United States v. Huff ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39845 (f rev)
________________________
UNITED STATES
Appellee
v.
Jacob M. HUFF
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 18 January 2022
________________________
Military Judge: Thomas J. Alford; Andrew R. Norton (remand).
Sentence: Sentence adjudged on 9 October 2019 by GCM convened at
Offutt Air Force Base, Nebraska. Sentence entered by military judge on
6 December 2019 and reentered on 3 May 2021: Bad-conduct discharge,
confinement for 24 months, forfeiture of all pay and allowances, reduc-
tion to E-1, and a reprimand.
For Appellant: Major Amanda E. Dermady, USAF; Major Sara J. Hick-
mon, USAF.
For Appellee: Major John P. Patera, USAF; Mary Ellen Payne, Esquire .
Before JOHNSON, KEY, and ANNEXSTAD, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Huff, No. ACM 39845 (f rev)
KEY, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a pretrial agreement, of two speci-
fications of possessing child pornography and two specifications of viewing
child pornography, all in violation of Article 134, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 934.1,2 The military judge sentenced Appellant to a
bad-conduct discharge, confinement for 24 months, forfeiture of all pay and
allowances, reduction to the grade of E-1, and a reprimand.
Appellant’s case is before us for a second time. Appellant raised four issues
when this case was originally presented to us, one of which asserted that the
convening authority erred by not taking action on Appellant’s sentence as re-
quired by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar.
2018), and Article 60, UCMJ, 10 U.S.C. § 860 (Manual for Courts-Martial,
United States (2016 ed.)). In an earlier opinion, this court agreed with Appel-
lant and remanded his case to the Chief Trial Judge, Air Force Trial Judiciary,
for corrective action. See United States v. Huff, No. ACM 39845, 2021 LEXIS
168, at *9–10 (A.F. Ct. Crim. App. 8 Apr. 2021) (unpub. op.). The convening
authority subsequently approved Appellant’s sentence, resulting in a new en-
try of judgment. Another assignment of error raised by Appellant was that the
entry of judgment was erroneous in that it did not reflect a charge and its spec-
ification alleging sexual assault had been withdrawn and dismissed with prej-
udice. We note this aspect of the entry of judgment was addressed during the
remand. Because the entry of judgment now reflects the dismissal with preju-
dice, this assignment of error is moot, and we now turn to Appellant’s remain-
ing two issues: (1) whether certain language should be excepted from two spec-
ifications; and (2) whether the military judge erred by admitting a certain ex-
hibit over defense objection. We agree, in part, with Appellant regarding the
first of these issues, and we take corrective action in our decretal paragraph.
Finding no further error materially prejudicial to Appellant’s substantial
rights, we affirm the findings, as modified, and sentence as reassessed.
1 References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise specified, all other references to the UCMJ,
the Military Rules of Evidence, and the Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2019 ed.).
2 Pursuant to the terms of the pretrial agreement, the Government withdrew and dis-
missed one charge and its specification of sexual assault charged as a violation of Ar-
ticle 120, UCMJ, 10 U.S.C. § 920.
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United States v. Huff, No. ACM 39845 (f rev)
I. BACKGROUND
Appellant enlisted in the Air Force in August 2011 and married in Septem-
ber 2015. Over a period of about two years, Appellant and his wife, Ms. AH,
downloaded and viewed child pornography together while Appellant was sta-
tioned at Royal Air Force Mildenhall, United Kingdom. To do so, they used a
laptop computer which Appellant backed up at some point to an external hard
drive. After he backed up the laptop, but while still living in the United King-
dom, Appellant deleted the pornography off the computer. From then on, he
used his mobile phone to download and view child pornography.
In March 2016, Appellant and Ms. AH moved from the United Kingdom to
Nebraska pursuant to Appellant’s military orders, and they had a son together
in June 2017. While living in Nebraska, Appellant continued to use his phone
to access child pornography. Late in 2017, he sold the laptop, but he retained
the external drive which contained the backed-up data.
In August 2018, Ms. AH moved out of the off-base home she shared with
Appellant in Nebraska, and Appellant filed for divorce a few weeks later. The
following month, Ms. AH told military authorities Appellant had sexually as-
saulted her, and in making that complaint, she disclosed that Appellant pos-
sessed child pornography. When Appellant was called in for questioning, he
consented to a search of his phone and his house, leading to the discovery of
child pornography on his phone and two external hard drives. Investigators
found 3,446 images and 15 videos of “suspected child pornography and child
erotica” on the three devices; they also determined Appellant had input search
terms associated with child pornography into Internet search engines. An ex-
tended online conversation between Appellant and Ms. AH—which took place
from October to November 2014, before they were married—was also discov-
ered. In the conversation, Appellant and Ms. AH fantasize about sexually as-
saulting children they might one day have and discuss their efforts at finding
child pornography on the Internet.
II. DISCUSSION
A. Possession and Viewing of Videos in Nebraska
Appellant was charged with both possessing and viewing child pornogra-
phy in the United Kingdom as well as in Nebraska. As a result, he faced four
total specifications—one specification of possession and one specification of
viewing for each location. The United Kingdom specifications were charged as
occurring between on or about 25 June 2014 and on or about 9 March 2016,
while the Nebraska specifications were charged as occurring between on or
about 10 March 2016 and on or about 28 November 2018. Each of these speci-
fications alleges Appellant either possessed or viewed “images and videos.” On
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United States v. Huff, No. ACM 39845 (f rev)
appeal, Appellant contends the evidence supports a conclusion that he only
possessed and viewed images in Nebraska; he asks us to except and dismiss
the words “and videos” from the two Nebraska specifications.
1. Additional Background
According to the stipulation of fact that Appellant agreed to, two external
hard drives were seized during a search of Appellant’s house in Nebraska. The
first of these drives contained 15 video files and more than 2,500 images of
“suspected child pornography and child erotica” found in subfolders and the
unemptied recycling bin on the drive. The second drive contained a backup file
which included a single video and more than 1,300 images of “suspected child
pornography and child erotica,” many of which were duplicates of the images
found on the first hard drive. Appellant’s mobile phone contained 90 thumbnail
images of “suspected child pornography,” but no videos.
The stipulation further explains that of all the images and videos of “sus-
pected child pornography and child erotica,” 601 images and a video amounted
to “known” child pornography, according to “hash sets” obtained from Pro-
jectVic, an organization which apparently develops technologies available to
law enforcement to use in investigating allegations of sexually exploitative con-
duct. Only one image on Appellant’s devices resulted in a National Center for
Missing and Exploited Children (NCMEC) “hit.” Similar to ProjectVic,
NCMEC assists law enforcement entities with identifying victims featured in
child pornography.
At Appellant’s court-martial, the Government introduced Prosecution Ex-
hibit 2, a disc which contained 26 images and seven videos. The parties stipu-
lated that these were “a sampling of the pictures and videos” found on Appel-
lant’s three devices. Specifically, seven images and all seven videos were from
Appellant’s first external drive; five images were from the backup file on the
second drive; and the remaining images were thumbnail images from Appel-
lant’s phone. Although Appellant stipulated he possessed and viewed images
and videos of child pornography in both the United Kingdom and in Nebraska,
the stipulation does not explain if any of the images and videos in Prosecution
Exhibit 2 were among those identified by either ProjectVic or NCMEC as
“known” child pornography. The parties also did not stipulate that the images
in Prosecution Exhibit 2 actually amounted to child pornography.
During his providence inquiry, Appellant told the military judge that while
he was stationed at Royal Air Force Mildenhall, he would download child por-
nography with his laptop and either save it on the computer itself or “mov[e] it
over to an external hard drive,” and Ms. AH would do the same. Appellant was
not precise in terms of the number or types of files he downloaded. For exam-
ple, with respect to the United Kingdom possession specification, Appellant
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United States v. Huff, No. ACM 39845 (f rev)
referred at one point to “the photos and videos” he had downloaded, which in-
cluded “some videos of seemingly underage girls touching their genitals.” Ap-
pellant followed up on this statement by telling the military judge, “I knew
when I downloaded it that it was child pornography.”
Later, however, the military judge asked Appellant approximately how
many videos and images of child pornography he possessed while he was in the
United Kingdom, and Appellant answered, “Sir, I know that I possessed at
least one, but I don’t know the exact number.” The military judge asked, “At
least one what, image or video?” Appellant replied, “Image and video.” The mil-
itary judge then asked, “At least one image and at least one video?” Appellant
answered, “Yes, sir,” and then said, “I only remember one video, but I would
say the images would be at least 15.” The military judge asked Appellant to
describe “the video” Appellant remembered and Appellant did so. At one point
during this discussion, Appellant said, “I remember a few videos, but I wasn’t
exactly sure if they were under age or not.” As the inquiry into the United
Kingdom offenses continued, the military judge repeatedly referred to “images
and videos,” and Appellant did not indicate that those references to “videos” in
the plural were inaccurate.
Appellant told the military judge he deleted the files off of his laptop before
moving to Nebraska because he wanted to be “done with the child pornogra-
phy.” The military judge asked Appellant if there was some reason he kept the
pornography on the external hard drive, and Appellant said, “I think at one
point it automatically backed up onto that hard drive, and I never really dou-
ble-checked. . . . I didn’t know exactly, like, what had been transferred to the
hard drive, but I knew that some stuff was transferred to the hard drive.”
As for the Nebraska possession specification, Appellant explained he and
his wife accessed child pornography there “on a few occasions,” but that he did
“not remember every image or video that [they] accessed.” He acknowledged
he had maintained control of and access to the devices upon which he had
stored child pornography while he was in the United Kingdom and transported
those devices to Nebraska. When asked by the military judge if Appellant had
the images deleted from the laptop on an external hard drive while living in
Nebraska, Appellant said he did, but that he “had forgotten that they were
there.” Appellant explained that he had never accessed the hard drives3 after
leaving the United Kingdom, that “[t]hey kind of just stayed in storage,” and
that he only learned child pornography was still on the drives when agents of
the Air Force Office of Special Investigations told him what they had found.
3 Up until this point in the providence inquiry, Appellant and the military judge had
only referred to a single hard drive.
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United States v. Huff, No. ACM 39845 (f rev)
After Appellant disavowed accessing the hard drives while he lived in Ne-
braska, the military judge remarked, “So mainly when we’re talking about pos-
session of child porn here, it’s going to be on this . . . cell phone?” Appellant
answered affirmatively. From there, the military judge began asking Appellant
about the thumbnail images taken from his phone, none of which Appellant
said he remembered. Appellant said he would use his phone to view images
and then save them to his phone, sometimes with his wife and sometimes by
himself. The military judge asked, “And what were those—and these were in
the form of what? JPEGs, again, type images?” Appellant answered, “Yes, sir.”
Shortly thereafter, the military judge asked, “And this was just images, not
videos?” Appellant responded, “From what I remember, yes.” From then on,
the military judge only asked Appellant about possessing “images” and did not
refer to any videos.
When asked about the Nebraska viewing specification, Appellant said,
“[O]f all the pictures that I remember, I viewed them before I downloaded
them.” The military judge asked, “So each of the pictures that you possessed
on your phone, you also viewed those pictures?” Appellant answered affirma-
tively. After a few more questions, the military judge asked, “And the form of
those visual depictions, again, that you viewed, not videos, these were just still
images?” Appellant again answered affirmatively. Throughout the rest of the
providence inquiry on this specification, the military judge only referred to “im-
ages” and “depictions,” and not “videos.”
2. Law
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Riley, 72 M.J. 115, 119 (C.A.A.F. 2013) (citing
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A military judge
may only accept a guilty plea after first ensuring there is a factual basis for
that plea. Rule for Courts-Martial (R.C.M.) 910(e); United States v. Care, 40
C.M.R. 247, 253 (1969). A military judge abuses his or her discretion by accept-
ing a guilty plea “without an actual factual basis to support it.” United States
v. Price, 76 M.J. 136, 138 (C.A.A.F. 2017) (citing United States v. Weeks, 71
M.J. 44, 46 (C.A.A.F. 2012)). “[A] military judge must elicit actual facts from
an accused and not merely legal conclusions.” Id.Under Article 66(d), UCMJ, 10 U.S.C. § 866(d), we may affirm only so much
of the findings and sentence that are correct in law and fact and, based on the
entire record, should be approved. In performing our review, we are permitted
to narrow the scope of a conviction in order to render it legally and factually
sufficient. See United States v. English, 79 M.J. 116, 120 (C.A.A.F. 2019) (citing
United States v. Piolunek, 74 M.J. 107, 112 (C.A.A.F. 2015)).
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3. Analysis
Appellant argues on appeal that the military judge failed to elicit a suffi-
cient factual basis to establish that he possessed and viewed videos of child
pornography while he was in Nebraska. He does not explicitly ask us to find
his pleas improvident. Instead, he asks us to except the words “and videos”
from two specifications of Charge II: Specification 3 (possession of child por-
nography) and Specification 4 (viewing child pornography).
We find no support in the record for Appellant’s claim with respect Specifi-
cation 3. Appellant’s hard drives were seized while he was living in Nebraska,
and Appellant stipulated that the seven videos included in Prosecution Exhibit
2 were found on one of the hard drives.4 Appellant also explained that he not
only saved child pornography on at least one of the hard drives, he employed
one of them to back up the laptop he used to seek out child pornography. He
told the military judge he brought the drives with him to Nebraska from the
United Kingdom, and the subsequent forensic analysis corresponds with Ap-
pellant’s explanation in that child pornography was found both in subfolders
on one drive and in a backup file on the other. Appellant admitted to possessing
both images and videos of child pornography in Nebraska, and the record am-
ply supports his admissions before the military judge. The fact Appellant might
not specifically recall which videos were placed on the hard drives is not dis-
positive. See, e.g., United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011) (“If
an accused is personally convinced of his guilt based upon an assessment of
the [G]overnment’s evidence, his inability to recall the specific facts underlying
his offense without assistance does not preclude his guilty plea from being
provident.”). In the end, Appellant admitted to possessing the videos, and fo-
rensic analysis of his hard drives corroborated that admission. Thus, we will
not disturb Specification 3.
We reach a different conclusion with regards to Specification 4. While Ap-
pellant stipulated that he viewed both digital images and videos of child por-
nography in Nebraska, his providence inquiry only supported a viewing of im-
ages. Indeed, the military judge squarely asked Appellant if he was referring
to images or videos when Appellant discussed saving pictures to his phone. The
military judge asked, “And this was just images, not videos?” Appellant replied,
“From what I remember, yes.” Thereafter, the military judge only referred to
images with respect to what Appellant viewed while he was in Nebraska. Ac-
cording to Appellant, he never viewed anything on the hard drives after he
4 We have reviewed Prosecution Exhibit 2 and determined that it does include videos
of child pornography.
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United States v. Huff, No. ACM 39845 (f rev)
moved to Nebraska, so there is very little in the record from which we could
conclude Appellant, in fact, watched videos of child pornography in Nebraska.
Appellant’s admission that he viewed both images and videos of child por-
nography in Nebraska is found in one of four short paragraphs in the stipula-
tion in which Appellant simply admits to each of the four specifications of
Charge II. Such a stipulation is more akin to a legal conclusion than a factual
basis for his plea, and there is no other reference in the stipulation to him
viewing videos of child pornography in Nebraska.5 Despite Appellant’s admis-
sion in the stipulation, Appellant seemingly took a different stance before the
military judge during the “just images” exchange. One possible interpretation
of Appellant’s answer was that Appellant was saying he only saved images to
his phone, and not videos. The military judge, however, not only did not clarify
the matter, but stopped asking Appellant whether he viewed videos at all in
Nebraska, focusing instead on images. Moreover, we see little else in the prov-
idence inquiry supporting the conclusion Appellant was viewing videos as well
as still images of child pornography on his phone.
Based on our authority under Article 66(d), UCMJ, we will set aside and
dismiss the words “and videos” from Specification 4 of Charge II in our decretal
paragraph. We have conducted an analysis of the totality of circumstances pre-
sented in this case, and we conclude we are able to reassess the sentence in
accordance with the principles set forth in United States v. Winckelmann, 73
M.J. 11, 15–16 (C.A.A.F. 2013). Under the facts presented in this case, the
matter of whether Appellant viewed both videos and images of child pornogra-
phy in Nebraska or just images has no perceptible impact on the penalty land-
scape. Based upon the entire record, we are confident that the military judge
would have imposed—and the convening authority would have approved—a
sentence of at least that which was adjudged even in the absence of the words
“and videos” from the one specification.
B. Sentencing Evidence
Once the military judge convicted Appellant and the court-martial entered
the sentencing phase, the military judge admitted the 2014 online conversation
between Appellant and Ms. AH over the Defense’s objection. Appellant con-
tends the military judge abused his discretion in doing so.
1. Additional Background
The conversation admitted as Prosecution Exhibit 3 consisted of approxi-
mately 235 messages, some 74 percent of which involved Appellant and Ms.
5 We accept as true factual matters the parties agree to in stipulations of fact, but not
necessarily legal conclusions found therein. United States v. Simpson, 81 M.J. 33, 36,
n.3 (C.A.A.F. 2021).
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United States v. Huff, No. ACM 39845 (f rev)
AH fantasizing about sexually assaulting children—primarily children they
might one day have together. In about 22 percent of the messages, the two
generally expressed their interest in and efforts at finding child pornography
online. While the messages about sexually assaulting children are graphic and
lurid, the messages regarding online pornography—such as Appellant express-
ing his concern over Ms. AH’s practice of creating member accounts on pornog-
raphy sites because of the fees charged—are rather pedestrian in comparison.
In the stipulation of fact, the parties agreed the messages were, in fact,
between Appellant and Ms. AH and had been recovered from devices seized
from Appellant. The parties did not, however, stipulate to the admissibility of
the conversation.
In objecting to the exhibit, Appellant argued that the messages neither re-
sulted from nor were directly related to the conduct of which Appellant had
been convicted. He also argued the messages were not relevant under Mil. R.
Evid. 401 and should be excluded under Mil. R. Evid. 403 in light of their highly
prejudicial nature. The Government argued the messages demonstrated Ap-
pellant’s interest in young girls, as he and Ms. AH discussed their desire to
obtain child pornography.
The military judge overruled the Defense’s objection, finding it was appro-
priate for the Government to offer “evidence which places the offense in proper
context,” although he did not state his rationale for this conclusion. The mili-
tary judge further concluded the messages were “relevant with at least the
facts and circumstances of the offense” and amounted to “an aggravating cir-
cumstance directly relating to or resulting from the offenses to which [Appel-
lant had] been found guilty.” He said the probative value of the evidence was
not substantially outweighed by any of the considerations in Mil. R. Evid. 403,
but he did not place his analysis on the record.
In his unsworn statement, Appellant addressed the matter of Prosecution
Exhibit 3. He said that before he and Ms. AH lived together, they would send
each other sexually explicit messages, but that he had blocked this particular
conversation “out of [his] brain, and when [he] saw it again in preparation for
trial, [he] was mortified.” He went on to explain that he had seen it as “fantasy
talk” at the time, but now that he is a father, he “would never wish that kind
of talk on anyone’s child,” and “[f]antasy or not, there’s no distinction in [his]
mind today.” Appellant described the conversation as “disturbing” and told the
military judge “there are not enough words to explain how deeply ashamed [he
is],” but that he wanted to make it clear that he has “never thought of [his] son
in that kind of way and never will.” In his sentencing case, Appellant admitted
a number of pictures of himself, many with his young son.
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United States v. Huff, No. ACM 39845 (f rev)
Trial counsel’s sentencing argument included brief references to the con-
versation in Prosecution Exhibit 3, but she only commented on the portions of
the conversation related to Appellant’s interest in child pornography; she did
not comment on the assault-fantasy messages at all. Trial defense counsel, on
the other hand, referred to those portions of the conversation to portray Ms.
AH as being responsible for instigating some amount of Appellant’s behavior.
Trial defense counsel also pointed to the absence of any evidence that Appel-
lant sought to actually assault a child and asked the military judge to give the
messages “very little weight.”
After sentencing Appellant, the military judge told the parties:
I also want to clarify with respect to Prosecution Exhibit 3, I
want to—after having looked at that exhibit closer, I just want
to note for the record that I only considered Prosecution Exhibit
3 for the relevant purpose the [G]overnment articulated in its
response to defense counsel[’s] objection regarding the accused’s
state of mind concerning his intent to obtain pictures and videos
of underage girls, as well as whether the idea originated and/or
continued with his wife or from his wife. I did not consider any
discussion or chats regarding incest, the desire to travel to have
sex with underage individuals or any other purported miscon-
duct not relating to or stemming from the charged offenses.
2. Law
A military judge’s decision to admit evidence at sentencing is reviewed un-
der the abuse of discretion standard. United States v. Carter, 74 M.J. 204, 206
(C.A.A.F. 2015) (citation omitted). Pursuant to R.C.M. 1001, the Government
may present evidence in aggravation during the sentencing portion of an ac-
cused’s court-martial. Evidence in aggravation includes that which pertains to
“any aggravating circumstances directly relating to or resulting from the of-
fenses of which the accused has been found guilty.” R.C.M. 1001(b)(4).
Evidence qualifying under R.C.M. 1001(b)(4) must also pass muster under
Mil. R. Evid. 403. United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).
Under that rule, a military judge may exclude evidence if its probative value
is substantially outweighed by such considerations as its tendency to result in
unfair prejudice, confuse the issues, or mislead the members. A military judge
has “wide discretion” in applying Mil. R. Evid. 403, and we exercise “great re-
straint” in reviewing such applications when the military judge articulates his
or her reasoning on the record. United States v. Humpherys, 57 M.J. 83, 91
(C.A.A.F. 2002) (citations omitted).
Military judges abuse their discretion when their “factual findings are
clearly erroneous, view of the law is erroneous, or decision is outside of the
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United States v. Huff, No. ACM 39845 (f rev)
range of reasonable choices.” United States v. Hutchins, 78 M.J. 437, 444
(C.A.A.F. 2019) (citations omitted). In applying the Mil. R. Evid. 403 balancing
test, military judges enjoy “wide discretion.” United States v. Manns, 54 M.J.
164, 166 (C.A.A.F. 2000) (citations omitted). However, we give less deference
to military judges’ decisions if they do not explain their analysis on the record,
and we give military judges no deference when they fail to conduct the analysis
at all. Id. (citations omitted).
3. Analysis
Appellant argues the military judge erred in admitting Prosecution Exhibit
3 under the theory that its probative value was substantially outweighed by a
danger of unfair prejudice and that we should reassess his sentence as a rem-
edy. In support of this argument, Appellant contends the military judge did not
provide any analysis on this point. We agree the military judge’s analysis un-
der Mil. R. Evid. 403 was lacking, therefore we give the military judge’s deci-
sion less deference than we otherwise would. Nonetheless, we conclude Appel-
lant is not entitled to relief because he cannot demonstrate he was prejudiced.
At first blush, the military judge’s decision to admit Prosecution Exhibit 3
in its entirety seems highly questionable. Three-quarters of the document re-
volved around Appellant’s and Ms. AH’s odious fantasies about not only sex-
ually abusing children, but raising them in a household where such abuse is
normalized and welcomed. The remainder of the document contained compar-
atively tepid discussions about whether to look for child pornography online
and which websites were more or less likely to have the material they were
looking for.
An accused’s attitude toward his or her offenses is a relevant matter in sen-
tencing. United States v. Alis, 47 M.J. 817, 825 (A.F. Ct. Crim. App. 1998) (cit-
ing United States v. Anderson, 25 M.J. 779, 781 (A.C.M.R. 1988)). Appellant,
however, was not charged with sexually assaulting any children or attempting
to do so. Thus, the connection between the messages fantasizing about assault-
ing children and proper sentencing considerations in Appellant’s case is tenu-
ous, at best. While the Government argued the conversation was admissible to
demonstrate Appellant’s interest in child pornography, the probative force of
that proposition is fairly minimal given Appellant had already admitted he and
Ms. AH sought out the pornography for the purpose of sexual arousal. The
likelihood the conversation would result in unfair prejudice, on the other hand,
was substantial, especially insofar as evidence was before the military judge
that Appellant was the father of a young child. Evidence of fantasies about
sexually assaulting children would likely cause a sentencing authority to ques-
tion whether Appellant really was the good father he sought to portray himself
as. Appellant likely recognized this as well, given his perceived need to attempt
to rebut the evidence in his unsworn statement.
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United States v. Huff, No. ACM 39845 (f rev)
Where Appellant’s argument loses its force, however, is the point at which
the military judge determined he would limit his consideration of the exhibit
to Appellant’s “state of mind concerning his intent to obtain pictures and videos
of underage girls, as well as whether the idea originated and/or continued with
his wife or from his wife.” Arguably, the better course of action would have
been to make this assessment prior to admitting the exhibit in the first place,
but the fact of the matter is that the military judge ultimately decided to dis-
regard the assault-fantasy portions of the conversation and only consider those
excerpts which actually did pertain to Appellant’s attitude toward the offenses
he was convicted of. Importantly, Appellant was sentenced by a military judge
versed in parsing evidence and determining what information he will and will
not consider, even after being exposed to the information. Appellant has not
identified any reason why we should not conclude the military judge did not do
as he said he would.6
In light of the military judge’s decision to limit his consideration of Prose-
cution Exhibit 3 to matters directly related to Appellant’s offenses, we conclude
Appellant has not shown he was prejudiced by the exhibit’s admission. There-
fore we need not determine whether the military judge erred in admitting it.
Appellant is not entitled to the relief he requests.
III. CONCLUSION
The finding of guilty to Specification 4 of Charge II is modified by excepting
the words “and videos.” The excepted words are SET ASIDE and DISMISSED
WITH PREJUDICE. The remaining findings and the sentence, as entered
and reassessed, are correct in law and fact, and no error prejudicial to the sub-
stantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C.
§§ 859(a), 866(d).
6 The military judge did not provide a line-by-line breakdown of which portions of Pros-
ecution Exhibit 3 he did and did not consider. From our review of the document, we
conclude the fantasy portions of the conversation clearly stand apart from the discus-
sions about seeking pornography on the Internet. In the absence of clear evidence to
the contrary, we presume military judges know and follow the law. United States v.
Rodriguez, 60 M.J. 87, 90 (C.A.A.F. 2004).
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United States v. Huff, No. ACM 39845 (f rev)
Accordingly, the findings, as modified, and the sentence, as reassessed, are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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