United States v. Yammine , 2010 CAAF LEXIS 525 ( 2010 )

UNITED STATES, Appellee
v.
Rob B. YAMMINE, Sergeant
U.S. Marine Corps, Appellant
No. 09-0720
Crim. App. No. 200800052
United States Court of Appeals for the Armed Forces
Argued March 4, 2010
Decided June 10, 2010
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ., joined. BAKER, J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: Lieutenant Brian D. Korn, JAGC, USN (argued).
For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Brian K. Keller, Esq. (on brief).
Military Judge: Raymond E. Beal II
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Yammine, No. 09-0720/MC
Judge RYAN delivered the opinion of the Court.
As relevant to the granted issue,1 Appellant was charged
with two specifications of forcible sodomy with a child under
the age of sixteen, in violation of Article 125, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 925 (2006), and convicted
by a general court-martial -- composed of officer and enlisted
members -- of one count of sodomy with a child who had attained
the age of twelve but was under the age of sixteen, and one
count of indecent acts with a child, in violation of Articles
125 and 134, UCMJ, 10 U.S.C. §§ 925, 934 (2006), respectively.2
The members sentenced him to a dishonorable discharge, eight
years of confinement, forfeiture of all pay and allowances, a
fine of $7000 (with an additional year of confinement if the
fine was not paid), and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.
This case presents the questions whether evidence of a list
of computer filenames suggestive of homosexual acts involving
preteen and teenage boys was admissible under Military Rule of
1
We granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S
COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD
PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING
THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO
COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.
2
Appellant also pleaded guilty to one specification of larceny
under Article 121, UCMJ, 10 U.S.C. § 921 (2006).
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Evidence (M.R.E.) 414 (as evidence that Appellant had a
propensity to commit sodomy with a child over the age of twelve
but under the age of sixteen) or, alternatively, whether such
evidence was admissible under M.R.E. 404(b) (to show motive,
plan, or intent). We answer both questions in the negative.
The computer filenames were treated as synonymous with
possession or attempted possession of child pornography, which,
under the facts of this case, we conclude is not a “qualifying”
offense under M.R.E. 414. Nor, under the facts of this case,
were the filenames admissible under M.R.E. 404(b) -- the
prejudicial effect of the evidence substantially outweighs
whatever marginal relevance and probative value these computer
filenames have to the charged offenses.
I. Facts
Appellant was a drill instructor at Marine Corps Recruit
Depot Parris Island, South Carolina. On July 10, 2006,
Appellant encountered a fourteen-year-old boy, JP, at the base
library.
JP testified as follows: Appellant followed him to the
library restroom and forcibly performed oral sodomy on him,
after which Appellant asked if JP needed a ride home. JP said
“Okay,” put his bicycle into the trunk of Appellant’s car, and
the two drove together to Appellant’s barracks. The two went to
Appellant’s room, where Appellant handcuffed JP to the bed and
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forcibly performed anal sodomy on him. Afterwards, Appellant
drove JP home and gave JP his cell phone number. JP called
Appellant several times over the next few days.
In contrast, Appellant denied any physical contact
occurred, either in the library restroom or in the barracks
room. Appellant testified that after the two left the library,
JP followed him back to his barracks on his bicycle rather than
riding in the car. Appellant stated that JP “wanted to hang out
and talk about odds and ends. Like I said, he was bored so, I
assumed that’s why he showed up.” While Appellant acknowledged
that the two talked in his room for about ten to fifteen
minutes, he stated that his door was not even closed during that
brief period because the air conditioner was broken.
On July 23, 2006, JP relayed his version of the events to
his brother-in-law, who contacted the military police. The case
was referred to Special Agent (SA) Tony Richardson of the Naval
Criminal Investigative Service (NCIS), who interviewed JP. JP
was able to point out Appellant’s building and provide a
description of Appellant’s room and of some of the items in the
room.
SA Richardson arranged a telephone intercept to see if
Appellant would be willing to meet JP. JP called Appellant and
asked Appellant to meet him at an on-base hotel that night.
Appellant agreed but did not actually show up at the hotel.
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NCIS arrested Appellant that evening. During a consensual
search of his room, Appellant’s laptop computer was seized and
sent to the Defense Computer Forensics Laboratory (DCFL). DCFL
discovered three types of evidence on the hard drive --
filenames, one frame of a movie file, and remnants of Internet
searches using the term “Lolita.” The files themselves had been
deleted and overwritten. DCFL could determine that the files
had been downloaded between October 31 and November 1, 2004, but
could not tell when the files had been deleted. All that
remained were the filenames -- there were no images of child
pornography on the computer.
Appellant moved in limine to prevent the introduction of
the following list of filenames:
(1) boy.kiddy.pedo.DX17[1].mpeg
(2) /C:/Program Files/Kazaa/My Shared Folder/10 y teen boys
sex (1).jpg
(3) /C:/Program Files/Kazaa/My Shared Folder/pedo preteen
boy little boy get (1).jpg
(4) /C:/Program Files/Kazaa/My Shared Folder/gay teen -
skinny boy sucked.jpg
(5) /C:/Program Files/Kazaa/My Shared Folder/pedo preteen
boy little boy gets sucked.jpg
(6) /C:/Program Files/Kazaa/My Shared Folder/pedo preteen
boy boner . . . mal19-72.jpg
(7) /C:/Program Files/Kazaa/My Shared Folder/2 Boys-Teen
Boy Fucking Preteen-B 26W.jpg
(8) /C:/Program Files/Kazaa/My Shared Folder/PEDO-Boy Fun
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United States v. Yammine, No. 09-0720/MC
Series 1.jpg
(9) C:\Documents and Settings\Rob Yammine\Incomplete\T-
1202102-UNDERAGED BOY FUCKED BY JUDGES R@YGOLD (7)
child porn sex underage illegal incest lolita preteen
!Y! incest zYz young KIDDY DAD nude French illegal pee
forced violated.wmv
(10) C:\Documents and Settings\Rob Yammine\Incomplete\T-
51175444-11 yr yng lolita riding dad (preteen incest
kiddy rape)(1)(2)(1).mpeg
(11) C:\Documents and Settings\Rob Yammine\Incomplete\T-
80618-2_fuck dicks young sex teen ass boy blondes
preteen cum gay cock teens little bareback boys(1).jpg
(12) C:\Documents and Settings\Rob Yammine\Incomplete\T-
5385287-sex pjk rbv maria kdv nudists.mov
(13) Fucking very fast in the ass by three
(illegal_preteen_underage_lolita_kiddy_child_incest_
xxx_porno_gay_fuck_young_naked_nude_little_g.mpeg.
The military judge denied the motion and admitted the filenames
under M.R.E. 414 on the theory that they were evidence of “the
accused’s commission of another offense of child molestation,”
thus allowing them to be used as evidence of the accused’s
“propensity to engage in the alleged acts.” The military judge
added that the filenames “may further be used to establish
motive, plan and as evidence of the element for the lesser-
included offense of indecent acts with a child.”
On appeal, the United States Navy-Marine Corps Court of
Criminal Appeals (CCA) held that it was error to admit filenames
(10) and (12) and sua sponte determined that it was also error
to admit the movie file frame (which did not portray child
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United States v. Yammine, No. 09-0720/MC
pornography) and the remnants of Internet searches using the
term “Lolita.” United States v. Yammine, 67 M.J. 717, 729-30
(N-M. Ct. Crim. App. 2009). However, it held these errors did
“not have a substantial influence on the findings.” Id. at 730(citations and quotation marks omitted). The CCA also concluded
that the remaining filenames were properly admitted under M.R.E.
414 and that even under the “narrower purposes” permitted by
M.R.E. 404(b), “this evidence would be admissible as probative
of the appellant’s motive and intent in relation to the lesser
included offense of indecent liberties with a child.” Id. at
726.
II. Discussion
A. M.R.E. 414
M.R.E. 414 permits the admission of evidence of a prior act
of “child molestation” to show propensity to commit a charged
act of “child molestation.” M.R.E. 414. While we review a
military judge’s decision to admit evidence for an abuse of
discretion, the threshold question with respect to the
admissibility of the filename evidence in this case -- whether
the filename evidence constitutes evidence that Appellant
committed another offense of “child molestation” under M.R.E.
414 -- is one of law, reviewed de novo. See United States v.
DeCologero, 530 F.3d 36, 58 (1st Cir. 2008), cert. denied, 129
S. Ct. 513 (2008) (citing United States v. Munoz-Franco, 487
7
United States v. Yammine, No. 09-0720/MC
F.3d 25, 34 (1st Cir. 2007)).
For evidence to be admitted under M.R.E. 414:
[T]he military judge must make three threshold findings:
(1) whether the accused is charged with an act of child
molestation as defined by M.R.E. 414(a); (2) whether the
proffered evidence is evidence of his commission of another
offense of child molestation as defined by the rule; and
(3) whether the evidence is relevant under M.R.E. 401 and
M.R.E. 402.3
United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010)
(citing United States v. Bare, 65 M.J. 35, 36 (C.A.A.F. 2007)).4
In analyzing whether the filenames were evidence that
Appellant had committed “another offense of child molestation as
defined by the rule” (the second threshold finding), the
military judge reasoned that under M.R.E. 414(d)(5), an “offense
of child molestation” includes “a crime under Federal law . . .
that involved deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on a
child.” He also noted that possession of child pornography
3
Relevance under M.R.E. 401 and M.R.E. 402 is enforced through
M.R.E. 104(b). United States v. Wright, 53 M.J. 476, 483
(C.A.A.F. 2000). “The court simply examines all the evidence in
the case and decides whether the jury could reasonably find the
conditional fact . . . by a preponderance of the evidence.”
Huddleston v. United States, 485 U.S. 681, 690 (1988).
4
Once the three threshold factors are met, the military
judge must then apply a balancing test under M.R.E. 403.
The importance of careful balancing arises from the
potential for undue prejudice that is inevitably present
when dealing with propensity evidence. Inherent in M.R.E.
414 is a general presumption in favor of admission.
Ediger, 68 M.J. at 248 (citations and quotation marks omitted)
(footnote omitted).
8
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violated 18 U.S.C. § 2252A (2006), the federal statute
criminalizing “[c]ertain activities relating to material
constituting or containing child pornography,” and that the
Sixth Circuit had stated that offenses involving child
pornography constitute “child molestation” under Fed. R. Evid.
414. See United States v. Seymour, 468 F.3d 378, 385 (6th Cir.
2006). Finally, the military judge found that the suggestive
filenames were evidence that the accused possessed or attempted
to possess child pornography in violation of 18 U.S.C. § 2252A.
Based on this reasoning, the military judge concluded that the
list of filenames was evidence of Appellant’s commission of
another offense of child molestation as defined by M.R.E. 414.
The CCA agreed that possession or attempted possession of
child pornography qualifies as “child molestation” under M.R.E.
414(d)(5) because it is a crime that involves “‘deriving sexual
pleasure or gratification from the infliction of death, bodily
injury, or physical pain o[n] a child.’” Yammine, 67 M.J. at
724. Additionally, the CCA found that possession of child
pornography also qualifies under M.R.E. 414(d)(2) and (g)(5) as
any “‘sexually explicit conduct with children . . . proscribed
by . . . Federal law’ because it involves the ‘lascivious
exhibition of the genitals or pubic area of any person.’” Id.
We disagree with both rationales as applied to the evidence in
this case.
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United States v. Yammine, No. 09-0720/MC
Our review centers on the meaning of an “offense of child
molestation,” which is defined in detail by M.R.E. 414(d)-(g):
(d) For purposes of this rule . . . ‘offense of child
molestation’ means an offense punishable under the Uniform
Code of Military Justice, or a crime under Federal law or
the law of a State that involved-
(1) any sexual act or sexual contact with a child
proscribed by the Uniform Code of Military Justice,
Federal law, or the law of a State;
(2) any sexually explicit conduct with children
proscribed by the Uniform Code of Military Justice,
Federal law, or the law of a State;
(3) contact between any part of the accused’s body, or
an object controlled or held by the accused, and the
genitals or anus of a child;
(4) contact between the genitals or anus of the accused
and any part of the body of a child;
(5) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on a
child; or
(6) an attempt or conspiracy to engage in conduct
described in paragraphs (1) through (5) of this
subdivision.
(e) For purposes of this rule, the term “sexual act”
means:
(1) contact between the penis and the vulva or the penis
and the anus, and for purposes of this rule, contact
occurs upon penetration, however slight, of the penis into
the vulva or anus;
(2) contact between the mouth and the penis, the mouth
and the vulva, or the mouth and the anus;
(3) the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by any
object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
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person; or
(4) the intentional touching, not through the clothing,
of the genitalia of another person who has not attained
the age of 16 years, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of
any person.
(f) For purposes of this rule, the term “sexual contact”
means the intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.
(g) For purposes of this rule, the term “sexually
explicit conduct” means actual or simulated:
(1) sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between
person of the same or opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadistic or masochistic abuse; or
(5) lascivious exhibition of the genitals or pubic area
of any person.
“This definition provides an exclusive list of offenses that
qualify as ‘offense[s] of child molestation.’” United States v.
Schroder, 65 M.J. 49, 53 (C.A.A.F. 2007) (alteration in
original; emphasis added). Thus, to be properly admitted under
M.R.E. 414, the filename evidence “must fall within the specific
definition of an ‘offense of child molestation’ set out in
M.R.E. 414.” Id.“M.R.E. 414, like its counterpart Fed. R. Evid. 414, was
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United States v. Yammine, No. 09-0720/MC
‘intended to provide for more liberal admissibility of character
evidence in criminal cases of child molestation where the
accused has committed a prior act of sexual assault or child
molestation.’” Id. at 55 (emphasis added) (quoting Manual for
Courts-Martial, United States, Analysis of the Military Rules of
Evidence app. 22 at A22-37 (2005 ed.) (MCM)). But this liberal
admissibility standard does not guide or inform its threshold
inquiry: whether a prior act is one of child molestation. We
have noted before the “inherent tension between the Rule and
traditional concerns regarding convictions based on ‘bad
character’ evidence. Such evidence has long been regarded as
having the tendency to relieve the government of its
constitutional burden to prove every element of the charged
offense beyond a reasonable doubt.” Id. Thus, we have
interpreted whether an offense “qualifies” under M.R.E. 414
strictly, rather than expansively, and continue to require that
the offense “fall within the [rule’s] specific definition.” Id.
at 53. Possession or attempted possession of child pornography,
while a violation of federal law, does not fall within any
defined instance of “child molestation” relied on by the
military judge or CCA under the facts of this case.
As an initial matter, we note that M.R.E. 414(a) provides
for the admissibility of “offense[s] of child molestation”
committed by the accused. M.R.E. 414(d) defines “child” as a
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United States v. Yammine, No. 09-0720/MC
“person below the age of sixteen” (emphasis added). M.R.E.
414(d)(2) refers to offenses that have involved “sexually
explicit conduct with children” (emphasis added). M.R.E.
414(d)(5) refers to offenses that have involved “death, bodily
injury, or physical pain on a child” (emphasis added). These
provisions reflect that the rule limits qualifying offenses to
crimes that involve actual persons. While filenames may be
enough to satisfy probable cause, see United States v. Leedy, 65
M.J. 208, 215-18 (C.A.A.F. 2007), the admission of propensity
evidence requires more, see M.R.E. 412, M.R.E. 413, M.R.E. 414.
We do not suggest that possession of particular child
pornography could not ever fall within M.R.E. 414(d)(5).
However, in this case there is no way to know what, if anything,
the files originally attached to the filenames depicted (even
though the filenames themselves were clearly suggestive). Thus,
there is not only no way to know whether actual children were
involved, there is also no way to know whether the conduct
depicted otherwise falls within M.R.E. 414(d)(5). The military
judge nonetheless concluded, without discussion, that possession
or attempted possession of child pornography constitutes an
offense of child molestation under M.R.E. 414(d)(5). But while
“the infliction of death, bodily injury, or physical pain on a
child,” M.R.E. 414(d)(5), may and undoubtedly does occur in the
creation of much child pornography, in other instances, given
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United States v. Yammine, No. 09-0720/MC
the breadth of the conduct and ages covered, it may not. See,
e.g., 18 U.S.C. § 2256(2)(A)(iii), (v) (2006) (including
masturbation and lascivious exhibition of the genitals or pubic
area as sexually explicit conduct constituting child
pornography). However emotionally traumatic possession by
others of images involving that conduct may be for the children
involved, the President limited application of this subsection:
“infliction of death,” “bodily injury,” and “physical pain” are
specific and delimiting terms.
The CCA’s alternative rationale, that the filenames
qualified under M.R.E. 414(d)(2) (an offense or crime involving
“any sexually explicit conduct with children proscribed by the
Uniform Code of Military Justice, Federal law, or the law of a
State”), is also problematic. The CCA majority relied entirely
on cases involving Fed. R. Evid. 414(d)(2). Yammine, 67 M.J. at
724 & n.6. In so doing, the CCA failed to account for the
differences between the federal rule and its military
counterpart. The federal rule includes as an offense of child
molestation “any conduct proscribed by chapter 110 of title 18,
United States Code.” Fed. R. Evid. 411(d)(2). This includes
any violation of 18 U.S.C. § 2252A. See United States v.
Bentley, 475 F. Supp. 2d 852, 856-57 (N.D. Iowa 2007), aff’d,
561 F.3d 803, 816 (8th Cir. 2009) (citing Fed. R. Evid.
414(d)(2)). In contrast, M.R.E. 414(d)(2) uses more specific
14
United States v. Yammine, No. 09-0720/MC
language, defining this category of qualifying offense as “any
sexually explicit conduct with children proscribed by the
[UCMJ], Federal law, or the law of a State” (emphasis added).
We recently determined, in the context of construing the offense
of indecent liberties with a child (a violation of Article 134,
UCMJ), that to occur “with” a child, or “with” children, conduct
must be in the physical presence of a child or children. See
United States v. Miller, 67 M.J. 87, 90-91 (C.A.A.F. 2008). By
analogy, this rules out the possession or attempted possession
of child pornography under the facts of this case.5
If there were no military rule, we are mindful that we
would apply the federal rule. M.R.E. 101(b)(1). But the rule
recognized in federal district courts is facially more expansive
than, and thus inconsistent with, M.R.E. 414(d)(2).
Consequently, the civilian cases that admit, under Fed. R. Evid.
414, evidence of offenses involving child pornography -- such as
Seymour, 468 F.3d at 385; Bentley, 475 F. Supp. 2d at 857; and
5
It would be contrary to our insistence that conduct fall
precisely within the rule, see Schroder, 65 M.J. at 53, to hold
that the language of this subsection of the rule precisely
covers -- as the concurring opinion suggests, Yammine, __ M.J.
__ (3-4) (Baker, J., concurring in the result) -- sexually
explicit conduct with children by someone other than the accused
for use as propensity evidence against the accused. If the
President should decide to expand the scope of this subsection -
- for the reasons suggested by the concurring opinion, id. at __
(4), or otherwise -- he can make the rule within the military
justice system precisely parallel to the federal rule in this
respect by amending the language of the subsection.
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United States v. Sturm, 590 F. Supp. 2d 1321, 1327 (D. Colo.
2008) -- are not applicable, as they examined a rule with
different text.
Because the military judge’s view of the law with respect
to a qualifying offense under M.R.E. 414 was erroneous, he
abused his discretion by admitting the filename evidence -- even
though he otherwise recognized and applied the correct
standards. See United States v. Rader, 65 M.J. 30, 32-34
(C.A.A.F. 2007) (recognizing that an abuse of discretion can
occur when the military judge has an erroneous view of the law).
B. M.R.E. 404(b)
In the alternative, the military judge noted that the
filename evidence was admissible under M.R.E. 404(b). That
provision provides, in relevant part, that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .” M.R.E.
404(b). Whereas M.R.E. 414 was “intended to provide for more
liberal admissibility of character evidence in criminal cases of
child molestation where the accused has committed a prior act of
sexual assault or child molestation,” MCM, Analysis of the
Military Rules of Evidence app. 22 at A22-37 (2008 ed.),
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United States v. Yammine, No. 09-0720/MC
admissibility under M.R.E. 404(b) is comparatively restrictive.
See Bare, 65 M.J. at 37-38.
[T]his Court has cautioned that we do not approve “of
broad talismanic incantations of words such as intent,
plan, or modus operandi, to secure the admission of
evidence of other crimes or acts by an accused at a
court-martial under Mil.R.Evid. 404(b)”; and we have
expressed “concern . . . with the dangers in admitting
such evidence even if it meets the requirements of
Mil.R.Evid. 404(b). See Mil.R.Evid. 403.”
United States v. Ferguson, 28 M.J. 104, 109 (C.M.A. 1989)
(alteration in original) (quoting United States v. Brannan, 18
M.J. 181, 185 (C.M.A. 1984)); see also Schroder, 65 M.J. at 58
(“[T]here is a risk with propensity evidence that an accused may
be convicted and sentenced based on uncharged conduct and not
the acts for which he is on trial”).
In United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.
1989), this Court established a three-prong test, consistent
with Huddleston, 485 U.S. at 681, to determine the admissibility
of uncharged misconduct under M.R.E. 404(b):
1. Does the evidence reasonably support a finding by the
court members that appellant committed prior crimes, wrongs
or acts?
2. What “fact . . . of consequence” is made “more” or
“less probable” by the existence of this evidence?
3. Is the “probative value . . . substantially outweighed
by the danger of unfair prejudice”?
The evidence at issue must fulfill all three prongs to be
admissible.
United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006)
17
United States v. Yammine, No. 09-0720/MC
(alteration in original) (quoting and citing Reynolds, 29 M.J.
at 109); see also United States v. McDonald, 59 M.J. 426, 429-30
(C.A.A.F. 2004) (explaining derivation of each prong from
Huddleston).
The second prong mirrors the relevance concerns reflected
under M.R.E. 401 and M.R.E. 402, while the third prong reflects
the concerns ordinarily handled under M.R.E. 403. In this case,
the military judge performed his M.R.E. 401, M.R.E. 402, and
M.R.E. 403 analyses under the assumption that the evidence was
admissible in the first instance under M.R.E. 414, and he did
not separately undertake the three-part Reynolds test before
admitting the uncharged misconduct under M.R.E. 404(b).
We will assume without deciding that the filename evidence
reasonably supported a “determination by the factfinder that . . .
appellant committed the prior misconduct” of possession or
attempted possession of child pornography. United States v.
Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006). What remains
problematic is the military judge’s holding that:
[Appellant’s] prurient interest regarding sexual acts
including teenage boys tends to show his propensity to
engage in such acts. “A defendant with a propensity
to commit acts similar to the charged crime is more
likely to have committed the charged crime than
another. Evidence of such a propensity is therefore
relevant.” United States v. Guardia, 135 F.3d 1326,
1328 (10th Cir. 1998) ([c]iting Old Chief v. United
States, 519 U.S. 172 (1997)).
Outside of M.R.E. 413 or M.R.E. 414, this is not an approved
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basis for admitting evidence. M.R.E. 404(b). The military
judge’s apparent reliance on M.R.E. 414 reasoning for his M.R.E.
404(b) analysis was error.
Nor are we independently persuaded that the probative value
of the evidence was not substantially outweighed by the danger
of unfair prejudice. We have upheld the admissibility of
“possession of pornographic books, magazines, or videos
concerning a particular partner or sexual act, at or near the
scene of an alleged sex crime, around the time of that alleged
offense,” as probative of intent or motive to commit a similar
sex act with a similar partner under M.R.E. 404(b). United
States v. Whitner, 51 M.J. 457, 460 (C.A.A.F. 1999). But the
probative value of the evidence in this case is substantially
lower, because the underlying files were downloaded over a
two-day period almost two years prior to the charged offenses
and subsequently deleted and overwritten.
And the potential for prejudice from this evidence
substantially outweighed whatever probative value the filenames
did have. The filenames were descriptive and disturbing. And
the military judge, because the evidence was treated first and
foremost as M.R.E. 414 evidence, rather than as M.R.E. 404(b)
evidence, allowed it to be used expansively. The Government was
allowed to use it -- and the members were instructed they could
use it -- to show Appellant’s propensity to commit the charged
19
United States v. Yammine, No. 09-0720/MC
offenses (an impermissible purpose under M.R.E. 404(b)) in a “he
said/he said” dispute between Appellant and JP where the
filenames -- taken as propensity evidence -- arguably
corroborated JP’s version of events. Given this context, the
evidence was substantially more prejudicial than it was
probative of the charged offenses. See generally Old Chief, 519
U.S. at 183-85 (holding that courts should determine probative
value and unfair prejudice in the context of the entire case).
III. Harmless Error Analysis
Finding error, we test for prejudice. Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2006) (“A finding or sentence of a court-
martial may not be held incorrect on the ground of an error of
law unless the error materially prejudices the substantial
rights of the accused”); Thompson, 63 M.J. at 231. The question
at this stage, which we review de novo, is whether the
nonconstitutional error “had a substantial influence on the
members’ verdict in the context of the entire case.” See United
States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007). In
answering this question, we consider four factors: (1) the
strength of the Government’s case; (2) the strength of the
defense case; (3) the materiality of the evidence in question;
and (4) the quality of the evidence in question. Id. (citing
United States v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005)). “When
a ‘fact was already obvious from . . . testimony at trial’ and
20
United States v. Yammine, No. 09-0720/MC
the evidence in question ‘would not have provided any new
ammunition,’ an error is likely to be harmless.” Id.(alteration in original) (quoting United States v. Cano, 61 M.J.
74, 77-78 (C.A.A.F. 2005)). Conversely, where the evidence does
provide “new ammunition,” an error is less likely to be
harmless.
This is a case of dueling facts -- Appellant’s denial that
sexual contact occurred pitted against JP’s claim that it did.6
The members were instructed that both had a bad character for
truthfulness. The members were told that they could consider
the filename evidence, which had nothing to do with JP, “for its
tendency, if any, to show the accused’s propensity to engage in
sodomy or indecent acts or liberties with a child.” And they
did not ignore this evidence -- rather, they asked several
questions about it. Finally, the prosecutor told the members in
his closing argument:
We already know, based on the evidence found on the
accused’s computer, that he has a prurient interest in
preteens. You have seen the titles. And I’m not going to
read those out in open court, but they are very highly
suggestive, very perverted. This is already the thought
process of the accused. So he waits for his opportunity.
The Government’s case against Appellant was significantly
strengthened by the improperly admitted filename evidence. The
CCA appeared to recognize the importance of this evidence too,
6
Appellant never disputed that JP was in his room.
21
United States v. Yammine, No. 09-0720/MC
reasoning that “JP’s testimony is corroborated by the existence
of the file name evidence . . . located on the appellant’s
personal computer, which graphically describes sexual behavior
remarkably consistent with JP’s description of his activity with
the appellant.” Yammine, 67 M.J. at 729-30. And the CCA
highlighted the importance of these filenames when it stated
that evidence it had found inadmissible was “far less
prejudicial than the more specific and graphic computer evidence
we have found admissible.” Id. at 730.
The filename evidence, then, introduced “new ammunition”
against Appellant found nowhere else in the record. While the
question of prejudice might otherwise be a close one, “[m]embers
are presumed to follow the military judge’s instructions,”
Harrow, 65 M.J. at 201. The military judge’s instruction,
permitting members to use the filenames to show Appellant’s
“propensity to engage in sodomy or indecent acts with a child,”
tips the balance here. In context, we believe that the
admission of and instruction on the use of the filename evidence
had a “substantial influence on the findings,” Berry, 61 M.J. at
97 (citations and quotation marks omitted), and materially
prejudiced Appellant’s substantial rights.
IV. Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed in part and reversed in part.
22
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The findings of guilty as to Specifications 1 and 2 of Charge I
are set aside. Specification 1 of Charge I is dismissed.7 The
findings of guilty as to the Specification under Charge III and
Charge III are affirmed. The sentence is set aside. The record
of trial is returned to the Judge Advocate General of the Navy.
A rehearing on the sentence and on findings as to the remaining
offense under Specification 2 of Charge I (nonforcible sodomy
with a child) is authorized.
7
The findings as to Specification 1 of Charge I are not subject
to a rehearing because, under United States v. Jones, 68 M.J.
465 (C.A.A.F. 2010), indecent acts with a child under Article
134, UCMJ, is not a lesser included offense of forcible sodomy
under Article 125, UCMJ.
23
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BAKER, Judge (concurring in the result):
The Government sought to offer certain file names as
evidence under Military Rule of Evidence (M.R.E.) 414; however,
the Government’s proffer did not demonstrate for the purposes of
the rule that possession of the file names, without more,
qualified as “one or more offenses of child molestation.”
M.R.E. 414(a). Among other things, the Government’s proffer did
not include any of the files linked to the titles. Therefore,
however suggestive the titles might have been, the military
judge could not have known whether those files contained
pictures or videos and whether those pictures or videos met the
descriptive requirements of the rule. This, in my view, is
insufficient for the purposes of analyzing propensity evidence
under this rule.
This is so regardless of how sections (d)(5) and (d)(2) of
the rule are read. As a result, I find it unnecessary to
definitively interpret M.R.E. 414 in a manner that will impact
all future cases involving possession of child pornography.
Also, as importantly, I disagree with the Court’s analysis of
M.R.E. 414(d)(2), which appears to ignore the plain language of
the rule and is based on inapt case law.
For purposes of the rule, an “‘offense of child
molestation’ means an offense punishable under the Uniform Code
of Military Justice . . . that involved . . . any sexually
United States v. Yammine, No. 09-0720/MC
explicit conduct with children proscribed by the Uniform Code of
Military Justice.” M.R.E. 414(d)(2). Based on this language
the Court concludes that possession of child pornography does
not qualify for admission under the rule, i.e., it does not
“involve” “any sexually explicit conduct with children.” Citing
United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008), the Court
states, “We recently determined in the context of construing the
offense of indecent liberties with a child . . . that to occur
‘with’ a child, or ‘with’ children, conduct must be in the
physical presence of a child or children. By analogy, this
rules out the possession or attempted possession of child
pornography under the facts of this case,” and presumably any
other case. United States v. Yammine, __ M.J. __ (15) (citation
omitted).
The Court’s conclusion rules out the possession of any
child pornography as a qualifying offense under the rule unless
the accused himself is physically engaged in the child
pornography “with” the victim in a picture or video. This
conclusion is said to be based on Miller, in which this Court
determined that the elements of indecent liberties with a child
under Article 134, UCMJ,1 required that the acts be committed in
1
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2006). At the time of Miller’s trial, the 2005 edition of the
Manual for Courts-Martial, United States -- in which indecent
acts with a child was a listed offense -- was in effect.
2
United States v. Yammine, No. 09-0720/MC
the physical presence of the child in order to meet the
requirement of that offense that the conduct occurred “with” the
child.
The Court’s analysis of M.R.E. 414(d)(2) is problematic for
two reasons. First, it does not address the text of the rule as
a whole, and second, it ignores the distinction between the text
of section (d)(2), a rule of evidence, and the text describing a
distinct element of an offense -- indecent liberties with a
child.
The question is whether possession of child pornography can
ever be an offense of child molestation for the purposes of
M.R.E. 414(d)(2). First, child pornography is certainly
punishable under the UCMJ. Second, whether possession of the
particular child pornography involves sexually explicit conduct
with children will depend on the pictures or videos at issue --
that is, whether the pictures or videos contain “any sexually
explicit conduct” and whether that conduct is “with” children.
Id. The final inquiry is whether the sexually explicit conduct
must be with the accused. The wording of the rule suggests not.
According to the rule, the conduct need only involve “any
sexually explicit conduct with children” (emphasis added), for
which the accused can be punished under the UCMJ. The rule does
not state that the conduct must be “by the accused.” The
conduct need only be attributable to the accused, i.e.,
3
United States v. Yammine, No. 09-0720/MC
punishable under the UCMJ, and involve conduct with children.
That describes a broad array of child pornography.
The second problem with the Court’s analysis is the
reliance on Miller. Miller addressed certain language different
from the introductory language of M.R.E. 414 highlighted above.
The issue in that case dealt with the meaning of an element that
explicitly required that the accused commit the conduct in
question and required interpretation of the phrase “in the
presence of.” Miller, 67 M.J. at 89. There the language was
clearly distinct from the language of the rule in this case,
which addresses offenses that “involve[] . . . any sexually
explicit conduct with children.”
I would rather not have reached this issue today because
under any reading of M.R.E. 414(d)(2) the Government simply did
not meet its burden in this case. Given the dangers of unfair
prejudice associated with propensity evidence and the number of
child pornography cases arising in the military justice system,
the limits and permits of M.R.E. 414 in this context should be
decided based upon a more fully developed record and appellate
arguments addressing this particular point of law.
4