United States v. Guihama ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL 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
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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.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major
Cortland T. Bobczynski, USAF; Major John P. Patera, USAF; Mary El-
len 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This is an unpublished opinion and, as such, does not serve as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.
________________________
United States v. Guihama, No. ACM 40039
POSCH, Senior Judge:
A general court-martial composed of a military judge sitting alone con-
victed 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).1,2 The
adjudged and approved sentence consisted of a dishonorable discharge, con-
finement for ten years, forfeiture of all pay and allowances, and reduction to
the grade of E-1.
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 corrobo-
rated; (3) whether the military judge abused her discretion in denying Appel-
lant’s motion for appointment of a polygraph expert; (4) whether the evidence
is legally and factually sufficient to sustain Appellant’s convictions for aggra-
vated sexual abuse of his nephew and aggravated sexual contact with his niece;
and (5) whether trial counsel committed prosecutorial misconduct during clos-
ing argument. In addition to these issues, the court considers whether Appel-
lant 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).
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).
2 Appellant was convicted of two Article 120, UCMJ, specifications alleged under sep-
arate 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).
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.
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United States v. Guihama, No. ACM 40039
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 convictions founded on
those admissions are legally and factually sufficient. We conclude, moreover,
that trial counsel did not commit prosecutorial misconduct during closing ar-
gument. Lastly, we find that Appellant has not shown prejudice during appel-
late 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 Fed-
eral Bureau of Investigation (FBI) suspected Appellant used a group chat fea-
ture 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 vid-
eos 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 pornog-
raphy. In September 2018, the FBI executed the warrant and seized several
digital devices belonging to Appellant. Forensic analysis of those devices con-
firmed the agent’s suspicion. Over 10,000 sexually explicit pictures and videos
of children matched files of child pornography 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, Ap-
pellant was interviewed by the FBI agent who obtained the warrant and a sec-
ond agent. Appellant admitted he possessed, viewed, and distributed child por-
nography using his smartphone, a laptop computer, and files saved in Dropbox
accounts. At the conclusion of the interview, Appellant agreed to take a poly-
graph. The polygraph was administered the same day at an AFOSI detach-
ment on Joint Base Lewis-McChord, Washington. The FBI agent who admin-
istered the polygraph did not participate in the earlier interview with Appel-
lant 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
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United States v. Guihama, No. ACM 40039
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 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 op-
erate 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 depict-
ing child pornography that were saved to a Dropbox account.
As part of its investigation, the FBI subpoenaed Kik and learned the Inter-
net 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 be-
lieved would be found on Appellant’s person or in his home. The agent com-
pleted an affidavit in support of the warrant application. Before presenting the
affidavit to a magistrate judge, the agent consulted with colleagues who inves-
tigated child exploitation crimes, with computer forensic experts, and with the
Office of the United States Attorney. The agent swore to and signed his appli-
cation 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 appli-
cation based in Ontario, Canada.” He also explained Kik “is well known to law
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United States v. Guihama, No. ACM 40039
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 communi-
cations within a Kik messaging 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 “nu-
merous instances in which members of the group chat posted child pornogra-
phy and/or links to child pornography to share with other members.” The affi-
davit 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 infor-
mation, such as images and videos.” Individuals using a smartphone, the agent
noted, can “also easily 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 dig-
ital device. Data can be transferred from computers or other dig-
ital devices to internal and/or external hard drives, tablets, mo-
bile phones, and other mobile devices via a USB [Universal Se-
rial Bus] cable or other wired connection. Data can also be trans-
ferred between computers and digital devices by copying data to
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.”
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United States v. Guihama, No. ACM 40039
small, portable data storage devices including USB (often re-
ferred to as “thumb”) drives, memory cards[,] . . . memory card
readers, and optical discs (CDs/DVDs).
The affidavit described the capacity of digital storage devices as reposito-
ries 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 pornog-
raphy. The size of hard drives used in computers (and other dig-
ital 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 can be found on the user’s computer in most cases.
The FBI agent also described known “characteristics common to individu-
als 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 “col-
lections are often maintained for several years and are kept close by, often at
the individual’s residence or some otherwise easily accessible location, to ena-
ble 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 mate-
rials.” The FBI agent averred that a member of the Kik group chat under in-
vestigation, 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 de-
vices” 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
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United States v. Guihama, No. ACM 40039
the phone, an Asus-brand 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 values matching files of child pornography on rec-
ord in a NCMEC database.5 The Seagate external hard drive was the only ex-
ternal drive seized from the residence.
Forensic analysis of these four devices revealed 11,885 files of child pornog-
raphy—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 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 forensi-
cally 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 pornogra-
phy, 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 de-
scribed how a website might indicate that a person was 18 years old, “but they
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 [port-
able 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.”
7 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 un-
der headings, “BOY,” “GIRL,” “RANDOM,” and “SORT.”
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United States v. Guihama, No. ACM 40039
look younger, like 14, [or] 15.” The laptop was the same device he used “for
finances and researching for work” and he protected it with a password. Im-
portantly, 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 ac-
cess 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 acknowl-
edged 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, some younger folks.
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?
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United States v. Guihama, No. ACM 40039
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.
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 affirma-
tive. 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 au-
thorization 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. The FBI agent chal-
lenged Appellant with “minimizing” his involvement, which prompted Appel-
lant 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
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” pornogra-
phy on his computer and told him to “get rid of it.” Appellant said he “did to a point,
but then [he] never deleted everything.”
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United States v. Guihama, No. ACM 40039
Several times during the interview, the FBI agent communicated with the
search team. According to an FBI report attached to Appellant’s pretrial mo-
tion, 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 mi-
nors 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 ex-
ternal 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 evi-
dence obtained from Appellant’s home for forensic analysis while pursuing
other leads. Those leads included obtaining evidence of files saved in Appel-
lant’s Dropbox account, as well as his activities and contact with the file stor-
age 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 pos-
sessed, viewed, or distributed child pornography using a non-Kik-enabled de-
vice 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 deter-
rence 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 hear-
ing. 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
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United States v. Guihama, No. ACM 40039
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 Ap-
pellant’s smartphone. The agent answered that there were
[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 com-
puter, 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 shar-
ing 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 con-
tention that there was 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-capa-
ble smartphone.
The military judge found the magistrate judge “could have reasonably in-
ferred from the evidence presented to him that if [Appellant] sent child por-
nography 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
9 Trial counsel asked the FBI agent, “Can you use the Kik application on a computer?”
The agent replied, “I don’t believe so.”
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United States v. Guihama, No. ACM 40039
the medium by which [Appellant] accomplished his distribution of child por-
nography.” 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:
Prior to submitting his search warrant application, [the FBI
agent] sought guidance from FBI colleagues with relevant expe-
rience and the United States Attorney . . . . The information in-
cluded 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 aban-
doned 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-discovery doctrine. She found that “Government agents
possessed and were actively pursuing evidence and leads that would have in-
evitably 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
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United States v. Guihama, No. ACM 40039
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 Ap-
pellant’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 por-
nography 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.
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 num-
ber 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 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. Hoff-
mann, 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
10 The military judge also found that exclusion of the evidence would not result in ap-
preciable 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.
13
United States v. Guihama, No. ACM 40039
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 cir-
cumstances 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 mag-
istrate’s probable cause determination due to the Fourth Amendment’s11
strong preference for searches conducted pursuant to a warrant. Id. at 236 (ci-
tations omitted). This standard also “reflects the law’s preference for . . . inde-
pendent 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 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[-]Kik-capable or Dropbox[-
]linked electronic devices” for evidence of child pornography. To the extent Ap-
pellant’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
appeal, the Government argues that the search should be upheld because Ap-
pellant 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
11 U.S. CONST. amend. IV.
14
United States v. Guihama, No. ACM 40039
to infer that somebody who exchanged links to child pornography using a mo-
bile messaging application, such as a smartphone, would store child pornogra-
phy 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 require-
ment 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 rec-
ognized 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 mili-
tary 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 con-
traband or evidence of a crime will be found in a particular place.” Nieto, 76
M.J. at 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 spe-
cific 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 Ma-
comber, 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. Investiga-
tors 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 in-
formed 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 Gov-
ernment’s affidavit was insufficient to establish a nexus to search the appel-
lant’s laptop; it noted that the affiant’s “generalized profile about how service-
members ‘normally’ store images was technologically outdated and was of little
value in making a probable cause 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
15
United States v. Guihama, No. ACM 40039
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 contra-
band 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 rela-
tionship 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 observa-
tions 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 sup-
ported a 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 appel-
lant by his name, dorm address, and telephone number. Id. at 215–16. Inves-
tigators also learned from a postal inspector that the appellant had ordered
child pornography videos for delivery to that address. Id. at 216. An investiga-
tor 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 affida-
vit 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 pos-
sess 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 magis-
trate authorized a search of the appellant’s dorm room where investigators
found “several hundred suspected child 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
16
United States v. Guihama, No. ACM 40039
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] pro-
file.” 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 sup-
press:
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 pre-
sent, 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.
. . . 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 infer-
ence that a military member who subscribed to an Internet web-
site 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 connec-
tion inside his home. Also, unlike Nieto, the magistrate judge could reasonably
infer that more than one device was used to transfer contraband. In that re-
gard, the magistrate judge knew that collectors and distributors of child por-
nography use online services to exchange child pornography. The magistrate
judge could similarly infer Appellant used other devices to access child pornog-
raphy in the same way that Appellant used his smartphone to send links that
referenced contraband he kept in a location other than his smartphone.
17
United States v. Guihama, No. ACM 40039
As in Clayton, Appellant’s participation in a group that exchanged contra-
band 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 dis-
tributed child pornography he kept in secure locations such as his home. Mak-
ing 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 re-
questing affidavit. See Nieto, 76 M.J. at 106 (observing, “law enforcement of-
ficer’s professional experience may be useful in establishing . . . nexus”). The
affidavit allowed the 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 de-
mand 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 quota-
tion marks and citation omitted). Here, the FBI agent explained that individ-
uals 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 magis-
trate 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 pornog-
raphy 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.
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
18
United States v. Guihama, No. ACM 40039
met. Subsections (A) through (C) of the rule, with case law interpreting the
requirements of subsection (B), may be summarized—and restated—as fol-
lows:
(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 determin-
ing 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 “substan-
tial basis” in Mil. R. Evid. 311(c)(3)(B) “examines the affidavit
and search authorization through the eyes of a 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 us-
ing an objective standard.” Mil. R. Evid. 311(c)(3)(C).
The Government argues on appeal that the good-faith exception to the ex-
clusionary 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 de-
vices 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 deter-
mining the existence of probable cause. Before seeking authorization to search,
evidence shows the agent consulted with colleagues who investigated child ex-
ploitation 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 (2011) (not-
ing 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 ar-
ticulated 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].”
19
United States v. Guihama, No. ACM 40039
(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 mes-
saging 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 mag-
istrate 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 Appel-
lant’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 link-
age 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
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 ac-
tivity.” 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 ex-
clusionary 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 lack-
ing. This exception to the exclusionary rule states “[e]vidence that was ob-
tained as a result of an unlawful search or seizure may be used when the evi-
dence 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
20
United States v. Guihama, No. ACM 40039
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 over-
broad in its scope, the Government would have inevitably discovered child por-
nography 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. Evi-
dence showed one of those devices was his smartphone. The other was his lap-
top, which contained 6,798 pictures and 5,000 videos with hash values match-
ing files of child pornography on record in a NCMEC database. Even as evi-
dence was collected from the residence, FBI agents continued to 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 assump-
tion 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 bur-
den 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
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
21
United States v. Guihama, No. ACM 40039
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.
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 de-
vice 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 unlaw-
ful” when they searched Appellant’s home. Eppes, 77 M.J. at 347 (citation omit-
ted). Because the inevitable discovery doctrine applies, the military judge did
not abuse her discretion in denying Appellant’s motion to suppress on this ba-
sis, 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 re-
garding touching his nephew and niece in a sexual manner were sufficiently
corroborated to be trustworthy for admission.
Before arraignment, Appellant moved to prohibit introduction into evi-
dence of his statements about touching his nephew and niece in a sexual man-
ner.12 Citing Mil. R. Evid. 304(c), Appellant sought to exclude those statements
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 dis-
cussed in this opinion, both transcripts were subsequently admitted into evidence.
22
United States v. Guihama, No. ACM 40039
he made in the post-polygraph 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 ad-
mitted 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 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 pornogra-
phy, 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 ad-
mitted at trial. The military judge concluded Appellant’s admissions to fon-
dling 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. How-
ever, 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 Appel-
lant’s motion to exclude the three videos under Mil. R. Evid. 404(b). Her cor-
roboration 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 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.
13 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.”
23
United States v. Guihama, No. ACM 40039
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 pornog-
raphy to his Kik username. Because of Appellant’s association with child por-
nography, 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 earlier.” Appellant replied that he “wouldn’t do that.” Upon further ques-
tioning, Appellant stated he had “[n]ever” been a victim of abuse. In still more
follow-up questioning, the FBI agent referenced Appellant’s viewing child por-
nography 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 individ-
uals “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-poly-
graph interview, and also during a polygraph that was administered by a dif-
ferent 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 and his wife were living on Dyess Air
14 Appellant also contests the evidentiary sufficiency of his convictions for sexual abuse
of his nephew and niece. This opinion further discusses in more detail, infra, Appel-
lant’s admissions that the Government used at trial.
24
United States v. Guihama, No. ACM 40039
Force Base (AFB), Texas, and they drove to visit her family “in Missouri a cou-
ple 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 “some-
where 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.
Initially, Appellant recalled the incident with his nephew and niece oc-
curred in the living room when he and his wife visited with her family some-
time 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 over-
seas 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.
c. Government’s Evidence of Corroboration
Special agents of the AFOSI undertook to substantiate Appellant’s state-
ments about fondling his nephew and niece. At trial, the Government relied on
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 an-
nual leave.
25
United States v. Guihama, No. ACM 40039
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 De-
cember 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 ad-
missions. The military judge included that information in her ruling. The mil-
itary judge’s factfinding was substantially in agreement with evidence intro-
duced 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. Be-
ginning in April 2010, the sister-in-law was stationed in San Antonio, Texas,
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 mili-
tary judge, during the time Appellant’s sister-in-law was stationed in San An-
tonio, 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 testi-
fied 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 hap-
pen, 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 chil-
dren 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 house for a brief period until she completed her
overseas tour, after which she moved with her husband and children to Colo-
rado.
26
United States v. Guihama, No. ACM 40039
ii) Appellant’s Brother-In-Law
In like manner as his wife, Appellant’s brother-in-law testified that his
family moved to San Antonio in April 2010. He testified to the agreeable rela-
tionship between families when his wife and Appellant were both stationed in
Texas. His family visited Appellant and his wife about three times on week-
ends 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 dur-
ing 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 holi-
days together. During visits to Appellant’s home, at night the children and Ap-
pellant slept in the living room.
The brother-in-law recalled his wife taking mid-tour 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 Appel-
lant’s brother-in-law was working in a different state, he lived in that apart-
ment, 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 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 Ap-
pellant on either visit. The first occasion was a two-day visit in May 2013 when
the brother-in-law and his children were still living in the two-bedroom apart-
ment. 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 re-
membered his mother being there” on that occasion. He “remembered one in-
stance where he fell asleep while in the same room as [Appellant] when [Ap-
pellant] visited Missouri.” The nephew “fell asleep on the couch while [Appel-
lant] visited, but his mother was present.” He remembered he “woke up and
got carried to his room.”
In the findings portion of the court-martial, the nephew testified about vis-
iting Appellant’s home in Texas before his family moved to Missouri. During
27
United States v. Guihama, No. ACM 40039
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 grand-
parents in Missouri.
iv) Appellant’s Older Niece
Appellant’s older niece, who was the named victim, had a mid-to-late au-
tumn 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 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] dur-
ing 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 re-
called 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 coun-
sel, the niece was clear that her “uncle [Appellant], and [her] aunt, [her]
brother, and [her] little sister” watched movies together. In response to a clar-
ifying 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 Ap-
16 Appellant had two nieces, both younger than their brother (Appellant’s nephew).
Appellant was convicted of aggravated sexual contact upon the older niece.
28
United States v. Guihama, No. ACM 40039
pellant visited them after they moved to St. Louis and lived with their grand-
parents. 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 sib-
lings 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 vis-
its 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.
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 discre-
tion. 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 cor-
rect 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 Pros-
ecution “must proffer to the military judge evidence that it believes corrobo-
rates the accused’s statement.” Id. at 174. “[T]he military judge may admit into
evidence each piece of the proffered evidence on a conditional basis in order to
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.
29
United States v. Guihama, No. ACM 40039
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 mili-
tary 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 require-
ments 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 evi-
dence in the process of determining whether the accused’s state-
ment 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 confes-
sion” 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 answering each of the three questions in the affirma-
tive, 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 be-
fore 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 cor-
roboration. First, the Government contends that “the vast amount of child por-
nography” 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
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
30
United States v. Guihama, No. ACM 40039
Appellant was first asked if he had ever touched a child. The Government ar-
gues Appellant’s visibly emotional response to this line of questioning was ev-
idence of his consciousness of guilt and supports the reliability of later admis-
sions to touching his nephew and niece.
Before using the Whiteeyes framework to examine the military judge’s rul-
ing, 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 pur-
poses 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 addressed by the military judge’s corroboration ruling. For au-
thority 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’ tes-
timony when he ruled on Appellant’s motion.” 82 M.J. at 180 (Hardy, J., con-
curring in the judgment). Judge Hardy noted that testimony was “properly in-
cluded in the joint appendix and can be considered by this Court.” Id. The opin-
ion of the court in Whiteeyes similarly relied on that expert witness’s testimony
to committing child pornography offenses in an earlier FBI interview was substanti-
ated by evidence found on his digital devices.
31
United States v. Guihama, No. ACM 40039
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 evi-
dence of Appellant’s emotional response to questioning about sexually touching
children.
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 ad-
missions were sufficiently corroborated to be used against him at trial.
a. Independent Evidence
With respect to whether the proffered evidence constituted independent ev-
idence, 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, prelimi-
nary 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. 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 Appel-
lant 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 con-
fessed 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 opportuni-
ties” for visits with his nephew and niece.
Fourth, the military judge found that Appellant’s nephew and niece “dis-
tinctly” 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.
32
United States v. Guihama, No. ACM 40039
Although his nephew and niece did not necessarily recall these incidents hap-
pening 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.”
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 sex-
ually touching children was a nontestimonial act tending to show conscious-
ness of guilt. See United States v. Clark, 69 M.J. 438, 444 (C.A.A.F. 2011) (ac-
cused’s demeanor admissible “where it is relevant to an accused’s ‘conscious-
ness of guilt’”); United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998) (nontesti-
monial acts admissible to show consciousness of guilt); United States v. Bald-
win, 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 con-
sciousness of guilt is an accepted principle of military jurisprudence”). We find
circumstantial evidence of Appellant’s demeanor during initial FBI question-
ing 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. 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 in-
ference of the truth of Appellant’s admissions, we again conclude that the mil-
itary 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 ad-
missions.
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
33
United States v. Guihama, No. ACM 40039
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 sum-
mer 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. 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 in-
ference 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 inde-
pendent 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 in-
ference that [Appellant]’s statements were true given the specific way the ac-
cused 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 “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 emo-
tional 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 ev-
idence, considered together, tend to establish the trustworthiness of Appel-
lant’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 commit-
ted upon his nephew and niece. First, Appellant argues the admissions do not
provide a timeframe narrower than the charged timeframe for the alleged of-
34
United States v. Guihama, No. ACM 40039
fenses—between on or about 28 January 2011 and 27 June 2012. In that re-
gard, 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 admis-
sions.
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 dur-
ing 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 ad-
missions, 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 find-
ing sufficient independent evidence established the trustworthiness of Appel-
lant’s admissions to fondling his nephew and niece as charged.
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, fanci-
ful, 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
35
United States v. Guihama, No. ACM 40039
United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988); United States v. Yeo-
man, 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 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 [Ap-
pellant] after nine hours of custodial interrogation” and that “the Govern-
ment’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
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 pre-
sent.” 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 “con-
sent freely and voluntarily without fear, threats, coercion, or promises of any
kind.” He read from a statement prepared for him, acknowledging that he
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 er-
ror 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 fac-
tually sufficient. This issue warrants neither further discussion nor relief. See Matias,
25 M.J. at 361.
20 Miranda v. Arizona, 384 U.S. 436 (1966).
36
United States v. Guihama, No. ACM 40039
“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 per-
sonal 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 sustainment of
our aircraft.” Those duties included coordinating with a major defense contrac-
tor. 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 re-
quests to adjust the temperature in the sedan and, at one point, offered Appel-
lant 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 trans-
ported 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, wa-
ter, 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 re-advising Appellant of his
Miranda rights. Appellant again waived those rights and the agent proceeded
with pre-polygraph questioning. The second interview consisted of the poly-
graph itself. Both before and during the polygraph, the agent asked Appellant
if he 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 Ap-
pellant at the AFOSI detachment. We describe that interview in some detail
37
United States v. Guihama, No. ACM 40039
as it bears on Appellant’s claim that his subsequent statements of sexual con-
tact 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.”
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 “re-
ally 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 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 any-
body can have happen to them, right?
A: Mm-hm.
38
United States v. Guihama, No. ACM 40039
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 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 some-
thing 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
given that environment and that context.
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 pred-
ator.” 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
39
United States v. Guihama, No. ACM 40039
dutiful son who wasn’t allowed to kind of explore a lot of the nor-
mal 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 oc-
curred. And again, I don’t think it was forced. I think it was con-
sensual. 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 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 weigh-
ing 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 por-
nography, okay, tells me that there is part of you that is obvi-
ously 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 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
40
United States v. Guihama, No. ACM 40039
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 no-
judgement place,” and Appellant nodded his head up and down. The agent of-
fered that “for millennia” the ancient Greeks and even modern-day men in an-
other country have “all been attracted to young males.” In the agent’s telling,
“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 conse-
quences? 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 hap-
pened” 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 Ap-
pellant was “traveling overseas.”21 He offered a “guess” that Appellant had sex-
ual 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 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
21 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.”
41
United States v. Guihama, No. ACM 40039
nephew] was sleeping” at the time. The agent asked Appellant when this con-
duct 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?
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 pre-
sent. 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 acknowl-
edged 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 ques-
tioning, 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.
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,
42
United States v. Guihama, No. ACM 40039
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 Appel-
lant’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.
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 un-
derwear. 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 [Appel-
lant] went to sleep too.”
Without prompting, Appellant said he fondled his nephew on a second oc-
casion under “the same” 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 masturbat-
ing 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
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United States v. Guihama, No. ACM 40039
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 inci-
dent than the second, and his answers suggested he had difficulty remember-
ing 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 sec-
ond 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.”
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.
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----
44
United States v. Guihama, No. ACM 40039
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, Ap-
pellant 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 fon-
dled his nephew and niece in summer 2011, and not January or February 2011
as he stated earlier. However, neither Appellant nor the FBI agent acknowl-
edged that difference. In Appellant’s telling, he returned from an overseas de-
ployment in January or February 2011 and
later on that summer we ended up going to visit [my wife’s] fam-
ily 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 excep-
tion 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.
(Emphasis added).
45
United States v. Guihama, No. ACM 40039
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 vis-
ited them again [the] next summer. It was okay until another
night we ended up watching in the living room again, and it hap-
pened 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 States
46
United States v. Guihama, No. ACM 40039
v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). To reach a de-
termination 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 sus-
tain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (in-
ternal quotation marks and citation omitted). “In determining whether any ra-
tional trier of fact could have determined that the evidence at trial established
guilt beyond a reasonable doubt, [this court is] mindful that the term ‘reason-
able 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 ev-
idence 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 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 be-
yond 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: touch-
ing 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
47
United States v. Guihama, No. ACM 40039
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)(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 cloth-
ing, of the genitalia . . . of another person . . . with an intent to abuse, humili-
ate, or degrade any person or to arouse or gratify the sexual desire of any per-
son.” 2008 MCM, pt. IV, ¶ 45.a.(t)(2).22
4. Analysis
Appellant argues that his two convictions, founded on his admissions to
touching his nephew and niece in a sexual manner, are legally and factually
insufficient. Appellant asks the court to find his admissions unreliable and un-
trustworthy as a matter of law and fact.
Evidence presented at trial supports the legal sufficiency of both convic-
tions. A rational trier of fact could conclude that Appellant, on two occasions,
used his hand to directly touch his nephew’s penis before his nephew attained
the age of 16 years. On the issue whether Appellant’s admissions showed that
he touched his nephew’s penis directly, and not through the pajamas his
nephew was wearing, Appellant admitted in the post-polygraph interview that
“it was just [Appellant’s] hands touching . . . his [nephew’s] penis, to arouse
him with an erection.” Appellant also answered affirmatively when asked if he
had pulled down his nephew’s pajamas before engaging in the conduct at issue.
A rational trier of fact could also conclude that Appellant used his hand to
touch the vulva of his niece through her clothing before she attained the age of
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 “[i]t is not an affirmative defense that [an accused]
reasonably believed that the child had attained the age of 12 years,” id.; see also 2008
MCM, pt. IV, ¶ 45.a.(r). Thus, unlike a prosecution for aggravated sexual abuse of a
child under Article 120(f), UCMJ, it is not an affirmative defense in a prosecution un-
der Article 120(g), UCMJ, that an accused reasonably believed the child had attained
a certain age.
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United States v. Guihama, No. ACM 40039
12 years. Evidence showed, moreover, that Appellant engaged in the charged
conduct with intent to arouse the children and gratify his own sexual desire.
As noted, the Government charged Appellant with committing offenses
against his nephew and niece “between on or about 28 January 2011 and 27
June 2012,” and in the alternative, “between 28 June 2012 and on or about 27
August 2013.”23 Appellant was convicted of acts during the former timeframe
and acquitted of the same conduct that was charged during the latter. Appel-
lant argues, “To the extent that there is any doubt as to the specific timing of
the convicted offenses, this doubt must be resolved in [his] favor.” We agree
and look beyond Appellant’s admissions for competent evidence on which a ra-
tional factfinder could rely to find that Appellant engaged in the charged con-
duct on or before 27 June 2012.
A rational trier of fact could find beyond a reasonable doubt that Appellant
committed the charged acts during a timeframe that ended on 27 June 2012.
Appellant admitted he fondled his nephew and niece during R and R leave he
took in January or February of 2011. During this time, his wife’s family lived
in Texas, and they would not leave for Missouri until summer 2012 when they
moved in with their grandparents. The Government notes: “Appellant made
his confession in 2018, which was six or seven years after the misconduct oc-
curred.” The Government argues that “the circumstances surrounding the of-
fense—Appellant visiting his nieces and nephew and falling asleep with them
on the floor while watching movies—reportedly occurred on multiple occasions
in different locations.”
We agree it is understandable that after six to seven years, Appellant might
have misremembered some of the details surrounding his crimes, including lo-
cation and timeframe. However, such confusion does not necessarily preclude
a trier of fact from finding that the acts occurred during the charged timeframe.
Evidence need not be completely consistent to still be sufficiently reliable to
sustain a conviction. See, e.g., United States v. McElhaney, 50 M.J. 819, 832
(A.F. Ct. Crim. App. 1999) (concluding evidence was factually sufficient, in
part, because the appellant’s wife corroborated appellant’s romantic relation-
ship with victim notwithstanding wife’s testimony that some of the charged
acts could not have occurred), rev’d on other grounds, 54 M.J. 120 (C.A.A.F.
2000). Here, the most rational explanation for Appellant’s inconsistencies is
one he provides. In response to the FBI agent asking Appellant when he first
fondled his nephew, Appellant was not only uncertain, but turned to the agent
23 The Government explained on the record that the charged timeframe ends when
Appellant was reassigned to an installation overseas.
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United States v. Guihama, No. ACM 40039
and asked what he previously told the agent about his return date from an
overseas deployment.
Appellant’s account of the January or February 2011 timeframe for the first
incidents of touching his nephew and niece is supported by a travel voucher,
which marks his deployment return on 28 January 2011. Appellant admitted
he fondled his nephew a second time either that summer or the next before the
children returned to school. Appellant explained that this second encounter
was like the first, when the three children fell asleep on the living room floor
after watching movies with him. A rational trier of fact, relying on Appellant’s
admissions and testimony from his wife’s family, could find beyond a reasona-
ble doubt that Appellant touched his nephew a second time in summer 2011.
The family members’ testimony shows that Appellant had regular access to his
niece and nephew before the summer of 2012 and supports Appellant’s account
that he often spent the night with his nephew and nieces in the living room
after watching movies.
Appellant also challenges both the reliability of his admissions to the FBI
and the weight that should be given to evidence introduced as corroboration.
As to this first contention, Appellant characterizes his admissions as a “false
confession” brought about from nine hours of custodial interrogation.24 He ar-
gues, moreover, those admissions are unreliable because they are insufficiently
specific as to a timeframe when the charged conduct supposedly occurred. As
to his second contention, Appellant argues the evidence is insufficient because
the named victims denied any memory of the charged acts, and because the
FBI agents found no independent evidence of Appellant’s sexual involvement
with his nephew or niece—or other children for that matter.
24 Appellant argues the Government’s proof is insufficient because his admissions were
obtained after hours of intense and relentless FBI interrogation tech-
niques being imposed upon him, beginning with [Appellant]’s forceful
removal from his home before sunrise by fully armed agents who
rammed down his door with weapons drawn, followed by hours of cus-
todial questioning in a police car as the agents searched his home, and
ultimately being subjected to a polygraph examination, before finally
being repeatedly asked to confess to offenses of which there was no in-
dependent evidence.
To the extent Appellant claims the evidence is legally insufficient because his admis-
sions were involuntary, we assess the totality of the surrounding circumstances and
find the voluntariness of those admissions was demonstrated by a preponderance of
the evidence and they were properly admissible at trial. See United States v. Bubonics,
45 M.J. 93, 94–96 (C.A.A.F. 1996). We also examined those circumstances as they bear
on legal and factual sufficiency of the convictions at issue.
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United States v. Guihama, No. ACM 40039
We have considered these contentions, which repeat many of Appellant’s
assertions at trial. Our review of the legal sufficiency of the convictions re-
quires an examination of whether any rational trier of fact could have found
the essential elements of the crimes beyond a reasonable doubt. Jackson, 443
U.S. at 318–19; Robinson, 77 M.J. at 297–98. Our determination includes eval-
uating all reasonable inferences from the evidence in favor of the Prosecution.
Barner, 56 M.J. at 134 (C.A.A.F. 2001). Just as “factfinders may believe one
part of a witness’ testimony and disbelieve another,” United States v. Harris,
8 M.J. 52, 59 (C.M.A. 1979), the trier of fact here might accept parts of Appel-
lant’s admissions and reject others.
In our legal sufficiency review, we find no cause to challenge a determina-
tion by a rational trier of fact that Appellant’s admissions to the FBI were re-
liable. To be sure, the FBI agent pressed Appellant to divulge incidents of sex-
ual contact with a minor. He did so by using means that could produce unreli-
able admissions. However, the complete record of that questioning was before
the military judge as the trier of fact, as were Appellant’s answers. Appellant
was unsure of the timeframe when he engaged in the charged acts, but we
cannot say that, as a matter of law, Appellant’s admissions were unreliable as
they bear on the elements of the charged offenses.
Turning to evidence of corroboration, a factfinder may consider “[t]he
amount and type of [such] evidence . . . in determining the weight, if any, to be
given to the admission or confession.” Mil. R. Evid. 304(c)(4); see also United
States v. Duvall, 47 M.J. 189, 192 (C.A.A.F. 1997) (observing “the nature of any
corroborating evidence is an appropriate matter for the members to consider
when weighing the statement before them”). A rational trier of fact could find
support for the trustworthiness of Appellant’s admissions from independent
evidence of Appellant’s leave records, the general timeline Appellant gave for
visits with his wife’s family, and that he stayed up late watching movies in the
living room with his nephew and nieces until they fell asleep. Evidence of the
children’s ages also supports Appellant’s admissions. A rational trier of fact
could give some weight to these factors, find sufficient evidence of corrobora-
tion, and infer that Appellant had the requisite intent for both offenses. View-
ing the evidence in the light most favorable to the Prosecution, see Robinson,
77 M.J. at 297–98, a rational factfinder could find beyond a reasonable doubt
each element of the offenses Appellant committed upon his nephew and niece.
We then ask whether the evidence, although legally sufficient to support
the convictions, leaves us convinced of Appellant’s guilt beyond a reasonable
doubt. See Turner, 25 M.J. at 325. While the court has the independent author-
ity and responsibility to weigh the credibility of the witnesses in determining
factual sufficiency, we recognize that the trial court saw and heard the testi-
mony. See United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (stating it is
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United States v. Guihama, No. ACM 40039
the members’ role to determine whether testimony is credible or biased). The
court also recognizes that we, like the factfinder at trial, have a responsibility
to weigh the probability that Appellant’s admissions are reliable, sufficiently
corroborated by independent evidence, and that he acted with requisite intent.
Long, 81 M.J. at 369 (observing appellate court may consider in its legal suffi-
ciency review that a rational factfinder could weigh probabilities to infer that
an element was proven beyond a reasonable doubt).
Although the evidence could support an inference that Appellant felt pres-
sured to make statements against his self-interest, we are not inclined to find
the admissions he made were untrue, much less involuntary, based on coer-
cion. Appellant’s personal circumstances suggest that his statements to the
FBI tend to be reliable. His age, education, military grade of E-7, length and
type of military service, and scope of responsibility that he exercised in his
military duties at the time all weigh in favor of finding his statements were
neither erroneous nor coerced. Before answering questions, more than once
Appellant was advised of and waived his Miranda rights and was informed
that he could stop questioning at any time. He also consented to FBI agents
assuming and using his online identity.
Because each of these decisions was meaningful, they indicate to us that
Appellant understood he was making intelligent waivers of important rights
that were against self-interest. Appellant was initially handcuffed in a govern-
ment car as FBI agents searched his home, but he was not handcuffed when
he made admissions in the post-polygraph interview. In our review of the video
of that interview and its transcription, Appellant’s demeanor was calm, and he
appeared comfortable.25 There is no reason to believe Appellant’s statements
were the product of hardships or unmet personal needs before or during that
interview.
Appellant rejected the FBI agent’s suggestion about the likely settings and
provocation for him having had sexual contact with a minor. The agent repeat-
edly offered that Appellant’s indiscretion with a minor was likely a “consen-
sual” situation, and possibly during a “time where [Appellant] w[as] feeling
betrayed” by his wife’s infidelity. At one point the agent suggested it might
have occurred in a foreign country. Even so, Appellant corrected the agent,
25 As far as this court’s findings regarding Appellant’s interviews, we note that
“[u]nlike most intermediate appellate courts and [the CAAF], the Court of Criminal
Appeals has factfinding powers.” United States v. Cendejas, 62 M.J. 334, 342 (C.A.A.F.
2006) (citing Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000)).
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United States v. Guihama, No. ACM 40039
divulging that “it wasn’t in this timeframe[—t]his timeframe since the incident
that I told you about my wife[‘s]” adultery. Rather, in Appellant’s telling, “we
were visiting family,” which was a setting the agent had not previously sug-
gested as a possibility. After that, Appellant admitted fondling his nephew in
a narrative confession in which Appellant again contradicted the agent, reveal-
ing for the first time, “I’m going to say it doesn’t seem consensual because [his
nephew] was sleeping.” It was then that Appellant revealed for the first time,
“It was my nephew on my wife’s side.”
Under these circumstances, we disagree with Appellant’s claim that the
length of the interrogation and the manner by which the FBI agent conducted
the interview with Appellant unlawfully coerced his admissions. We also find
that Appellant’s emotional response when an FBI agent asked if he had ever
touched a child in a sexual manner contributes to the sufficiency of the convic-
tions. In this regard, Appellant’s consciousness of guilt is some evidence he, in
fact, inappropriately touched his nephew and niece in the manner charged by
the Government. Having weighed the evidence in the record and made allow-
ances for not having personally observed the witnesses, we are convinced of
Appellant’s guilt beyond a reasonable doubt. Accordingly, Appellant’s convic-
tions are not just legally sufficient, but factually sufficient as well.
D. Trial Counsel’s Findings Argument
Appellant contends that trial counsel improperly argued in findings that
Appellant could have engaged in instances of sexual contact with children be-
yond the acts he admitted in the post-polygraph interview with the FBI. In
Appellant’s telling, trial counsel argued that Appellant’s admissions to sex-
ually abusing his nephew and niece were “just the tip of the iceberg,” in the
same way that Appellant underestimated the amount of child pornography in
his possession during his first interview with the FBI. We have reviewed trial
counsel’s argument in context and find Appellant’s contention is not supported
by the record. Accordingly, we are not convinced trial counsel’s argument was
improper for arguing facts not in evidence, as characterized by Appellant.
1. Additional Background
The statements of trial counsel at issue comprised a small portion of the
findings argument. Near the end of argument, trial counsel reasoned that Ap-
pellant may have been mistaken about the locations and timeframe during
which he fondled his nephew and niece. Trial counsel maintained that Appel-
lant “has a hard time talking about exact timeframes and years” and then drew
a parallel with Appellant minimizing his involvement with child pornography
during his first FBI interview. Without objection, trial counsel began this por-
tion of the argument at issue by giving an example of Appellant “contradicting
himself” in the post-polygraph interview:
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United States v. Guihama, No. ACM 40039
We see him saying, [“]I know it happened in the winter of 2011
after I got back from a deployment,[”] and later saying, [“]well
maybe it was actually the summer of 2011.[”] So we know . . . his
own memory of exactly the timeframe of these things is not per-
fect.
But we also see too in [Appellant’s first] interview [with the FBI
agent], his minimization of his involvement with the child por-
nography, that the [forensic] analysis showed what [Appellant]’s
talking about in the car with that FBI agent is really just the tip
of the iceberg.
And similarly that could be happening here where these in-
stances occurred maybe one in Texas, one in Missouri, but it’s
easier to say, yes, it was both Missouri. But there’s enough there
to show that what he’s talking about is credible.
(Emphasis added).
Next, trial counsel argued at length how the evidence showed dates and
locations when Appellant had opportunities to commit the charged offenses
that were consistent with his admissions to the FBI.
2. Law
Claims of prosecutorial misconduct and improper argument are reviewed
de novo. United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citation
omitted). “We review prosecutorial misconduct and improper argument de
novo and where . . . no objection is made, we review for plain error.” United
States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation omitted). Plain error
occurs when “(1) there was an error; (2) it was plain or obvious; and (3) the
error materially prejudiced a substantial right.” United States v. Erickson, 65
M.J. 221, 223 (C.A.A.F. 2007) (internal quotations and citations omitted). “As
all three prongs must be satisfied in order to find plain error, the failure to
establish any one of the prongs is fatal to a plain error claim.” United States v.
Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006).
Not every improper comment by the Prosecution is a constitutional viola-
tion. United States v. Webb, 38 M.J. 62, 65 (C.M.A. 1993) (citation omitted).
Instead, we evaluate the comment in the context of the overall record and the
facts of the case. Id at 65–66; see also United States v. Baer, 53 M.J. 235, 238
(C.A.A.F. 2000) (observing that “the argument by a trial counsel must be
viewed within the context of the entire court-martial”). In determining preju-
dice, we consider “whether there was ‘a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.’” Voorhees, 79
M.J. at 9 (quoting United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017)).
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United States v. Guihama, No. ACM 40039
3. Analysis
Appellant urges the court to find that trial counsel committed prosecutorial
misconduct by arguing that Appellant may have committed additional child
sexual assault offenses than what could be fairly inferred from the record. Cit-
ing the CAAF opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016),
Appellant claims there is no way to be certain that Appellant’s convictions for
the offenses he committed against his nephew and niece were based upon the
evidence adduced at trial, on the one hand, or on trial counsel’s suggestion of
Appellant’s propensity to commit such offenses, on the other. Appellant claims
trial counsel improperly used evidence underlying the child pornography of-
fenses to show propensity to engage in the conduct against his nephew and
niece.
As background, the record reveals that Appellant appeared to minimize his
involvement in child pornography. Appellant seemed hesitant to reveal details,
to include the number of images he possessed and retained, which forensic
analysis later revealed was many thousands of pictures and videos. In our
reading of the remarks that precede and follow trial counsel’s “tip of the ice-
berg” comment, and “that could be happening here” argument, we are not con-
vinced of Appellant’s contention that trial counsel was arguing propensity. See
Baer, 53 M.J. at 238 (observing “it is improper to ‘surgically carve’ out a portion
of the argument with no regard to its context”). In context, trial counsel did not
plainly imply Appellant committed sexual abuse of other children. Instead, she
suggested Appellant had not been completely forthcoming about his involve-
ment with child pornography, so similarly, he may have not been completely
accurate about the location, timeline, or extent of his confessed instances of
fondling his nephew and niece.
Completing trial counsel’s analogy, the “tip of the iceberg” was that Appel-
lant revealed much less than he was willing to disclose or able to remember
about the location and timeframe when he fondled his nephew and niece, to
include when both families lived in Texas. This inference was reasonable and
not plainly improper. Appellant has not demonstrated trial counsel committed
prosecutorial misconduct.
E. Delayed Appellate Review
Appellant’s case was docketed with the court on 3 March 2021, more than
18 months before a decision was rendered. In United States v. Moreno, our su-
perior court established a presumption of facially unreasonable delay when a
service Court of Criminal Appeals does not issue a decision within 18 months
of docketing. 63 M.J. 129, 142 (C.A.A.F. 2006).
Because there is a facially unreasonable delay, we examine the four fac-
tors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the
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United States v. Guihama, No. ACM 40039
delay; (2) the reasons for the delay; (3) an appellant’s assertion of his right to
a timely review; and (4) prejudice to the appellant. Moreno, 63 M.J. at 135
(citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); United States v.
Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No single factor is required for find-
ing a due process violation and the absence of a given factor will not prevent
such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533). However, where an
appellant has not shown prejudice from the delay, there is no due process vio-
lation unless the delay is so egregious as to “adversely affect the public’s per-
ception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
As to the first factor—the length of the delay—the appellate review of Ap-
pellant’s case has exceeded the Moreno standard of 18 months by less than
three months. Accordingly, this factor weighs in Appellant’s favor, but only
slightly. As to the second factor—the reasons for the delay—Appellant filed his
assignments of error on 28 November 2021, almost nine months after his case
was docketed with this court, and after securing six enlargements of time. The
Government filed its answer on 7 January 2022, at which point the case was
joined. Appellant replied to the Government’s answer on 14 January 2022. Un-
der these circumstances, we find the reasons for delay weigh moderately
against a finding of a due process violation. As to the third factor, Appellant
has not asserted his right to timely review. Accordingly, this factor weighs
against Appellant.
Turning to the fourth factor—prejudice—we note Moreno identified three
types of prejudice arising from post-trial processing delay: (1) oppressive incar-
ceration; (2) anxiety and concern; and (3) impairment of the appellant’s ability
to present a defense at a rehearing. 63 M.J. at 138–39 (citation omitted).
Where, as here, an appellant does not prevail on the substantive grounds of his
appeal, there is no oppressive incarceration. Id. at 139 (citation omitted). Sim-
ilarly, where an appellant’s substantive appeal against his conviction fails, his
ability to present a defense at a rehearing is not impaired. See id. at 140–41.
Furthermore, we do not discern any “particularized anxiety or concern that is
distinguishable from the normal anxiety experienced” by an appellant await-
ing an appellate decision. See id. at 140. Accordingly, this factor weighs against
Appellant. See Toohey, 63 M.J. at 361. Considering all the factors together we
do not find a violation of Appellant’s due process right owing to delayed appel-
late review.
In the absence of a due process violation, a Court of Criminal Appeals has
authority under Article 66, UCMJ, “to grant relief for excessive post-trial delay
without a showing of ‘actual prejudice’ within the meaning of Article 59(a),
[UCMJ,] if it deems relief appropriate under the circumstances.” United States
v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (citation omitted). To determine if
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United States v. Guihama, No. ACM 40039
Tardif relief is warranted, we consider the factors announced in United States
v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016). Those factors include how long the delay exceeded standards, the rea-
sons for the delay, whether the Government acted with bad faith or gross in-
difference, evidence of institutional neglect, harm to the appellant or to the
institution, whether relief is consistent with the goals of both justice and good
order and discipline, and whether this court can provide meaningful relief. Id.
at 744. Applying these factors, the court finds appellate delay justified and re-
lief is not warranted.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to a substantial right of Appellant occurred. Arti-
cles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
57