, or that

he had used another device to store or transmit data.

Id. Accordingly, there was insufficient nexus to

lawfully search the appellant’s laptop. Id.

The appellant in Clayton was a subscriber to an

Internet group formed to discuss, share, and

distribute child pornography. 68 M.J. at 421.

Investigators learned the appellant accessed the site

using a Government laptop and an email account

bearing his name. Id. at 422. The information

provided to the magistrate gave no indication that the

appellant had “accessed the site from his quarters or

that he owned a personal computer.” Id. at 423. After

contraband was discovered on his personal laptop and

other digital media seized from his dorm room, the

appellant asserted a lack of probable cause for the

search. Id. at 421. Surveying a number of federal

appellate cases, the CAAF noted those cases

“reflect[ed] a practical, commonsense understanding

of the relationship between the active steps that a

person might take in obtaining child pornography

from a website and retaining it for an extended period

of time on that person’s computer.” Id. at 424. The

CAAF similarly embraced observations made by a

number of courts that “a person’s voluntary

participation in a website group that had as its

purpose the sharing of child pornography supported a

56a

probable cause determination that child pornography

would be found on the person’s computer.” Id.

In Macomber, the appellant was a known

subscriber to a child pornography website. 67 M.J. at

215. Investigators learned the website identified the

appellant by his name, dorm address, and telephone

number. Id. at 215–16. Investigators also learned

from a postal inspector that the appellant had ordered

child pornography videos for delivery to that address.

Id. at 216. An investigator completed an affidavit to

support a search authorization for the appellant’s

dorm room to look for evidence of child pornography.

Id. at 216–17. The affidavit included profile

information provided by an investigator that was

based on guidance received from other investigators,

and “profile information relating to individuals who

view child pornography and who have a sexual

interest in children” that was provided by the postal

inspector. Id. at 216. The profile was also based on the

investigator’s training “during which ‘typical behavior

of child pornographers’ was described.” Id. at 217. The

affidavit explained that “persons with a sexual

attraction to children almost always maintain and

possess child pornography materials” that “are stored

in a secure but accessible location within their

immediate control, such as in the privacy and security

of their own homes, most often in their personal

bedrooms.” Id. at 217. A magistrate authorized a

search of the appellant’s dorm room where

investigators found “several hundred suspected child

57a

pornography images retrieved from his computer.” Id.

at 218.

Among the Macomber-appellant’s arguments

challenging the magistrate’s finding of probable cause

was that the profile provided insufficient nexus to

search the appellant’s dorm room, much less the

computer that was discovered in his dorm room. Id. at

219. The appellant also complained the affidavit “did

not expressly conclude or state that [the a]ppellant fit

the [investigator’s] profile.” Id. at 220. The CAAF

concluded that the military judge did not err in ruling

that the magistrate had a substantial basis for finding

probable cause. Id. at 221. Without reaching the

question whether the appellant fit the profile, the

CAAF found the military judge did not err in denying

the motion to suppress:

Based

on

common

sense,

law

enforcement experience, and case law,

the military judge reasonably concluded

there was a fair probability that a

person with an interest in child

pornography, who has ordered child

pornography in the past and in the

present, is likely to store such

pornography in some quantity at a

secure and private location. For a

servicemember residing on a military

installation, that means his dormitory

room, barracks, or vehicle.

58a

. . . Once [investigators] had probable

cause to search the dorm room, agents

were also authorized to search where

the items sought might reasonably be

located, and therefore the computer was

within the scope of the search

authorization. In any event, [the

magistrate] reasonably relied on the

common sense inference that a military

member who subscribed to an Internet

website while listing his dormitory as

his address owned a computer, and that

the computer would likely be found in

his dormitory room.

Id. at 220.

In the case under review, the magistrate judge

knew Appellant had either posted or received child

pornography or links to child pornography to share.

The magistrate judge was also aware Appellant

facilitated that exchange by using an IP address

where he lived. The magistrate judge knew these

things because the FBI agent correctly stated them in

his affidavit. Unlike Nieto, the magistrate judge knew

the evidence at issue was readily transferable over the

Internet and that Appellant could access the Internet

using a wireless connection inside his home. Also,

unlike Nieto, the magistrate judge could reasonably

infer that more than one device was used to transfer

contraband. In that regard, the magistrate judge

knew that collectors and distributors of child

59a

pornography use online services to exchange child

pornography. The magistrate judge could similarly

infer Appellant used other devices to access child

pornography in the same way that Appellant used his

smartphone to send links that referenced contraband

he kept in a location other than his smartphone.

As in Clayton, Appellant’s participation in a group

that exchanged contraband supported a probable

cause determination that contraband would be found

on other devices. See 68 M.J. at 424. As in Macomber,

there was a fair probability Appellant would avail

himself of the security and privacy of his home to store

the contraband he exchanged. We agree with the

military judge’s determination that Appellant’s phone

was a medium by which Appellant distributed child

pornography he kept in secure locations such as his

home. Making reasonable inferences about where

child pornography was likely to be kept, there was a

fair probability that contraband would be found at the

address associated with Appellant’s IP address.

Accordingly, the magistrate judge had a substantial

basis

for

concluding

that

evidence

and

instrumentalities of child pornography would be

found on digital devices located where Appellant

lived.

Additionally, Appellant’s conduct fit the

experience-based profile in the requesting affidavit.

See Nieto, 76 M.J. at 106 (observing, “law enforcement

officer’s professional experience may be useful in

establishing . . . nexus”). The affidavit allowed the

60a

magistrate judge to connect Appellant’s activities in

the Kik group chat to the conduct of someone who

would collect child pornography. Finding probable

cause “merely requires that a person of reasonable

caution could believe that the search may reveal

evidence of a crime; it does not demand any showing

that such a belief be correct or more likely true than

false.” United States v. Hernandez, 81 M.J. 432, 438

(C.A.A.F. 2021) (internal quotation marks and

citation omitted). Here, the FBI agent explained that

individuals interested in child pornography often

conceal such materials on computers and other digital

devices where they live. The affidavit also explained

that, given the ease of transferring files, there was a

reasonable probability that child pornography would

be found on devices in Appellant’s home. The

magistrate judge had a substantial basis to conclude

that, based on the FBI agent’s professional experience

and Appellant’s conduct, a search of the digital

devices in Appellant’s home would yield evidence he

accessed and stored child pornography using a

computer or other digital device he kept in his home.

For these reasons, we are confident that the

military judge did not err in finding that the

magistrate judge had a substantial basis to find

probable cause to search Appellant’s digital devices

beyond Kik-capable mobile devices. Thus, the military

judge did not abuse her discretion in denying

Appellant’s motion to suppress the search and seizure

of such devices, as claimed.

61a

b. Good-Faith Exception

As found by the military judge, the good-faith

exception to the exclusionary rule applied in this case,

even if probable cause were lacking. To reach this

conclusion the military judge relied on Mil. R. Evid.

311(c)(3)(A)–(C). Under this rule, evidence obtained

when a magistrate judge did not have a substantial

basis to find probable cause may be admitted at trial

if three requirements are met. Subsections (A)

through (C) of the rule, with case law interpreting the

requirements of subsection (B), may be summarized—

and restated—as follows:

(A) The “search or seizure resulted

from an authorization to search, seize

or apprehend . . . from a search warrant

or arrest warrant issued by competent

civilian authority,” Mil. R. Evid.

311(c)(3)(A);

(B) “[L]aw enforcement official[s] had

an objectively reasonable belief that

the magistrate had a ‘substantial basis’

for determining the existence of

probable cause.” United States v.

Perkins, 78 M.J. 381, 387 (C.A.A.F.

2019) (quoting United States v. Carter,

54 M.J. 414, 422 (C.A.A.F. 2001)

(concluding the words “substantial

basis” in Mil. R. Evid. 311(c)(3)(B)

“examines the affidavit and search

authorization through the eyes of a

62a

reasonable law enforcement official

executing the search authorization”));

and

(C) “[T]he officials seeking and

executing the authorization or warrant

reasonably and with good faith relied

on the issuance of the authorization or

warrant. Good faith is to be determined

using an objective standard.” Mil. R.

Evid. 311(c)(3)(C).

The Government argues on appeal that the goodfaith exception to the exclusionary rule applies, and

the evidence was not improperly admitted even if the

magistrate judge’s authorization lacked probable

cause. We agree. There is no question that the first

requirement of the exception is met: the magistrate

judge had proper authority to authorize the search

and seizure of digital devices from Appellant’s home.

As to the second requirement, the military judge

properly identified factors that showed the FBI agent

who sought the search warrant had an objectively

reasonable belief that the magistrate judge had a

substantial basis for determining the existence of

probable cause. Before seeking authorization to

search, evidence shows the agent consulted with

colleagues who investigated child exploitation crimes,

with computer forensic experts, and with the Office of

the United States Attorney. The agent neither

intentionally nor recklessly misled the magistrate

judge. See Davis v. United States, 564 U.S. 229, 238

63a

(2011) (noting that exclusion of evidence is

inappropriate “when the police act with an objectively

reasonable good-faith belief that their conduct is

lawful, or when their conduct involves only simple,

isolated negligence” (internal quotation marks and

citations omitted)).

We reach this conclusion despite the fact that the

FBI agent’s affidavit articulated a belief that someone

in Appellant’s residence “used a computer or other

digital media device to connect to and access a foreign

chat service [Kik].” (Emphasis added). This statement

in paragraph 5 of the affidavit omits more detailed

explanations in paragraphs 6 and 20, which explain

that Kik is a messaging application for a mobile

computing device such as a smartphone. We attribute

this omission to simple, isolated negligence in

preparing an 18-page affidavit comprising 43

paragraphs. Reading the three paragraphs together

would not change law enforcement’s objectively

reasonable belief that the magistrate had a

substantial basis to find probable cause.

Turning to the final requirement, we consider

whether the FBI agent and other law enforcement

personnel involved in the search and seizure of

Appellant’s digital devices “reasonably and with good

faith relied on the issuance of the authorization.” Mil.

R. Evid. 311(c)(3)(C). We find that they did. The

linkage in the affidavit between Appellant’s use of the

Kik messaging feature on his cell phone and digital

storage devices in his home was “more than a ‘bare

64a

bones’ recital of conclusions.” Carter, 54 M.J. at 421.

We find the affidavit was not “so lacking in indicia of

probable cause as to render official belief in its

existence entirely unreasonable.” Leon, 468 U.S. at

923 (internal quotation marks and citation omitted).

It particularized both the place to be searched—

Appellant’s person and home—and, as stated in the

affidavit, the types of items for which “seizure and

forensic examination” was sought.

Overall, the magistrate judge’s authorization in

reliance on the affidavit was not “so facially deficient”

that the executing officers could not “reasonably

presume it to be valid.” Id. (citation omitted); see also

Perkins, 78 M.J. at 389 (“[T]he search authorization

was not facially defective because it identified the

place to search . . . and described in detail what to look

for.”). To this end, the good-faith exception recognizes

that the exclusionary rule “cannot be expected, and

should not be applied, to deter objectively reasonable

law enforcement activity.” Leon, 468 U.S. at 918–19.

Accordingly, assuming probable cause was lacking, we

would find the requirements of the good-faith

exception to the exclusionary rule, Mil. R. Evid.

311(c)(3), were met, and evidence derived from the

search of Appellant’s home was properly admitted.

c. Inevitable Discovery Exception

The military judge did not abuse her discretion in

finding the inevitable discovery doctrine would apply

in this case, even if probable cause were lacking. This

exception to the exclusionary rule states “[e]vidence

65a

that was obtained as a result of an unlawful search or

seizure may be used when the evidence would have

been obtained even if such unlawful search or seizure

had not been made.” Mil. R. Evid. 311(c)(2). To prevail,

“the Government must prove by a preponderance of

the evidence that at the time of the unlawful search,

government agents were already taking actions or

pursuing leads such that their simultaneous actions

and investigations would have inevitably led to the

discovery of the evidence even absent [ ] unlawful

conduct.” United States v. Black, M.J. , No. 22-0066,

2022 CAAF LEXIS 614, at *15 (C.A.A.F. 25 Aug. 2022)

(citation omitted).

The military judge concluded that even if the

search was unlawfully overbroad in its scope, the

Government would have inevitably discovered child

pornography on digital storage devices that were

seized from Appellant’s home. That conclusion

reached the laptop computer where most contraband

in the residence was discovered. It also reached the

external hard drive that was seized. Importantly, as

found by the military judge, even as the FBI collected

evidence from the residence, Appellant disclosed

which devices he used most frequently, and that

information was communicated to the search team.

Evidence showed one of those devices was his

smartphone. The other was his laptop, which

contained 6,798 pictures and 5,000 videos with hash

values matching files of child pornography on record

in a NCMEC database. Even as evidence was collected

from the residence, FBI agents continued to

66a

investigate by interviewing Appellant and later

assuming his Kik identity. Appellant gave this

authorization after admitting he used the laptop to

access links to child pornography he forwarded from

his smartphone. After the FBI relinquished its

investigation to the AFOSI, AFOSI agents continued

to investigate, including by obtaining evidence from

Appellant’s Dropbox account.

Assuming the warrant was initially lacking in

probable cause, even without evidence obtained from

Dropbox, Appellant’s admissions to the FBI would

have “inevitably led to the discovery of the evidence in

a lawful manner.” United States v. Eppes, 77 M.J. 339,

347 (C.A.A.F. 2018). With evidence AFOSI agents

obtained later from Dropbox, it was nearly certain

that would be the case. We reach this conclusion for

three principal reasons, each premised on the

assumption that probable cause was initially

insufficient to search and seize digital devices that

could not accommodate the Kik messaging

application.

First, we find that presumed illegality would not

preclude the Government from relying on the fruits of

Appellant’s admissions to the FBI to meet its burden

under the inevitable discovery doctrine. Here, there is

no genuine question of probable cause to search and

seize mobile devices and their contents, such as

Appellant’s smartphone. Because Appellant’s main

challenge to the search warrant is its scope, we can

analogize cases where concern was raised about

67a

statements tainted by an illegal arrest or search. In

New York v. Harris, for example, the Supreme Court

found that the exclusionary rule did not bar the use of

a statement made by a defendant outside his home.

495 U.S. 14, 21 (1990). The Court reached this

conclusion even though the statement was taken after

an illegal warrantless arrest was made inside the

home that was nonetheless founded on probable

cause. Id. Similarly, in United States v. Khamsouk,

the CAAF found that an appellant’s warned

statement to police during continued custody based on

probable cause to apprehend was properly admitted

into evidence despite the fact that he was

apprehended during an illegal search. 57 M.J. 282,

294 (C.A.A.F. 2002). Here, there is no dispute the FBI

had probable cause to arrest Appellant in his home

and search for evidence of child pornography on a

mobile device. Thus, Appellant’s warned admissions

incident to his arrest and the search of his home were

untainted by illegality.

Second, FBI agents knew from their interview

with Appellant after proper rights advisement and

waiver that he used a laptop to follow links to a

Dropbox account where child pornography was kept.

Appellant admitted using those links to view images

of children as young as 12 to 13 years of age

performing sexual acts. Knowing that Appellant’s

criminal conduct reached a laptop he kept in his

residence, the FBI had actual knowledge that

contraband was not limited to a mobile device such as

the smartphone he used to access Kik.

68a

Third, Appellant told the FBI he saved passwords

on a spreadsheet on a network hard drive that he

acknowledged he could access “from anywhere” and at

“anytime.” Only one external hard drive was seized.

Assuming probable cause was initially lacking, there

would have been a substantial basis for a magistrate

judge to conclude that child pornography would be

found on a device where Appellant kept other

information he valued that allowed him access to

websites on the Internet.

Under these circumstances, it is “reasonable to

conclude officers would have obtained a valid

authorization had they known their actions were

unlawful” when they searched Appellant’s home.

Eppes, 77 M.J. at 347 (citation omitted). Because the

inevitable discovery doctrine applies, the military

judge did not abuse her discretion in denying

Appellant’s motion to suppress on this basis, even if

the magistrate judge lacked a substantial basis to find

probable cause, as claimed.

B. Admission of Appellant’s Statements

regarding Sexual Abuse of Nephew and Niece

Next, we consider Appellant’s second assignment

of error claiming that the military judge abused her

discretion in finding that Appellant’s admissions

regarding touching his nephew and niece in a sexual

manner were sufficiently corroborated to be

trustworthy for admission.

69a

Before arraignment, Appellant moved to prohibit

introduction into evidence of his statements about

touching his nephew and niece in a sexual manner.12

Citing Mil. R. Evid. 304(c), Appellant sought to

exclude those statements he made in the postpolygraph interview with the FBI agent on the basis

that the Prosecution could not produce “independent

corroborating evidence that would tend to establish

the trustworthiness of [his] confession for it to be

admitted at trial.”

To meet its burden under the rule, the Prosecution

relied on evidence that counsel for both sides provided

to the military judge prior to a pretrial hearing to

decide the matter. That evidence consisted of

summaries of law enforcement interviews with

Appellant’s wife’s family, and testimony given by the

children’s father (Appellant’s brother-in-law) at a

preliminary hearing under Article 32, UCMJ, 10

U.S.C. § 832. It consisted, also, of a summary of leave

records and other evidence that showed Appellant

visited, and had opportunities to visit, his wife’s

family in Missouri when Appellant and his wife lived

in Texas. Trial counsel argued, moreover, that three

12 Appellant’s motion included several attachments. One was a

verbatim transcript of the FBI interview of Appellant in the

sedan outside his home. Another was a verbatim transcript of

Appellant’s post-polygraph interview at the AFOSI detachment.

As discussed in this opinion, both transcripts were subsequently

admitted into evidence.

70a

videos Appellant was found to possess that showed

men touching genitalia of sleeping females were

admissible under Mil. R. Evid. 404(b) and “could

provide further corroboration.”13 Additionally, trial

counsel argued Appellant’s admission to involvement

in child pornography, combined with discovery of

“11,000 NCMEC hits of child pornography” on his

media devices, established the trustworthiness of the

admissions at issue.

The military judge denied the motion and

Appellant’s statements were admitted at trial. The

military judge concluded Appellant’s admissions to

fondling his nephew and niece “were trustworthy” and

“sufficiently corroborated to satisfy the requirements”

of Mil. R. Evid. 304(c). The military judge based her

ruling on evidence relied on by counsel for both sides

at the hearing. However, the ruling did not rely for

support on trial counsel’s Mil. R. Evid. 404(b) proffer.

On this point, in a separate ruling, the military judge

granted Appellant’s motion to exclude the three videos

under Mil. R. Evid. 404(b). Her corroboration ruling

did not reach the question whether Appellant’s

admission to involvement in child pornography, as

substantiated by independent evidence, had any

bearing on the trustworthiness of Appellant’s

The Government argued the evidence showed Appellant’s

“state of mind” and “intent to act on his sexual curiosity

regarding his nephew and niece while both were asleep to fulfill

[Appellant’s] sexual desire of engaging in sexual acts with

sleeping victims.

13

71a

admissions to fondling his nephew and niece. At the

same time, the ruling was silent whether evidence

that Appellant had possessed child pornography could

be used as independent corroborating evidence.

On appeal, Appellant challenges this ruling.

1. Additional Background

a. First FBI Interview of Appellant

As discussed above, two FBI agents interviewed

Appellant in a sedan parked outside his home at the

same time as other agents executed the search. With

his hands cuffed in front, and a second agent in the

back seat, Appellant was questioned about evidence

the FBI uncovered that connected child pornography

to his Kik username. Because of Appellant’s

association with child pornography, the FBI suspected

him of sexual exploitation of children. Later in the

interview, the lead FBI agent asked Appellant if he

had “ever put [his] hands on a child in an

inappropriate . . . and sexual way.” The agent testified

at trial that, at that point, “it looked like [Appellant]

became close to starting to cry. I remember his mouth

was trembling a bit and his eyes got kind of red and

watery.”

Both an audio recording and transcript of that

interview were admitted into evidence in the findings

portion of Appellant’s court-martial. In reference to

the question whether Appellant had sexual contact

with a child, the agent told Appellant, “You’re getting

a little more emotional now than I think you were

72a

earlier.” Appellant replied that he “wouldn’t do that.”

Upon further questioning, Appellant stated he had

“[n]ever” been a victim of abuse. In still more followup questioning, the FBI agent referenced Appellant’s

viewing child pornography and asserted that

“someone who’s viewed these images, they know that

they probably shouldn’t, and sometimes they’ve put

their hands on kids, even though they know that they

shouldn’t.”

The agent continued this line of questioning,

explaining that such individuals “know this is a bad

thing, but that’s just the way that they’re wired.” The

agent again asked Appellant if he had inappropriately

touched a child, which Appellant once more denied.

Appellant made similar denials in a pre-polygraph

interview, and also during a polygraph that was

administered by a different FBI agent later in the day

at the AFOSI detachment.

b. Admissions to Touching Nephew and Niece

After the polygraph, Appellant was again

interviewed by the FBI agent. That interview was

videorecorded and a verbatim transcript was

prepared. Both the videorecording and transcript

were admitted into evidence. In time, Appellant

disclosed that he fondled his nephew and niece during

a visit with his wife’s family.14 At the time, Appellant

Appellant also contests the evidentiary sufficiency of his

convictions for sexual abuse of his nephew and niece. This

14

73a

and his wife were living on Dyess Air Force Base

(AFB), Texas, and they drove to visit her family “in

Missouri a couple times.” The families would “visit

[with] each other a lot.” Appellant believed his

nephew was 12 or 13 years old, and his niece was two

years younger than her brother. Appellant told the

agent he recalled that their ages were “somewhere

around there,” but allowed he “[could not] remember.”

Appellant initially disclosed sexual contact with

just his nephew, but then revealed he also fondled his

niece. Appellant described how both children fell

asleep on the living room floor after they had stayed

up late watching movies. While his nephew slept,

Appellant touched his nephew’s penis with his hand

after pulling down the pajama bottoms his nephew

was wearing. Appellant recalled that his nephew had

an erection but did not wake up. After touching his

nephew, later that same evening Appellant touched

Appellant’s niece as she slept.

Appellant

acknowledged he fondled her vagina over her

underwear and, in his telling, her vagina “was a little

moist.” Appellant told the agent his niece woke up and

went to the bathroom and that she was unaware of

what he had done. Afterward, Appellant either fell

asleep on the floor or went to sleep in a bedroom where

his wife was sleeping.

opinion further discusses in more detail, infra, Appellant’s

admissions that the Government used at trial.

74a

Initially, Appellant recalled the incident with his

nephew and niece occurred in the living room when he

and his wife visited with her family sometime in

January or February 2011. Five times during the

interview, Appellant said it happened during that

timeframe because he recalled that the incident was

during his “R and R” after he returned home in the

winter from an overseas deployment.15 At the

conclusion of the same interview, however, Appellant

placed the timeframe for the visit in summer 2011.

Appellant also admitted touching just his nephew

in the same way under identical circumstances on a

subsequent visit with his wife’s family, again in

Missouri. On this second occasion, like the first,

Appellant’s nephew was asleep and did not stir when

Appellant initiated sexual contact. Appellant told the

FBI agent he was unsure when the second visit

occurred, initially saying it was in “summer of 2011.”

Appellant corrected himself, and then consistently

stated that the second visit occurred when he and his

wife again visited her family, but in 2012, before his

nephew and niece returned to school.

15 We understand Appellant was authorized an administrative

absence from his unit during a period of Rest and Recuperation,

or “R and R,” before resuming military duties at his home station.

Such post-deployment absences are not typically charged as

annual leave.

75a

c. Government’s Evidence of Corroboration

Special agents of the AFOSI undertook to

substantiate Appellant’s statements about fondling

his nephew and niece. At trial, the Government relied

on Appellant’s travel and leave records to corroborate

Appellant’s admissions. A travel voucher showed that

Appellant redeployed to Dyess AFB on 28 January

2011. Appellant’s leave records showed eight periods

of charged leave during the four-year period 2010

through 2013, as follows: 5 days in February 2010, 7

days in June 2010, 21 days in March and April 2011,

3 days in July 2011, 23 days in March 2012, 8 days in

March and April 2012, 15 days spanning December

2012 and January 2013, and 24 days in May and June

2013.

The Government also relied on AFOSI interviews

with Appellant’s sister-in-law, brother-in-law, and

nephew and nieces to corroborate Appellant’s

admissions. The military judge included that

information in her ruling. The military judge’s

factfinding was substantially in agreement with

evidence introduced by the Prosecution on the merits.

i) Appellant’s Sister-In-Law

During the relevant period, Appellant and his wife

were living at Dyess AFB in Abilene, Texas. At that

time, Appellant’s sister-in-law—the mother of

Appellant’s nephew and niece—was a Soldier in the

United States Army. Beginning in April 2010, the

sister-in-law was stationed in San Antonio, Texas,

76a

where she lived with her husband and their three

children until she left for a two-year assignment in

South Korea in the fall of 2011. As found by the

military judge, during the time Appellant’s sister-inlaw was stationed in San Antonio, she and her family

visited with Appellant and his wife at Dyess AFB,

Texas, maybe three or four times.

In the findings portion of the court-martial,

Appellant’s sister-in-law testified about the congenial

relationship between families when they both lived in

Texas. Because of proximity, they visited “frequently”

for three or four days at a time. In her telling, “I can’t

tell you how many times a year that would happen,

but I know we visited each other frequently.” When

her family visited with Appellant and his wife, at

night her children would fall asleep watching movies

in Appellant’s living room. One summer, her children

stayed with Appellant and his wife in their home at

Dyess AFB for a week.

In November 2011, Appellant’s sister-in-law began

a two-year assignment in South Korea. Initially, her

husband and children remained in San Antonio. That

changed in June 2012 when she took leave to move

her husband and children to her parents’ apartment

in a suburb of St. Louis, Missouri. At the time, her

parents were living in a two-bedroom apartment.

Before she completed her overseas tour in November

2013, her parents moved into a house they bought in

a nearby suburb, also in St. Louis. Her husband and

children moved with her parents and lived in the

77a

house for a brief period until she completed her

overseas tour, after which she moved with her

husband and children to Colorado.

ii) Appellant’s Brother-In-Law

In like manner as his wife, Appellant’s brother-inlaw testified that his family moved to San Antonio in

April 2010. He testified to the agreeable relationship

between families when his wife and Appellant were

both stationed in Texas. His family visited Appellant

and his wife about three times on weekends and

holidays. One time, his children stayed with

Appellant and his wife on their own after his wife

departed for South Korea. On another occasion during

his wife’s overseas tour, both he and his children

stayed with Appellant and his wife when the families

celebrated the Christmas and New Year’s holidays

together. During visits to Appellant’s home, at night

the children and Appellant slept in the living room.

The brother-in-law recalled his wife taking midtour leave to help him move their family from San

Antonio to her parents’ two-bedroom apartment

outside St. Louis. This happened in summer 2012.

Except for occasions when Appellant’s brother-in-law

was working in a different state, he lived in that

apartment, with his wife’s parents and his children,

until October 2013 when her parents purchased a

house in an adjoining neighborhood. He and the

children moved with his wife’s parents and lived in

their new home for about one month before his wife

78a

completed her overseas tour and redeployed to the

United States.

The brother-in-law recalled that Appellant made

two overnight visits to Missouri when his wife was

overseas. Appellant’s wife did not accompany

Appellant on either visit. The first occasion was a twoday visit in May 2013 when the brother-in-law and his

children were still living in the two-bedroom

apartment. He recalled that his children and

Appellant slept in the living room. The brother-in-law

could not remember the dates of Appellant’s second

visit, the sleeping arrangements, or whether they

were still living in the apartment.

iii) Appellant’s Nephew

Appellant’s nephew had a mid-to-late summer

birthday. He was 11 years old in the January to

February 2011 timeframe when his family lived in

San Antonio. He had no memory of Appellant

touching him inappropriately. As found by the

military judge, the nephew remembered Appellant

“visiting his family while they lived in Missouri in

approximately 2011–2012. He also remembered his

mother being there” on that occasion. He

“remembered one instance where he fell asleep while

in the same room as [Appellant] when [Appellant]

visited Missouri.” The nephew “fell asleep on the

couch while [Appellant] visited, but his mother was

present.” He remembered he “woke up and got carried

to his room.”

79a

In the findings portion of the court-martial, the

nephew testified about visiting Appellant’s home in

Texas before his family moved to Missouri. During

such visits, there were times when he and his sisters16

and possibly Appellant stayed up late watching

movies. There were occasions when he had fallen

asleep while watching movies. However, he had no

memory of a time when he and his sisters and

Appellant fell asleep watching movies. The times they

did watch movies with Appellant were when he and

his sisters visited Appellant in Texas, and not when

his family lived in St. Louis, Missouri. He could not

recall an occasion when Appellant visited them in St.

Louis when his mother was stationed overseas. He

testified his grandparents’ apartment had a living

room that was too small for even one person to lay on

the floor. He testified his father “wasn’t present” the

entire time he and his two sisters lived with

grandparents in Missouri.

iv) Appellant’s Older Niece

Appellant’s older niece, who was the named victim,

had a mid-to-late autumn birthday. She was nine

years old in the January to February 2011 timeframe

when her family lived in San Antonio. Like her

brother, she had no memory of Appellant touching her

Appellant had two nieces, both younger than their brother

(Appellant’s nephew). Appellant was convicted of aggravated

sexual contact upon the older niece.

16

80a

inappropriately. She too had no memory of Appellant

visiting them in Missouri when she and her siblings

lived with their grandparents and their mother was

stationed overseas. Like her brother, she remembered

watching movies with Appellant when Appellant and

his wife lived in Texas. As found by the military judge,

the niece “saw [Appellant] and his wife a lot when her

family lived in Texas before [she] moved to Missouri.”

She “remembered watching movies with [Appellant]

in his living room.” She “described a time where she

and her siblings were alone with [Appellant] during a

visit to [Appellant]’s home in Texas: ‘A bunch of us, or

all of us, we bunked on this air mattress in the living

room he set up and we fell asleep watching movies.’”

She “believed her aunt visited her family in Missouri,

but she could not recall if [Appellant] came [too].”

In the findings portion of the court-martial, the

niece testified that she and her siblings never lived in

separate households apart from each other. She

recalled visiting Appellant in Texas and sleeping with

her siblings on “an air mattress in the living room.” In

her telling, she could “remember [watching] a lot of

movies . . . [e]very night,” and “we would always fall

asleep in the living room while we were watching

movies.” In response to a question by trial counsel, the

niece was clear that her “uncle [Appellant], and [her]

aunt, [her] brother, and [her] little sister” watched

movies together. In response to a clarifying question

by the military judge, the niece could not recall if

Appellant would fall asleep on an air mattress on the

floor. She also did not recall if Appellant visited them

81a

after they moved to St. Louis and lived with their

grandparents. Contrary to her brother’s testimony,

she recalled that her father lived with her and her

siblings when they lived in their grandparent’s

apartment in St. Louis, and the four slept in the same

room.

v) Appellant’s Younger Niece

Like her older brother and sister, Appellant’s

younger niece remembered watching movies with her

siblings and Appellant. As found by the military

judge, she remembered watching movies with

Appellant at his home in Texas. She also remembered

visits from Appellant and his wife when she and her

siblings lived with her grandparents in St Louis.

During those visits, they watched movies together and

fell asleep on an air mattress.

In the findings portion of the court-martial, the

younger niece recalled visits to Appellant’s home

when both families lived in Texas. She testified that

Appellant would also visit her family and stay

overnight in their home. In both places, during visits

with her uncle, she recalled watching movies and

sleeping in the living room on an air mattress with her

siblings and Appellant. Unlike the evidence that the

military judge relied on in her ruling, the younger

niece had no memory of Appellant visiting her family

when they lived in Missouri.

82a

2. Law

A military judge’s ruling that Mil. R. Evid. 304(c)

does not bar an admission or confession of an accused

will not be disturbed except for an abuse of discretion.

United States v. Jones, 78 M.J. 37, 41 (C.A.A.F. 2018)

(citation omitted). “A military judge abuses h[er]

discretion when: (1) the findings of fact upon which

[s]he predicates h[er] ruling are not supported by the

evidence of record; (2) if incorrect legal principles were

used; or (3) if h[er] application of the correct legal

principles to the facts is clearly unreasonable.” United

States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010)

(citation omitted).

Mil. R. Evid. 304(c) allows the Prosecution to

introduce into evidence an admission or confession of

an accused upon a showing of trustworthiness. After

briefs were initially submitted in this case, our

superior court decided United States v. Whiteeyes, a

case that considered the question whether

independent evidence established the trustworthiness

of an appellant’s statements. 82 M.J. 168 (2022).17

Before such a statement may be admitted into

evidence, the Prosecution “must proffer to the military

judge evidence that it believes corroborates the

accused’s statement.” Id. at 174. “[T]he military judge

17 The Government cites Whiteeyes in a 16 June 2022 Motion to

Submit Supplemental Citation of Authority, which the court

granted without opposition on 27 June 2022.

83a

may admit into evidence each piece of the proffered

evidence on a conditional basis in order to make his or

her [Mil. R. Evid.] 304(c) determination.” Id. (citing

Mil. R. Evid. 104(b)).

In Whiteeyes, the CAAF used a three-part test to

evaluate whether a military judge’s ruling to admit

evidence under Mil. R. Evid. 304(c) was an abuse of

discretion. That test asks three questions which

closely track the requirements under the rule, and

may be summarized as follows:

• Is the proffered evidence, either direct or

circumstantial, in fact, independent evidence as

provided in Mil. R. Evid. 304(c)(1)?

• Does “each piece of independent evidence raise[ ]

an inference of the truth of the admission or

confession” as provided in Mil. R. Evid. 304(c)(2)?

“If an individual piece of independent evidence

meets this threshold, the military judge may then

use that evidence in the process of determining

whether the accused’s statement is corroborated,”

which is the next and last question.

• Do the “pieces of independent evidence,

considered together, . . . tend to establish the

trustworthiness of the admission or confession”

under Mil. R. Evid. 304(c)(1)?

Whiteeyes, 82 M.J. at 174 (internal quotation marks

and citations omitted).

Each requirement of the rule must be met. If so, a

military judge does not abuse her discretion in

84a

answering each of the three questions in the

affirmative, see id. at 175–76, and the trier of fact may

lawfully consider an accused’s admission or confession

“as evidence against the accused on the question of

guilt or innocence,” id. at 175 (quoting Mil. R. Evid.

304(c)(1)).

3. Analysis

The Government argues the military judge did not

abuse her discretion by finding sufficient

corroboration to allow Appellant’s admissions to be

used as evidence against him at trial. The

Government relies on evidence that was before the

military judge when she ruled on Appellant’s motion.

For the first time on appeal, the Government

identifies two additional pieces of evidence as

corroboration. First, the Government contends that

“the vast amount of child pornography” found on

Appellant’s media devices “confirmed his sexual

interest in children and motive to commit the

offenses” involving his nephew and niece.18 Second,

the Government points to initial questioning by the

FBI when Appellant was first asked if he had ever

18 The court assumes the Government’s argument is founded in

Mil. R. Evid. 404(b). We note that this argument is related to, but

nonetheless different from, trial counsel’s argument at the

motions hearing. At that hearing, trial counsel argued

Appellant’s admissions to abusing his nephew and niece were

trustworthy because his admissions to committing child

pornography offenses in an earlier FBI interview was

substantiated by evidence found on his digital devices.

85a

touched a child. The Government argues Appellant’s

visibly emotional response to this line of questioning

was evidence of his consciousness of guilt and

supports the reliability of later admissions to touching

his nephew and niece.

Before using the Whiteeyes framework to examine

the military judge’s ruling, we note that the additional

pieces of evidence on which the Government urges the

court to rely raise several important issues: (1)

whether Appellant’s motive and intent to fondle his

nephew and niece may be shown by evidence of

Appellant’s later involvement in child pornography

offered under Mil. R. Evid. 404(b); (2) whether this

court can consider such evidence as corroboration

when it was neither proffered at the motions hearing,

nor offered at trial for the purposes that the

Government now claims are relevant on appeal; and

(3) whether evidence of Appellant’s changed

demeanor under questioning by the FBI agent in the

sedan can be used as independent evidence for

corroboration purposes, as advanced by the

Government for the first time on appeal.

Although we need not decide the first and second

issues, we do resolve the third issue. In our

application of the Whiteeyes three-part test, we will

also evaluate evidence of Appellant’s changed

demeanor when the FBI agent asked him if he had

ever put his hands on a child in an inappropriate and

sexual way. We consider this evidence because it was

before the trier of fact despite the fact that it was not

86a

addressed by the military judge’s corroboration

ruling. For authority to do so, we principally rely on

the direction given to this court by our statutory

authority to evaluate findings of guilty “on the basis

of the entire record.” Article 66(d)(1), UCMJ, 10

U.S.C. § 866(d)(1).

Consistent with that authority, in United States v.

Perkins, the CAAF acknowledged “[a] familiar

principle of appellate practice is that an appellee or

respondent may defend the judgment below on a

ground not earlier aired.” 78 M.J. 381, 386 n.8

(C.A.A.F. 2019) (alteration, internal quotation marks,

and citations omitted); see also United States v. Bess,

80 M.J. 1, 11–12 (C.A.A.F. 2020) (approving Court of

Criminal Appeals’ decision to uphold the ruling of a

military judge for a different reason than the ones on

which the military judge relied). We also find

persuasive the concurring opinion by Judge Hardy in

Whiteeyes, which considered the findings testimony of

an expert witness even though “the military judge did

not have the benefit of the expert witness’ testimony

when he ruled on Appellant’s motion.” 82 M.J. at 180

(Hardy, J., concurring in the judgment). Judge Hardy

noted that testimony was “properly included in the

joint appendix and can be considered by this Court.”

Id. The opinion of the court in Whiteeyes similarly

relied on that expert witness’s testimony to evaluate

whether the military judge erred in ruling that the

appellant’s statements were sufficiently corroborated.

Id. at 175–76. Accordingly, we will evaluate evidence

relied on by the military judge in her ruling along with

87a

evidence of Appellant’s emotional response

questioning about sexually touching children.

to

We turn then to consider the military judge’s

ruling that permitted the Prosecution to introduce

Appellant’s admissions to fondling his nephew and

niece. We do so following the procedures and

standards that the CAAF applied in Whiteeyes to the

statements at issue in that case. See id. at 174. We

find the military judge did not abuse her discretion in

concluding that Appellant’s admissions were

sufficiently corroborated to be used against him at

trial.

a. Independent Evidence

With respect to whether the proffered evidence

constituted independent evidence, we find the

military judge did not abuse her discretion in

concluding that it did. In reaching this conclusion, the

military judge relied on “evidence presented by the

Government in the form of AFOSI’s interviews with

the named victims and other family members, sworn

Article 32, UCMJ, preliminary hearing testimony,

and other independent evidence” that we describe

above. The military judge did not abuse her discretion

in ruling that these pieces of evidence constituted

“independent evidence” as provided in Mil. R. Evid.

304(c)(1). We summarize that evidence here:

First, evidence independent of Appellant’s

admissions to the FBI showed that Appellant’s

nephew and niece were children of his wife’s sister.

88a

That same evidence, the miliary judge found,

confirmed “their ages were similar to those provided

by [Appellant]” to the FBI.

Second, the military judge found that independent

evidence showed Appellant visited with his wife’s

family, including his nephew and niece, during the

timeframe that he said he committed the offenses. As

found by the military judge, this showed Appellant

“had opportunities to commit the crimes he confessed

to committing in approximately 2011 and 2012.”

Third, the military judge found that Appellant’s

military leave and other records tended to show

“many times” Appellant was authorized leave when

he and his wife lived within driving distance for

overnight visits with his wife’s family. The military

judge further noted that “some [leave records]

corroborate the dates of [Appellant]’s confessions” and

“tend to show additional opportunities” for visits with

his nephew and niece.

Fourth, the military judge found that Appellant’s

nephew and niece “distinctly” remembered incidents

of watching movies with Appellant and then falling

asleep, and that their ages during these incidents

generally lined up with Appellant’s description of

their ages during his admissions to the FBI. Although

his nephew and niece did not necessarily recall these

incidents happening when they lived in Missouri, the

military judge found that their “younger sister

distinctly remembered sleeping in the living room

with her older siblings and [Appellant] in Missouri.”

89a

Fifth, the military judge noted that Appellant’s

nephew and niece did not recall Appellant “ever

touching them,” which was consistent with the way

that Appellant “claim[ed] to have committed the

charged offenses,” namely that the children “were

asleep and did not wake up while he inappropriately

touched them.”

Additionally, Appellant’s emotional response to

FBI questioning about sexually touching children was

a nontestimonial act tending to show consciousness of

guilt. See United States v. Clark, 69 M.J. 438, 444

(C.A.A.F. 2011) (accused’s demeanor admissible

“where it is relevant to an accused’s ‘consciousness of

guilt’”); United States v. Cook, 48 M.J. 64, 66 (C.A.A.F.

1998) (nontestimonial acts admissible to show

consciousness of guilt); United States v. Baldwin, 54

M.J. 551, 556 (A.F. Ct. Crim. App. 2000) (“Because

consciousness of guilt can be used as circumstantial

evidence of guilt, we find it may also be used in

evaluating whether a confession meets the test for

corroboration under the rule.”); see also United States

v. Borland, 12 M.J. 855, 857 (A.F.C.M.R. 1981) (noting

that “[a]dmitting evidence tending to show the

accused’s consciousness of guilt is an accepted

principle of military jurisprudence”). We find

circumstantial evidence of Appellant’s demeanor

during initial FBI questioning did not consist of

“[o]ther uncorroborated confessions or admissions of

the accused that would themselves require

corroboration” to be admitted against Appellant.

Whiteeyes, 82 M.J. at 175 (quoting Mil. R. Evid.

90a

304(c)(2) (Manual for Courts-Martial, United States

(2016 ed.) (2016 MCM))). Thus, we consider

Appellant’s emotional response during questioning as

independent evidence as may bear on the sufficiency

of corroboration.

b. Inference of Truth

With respect to whether each piece of independent

evidence raises an inference of the truth of Appellant’s

admissions, we again conclude that the military judge

did not abuse her discretion. The circumstances of the

family visits, the setting in which Appellant watched

movies with his nephew and niece until they fell

asleep, and their ages, raise inferences of the truth of

Appellant’s admissions.

In regard to Appellant’s description of visiting his

sister-in-law’s family in Missouri sometime in

January or February 2011, the evidence on these

points is mixed. We have misgivings that Appellant’s

description of committing the first offenses during a

visit with his wife’s family in Missouri, and early 2011

timeframe, are mutually correct. For this same

reason, the Government allows that Appellant

“perhaps mistakenly believed” his first offenses

“occurred in Missouri” and not Texas. On this point,

Appellant’s sister-in-law testified that her family

lived in Texas from 2010 until her family moved to

Missouri in summer 2012. Both of Appellant’s nieces

recalled instances, when they lived in Texas, of

Appellant watching movies with them and their

brother in the living room until they fell asleep.

91a

Nonetheless, the circumstances of these visits—

wherever and whenever they occurred—show that

Appellant had access to his nephew and niece and

raise an inference of the truth of Appellant’s

admissions. Likewise, independent evidence of the

setting whereby he would lay with the children at

night on the living room floor after watching movies

raises an inference of the truth of his admissions.

Regarding the fact that Appellant’s nephew and

nieces were unaware of Appellant fondling the

nephew and older niece, the corroboration rule

provides that “[a] piece of independent evidence may

reach this threshold even where it ‘raises an inference

of the truth’ only when considered alongside other

independent evidence.” Id. at 174 (quoting Mil. R.

Evid. 304(c)(2) (2016 MCM)). The military judge found

the children’s lack of awareness “may justify a jury’s

inference that [Appellant]’s statements were true

given the specific way the accused claims to have

committed the charged offenses,” namely that

Appellant’s nephew and niece “were asleep and did

not wake up while he inappropriately touched them.”

We agree with the military judge’s conclusion on this

issue.

In regard to Appellant’s visibly emotional response

to questioning about sexually touching children, we

conclude that this reaction raises an inference of the

truth of Appellant’s admissions. According to the FBI

agent’s testimony, Appellant shuddered, and his eyes

became red and watery when he was asked if he had

92a

“ever put [his] hands on a child in an inappropriate . .

. and sexual way.” Appellant’s emotional reaction to

that question permitted the inference that he had

touched a child in such a manner. Put differently,

Appellant’s emotional reaction to the agent’s question

allowed an inference that Appellant had fondled his

nephew and niece.

c. Trustworthiness of Statements

Finally, with respect to the question whether the

pieces of independent evidence, considered together,

tend to establish the trustworthiness of Appellant’s

admissions, we find that the military judge did not

abuse her discretion in concluding that they did.

Appellant argues the Government failed to

independently establish both the time and place of the

sexual contact Appellant was alleged to have

committed upon his nephew and niece. First,

Appellant argues the admissions do not provide a

timeframe narrower than the charged timeframe for

the alleged offenses—between on or about 28 January

2011 and 27 June 2012. In that regard, there was no

evidence of the day, month, or even the year that

Appellant allegedly committed the charged acts.

Second, Appellant argues that, even in closing

argument, the Government could not say if the alleged

abuse occurred in Texas or Missouri. We accept both

points and at the same time dismiss their significance

because independent evidence of the circumstances,

setting, and the children’s ages tend to establish the

trustworthiness of Appellant’s admissions.

93a

Independent evidence shows Appellant had the

opportunity to commit the offenses in the manner he

described to the FBI. His wife’s family described

spending time with Appellant and his wife during long

weekends and holidays. They recalled overnight visits

when Appellant lay on a living room floor with his

nephew and niece watching movies. Appellant’s

sister-in-law, brother-in-law, and both nieces

described evenings when Appellant slept on the living

room floor with the children. The children’s accounts

that they could not recall Appellant’s conduct were

consistent with furtive touchings Appellant described

to the FBI. The actual and relative ages of Appellant’s

nephew and niece during the relevant period were

consistent with Appellant’s description to the FBI.

Finally, Appellant’s emotional response when first

asked if he had ever touched a child tends to establish

the trustworthiness of Appellant’s later admissions,

in a separate interview with the FBI, to fondling his

nephew and niece. This evidence substantiates

Appellant’s admissions and tends to show he

committed the offenses in the manner he described to

the FBI. We consider this evidence, along with

independent evidence of circumstances of the family

visits, the setting of Appellant’s interaction with his

nephew and niece, and their ages. We conclude the

military judge did not abuse her discretion in finding

sufficient independent evidence established the

trustworthiness of Appellant’s admissions to fondling

his nephew and niece as charged.

94a

d. Conclusion

In order for the court to reverse a ruling for an

abuse of discretion, we must have far more than a

difference of opinion. United States v. Travers, 25 M.J.

61, 62 (C.M.A. 1987) (citation omitted). An abuse of

discretion occurs when the underlying reasoning is

clearly untenable and amounts to a denial of justice.

Id. (citation omitted). The court must find the

reasoning

was

“arbitrary,

fanciful,

clearly

unreasonable, or clearly erroneous.” Id. (internal

quotation marks and citation omitted).

At the time of the military judge’s ruling, our

superior court’s precedent described the quantum of

evidence needed for corroboration as “slight.” United

States v. Jones, 78 M.J. 37, 42 (C.A.A.F. 2018)

(citation omitted); see also United States v. Melvin, 26

M.J. 145, 146 (C.M.A. 1988); United States v. Yeoman,

25 M.J. 1, 4 (C.M.A. 1987) (citation omitted). The

Whiteeyes framework reinforces this low threshold

while emphasizing that “these precedents retain their

value . . . .” 82 M.J. at 174 n.6. Although the military

judge did not have the benefit of our superior court’s

decision in Whiteeyes when she ruled on the motion,

we do not find an abuse of discretion in her application

of Mil. R. Evid. 304(c) to the facts of this case.

C. Legal and Factual Sufficiency

Appellant challenges the legal and factual

sufficiency of his convictions for aggravated sexual

abuse of his nephew on divers occasions, and

95a

aggravated sexual contact upon his niece, in violation

of Article 120, UCMJ.19 Appellant contends that the

convictions were the result of “a false confession from

[Appellant]

after

nine

hours

of

custodial

interrogation” and that “the Government’s case rested

solely upon” said false confession. For the reasons

described next, we find both convictions legally and

factually sufficient.

1. Additional Background

The evidence used to convict Appellant is founded

on his admissions to the FBI. For this reason, we

summarize the FBI interviews with Appellant in more

detail.

a. FBI Interview with Appellant outside his

Residence

The FBI’s custodial interview with Appellant in

the sedan parked outside his residence lasted about

two hours. It began with the lead agent advising

19 In his assignment of error, Appellant also claims his conviction

for distribution of child pornography is legally and factually

insufficient. However, the assignment of error brief fails to

challenge the evidentiary sufficiency of this conviction or provide

any other explanation for why the conviction is legally and

factually insufficient. To the extent Appellant alleges otherwise,

the court has carefully reviewed the record and finds Appellant’s

conviction for distribution of child pornography both legally and

factually sufficient. This issue warrants neither further

discussion nor relief. See Matias, 25 M.J. at 361.

96a

Appellant of rights under Miranda,20 which Appellant

waived, reading out loud, “I have read the statement

of my rights and I understand what my rights are. At

this time I am willing to answer any questions

without a lawyer present.” During the interview that

followed, Appellant acknowledged verbal and written

consent for the FBI to “assume and use [his] online

identity,” to include accessing his online Kik account.

Appellant also acknowledged giving his “consent

freely and voluntarily without fear, threats, coercion,

or promises of any kind.” He read from a statement

prepared for him, acknowledging that he “ha[d] been

advised of [his] right to refuse to allow the FBI to

assume [his] online identity, and [he] hereby

voluntarily waive[d] this right.”

Questioning began with the lead FBI agent asking

Appellant about his personal situation and other

background information. Appellant told the agent he

was 37 years old. He was a master sergeant (E-7) with

18 years of active-duty service. He worked on aircraft

electrical systems as a maintenance technician.

Before enlisting in the Air Force he completed a year

and a half of college. Appellant explained how he had

been assigned to several overseas locations in addition

to temporary duty and deployments in support of

military operations overseas. He described his current

stateside duties as “working for the colonel as liaison

for our maintenance group over here to discuss the

20 Miranda v. Arizona, 384 U.S. 436 (1966).

97a

sustainment of our aircraft.” Those duties included

coordinating with a major defense contractor. At the

time of the interview, Appellant was a homeowner

and had been married for 14 years.

Throughout the interview, the FBI agent was

responsive to Appellant’s requests to adjust the

temperature in the sedan and, at one point, offered

Appellant a blanket. The agent did not offer Appellant

any breaks and Appellant did not ask for one. At the

end of the interview, the agent asked Appellant if

would be willing to submit to a polygraph interview.

Appellant agreed and was transported to the AFOSI

detachment.

b. Subsequent FBI Interviews at the AFOSI

Detachment

A different FBI agent conducted several more

interviews with Appellant at the AFOSI detachment.

Appellant arrived around 0900 and the third and final

interview concluded at 1515. When he arrived,

Appellant was offered food, water, and a restroom

break. At no point was Appellant denied a request or

other comfort items. Appellant was not handcuffed

during questioning.

The FBI agent began the first interview by readvising Appellant of his Miranda rights. Appellant

again waived those rights and the agent proceeded

with pre-polygraph questioning. The second interview

consisted of the polygraph itself. Both before and

during the polygraph, the agent asked Appellant if he

98a

had ever touched a minor in a sexual way. The agent

asked Appellant this question several times and in

different ways with the same result: Appellant denied

any sexual touching of a child and his denials, at

times, were adamant. During the post-polygraph

interview, Appellant changed his initial denials into

admissions that he had sexual contact with his

nephew and niece while they slept.

i) Initial Post-Polygraph Questioning

A post-polygraph interview was the third and final

FBI interview with Appellant at the AFOSI

detachment. We describe that interview in some

detail as it bears on Appellant’s claim that his

subsequent statements of sexual contact with his

nephew and niece were not only unreliable, but false.

The interview began when the same FBI agent

related he had “no doubt” that Appellant had “sexual

contact with a minor.” The agent told Appellant he

was uncertain “when that occurred in [Appellant’s]

life,” but professed he “ha[d] no doubt that it has

occurred at some point.” The agent then presented

Appellant with a proposition he garnered from

questioning Appellant earlier in the day. During a

previous conversation, Appellant had disclosed that

his wife was unfaithful while he was deployed. In this

final interview, the agent offered the wife’s betrayal

as reason why Appellant would engage a minor in a

sexual way. The agent asserted, “When your wife was

unfaithful[, s]omething happened during that time,

and you haven’t been completely honest with me.”

99a

Twelve times during the interview the agent

reinforced the wife’s infidelity as a reason why

Appellant had sexual contact with a minor. The agent

reinforced that betrayal theme even after Appellant’s

subsequent admissions to fondling his nephew and

niece.

Before those admissions, the agent frequently

stressed that all he was “really concerned about was

actual physical sexual contact” between Appellant

and a minor. The agent told Appellant, “What’s really

important is not that we make mistakes, but how we

respond when we make those mistakes.” The agent

explained, “I really need you to be completely honest

with me and tell me what happened, when it

happened, [and] who it was with, okay[?] Because the

only way to move past this is to acknowledge that and

we can move forward from there.” He stated he

wanted Appellant “to have a life moving forward from

here,” and “the best way to get to that place” was “to

take responsibility for what’s been done.”

At one point, the agent remarked that based on

responses Appellant gave to earlier questioning, the

agent believed Appellant was still thinking “about

something else that [Appellant] [did not] want, yet, to

share” with the agent. The agent remarked about that

“something else,” which Appellant had not yet

disclosed:

Q [FBI Agent]: . . . [It is s]omething that

[ ] is not part of who you are on a regular

100a

basis, not something that you would

choose to do today, okay[?]

A [Appellant]: Mm-hm.

Q: But something that in a different

time, in a different place, when you were

in a confused and frankly dark place,

your wife’s betrayal of you. I mean,

that’s about as bad a betrayal as

anybody can have happen to them,

right?

A: Mm-hm.

The agent then offered a setting personal to

Appellant in which Appellant might have engaged in

sexual contact with a minor. In the agent’s telling, he

predicted it was a consensual setting in contrast to

forced:

Q [FBI Agent]: And so, I get that sense

of pain, of confusion. I get the fact that

you were kind of tentatively exploring

the idea of maybe interest in a

homosexual relationship kind of thing,

and during that time started watching

videos of younger males, both

homosexual and heterosexual engaged

in sexual activity, right. It makes sense

to me that during that time something

would have happened. And my guess is

also, it wasn’t the kind of situation that

it was a forceful [sic], that you made

101a

somebody [sic]. Most commonly, and

believe me I talk to a lot of folks that get

in this place, it is kind of a mutual

exploration, particularly with younger

teens, particularly young male teens, I

mean, we both know what it’s like to be

a young male teen, right?

A [Appellant]: Mm-hm.

Q: They are about as interested

constantly in sex as they can be

interested. I mean, that’s what young

male teens do, right[?]

A: Mm-hm.

Q: So again, given all those

environments, and given the fact that

my strong guess, and again, I don’t

know, but just based on what I’m kind

of assessing about your personality,

that you’re not the type of person that’s

going to, you know, rape somebody. It’s

going to be a consensual kind of thing.

It’s going to be something that . . . you

wanted to explore, maybe it is one of

those things where afterwards, you

know . . . [“]it’s not what I want to do.[”]

I don’t think it was a forceful situation.

I think it was a consensual situation, but

that’s what, again, makes sense to me

102a

given that

context.

environment

and

that

A: Mm-hm.

(Emphasis added).

The agent reinforced the contrast between

consensual and forced contact with a minor by

encouraging Appellant, telling Appellant he wanted to

give Appellant “the benefit of the doubt.” The agent

told Appellant he had “a pretty good sense of people,”

and that Appellant “d[id]n’t strike [the agent] as a

predator.” He then reintroduced a supposition that

Appellant was not predator by offering reassurance

that Appellant was

basically a good guy that’s worked very

hard, that has taken care of his family

his whole life, has been the oldest son

that was a dutiful son who wasn’t

allowed to kind of explore a lot of the

normal things growing up in a very

traditional home, that ended up in a

place where his wife betrayed him, and

was confused. And something in that

environment, in that time, in that space

occurred. And again, I don’t think it was

forced. I think it was consensual. You

may not have even known how old he

really was at the time. But something

happened and that’s what we’ve got to

get to now . . . . So, what happened

103a

during that time . . . ? I know something-I can see in your body. I can literally see

it wanting to come out. I mean, it’s--I

spend a lot of time talking to people.

And I know it’s hard for you to recognize

this yet, but inevitably once that weight

is lifted from your shoulders, people can

start getting control of their life again.

So, what is it? What is weighing you

down right now?

(Emphasis added).

In response to this question, Appellant stated, “It

was--no, I mean, it’s hard to explain, but it’s not like

there was anything like with other people sexually like

that.” (Emphasis added). A short time later, the agent

again offered that a minor had willingly engaged in

sexual conduct with Appellant. Appellant again

rejected that premise, which the agent immediately

challenged:

Q [FBI Agent]: And the fact that you are

still, even as early as, you know, earlier

this year, still looking at that type of

child pornography, okay, tells me that

there is part of you that is obviously

attracted to that, right[? O]therwise you

wouldn’t be doing it, right[?]

A [Appellant]: Mm-hm.

Q: And given that that is an attraction,

it makes sense that given the

104a

opportunity, given an environment

where you’re feeling lost and confused,

given the fact that undoubtedly, most

likely he’d frankly, wanted to engage in

the activity---A: There’s nobody that wanted to do

that.

Q: So, see I don’t--I just--I can’t--I can’t

accept that [ ].

(Emphasis added).

Appellant acknowledged he had never “forced”

himself “on someone else.” The agent then returned to

a supposition Appellant had twice rejected: “So, then

it’s a consensual situation, it’s a mutually enjoyable

situation, it’s not a repeated pattern, it’s one time or

two times, it’s not a habit, it’s not something you’re

doing on a regular basis. And that’s where we’re at

right now.” The agent told Appellant to “just let it

out,” and stated, “Just tell me what happened in a

physical way during that time in your life.” Appellant

replied, “I’m trying to explain to you”—at which time

the agent cut Appellant off and told him, “Jonel, I

mean, let me back up just a minute.”

The agent then drew Appellant’s attention to the

premise that it was “a nojudgement place,” and

Appellant nodded his head up and down. The agent

offered that “for millennia” the ancient Greeks and

even modern-day men in another country have “all

been attracted to young males.” In the agent’s telling,

105a

“Plato and Aristotle slept with eight-year-old boys all

the time” even if that was a “politically incorrect fact

of history that most people don’t like to acknowledge.”

The agent also offered what “people don’t want to

acknowledge as well is that eight-year-old boys

usually enjoyed it, all right.”

The agent frequently spoke about revealing “truth”

and getting to what the “truth is.” At one point, he

asked rhetorically, “Are there going to be

consequences? Absolutely. Are there consequences to

all of our actions? Absolutely. But the reality is those

consequences are less when we know what the reality

is, when what the truth is the truth.” The agent

suggested “something happened” in Appellant’s life,

that maybe Appellant was thinking about a time he

“had physical contact with a minor” “in a different

country,” maybe when Appellant was “traveling

overseas.”21 He offered a “guess” that Appellant had

sexual contact with a minor during a “time of

confusion” when he was “feeling betrayed” and

“exploring something as fundamental as kind of [his]

own sexual orientation.”

ii) Admissions to Sexual Touching of Nephew

and Niece

In time, Appellant rejected the FBI agent’s

suggestions about the timeframe, reason, and setting

The FBI agent told Appellant, “I don’t think you’re . . .

kidnapping kids, tying them up, torching, raping, and killing. I

don’t think you’re that.

21

106a

in which he had sexual contact with a minor. He

divulged that the incident he had yet to reveal “wasn’t

in this timeframe,” in reference to a time when he

learned his wife had been unfaithful. Appellant was

dismissive, moreover, of the significance of the wife’s

infidelity, explaining there was another occasion

when he deployed and his “wife did cheat on [him] also

at that timeframe,” and yet Appellant “came back,

everything was fine, [and they] just moved on.”

Appellant then told the agent how he fondled his

nephew when he and his wife “were visiting family.”

He volunteered “[i]t was [his] nephew on [his] wife’s

side.” Contrary to the FBI’s agent’s suggestion that

Appellant might have had sexual contact with a minor

in a consensual setting, Appellant volunteered that

the incident with his nephew “d[id]n’t seem

consensual because [his nephew] was sleeping” at the

time. The agent asked Appellant when this conduct

occurred. Appellant did not initially recall, and in

attempting to find a frame of reference, asked the

agent about his earlier disclosures regarding when he

returned from an overseas deployment:

A [Appellant]: …[T]hat was a long time

ago, 2000--when we moved to Texas,

and then we ended up going to visit

them in Missouri a couple times, but I

never--that never happened until

maybe--maybe later that summer 2011.

When did I get back?

Q [FBI agent]: 2011ish?

107a

A: Yeah. Somewhere shortly after that

we made a road trip to visit them in

Missouri and then we were just hanging

out at their place, that’s where we were

at.

Appellant explained how one night he and his

nephew were lying on the floor “in the living room

watching TV.” Appellant’s two nieces were also

present. After the children fell asleep, Appellant

touched his nephew’s penis with his hand and it was

erect, but his nephew did not wake up. Appellant

acknowledged he pulled down his nephew’s pajama

bottoms and fondled his nephew’s penis. Appellant

recalled his nephew was probably 12 or 13 years old

at the time of the incident. He allowed his nephew’s

age was “somewhere around there” but acknowledged

he could not remember. Appellant denied there were

any acts of penetration. He also denied there were

other incidents of sexual contact with his nephew or

other minors.

Referring to Appellant’s nieces, the agent asked,

“Did you do that with the girls as well?” Appellant

replied in the negative and, during subsequent

questioning, again denied sexual contact with a minor

other than his nephew:

Q [FBI Agent]: Was there another time

where you might have touched some

girls at--with other family members?

A [Appellant]: No, nobody, ever.

108a

Q: Okay, all right. So what other

incidents happened with either your

nephew or other males then?

A: Incidents?

Q: What other times were you in sexual

contact with minors? A: Oh, that was it.

With him, that was it.

A short time later, the FBI agent manifested a

belief that “it’s really never just one time, it’s never

just once.” He continued: “And the reason is because .

. . whatever it is that elicits that neurochemical

response in your brain when you fondled your nephew

is always there.” The agent remarked to Appellant,

“[Y]ou need to get it all out. And that is the best thing

for you from a practical, as well as a spiritual

perspective, all right[?]” He asked Appellant, “So,

what else happened? What else are you concerned

about, do you regret, that you want to get out right

now today?” He told Appellant, “your brain or your

heart, one of the two is going to recognize that [ ]

complete honesty is what is in your best interest.”

In time, Appellant admitted fondling his niece. He

stated that it happened the same night, after he

fondled his nephew, and in the same way. In

Appellant’s telling,

A [Appellant]: [I k]ind of did it to my

niece too, but not as much.

It was one time and that was it.

109a

Q [FBI Agent]: Okay, okay. And how old

was your niece?

A: She’s two years younger than [the

nephew]. This was the same time where

we were all sleeping there.

Q: Okay.

A: But I didn’t--just like the same, I

didn’t penetrate or whatever [sic]

anything. It was just more fondling and

feeling.

Q: Okay, okay. So, you were fondling her

vagina?

A: Mm-hm.

Q: Okay, all right.

A: And that was it, that was it.

Like his nephew, Appellant acknowledged his

niece had been sleeping on the living room floor. He

offered that her vagina “was a little moist.” Appellant

clarified that “[h]er panties were wet,” and his hand

did not go inside her underwear. After the touching,

his niece “went to the restroom,” but “she didn’t see or

notice anything” he had done. Appellant volunteered

he “didn’t fondle much with her,” and that “when she

woke up everything was done and [Appellant] went to

sleep too.”

Without prompting, Appellant said he fondled his

nephew on a second occasion under “the same”

110a

circumstances as the first. As Appellant described it,

the second incident happened during a subsequent

trip Appellant and his wife took to visit with her

family, but this second incident only involved his

nephew. Like before, Appellant, his nephew, and his

nieces were lying on the floor one night. On this

second occasion, Appellant acknowledged he again

touched his nephew’s erect penis as his nephew slept

on the floor. Later in the interview, the agent asked,

“And what about you during that time? Were you

masturbating as well during that or just kind of

fondling him?” Appellant answered, “No, it was just

watching, just like if I was watching a movie.”

Afterward, according to Appellant, he either fell

asleep on the floor or went to sleep in a bedroom where

his wife was sleeping.

The FBI agent probed Appellant to provide details

when both incidents happened. Appellant was more

certain about the timeframe for the first incident than

the second, and his answers suggested he had

difficulty remembering details of the timing. He said

the first incident involving his nephew and niece

occurred in January or February 2011 after he

returned to Dyess AFB, Texas, from an overseas

deployment. Appellant was less certain when the

second incident happened, only that it was during a

subsequent visit with his wife’s family. Initially, he

recalled the second incident “[h]ad to be before [his

nephew and niece] went back to school in the . . .

summer of 2011.”

111a

Reflecting again on the timeframe of the first

incident, Appellant told the agent that this would

place the first visit to his wife’s family in Missouri in

the timeframe of January or February 2011, when he

and his wife “visited them during [his] R and R,”

affirming, again, “that’s [ ] the first time it happened.”

However, Appellant immediately corrected himself

about the timeframe for the second incident with just

his nephew, explaining it happened when he and his

wife “visited them again . . . in 2012[,] I think, I can’t

remember.” Appellant reiterated, “Yeah, it had to be

the next year,” in 2012 when he had fondled his

nephew on a second occasion. Later in the interview,

Appellant stated with certainty that he and his wife

“came back the next year for [sic] summer for a visit

before they went back to school,” which placed the

second incident in 2012.

Upon

further

questioning,

Appellant

acknowledged that the sexual conduct with his niece

and nephew occurred within a timeframe of 2011 to

2012. Near the conclusion of the interview, Appellant

again acknowledged sexual contact occurred in the

2011–2012 timeframe:

Q [FBI agent]: Okay, all right. So, just

so I'm clear, 2011, one night.

A [Appellant]: Mm-hm.

Q: You fondled your nephew. A: And

niece.

112a

Q: And niece. He had an erection but

didn’t ejaculate.

A: Correct.

Q: She became wet through her panties,

right. A: Through her panties.

Q: Through fondling. She wakes up,

goes to the bathroom and comes back,

and you don’t touch either of them again

that night, or anybody else--A: That year, nobody else.

Q: Okay. And then the second time is

when you came back in 2012.

A: Mm-hm.

Q: Okay. And so, your nephew would

have been how old in 2012?

A: He's 19 now, 18, 5 years difference so

13. Q: Okay, so 13. And how old is your

niece? A: She’s two years younger.

Q: Okay, so 11. So, 13 and 11. And you

fondled both of them in 2012 or just---A: One, just the boy. Q: Just the boy,

okay. A: Just the boy.

iii) Interview Conclusion

Near the end of the post-polygraph interview,

Appellant again explained how he fondled his nephew

and niece. In the presence of a second agent,

113a

Appellant provided a narrative of the first time he

touched his nephew in a sexual manner, which was

generally consistent with his earlier statements with

one notable exception. Appellant now placed the first

incident when he said he fondled his nephew and

niece in summer 2011, and not January or February

2011 as he stated earlier. However, neither Appellant

nor the FBI agent acknowledged that difference. In

Appellant’s telling, he returned from an overseas

deployment in January or February 2011 and

later on that summer we ended up going

to visit [my wife’s] family up in Missouri

where my nieces--or nieces and nephew

were there. And one of those nights we

were watching movies. I can’t remember

what movie, but I’m pretty sure it was

like action or a cartoon movie. We all

dozed off. I woke up in the middle of the

night and everybody was sleeping in the

rooms with the exception of me, my

nephew, and two nieces who were

watching a movie. And then when I

woke up, I don’t know what got to me,

but it was more of a fondling thing. [I

e]nded up fondling him. I don’t know

where it came from. I guess the curiosity

since I was just there. And then all I did

was pretty much touching. . . .[I]t was

just my hands touching . . . his penis, to

arouse him with an erection.

114a

(Emphasis added).

Appellant then described sexual contact with his

niece, again placing the timeframe in summer 2011,

and not January or February 2011 as he stated

earlier:

And then I waited a little bit, I couldn’t

fall asleep, and I moved over to my niece

who was there, the older one. And I just

pretty much had my hands on her

underwear until she got a little bit moist

and that was it. She ended up waking

up and went to the restroom, so I went

to sleep. I fe[l]l asleep back on the floor.

[I w]oke up in the morning and

everybody was still in the same

arrangement. We were all sleeping on

the floor in the living room. So that was

that incident in the summer of 2011.

Appellant summarized a second incident of sexual

contact with just his nephew in summer 2012,

following the incident in the previous summer:

After the summer, I guess because of

the--I don’t know, my wife and I, we

were having a rough time, we were

trying to get things back after she found

out that I [knew] she was having an

affair. But then throughout that year

everything was okay until we visited

them again [the] next summer. It was

115a

okay until another night we ended up

watching in the living room again, and

it happened just to my nephew where I

did practically exactly the same thing.

2. Applicable Standard of Review

A Court of Criminal Appeals “may affirm only such

findings of guilty” as it “finds correct in law and fact

and determines, on the basis of the entire record,

should be approved.” Article 66(d)(1), UCMJ, 10

U.S.C. § 866. We review issues of legal and factual

sufficiency de novo. United States v. Washington, 57

M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our

assessment is limited to the evidence produced at

trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.

1993) (citations omitted).

“The test for legal sufficiency is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” United States v. Robinson, 77 M.J.

294, 297–98 (C.A.A.F. 2018) (quoting United States v.

Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “This

familiar standard gives full play to the responsibility

of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate

facts.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

“[I]n resolving questions of legal sufficiency, we are

bound to draw every reasonable inference from the

evidence of record in favor of the prosecution.” United

116a

States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)

(citations omitted). To reach a determination of legal

sufficiency, there must be some competent evidence in

the record from which the trier of fact was entitled to

find beyond a reasonable doubt, the existence of every

element of the offense charged. United States v.

Wilson, 6 M.J. 214, 215 (C.M.A. 1979).

An examination for legal sufficiency “involves a

very low threshold to sustain a conviction.” United

States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)

(internal quotation marks and citation omitted). “In

determining whether any rational trier of fact could

have determined that the evidence at trial established

guilt beyond a reasonable doubt, [this court is]

mindful that the term ‘reasonable doubt’ does not

mean that the evidence must be free from any conflict

or that the trier of fact may not draw reasonable

inferences from the evidence presented.” Id. (citation

omitted). The Government can meet its burden of

proof with circumstantial evidence. Id. (citations

omitted). When examining the evidence in the light

most favorable to the prosecution, “a rational

factfinder[ ] could use his ‘experience with people and

events in weighing the probabilities’ to infer beyond a

reasonable doubt” that an element was proven. United

States v. Long, 81 M.J. 362, 369 (C.A.A.F. 2021)

(quoting Holland v. United States, 348 U.S. 121, 140

(1954)).

The test for factual sufficiency is “whether, after

weighing the evidence in the record of trial and

117a

making allowances for not having personally observed

the witnesses, [we are ourselves] convinced of the

[appellant]’s guilt beyond a reasonable doubt.” United

States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In

conducting this unique appellate role, we take ‘a fresh,

impartial look at the evidence,’ applying ‘neither a

presumption of innocence nor a presumption of guilt’

to ‘make [our] own independent determination as to

whether the evidence constitutes proof of each

required element beyond a reasonable doubt.’” United

States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim.

App. 2017) (alteration in original) (quoting

Washington, 57 M.J. at 399).

3. Elements of the Charged Offenses

Appellant was found guilty of committing

aggravated sexual abuse of his nephew who had not

attained 16 years of age in violation of Article 120(f),

UCMJ, 10 U.S.C. § 920(f) (2008 MCM). For Appellant

to be found guilty of this offense, as charged, the

Prosecution was required to prove two elements

beyond a reasonable doubt: (1) that, on divers

occasions between on or about 28 January 2011 and

27 June 2012, Appellant engaged in a lewd act, to wit:

touching with his hand, the penis of his nephew; and

(2) that the act was committed with a child who had

not attained the age of 16 years. See 2008 MCM, pt.

IV, ¶ 45.b.(6). With regard to “lewd act,” the statute

explains this term “means . . . the intentional

touching, not through the clothing, of the genitalia of

another person, with an intent to abuse, humiliate, or

118a

degrade any person, or to arouse or gratify the sexual

desire of any person.” 2008 MCM, pt. IV, ¶

45.a.(t)(10)(A).

Appellant was also found guilty of committing

aggravated sexual contact upon his niece who had not

attained 12 years of age in violation of Article 120(g),

UCMJ, 10 U.S.C. § 920(g) (2008 MCM). For Appellant

to be found guilty of this offense, as charged, the

Prosecution was required to prove two elements

beyond a reasonable doubt: (1) that between on or

about 28 January 2011 and 27 June 2012, Appellant

engaged in sexual contact with a child by touching the

vulva of his niece through the clothing with his hand;

and (2) that at the time of the sexual contact his niece

had not attained the age of 12 years. See 2008 MCM,

pt. IV, ¶ 45.b.(7)(a). The statute explains that the term

“sexual contact” “means the intentional touching,

either directly or through the clothing, of the genitalia

. . . of another person . . . with an intent to abuse,

humiliate, or degrade any person or to arouse or

gratify the sexual desire of any person.” 2008 MCM,

pt. IV, ¶ 45.a.(t)(2).22

22 The statute further explains in a prosecution under Article

120(g), UCMJ, it need not be proven an accused knew the child

had not attained the age of 12 years, 2008 MCM, pt. IV, ¶

45.a.(o)(1), and “[

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