United States v. Pham ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600313
_________________________
UNITED STATES OF AMERICA
Appellee
v.
KHOI V. PHAM
Senior Chief Culinary Specialist (E-8), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain David M. Harrison, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Staff Judge Advocate’s Recommendation: Commander T.D. Stone,
JAGC, USN.
For Appellant: Lieutenant Commander Jeremy J. Wall, JAGC, USN;
Lieutenant Jacqueline M. Leonard, JAGC, USN.
For Appellee: Major Cory A. Carver, USMC; Captain Sean M.
Monks, USMC.
_________________________
Decided 8 March 2018
_________________________
Before MARKS, PRICE, and J ONES , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
PRICE, Judge:
Officer and enlisted members sitting as a general court-martial convicted
the appellant, contrary to his pleas, of one specification of false official
statement and two specifications of sexual assault, in violation of Articles 107
and 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907 and
United States v. Pham, No. 201600313
920.1 The members sentenced the appellant to 179 days’ confinement,
reduction to pay grade E-3, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged and, except for the
dishonorable discharge, ordered it executed.
The appellant asserts two assignments of error (AOEs): (1) the evidence is
legally and factually insufficient to prove the complaining witness’s (PI’s)
incapacitation beyond a reasonable doubt; and (2) the military judge abused
his discretion by denying the appellant’s motion to compel production of PI’s
cell phone which contained potentially exculpatory evidence, thus depriving
the appellant of equal access to evidence and violating his due process rights.
Having carefully considered the record of trial and the parties’
submissions, we conclude the findings and sentence are correct in law and
fact and find no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
On 11 February 2015, PI, a Philippine national civilian living as a foreign
resident in Yokosuka, Japan, went out for the evening with two female
friends to socialize and with the express intent of getting drunk.
At approximately 1800, PI and her friends went to Yakitori Place where
they drank an unspecified quantity of beer and ate some food. PI testified
that, “[o]f course we had more than one. . . . so sometimes you order a mug.
Sometimes you order a big glass, and we pour like Japanese style. You don’t
stop drinking while you’re pouring it.”2 “[S]ometimes we order like a big
bottle . . . and we pour it together with each other . . . . And then when it’s
finished we gonna pour again.”3
At around 2100, PI and her friends went to a club and paid a fixed price
to participate in an all you can drink for an hour special. They drank oolong-
hi, a strong mixed drink consisting of tea and alcohol similar to, but not as
strong as, whiskey or rum. PI did not recall how many oolong-hi drinks she
1 The two specifications of sexual assault were for the same sexual act—penile
penetration of PI’s vulva. Prior to sentencing, the military judge conditionally
dismissed—pending final appellate review—Specification 2 of Charge II (sexual
assault by causing bodily harm in violation of Article 120(b)(1)(B), UCMJ), as
multiplicious with Specification 1 of Charge II (sexual assault upon person incapable
of consenting due to impairment by alcohol in violation of 120(b)(3)(A), UCMJ).
Record at 983.
2 Record at 405.
3 Id. at 484.
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consumed but testified that she continued to drink while at the club. Her
memories were unclear after she left the club, but she did not recall
consuming any more alcoholic beverages that night.
Sometime after midnight, PI stopped at a bar she owned named Liquid.
NI—her former roommate, current employee, and friend of over ten years—
was bartending. PI was so visibly drunk that NI decided not to serve PI any
drinks. NI testified that PI could not walk straight, needed to hold on to
things to maintain balance, spilled customers’ drinks, and could not speak
clearly. NI testified that on a scale of one to ten—one being a completely
sober person and ten being passed out drunk—PI was an eight, meaning
really drunk. PI remained at Liquid for approximately 30 minutes and then
left the bar alone and headed for her apartment, which was less than a two
minute walk away.
While walking home, PI encountered the appellant on the street. PI and
the appellant had been casual acquaintances for approximately ten years but
had no prior sexual relationship.
A. PI’s testimony
PI recalled seeing and talking to the appellant on the street near her
apartment but could not recall what was said. Her next memory was waking
up and seeing him on or near her bed while she looked for a plastic bag to
vomit into. She recalled him trying to “touch [her] clothes or maybe taking off
[her] clothes” and her saying, “What are you doing here[?] Go home.”4 Her
next memory was of the appellant pulling her head towards his exposed
penis. She could not recall whether his penis penetrated her mouth or
whether she touched his body. PI testified there was no conversation during
these events because she was so drunk and did not have the ability to do
anything more.
PI’s next memory was seeing the appellant kneeling in front of her, with
his penis inside her vagina. She testified that she was unable to say anything
because she was so drunk, and that she couldn’t fight or do anything,
including make any decisions. She recalled seeing what appeared to be
ejaculate on her stomach. The next morning she contacted friends and asked
what to do when you have been raped. PI was subsequently escorted to the
hospital for examination.
4 Id. 421-23.
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B. Appellant’s statements to NCIS
On 6 March 2015, the appellant was informed by Naval Criminal
Investigative Service (NCIS) special agents that he was suspected of rape.
His interview with NCIS was video recorded, and he also provided a sworn
written statement.5 The appellant explained that on 11 February 2015 he
went out with friends, visited three bars and drank about three beers and
three shots of Tequila. He said he “wasn’t drunk at all . . . . remember[ed]
everything and [he] knew what [he] was doing.”6
The appellant ran into PI on the street. They hugged, and he agreed to
walk PI to her home. He said when they arrived at her apartment, PI led him
into her bedroom and told him to lie on the bed. He stated she laid down next
to him, they kissed, he removed her shirt, and then she removed her bra and
panties. He removed his shirt and sweat pants, but was still wearing shorts
and boxer underwear. He said PI told him they needed to hurry before her
husband came home, but then laughed and said she was joking. The
appellant said PI’s comments scared him, and he thought he should leave.
He claimed PI repeatedly asked him to stay the night. According to the
appellant, she wanted him to engage in sexual intercourse with her, despite
his protestations and even though she knew he was married. He said PI then
pulled his shorts and underwear down and performed fellatio on him while he
was standing, then directed him to lie down on the bed and continued to
fellate him. He explained that prior to ejaculating, he pushed her onto her
back and then ejaculated on her abdominal area. He claimed PI kept asking
him to spend the night, but he said he could not stay and then went home.
The appellant denied engaging in sexual intercourse with PI that night or
at any other time. He also declared that PI didn’t smell like alcohol and that
he did not know that she had been drinking.
Additional facts necessary to resolution of the AOEs are included below.
II. DISCUSSION
A. Legal and factual sufficiency of the sexual assault
The appellant argues that the evidence is both legally and factually
insufficient to find that PI was incapable of consenting to sexual activity due
to impairment by alcohol or, alternatively, that the evidence is factually
insufficient to overcome his reasonable mistake of fact. We disagree.
5 Prosecution Exhibit (PE) 1, 3.
6 PE 3.
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We review for both legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole, 31
M.J. 270, 272 (C.M.A. 1990)); see also Art. 66(c), UCMJ. When reviewing for
legal sufficiency, we ask whether, considering the evidence in the light most
favorable to the prosecution, a reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt. United States v. Turner, 25
M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). In evaluating factual sufficiency, we determine whether, after
weighing the evidence in the record of trial and making allowances for not
having personally observed the witnesses, we are convinced of the appellant’s
guilt beyond a reasonable doubt. Id. at 325.
A conviction for sexual assault upon PI, a person incapable of consenting
due to impairment by alcohol, required proof beyond a reasonable doubt of
two elements: (1) that the appellant committed a sexual act upon PI—by
penetrating her vulva with his penis, and (2) that PI was incapable of
consenting to the sexual act due to impairment by alcohol and her condition
reasonably should have been known by the appellant. MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶45a(b)(3)(A).7
1. Evidence of the sexual act
The evidence that the appellant penetrated PI’s vulva with his penis is
overwhelming. PI’s testimony that she saw the appellant’s penis inside her
vagina was credible and corroborated by forensic evidence. His semen DNA
profile, including spermatozoa, was found on swabs taken from her vagina
and cervix during a sexual assault forensic examination (SAFE). The SAFE
examiner also observed micro-abrasions near PI’s vaginal opening consistent
with blunt force trauma, which can be caused by penile penetration.
We are unpersuaded by the appellant’s assertions that the DNA collection
procedures and defective equipment used to dry the swabs could have mixed
the DNA evidence collected from PI’s abdomen and pubic mound with
evidence collected from her vagina and cervix. Notably, the only specimens
that contained the appellant’s semen DNA profile and spermatozoa were
those obtained from her vagina and cervix. This forensic evidence effectively
rebutted the appellant’s cross-contamination theory as swabs taken from PI’s
pubic mound included the appellant’s semen DNA profile, but no
spermatozoa, while no semen DNA was detected on swabs taken from her
abdomen. In addition, both the SAFE examiner and observer testified they
7 Charge Sheet; Record at 898; AE CLIII at 1.
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did not see swabs placed in the drying rack touch other swabs. The observer
testified that she watched the swabs the entire time they were in the dryer.
Juxtaposed against this evidence of penetration are the appellant’s
denials of engaging in vaginal intercourse with PI. After being advised that
he was suspected of rape by NCIS investigators, he told a remarkable story of
seduction after a chance encounter on the street with PI, a non-romantic
acquaintance. He claimed that after she repeatedly asked him to spend the
night and engage in sexual intercourse, he demurred. At which time she
pulled his underwear down and fellated him until he ejaculated. The
appellant denied engaging in vaginal sexual intercourse with PI at least six
times during the NCIS interview. We find his denials and story of a
consensual sexual encounter with PI both incredible and evidence of his
consciousness of guilt. See United States v. Colcol, 16 M.J. 479, 484 (C.M.A.
1983) (“false statements by an accused in explaining an alleged offense may
themselves tend to show guilt”) (citation omitted).
We are convinced beyond a reasonable doubt the appellant committed the
charged sexual act.
2. Evidence of incapacity
We also find PI was incapable of consenting to the sexual act due to
impairment by alcohol, that the appellant reasonably should have known her
condition, and that there was no reasonable mistake of fact as to PI’s capacity
to consent.
First, PI consumed a significant quantity of alcohol over a period of at
least four hours with the express goal of getting drunk. Although she did not
recall the specific quantity of beer or number of mixed drinks that she
consumed, her testimony was consistent, credible, and corroborated in part.
PI testified that she consumed beer over a three-hour period at Yakitori
Place, where she and her friends drank beer together, poured beer from
bottles into their own mugs, and refilled their mugs and those of their friends
whenever empty. She also consumed an unspecified number of mixed drinks.
Her testimony conveys that she continuously drank oolong-hi, an alcoholic
beverage, for approximately one hour. This interpretation is supported by her
history of heavy drinking, her specific intent to get drunk that night, her
payment of a fixed fee to participate in a one hour all you can drink special,
her loss of memory, and severe intoxication at Liquid later in the evening.
NI’s testimony corroborated that PI was heavily intoxicated. PI could not
walk straight, spilled drinks, slurred her speech, and was so drunk NI
declined to serve her alcoholic beverages that evening. PI’s limited memory
after leaving the second club further corroborates her degree of intoxication.
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Second, PI’s limited memories and inability to resist, say anything, or do
anything while the appellant penetrated her vagina with his penis are
evidence she “lack[ed] the cognitive ability to appreciate the sexual conduct
in question or [lacked] the physical or mental ability to make [or] to
communicate a decision about whether [she] agreed to the conduct.” United
States v. Pease, 75 M.J. 180, 185-86 (C.A.A.F. 2016) (citation and internal
quotation marks omitted).
Her limited recollections, limited ability to process information, and
inability to communicate and to physically resist the appellant’s penetration
of her vulva evidence severe alcohol impairment. Her memory of seeing the
appellant in her apartment when she awoke with the urge to vomit and
subsequent recollection of the appellant pulling her head toward his exposed
penis are consistent with fragmentary blackouts that often accompany severe
intoxication. Her testimony that she could not talk, say anything, fight, or do
anything because she was so drunk support a finding that she lacked the
physical and mental ability to communicate consent or lack thereof.
Third, we are convinced that the appellant reasonably should have known
that PI was incapable of consenting to the sexual act due to impairment by
alcohol and conclude the evidence overcomes his asserted mistake of fact as
to her incapacity. The appellant encountered PI on the street within
moments of her departure from Liquid where NI had observed multiple
physical and mental manifestations of her severe state of alcohol impairment.
NI’s description of PI’s severe impairment is credible, direct evidence that the
appellant reasonably should have known that PI was heavily intoxicated and
incapable of consenting to sexual conduct.
Moreover, the appellant’s claims that he did not know PI had been
drinking and that they engaged in normal conversation both on the street
and during a lengthy and fanciful sexual encounter are incredible. Like his
repeated and false claims that he did not engage in vaginal intercourse with
PI, the appellant’s false statements about her level of impairment also tend
to show his guilt and leave us convinced that there was no reasonable
mistake of fact. See Colcol, 16 M.J. at 484.
In conclusion, we find PI’s testimony to be credible, consistent even
through the crucible of extensive cross-examination, and corroborated by
other evidence. Her recollections of the sexual act, though fractured, convey
her clear memory of penetration and incapacity to consent due to severe
alcohol impairment. Additionally, evidence of the appellant’s consciousness of
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guilt weighs heavily in our determination. Like the court-martial members,
we are convinced that his statements to NCIS were false.8
Proof beyond a reasonable doubt is a high standard but “does not mean
that the evidence must be free from conflict.” United States v. Rankin, 63
M.J. 552, 557 (N-M. Ct. Crim. App. 2006), aff’d on other grounds, 64 M.J. 348(C.A.A.F. 2007) (citation omitted). On the basis of the record before us, and
considering the evidence in the light most favorable to the government, a
reasonable fact finder could have found all the essential elements of the
charged offense beyond a reasonable doubt. Turner, 25 M.J. at 324. After
weighing all the evidence and recognizing that we did not see or hear the
witnesses, we are also convinced that the appellant is guilty beyond a
reasonable doubt.9
B. Motion to compel production of cell phone
1. Facts
On 18 February 2015, PI voluntarily provided her cell phone, a Samsung
Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed
a logical extraction of the phone and returned it to PI the same day. In
response to a January 2016 defense discovery request for a copy of the
physical extraction of PI’s cellular phone, the government provided a report
and disc produced from the logical extraction performed 11 months earlier. A
mobile device logical extraction utilizing the forensic tools employed by NCIS
apparently provided contacts, call logs, media, SMS, and application data,
while a physical extraction would have provided access to a broader scope of
data including additional file data, hidden files, and deleted data.10
In March 2016, a defense expert consultant determined the government
had provided data only from a logical extraction. The appellant then filed a
motion to compel production of PI’s “Samsung Galaxy S-IV” cell phone. The
defense asserted that the report derived from the logical extraction did not
include deleted data, hidden data, or mobile applications data. The defense
8 The military judge properly instructed the members that “If an accused
voluntarily offers an explanation or makes some statement tending to establish
hisinnocence and such explanation or statement is later shown to bew false, you may
consider whether this circumstantial evidence point to a consciousness of guilt.”
Record at 909. See Colcol, 16 M.J. at 484 (C.M.A. 1983).
9 Though not raised as an AOE, we are also convinced beyond a reasonable doubt
that the appellant is guilty of sexual assault by causing bodily harm in violation of
Article 120(b)(1)(B), UCMJ. Charge II, Specification 2; Court-Martial Order.
10 AE XL at Enclosure (D).
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also sought data relevant to PI’s claimed initial reports of rape or other
messages she may have sent which were potentially probative of her capacity
to consent. The evidence submitted for consideration by the court consisted of
documents attached to the parties’ pleadings.
After hearing argument, the military judge denied the defense motion to
compel production of PI’s cell phone. The appellant asserts that the military
judge abused his discretion, depriving the appellant of equal access to
evidence, as required by Article 46, UCMJ, and in violation of his due process
rights. We disagree.
2. Law
The parties to a court-martial are entitled to an “equal opportunity to
obtain witnesses and other evidence[.]” Article 46, UCMJ, 10 U.S.C. § 846(2012). “Each party is entitled to production of evidence that is relevant and
necessary.” RULE FOR COURTS-MARTIAL, (R.C.M.) 703(f)(1), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). “[A] party is not entitled to
production of evidence which is destroyed, lost, or otherwise not subject of
compulsory service. However, if such evidence is . . . essential to a fair trial,
and if there is no adequate substitute for such evidence, the military judge
shall grant [appropriate relief or abate the proceedings].” R.C.M. 703(f)(2).
The burden of persuasion on a motion for appropriate relief is on the moving
party. R.C.M. 905(c)(2)(A), 906(b)(7).
We review a military judge’s discovery rulings, including remedies, for an
abuse of discretion. United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F.
2015). “The abuse of discretion standard calls for more than a mere difference
of opinion.” Id. (citations omitted) (internal quotation marks omitted). “[A]n
abuse of discretion occurs when [the military judge’s] findings of fact are
clearly erroneous, the court’s decision is influenced by an erroneous view of
the law, or the military judge’s decision on the issue at hand is outside the
range of choices reasonably arising from the applicable facts and the law.” Id.(citation and internal quotation marks omitted).
3. Analysis
We conclude that the military judge’s findings of fact are not clearly
erroneous and adopt them as our own. We also conclude that the military
judge did not abuse his discretion in denying the defense motion to compel
production of PI’s cell phone and by not abating the proceedings.
First, the military judge’s finding that NCIS was not capable of
conducting a physical extraction and securing the deleted data from PI’s cell
phone was supported by the record. Although the defense submitted an
email from a defense expert consultant asserting that physical extraction of a
“Galaxy S-IV” could be performed, we find the NCIS expert’s response to that
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email both more credible and unrebutted.11 The NCIS expert explained that
he could not perform a physical extraction because a “Galaxy S-IV” was not a
“rooted” phone.12 The evidence provided in support of the defense expert
conclusion that a physical extraction could be performed was a “screenshot,”
of an apparently earlier version of the phone, a “Galaxy SIII, Alfa,” and the
screenshot indicated it was a “rooted” phone.13 Based upon this limited and
contradictory evidence, we agree with the military judge that the appellant
failed to sustain his burden of persuasion. Furthermore, there was no
evidence submitted at trial or to date that in February 2015, when NCIS had
control of PI’s cell phone, the technology existed to conduct a physical
extraction of a Galaxy S-IV cell phone.14
Second, PI’s cell phone was unavailable as defined in R.C.M. 703(f)(2)
when the appellant submitted his discovery request.
In January 2016 when the defense requested PI’s cell phone in discovery,
the cell phone was “destroyed, lost, or otherwise not subject to compulsory
process.” R.C.M. 703(f)(2). It is undisputed that PI’s cell phone was not then
in the possession, custody, or control of the United States, having been
returned to her approximately 11 months earlier. It is also not in dispute that
PI was a non-U.S. citizen, legal permanent resident of Japan and as such “not
subject to subpoena” under the Rules for Courts-Martial. See R.C.M.
703(e)(2)(A), Discussion.
However, the availability of a process to compel production of PI’s cell
phone under the Status of Forces Agreement (SOFA) between the United
States and Japan was and remains in controversy. At trial, the defense
asserted the SOFA provided a mechanism for compulsory process of PI’s cell
phone. The military judge found the evidence submitted by the defense—an
11 AE XL at Enclosure (M), AE LVIII at Enclosure (3).
12 The NCIS expert explained “rooting” provides the ability to alter or replace
system applications and settings, run specialized applications that require
administrator-level permissions, or perform other operations that are otherwise
inaccessible to a normal Android user. Rooting can also facilitate the complete
removal and replacement of an Android device’s operating system. AE LVIII at
Enclosure (3).
13 AE XL at Enclosure (M).
14 There is evidence that as early as December 2015, the forensic software
supported a “file system extraction” of the Galaxy S-IV including data from the
“Line” application. AE LVIII at Enclosures (3)-(4). However, there is no evidence a
“file system extraction” would include deleted data sought by the defense. AE XL at
Enclosures (D), (H); AE LVIII at Enclosure (3).
10
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email citing SOFA Articles 15-18 but not including attachments which he
presumed to be the applicable SOFA provisions—insufficient to sustain their
burden of persuasion.15
After reviewing the SOFA provisions cited by the defense at trial and now
attached to the record on appeal by motion before this court, we, like the
military judge, are unable to conclude that those provisions provide for
“compulsory process” of PI’s cell phone.16 Article 17, the provision cited at
trial most relevant to production of PI’s cell phone does not appear to be
compulsory or even relevant here.17 Article 17 entitled “Presentation of
documents or evidence” states Japanese authorities “may” when requested by
appropriate U.S. authority “permit” access to evidence “in their custody[.]”18
The plain language of this provision appears discretionary and applicable
when the requested “documents or evidence” are in the “custody” of Japanese
authorities; there is no evidence that PI’s cell phone was in the possession or
custody of Japanese authorities at any time.
Additionally, there is evidence that prior to trial counsel’s 23 March 2016
request that PI provide the Galaxy S-IV for additional forensic examination,
she had obtained a new cell phone and “declined to provide her phone” for
further analysis.19 In May 2016, PI testified that she had a “new phone” by
15 In its motion at trial, the Defense cited Articles 15-18 of the SOFA, as well as
an email from the office of the staff judge advocate to the Commander of Fleet
Activities in Yokosuka containing the titles of those Articles. AE XL at FN3 and
Enclosure (K).
16 We assume without deciding the undated document attached to the record
entitled “Laws for Special Measures Concerning Criminal Cases, Under
Authorization of the Ministry of Justice, EHS Law Bulletin Series, EHS Vol. II” was
part of the SOFA in accordance with the 28 March 2016 email from the “Legal
Advisor, Office of the Staff Judge Advocate, COMFLEACT Yokosuka, Japan,
International Law Director, Region Legal Service Office, Japan” also attached to the
record. Appellant’s Motion to Attach As Appendix to Appellant’s Brief [hereinafter
Motion to Attach Documents] of 16 February 2017 granted 24 February 2017.
17 Article 15 (Appearance and other duties of witness), Article 16 (Cooperation for
production of witnesses), and Article 18 (Cooperation in criminal cases other than
those involving offenses against laws or ordinances of Japan) do not appear relevant
to production of evidence. Motion to Attach Documents.
18 Id.19 In emails dated 23 March 2016, Trial counsel contacted PI’s Victim’s Legal
Counsel (VLC) to request that PI surrender her cell phone for additional forensic
testing. The VLC asked whether they were requesting PI’s “old phone or her new
phone.” When trial counsel clarified it was her “old phone” the VLC responded with a
“?” AE LVIII at Enclosure (4); AE XL at Enclosure (N).
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the time she was asked to provide her phone for additional examination and
that “all [her] messages [we]re gone.”20
Third, we agree with the military judge that the evidence does not satisfy
the requirements for production of relevant and material evidence under
R.C.M. 703 or exculpatory evidence under Brady v. Maryland, 373 U.S. 83(1963).
Even, assuming arguendo, the technology existed to conduct a physical
extraction of PI’s cell phone when NCIS possessed it, the appellant presented
no evidence or persuasive argument that such evidence “possess[ed] an
exculpatory value that w[ould have been] apparent before the evidence was
destroyed,” or in this case “returned” to PI. See United States v.
Simmermacher, 74 M.J. 196, 199 (C.A.A.F. 2015) (quoting California v.
Trombetta, 467 U.S. 479, 489 (1984)). Further, even assuming the evidence
was “potentially useful,” there is no evidence the government’s actions in not
preserving the cell phone were in “bad faith” and thus in violation of due
process. Simmermacher, 74 M.J. at 199 (quoting Arizona v. Youngblood, 488
U.S. 51, 58 (1988)).
Fourth, the information derived from logical extraction of PI’s cell phone
and provided to the appellant satisfied the Article 46, UCMJ, requirement for
“equal access to evidence.” United States v. Roberts, 59 M.J. 323, 325,
(C.A.A.F. 2004). Stated another way, the appellant and government enjoyed
equal access to the same evidence derived from the logical extraction of PI’s
cell phone, a lengthy report and an eight gigabyte disk of data.
Accordingly, the military judge’s decisions to deny the motion to compel
production of PI’s cell phone and not to abate the proceedings were not
“influenced by an erroneous view of the law,” and were well within “the range
of choices reasonably arising from the applicable facts and the law.” Stellatto,
74 M.J at 480 (citation and internal quotation marks omitted).
III. CONCLUSION
The findings and sentence, as approved by the CA, are affirmed.
Senior Judge MARKS and Judge JONES concur.
For the Court
R.H. TROIDL
Clerk of Court
20 Record at 571-72.
12