United States v. Quezada ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and COGLEY
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jonathan QUEZADA
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 201900115
Decided: 26 October 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Matthew J. Kent (motions)
John L. Ferriter (arraignment, motions, and trial)
Sentence adjudged 19 December 2018 by a general court-martial con-
vened at Marine Corps Base Camp Pendleton, California, consisting of
officer and enlisted members. Sentence approved by the convening au-
thority: confinement for six years and a dishonorable discharge.
For Appellant:
Lieutenant Daniel O. Moore, JAGC, USN
Captain Nicholas S. Mote, USMC
For Appellee:
Major Kerry E. Friedewald, USMC
Lieutenant Commander Timothy C. Ceder, JAGC, USN
Judge COGLEY delivered the opinion of the Court, in which Chief
Judge MONAHAN and Senior Judge STEPHENS joined.
United States v. Quezada, NMCCA No. 201900115
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
COGLEY, Judge:
Appellant was convicted, contrary to his pleas, of one specification of vio-
lating a lawful general order by providing alcohol to a minor, one specifica-
tion of making a false official statement, one specification of sexual assault by
bodily harm, and one specification of abusive sexual contact by bodily harm
under Articles 92, 107, and 120 of the Uniform Code of Military Justice
[UCMJ]. 1
Appellant raises four assignments of error [AOE]: (1) the military judge
undermined Appellant’s presumption of innocence by instructing members on
false exculpatory statements in a case where Appellant was charged with a
false official statement for the same statement 2; (2) the military judge erred
by instructing the members to disregard evidence of Appellant’s deportation
as a result of the conviction; (3) the military judge erred in admitting, over
Defense objection, the prior statement of the victim under Military Rule of
Evidence [Mil. R. Evid.] 801(d)(1)(B)(ii); and (4) the promulgating order fails
to comply with Rule for Court-Martial [R.C.M.] 1114(c) because it does not
accurately reflect the charges upon which Appellant was arraigned and the
outcome of those charges.
We agree that Appellant is entitled to an accurate promulgating order.
We take corrective action in our decretal paragraph and order a corrected
promulgating order pursuant to United States v. Crumpley. 3 We find no
prejudicial error and affirm the findings and sentence.
1 10 U.S.C. §§ 892, 907, 920 (2016).
2Appellant uses the word “averment” as the final word in the first AOE in the
Appellant’s Brief in several places (see Appellant’s Br. ii, 1, 10), but we substitute the
word “statement” to better align with the language of Article 107, UCMJ and the
conduct for which Appellant was convicted.
3 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
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United States v. Quezada, NMCCA No. 201900115
Opinion of the Court
I. BACKGROUND
During the summer of 2017, Appellant and his wife, Ms. Quebec, 4 hosted
Appellant’s 17-year old sister-in-law, Ms. Alpha, at their residence in military
housing at Camp Pendleton prior to her resuming high school. On July 14,
2017, Appellant hosted a cookout in his backyard with several guests. At a
certain point in the evening, most of the guests left. Appellant and Ms. Alpha
were drinking shots of Jack Daniels whiskey throughout the evening. Appel-
lant challenged her to keep up and she went along with it. By Ms. Alpha’s
count, she consumed ten shots of whiskey over the course of the evening and
into the night.
Later in the evening, Appellant’s wife, Ms. Quebec, went to bed, leaving
only Appellant, Ms. Alpha, and another Marine sitting in the living room of
the residence talking and listening to music. Sometime after that, Ms. Alpha
felt sick and she vomited in the downstairs bathroom. After that, Appellant
gave the other Marine a blanket to sleep on the couch. Ms. Alpha also wanted
to sleep downstairs, but Appellant insisted that she sleep upstairs. The two of
them proceeded to the bedroom of Appellant’s six-year-old son, where
Ms. Alpha had been sleeping during her stay. Appellant’s son was in bed with
his mother, Ms. Quebec, in another bedroom.
Ms. Alpha curled up on the bed and Appellant got into the bed next to
her. At a certain point, Appellant got out of the bed, retrieved the bottle of
whiskey and shot glasses and brought them to his son’s bedroom. Appellant
took another shot and gave one to Ms. Alpha. After taking her eleventh shot,
Ms. Alpha vomited a second time in an upstairs bathroom. When she re-
turned to the bed, Appellant cuddled up next to her. He started to bite her
ear and forcefully grope her breasts. Appellant tried to pull Ms. Alpha’s
shorts down while she tried to pull them back up. Appellant then moved the
lining of her shorts and underwear aside and began licking her vagina and
anus. Ms. Alpha felt Appellant’s tongue penetrate her vagina. During the
course of these events, Ms. Alpha began crying and telling Appellant to “not
do it” because “he is with [her] sister,” because her sister “is [her] flesh and
blood” and because “he has a kid with [her] sister.” As she cried louder and
pushed him off, he stopped, got off the bed, and lay down on the floor. Appel-
4 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
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Opinion of the Court
lant asked Ms. Alpha to keep it a secret, but she told him she cannot keep
secrets that big.
Within a few minutes, Appellant fell asleep where he lay on the floor.
Very shortly after that, having gotten out of bed to get some water and
realizing Appellant was not in bed with her, Ms. Quebec came into the
bedroom where Ms. Alpha and Appellant were. By this point, it was about
five o’clock in the morning. Ms. Alpha had rolled over toward the wall and
was texting a friend. Ms. Quebec noted Appellant sleeping on the floor, but at
this point, apparently, did not realize anything was seriously amiss.
Ms. Quebec spoke to Ms. Alpha briefly about going to a parade in San Diego
later that day, though Ms. Alpha did not respond. Ms. Quebec then started
downstairs to get a glass of water. Ms. Alpha got up from the bed, followed
her downstairs, and asked Ms. Quebec to come outside. Once outside,
Ms. Alpha told Ms. Quebec what happened, telling her sister something along
the lines of “he went down on [me].”
Ms. Quebec was very upset and went into the house and confronted Ap-
pellant immediately. She kicked him to wake him up and used a loud voice to
ask him, something along the lines of, “why would you do something like that
to my sister?” Appellant kept asking Ms. Quebec “what did she say?” or “what
are you talking about?” Ms. Quebec threatened to call the police, but Appel-
lant offered to do it himself and, ultimately, he did. When speaking to the
emergency operator and, later to the Desk Sergeant, the reason he gave for
the call was that he was being accused of approaching a minor and he wanted
to clear it up. When base police arrived, Ms. Quebec told them what hap-
pened and showed them the bedroom and bathroom. Based on the recom-
mendation of the responding police, Ms. Quebec took Ms. Alpha to get DNA
testing at a medical facility in Temecula and then to the Naval Criminal
Investigative Service [NCIS] office at Camp Pendleton to make a statement.
While they were at the medical facility, Ms. Alpha was interviewed by a
Sexual Assault Nurse Examiner [SANE] about what happened. The SANE
also collected DNA samples from Ms. Alpha’s vagina, anus, and ears.
About a week later, Ms. Alpha contacted NCIS to say she wanted to stop
the case because her sexual encounter with Appellant was “consensual.” At
trial, Ms. Alpha ultimately testified consistently with her statement to the
SANE and her first statement to NCIS.
Appellant also gave a statement to NCIS. He verbally denied that he
licked Ms. Alpha’s vagina and shook his head “no” when asked about that
specific allegation.
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Opinion of the Court
The DNA samples collected from Ms. Alpha’s vagina, anus, and left ear
matched Appellant’s DNA to a degree that made it extremely unlikely that
anyone but Appellant was the source of DNA found in those three samples.
At trial, the members found Appellant guilty of all charges and specifica-
tions. During the pre-sentencing hearing, Appellant offered an unsworn
statement. In the unsworn statement, Appellant twice stated that because of
his convictions, he would likely be deported to Mexico.
II. DISCUSSION
A. Instructing Members on False Exculpatory Statements
Appellant asserts the military judge erred by providing the members an
instruction on false exculpatory statements for the same statement by Appel-
lant for which he was also charged with making a false official statement.
Whether the members were properly instructed is a question of law we
review de novo. 5
In regard to form, a military judge has wide discretion in choos-
ing the instructions to give but has a duty to provide an accu-
rate, complete, and intelligible statement of the law. In review-
ing the propriety of an instruction, appellate courts must read
each instruction in the context of the entire charge and deter-
mine whether the instruction completed its purpose. 6
The military judge gave the standard Benchbook instruction for False Ex-
culpatory Statements. 7 The instruction as given by the military judge was as
follows:
There has been evidence that after the offenses were alleg-
edly committed, the accused may have made a false statement
or given a false explanation about the alleged offenses.
Conduct of an accused, including statements made and acts
done upon being informed that a crime may have been commit-
ted or upon being confronted with a criminal charge, may be
5 United States v. Hale, 78 M.J. 268, 274 (C.A.A.F. 2019).
6 United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012) (citations omitted).
7 See Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook,
¶ 7-22 (Sep. 10, 2014). [Benchbook]
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United States v. Quezada, NMCCA No. 201900115
Opinion of the Court
considered by you in light of other evidence in the case in de-
terming the guilt or innocence of the accused.
If an accused voluntarily offers an explanation or makes
some statement tending to establish his innocence, and such
explanation or statement is later shown to be false, you may
consider whether the circumstantial evidence points to con-
sciousness of guilt. You may infer that an innocent person does
not ordinarily find it necessary to invent or fabricate a volun-
tary explanation or statement tending to establish his inno-
cence. The drawing of this inference is not required.
Whether the statement that was made was voluntary or
false is for you to decide.
You may also properly consider the circumstances under
which the statements were given, such as whether they were
given under oath, and the environment under which they were
given.
Whether evidence as to an accused’s voluntary explanation
or statements point to a consciousness of guilt, and the signifi-
cance, if any, to be attached to any such evidence are matters
for determination by you, court members. 8
The standard instruction has been validated in three military cases: Unit-
ed States v. Opalka, 9 United States v. Colcol, 10 and United States v. Mahone. 11
“[F]alse statements by an accused in explaining an alleged offense may
themselves tend to show guilt.” 12 However, a “general denial of guilt does not
demonstrate any consciousness of guilt.” 13 To infer consciousness of guilt
from a general denial of illegal activity, “the factfinder must decide the very
issue of guilt or innocence; and so the instruction would only tend to produce
confusion because of its circularity.” 14 Unless the alleged false statement is
8 App. Ex. LVII at 6-7.
9 36 C.M.R. 938, 944 (A.F.B.R. 1966), pet. denied, 36 C.M.R. 541 (C.M.A. 1966).
10 16 M.J. 479, 483 (C.M.A. 1983).
11 14 M.J. 521 (A.F.C.M.R. 1982).
12 Colcol, 16 M.J. at 484 (citing Wilson v. United States, 162 U.S. 613 (1896)).
13 Id.
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Opinion of the Court
inherently incredible, independent evidence of the falsity of the statement
should be required. 15
In this case, the civilian defense counsel objected to the instruction at is-
sue, arguing there was potential confusion with Charge II and its sole Speci-
fication of making a false official statement in violation of Article 107, UCMJ.
But the military judge overruled the objection on the basis that Appellant’s
statement to NCIS gave rise to it. As shown above, the military judge in-
structed the members that whether any statement was voluntary or false is
for them to decide, and whether it points to consciousness of guilt and the
significance to, if any, to be attached to such evidence are matters for them,
the court members.
Appellant did not make a general denial of criminal wrongdoing to NCIS;
rather, he denied specific conduct. He specifically denied that he licked
Ms. Alpha’s vagina. However, the act of licking Ms. Alpha’s vagina would
only satisfy one element of what became Specification 1 of Charge III, sexual
assault. Appellant’s statement does not resolve the question of whether
Ms. Alpha provided her consent to engage in that act, also a key element of
the Article 120 offense alleged in Specification 1 of Charge III. Therefore,
Appellant’s denial to NCIS does not constitute a general denial of wrong-
doing.
Additionally, the military judge’s instruction did not identify any particu-
lar statement the members could consider to be a false explanation. There
were multiple false exculpatory statements that came out in the course of the
trial. Appellant also gave false explanations to his wife, to the emergency
operator and to the Desk Sergeant. For example, when his wife confronted
him, he kept asking her “what did she say?” and when she asked why he did
that to her sister, he replied “what are you talking about?” Also, when his
wife was asked if he ever talked about the DNA evidence, he told her “[t]hat
it was going to come out negative.”
This is different from Colcol where the appellant initially stated he “had
not been involved in any criminal activity” and then later confessed. 16 Such a
blanket denial of criminal wrongdoing creates a “circularity problem” because
the factfinder has to decide the issue of guilt or innocence in order to decide
14 Id.
15 United States v. Littlefield, 840 F.2d 143, 149 (1st Cir. 1988).
16 16 M.J. at 482.
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Opinion of the Court
whether the statement was false. Here, the victim testified that Appellant
licked and penetrated her vagina with his tongue. This testimony was corrob-
orated by DNA evidence. However, that act alone was not the crime. Addi-
tional evidence was also required to show the act was done without consent.
As a result, even if we were only focused on the statement to NCIS, there
would not be a circularity problem.
However, it is not necessary to focus solely on Appellant’s statement to
NCIS. When considering other false exculpatory statements Appellant made
that were not the subject of a false official statement offense, the issue of
Appellant’s consciousness of guilt is clearly raised. As correctly stated in the
military judge’s instruction, the members may “infer that an innocent person
does not ordinarily find it necessary to invent or fabricate a voluntary expla-
nation or statement tending to establish his innocence.” Appellant did so
multiple times in different contexts.
We find that the military judge did not err in giving the members the
standard instruction for False Exculpatory Statements.
B. Instructing Members to Diregard Appellant’s Comments on
Deportation in Appellant’s Unsworn Statement
Appellant asserts the military judge erred by instructing the members to
disregard evidence of Appellant’s potential deportation as a result of the
conviction. We review a military judge’s sentencing instructions for abuse of
discretion17 “In this context, the military judge abuses his discretion when
the instructions are based on an erroneous view of the law or are not tailored
to the case’s facts and circumstances. 18
R.C.M. 1001(c) permits the presentation of matters in extenuation, miti-
gation, or rebuttal by an accused through an unsworn statement. Despite the
limits of this rule, our superior court has, on the one hand, held that the right
to present an unsworn statement is “generally considered unrestricted.” 19 On
the other hand, an unsworn statement “may be tempered by appropriate
instructions from the military judge.” 20
17 United States v. Talkington, 73 M.J. 212, 215 (C.A.A.F. 2014) (citing United
States v. Barrier, 61 M.J. 482, 485 (C.A.A.F. 2005)).
18 Talkington , 73 M.J. at 215 (citations and internal quotations marks omitted).
19 United States v. Rosato, 32 M.J. 93, 96 (C.M.A. 1991).
20 United States v. Barrier, 61 M.J. at 482, 484 (C.A.A.F. 2005).
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Opinion of the Court
“A collateral consequence is ‘[a] penalty for committing a crime, in addi-
tion to the penalties included in the criminal sentence.’ ” 21 “The general rule
concerning collateral consequences is that ‘courts-martial [are] to concern
themselves with the appropriateness of a particular sentence for an accused
and his offense, without regard to the collateral administrative effects of the
penalty under consideration.’ ” 22
“Sex offender registration is a collateral consequence of the conviction
alone, not the sentence.” 23 “While an accused may raise a collateral conse-
quence in an unsworn statement, our precedent also makes clear that the
military judge may instruct the members essentially to disregard the collat-
eral consequence in arriving at an appropriate sentence for an accused.” 24
By contrast, the Court of Appeals for the Armed Forces [CAAF] ruled in
United States v. Becker that a military judge erred by refusing to admit
defense mitigation evidence of the projected dollar amount of retirement
income which the appellant might be denied if a punitive discharge was
adjudged. 25 This was because the sentencing authority had within its control
an ability to impact the outcome of whether the appellant would be able to
receive retirement income by fashioning a sentence that did not include a
punitive discharge. 26 A separate issue in Becker was whether it mattered if
the appellant was already retirement eligible or if there were other contin-
gencies that would have to be satisfied, such as reenlistment, before retire-
ment eligibility. 27 Becker was found to be three and one half months’ short of
retirement eligibility and would not have needed to reenlist; thus, if his
sentence had not included a punitive discharge, it was possible that he would
have been eligible for retirement income.
21United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006) (alteration in original)
(quoting Black’s Law Dictionary 278 (8th ed. 1999).
22United States v. Griffin, 25 M.J. 423, 424 (alteration in original) (quoting Unit-
ed States v. Quesinberry, 31 C.M.R. 195, 198 (C.M.A. 1962)).
23 Rosato, 32 M.J. at 95-96.
24Talkington at 213 (citing Barrier, 61 M.J. at 485-86 (C.A.A.F. 2005)); United
States v. Tschip, 58 M.J. 275, 277 (C.A.A.F. 2003).
25 46 M.J. 141, 142 (C.A.A.F. 1997).
26 Id. at 142-43.
27 Id.
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Opinion of the Court
Appellant argues that the military judge abused his discretion by in-
structing the members to disregard Appellant raising the possibility of
deportation in his unsworn statement as a matter collateral to sentencing.
Appellant asserts that the Supreme Court’s holding in Padilla v. Kentucky
holds that deportation is a “particularly severe penalty” that is “nearly an
automatic result” of a criminal conviction. 28 Appellant acknowledges that sex
offender registration, however, is a collateral matter and that every state has
its own a version of “Megan’s Law” making sex offender registration less of a
certainty based on a criminal conviction. 29
In his unsworn statement, Appellant told the members “I’m going to get
deported to Mexico for these actions” and that “my immigration lawyer has
reported to me that I will be deported because of my actions.” 30 Other evi-
dence appears in his service record showing that he is a naturalized U.S.
citizen, but there was no discussion of this entry in his service record and no
other documents were produced on this issue. 31 In any case, even if there had
been such evidence, evidence of this nature is of the kind likely to confuse the
members in fashioning an appropriate sentence. This is one of the stated
concerns of other courts reviewing the issue of collateral consequences, e.g.,
“to prevent the waters of the military sentencing process from being ‘mud-
died’ by an unending catalogue of administrative information.” 32
Additionally, Appellant misapprehends the context of Padilla. In that
case, the issue before the Court was whether a lawyer rendered inadequate
legal representation under the Sixth Amendment by failing to advise Padilla
that deportation could be a consequence of pleading guilty to possession of
marijuana. 33 Under those circumstances, the Court held that:
Deportation as a consequence of a criminal conviction is,
because of its close connection to the criminal process, uniquely
difficult to classify as either a direct or collateral consequence.
28 559 U.S. 356, 365-66 (2010).
29 Appellant’s Br. 19.
30 Rawle at 1040-41
31 Pros. Ex. 17 at 2.
32 Talkington, 73 M.J. at 216, (citing Rosato 32 M.J. at 96 (quoting Quesinberry,
31 C.M.R. at 198)).
33 559 U.S. at 356.
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Opinion of the Court
The collateral versus direct distinction is this ill suited to eval-
uating a Strickland claim concerning the specific risk of depor-
tation. We conclude that advice regarding deportation is not
categorically removed from the ambit of the Sixth Amendment
right to counsel. Strickland applies to Padilla’s claim. 34
The CAAF also later held, in light of Padilla, that “in the context of a
guilty plea, sex offender registration consequences can no longer be deemed a
collateral consequence of the guity plea.” 35 These holdings make sense in the
context of ensuring that an accused makes a guilty plea knowingly and
voluntarily.
However, the analysis of whether deportation is a collateral matter or is
appropriate for consideration by the sentencing authority is an altogether
different question. That question was not before the Court in Padilla or Riley.
Indeed, the CAAF specifically declined to extend the holdings of Padilla and
Riley to the question whether collateral matters should be considered by the
sentencing authority in fashioning an appropriate sentence. 36
In cases such as Becker, involving the impact of whether an accused
would receive retirement benefits, there is a role for the sentencing authority
to play. 37 If the sentencing authority is provided evidence about how close the
accused is to vesting in retirement benefits, how much he or she could stand
to lose, and if the retirement benefits are forfeit as a result of the sentence,
the sentencing authority could decide not to include a punitive discharge as
part of the sentence. Thus, the sentencing authority’s decision could poten-
tially have a direct impact on whether or not the accused would lose retire-
ment benefits, depending on the nature of the offense and whether punitive
discharge is mandatory.
Here, there was no action the sentencing authority could take that would
influence the outcome of potential deportation. This case is therefore con-
sistent in this sense with Talkington, where the court’s rationale was that
“unlike the loss of retirement benefits, which would be a direct consequence
of the imposition of a punitive discharge, there is no causal relation between
34 Id. at 366.
35 United States v. Riley, 72 M.J. 115, 121 (C.A.A.F. 2013).
36 Talkington, 73 M.J. at 217.
37 46 M.J. 141.
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Opinion of the Court
the sentence imposed and the sex offender registration requirement.” 38 As
Appellant concedes, it is the conviction itself that influences deportation. 39
Even if the sentencing authority gave no punishment at all, it would not
change the likelihood Appellant would be deported. As a result, it is by
definition a “collateral matter” that would only serve to confuse the sentenc-
ing authority about what an appropriate sentence should be because there is
no criteria they could use to evaluate what the potential impact of different
sentencing options would have, even if it wanted to take account of deporta-
tion.
As a result, we hold that the military judge did not abuse his discretion by
instructing the members to disregard as a collateral matter that portion of
Appellant’s unsworn statement relating to deportation.
C. Admission of Prior Consistent Statement
Appellant asserts the military judge erred in admitting, over Defense ob-
jection, Ms. Alpha’s prior statements to the SANE as a prior consistent
statement. We review a trial judge’s decision to admit evidence for abuse of
discretion. 40 “A military judge abuses his discretion when his 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 . . . is outside the range of choices
reasonably arising from the applicable facts and the law.” 41 We owe less
deference to the military judge who fails to articulate a Mil. R. Evid. 403
balancing analysis on the record, and no deference will be afforded to a ruling
in which the Mil. R. Evid. 403 analysis is altogether absent. 42
Prior consistent statements are not hearsay if the declarant testifies and
is subject to cross-examination about a prior statement, the prior statement
is consistent with the declarant’s testimony, and is offered either (i) to rebut
an express or implied charge that the declarant recently fabricated it or acted
from a recent improper influence or motive in so testifying; or (ii) to rehabili-
38 Talkington 73 M.J. at 217.
39 Appellant’s Br. 22.
40 United States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019).
41 Id. (quoting United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)).
42 United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).
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Opinion of the Court
tate the declarant’s credibility as a witness when attacked on another
ground. 43
The prior consistent statement must also satisfy the strictures of Mil. R.
Evid. 403. 44 Thus, for a prior consistent statement to be admissible under
Mil. R. Evid. 801(d)(1)(B)(ii), it must satisfy the following: (1) the declarant of
the out-of-court statement must testify, (2) the declarant must be subject to
cross-examination about the prior statement, (3) the statement must be
consistent with the declarant’s testimony, (4) the declarant’s credibility as a
witness must have been “attacked on another ground” other than the ones
listed in Mil. R. Evid. 801(d)(1)(B)(i), and (5) the prior consistent statement
must actually be relevant to rehabilitate the witness’ credibility on the basis
on which he or she was attacked. 45 Although the rule does not specify what
“another ground” might be, charges of inconsistency or faulty memory are two
examples. 46
In this case, we conclude the military judge did not err in admitting
Ms. Alpha’s statement to the SANE under Mil. R. Evid. 801(d)(1)(B)(ii).
Ms. Alpha, the declarant, testified and was subject to cross-examination. Her
prior out-of-court statements to the SANE were consistent with her in-court
testimony except in two inconsequential ways. First, she told the SANE that
Appellant carried her upstairs, but at trial she testified that she walked
upstairs and Appellant followed her. 47 Second, Ms. Alpha did not tell the
SANE that Appellant bit her left ear, but did mention this in her testimony. 48
We note, however, that the SANE collected a DNA sample from Ms. Alpha’s
ear—and testified to that fact—and the DNA expert testified that the swab
obtained from Ms. Alpha’s ear showed a DNA match at the highest possible
indicator for a combination of Ms. Alpha and Appellant. The SANE testified
that the swab was taken because of the history given by Ms. Alpha.
43 Mil. R. Evid. 801(d)(1)(B).
44 Manual for Courts-Martial, United States, Analysis of the Military Rules of
Evidence app. 22 at A22-61 (2016 ed.).
45 United States v. Finch, 79 M.J. 389, 395-96 (C.A.A.F. 2020).
46 Id. at 395.
47 R. at 611-12; Pros. Ex. 19.
48 Pros. Ex. 19; R. at 618.
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As to the fourth element of the test in Finch, Ms. Alpha’s credibility was
attacked principally as being inconsistent—one of the grounds specifically
given as an example in the Drafter’s Analysis of “another ground.”49 Appel-
lant’s civilian defense counsel cross-examined Ms. Alpha on the statement
she made to NCIS after her initial statement, in which she said she wanted
to stop the whole case because the sexual encounter with Appellant was
“consensual.” The military judge noted in his analysis that the Defense
attacked Ms. Alpha on multiple grounds, including the inconsistent state-
ments, that the recantation in her second statement to NCIS was actually the
truth and that she lied in court, and that she was subject to potential influ-
ences to say it was all consensual because of “family situations and histories
relating to other incidents.” We find that any of these qualify as “another
ground” within the meaning of Mil. R. Evid. 801(d)(1)(B)(ii).
As to the final element of the test, we find that the statement was actual-
ly relevant to rehabilitate Ms. Alpha’s credibility on the bases on which she
was attacked. The statement to the SANE was given shortly after the inci-
dent occurred and before the statement she gave to NCIS in which she
recanted, and it was consistent with her in-court testimony; therefore, it had
a tendency to make more credible her in-court testimony. It tended to show
that the statement to NCIS in which she recanted was more likely the prod-
uct of the realization that Appellant might suffer significant legal conse-
quences as a result of her earlier statement, combined with actual or per-
ceived pressure from Ms. Alpha’s family to do what she could to avoid those
consequences. This contrasted with Appellant’s theory at trial that her
second statement to NCIS was the truth.
Additionally, the prior out-of-court statement was made close in time to
when the events at issue occurred and were fresh in her mind. Further, it
was made when she was less likely to be concerned about the long term
consequences of her statements and more concerned with taking appropriate
action to document what had happened to her. It was also relevant because it
could have assisted the members in deciding between her in-court testimony
and her second statement to NCIS that were seemingly at odds. As a result,
the statement to the SANE could be viewed on balance to support a determi-
nation that Ms. Alpha did not consent to the charged sexual activity.
49 Finch, 79 M.J. at 395.
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United States v. Quezada, NMCCA No. 201900115
Opinion of the Court
Because the military judge did not put his Mil. R. Evid. 403 analysis on
the record, we will perform that balancing test. We find there was high
probative value in the statement to the SANE for the purpose of rehabilita-
tion, and that there was nothing inflammatory contained in the statement.
Further, we find that it was corroborated by the DNA evidence. We find that
there was no danger of unfair prejudice, confusion of the issues, misleading
the members, causing undue delay, or wasting time. While it was cumulative
in the sense that it was largely a repeat of Ms. Alpha’s in-court testimony, it
was not needlessly cumulative because its significance was not limited to its
repetition of the same facts as her in-court testimony, but also related to its
timing and the circumstances under which it was made, all of which rehabili-
tated Ms. Alpha’s credibility as a witness.
D. Errors in Promulgating Order
The promulgating order erroneously fails to reflect that Specifications 1
and 4 of Charge III were withdrawn and dismissed after arraignment. Also, it
fails to reflect that in Charge II, the name of the NCIS special agent to whom
the false official statement was made, was altered after arraignment to depict
the actual special agent to whom Appellant made the statement. Also, pursu-
ant to a motion under R.C.M. 917, the word “finger” was removed from
Specification 2 (later Specification 1) and that the word “vagina” was re-
moved from subparagraph (a) under Specification 3 (later Specification 2).
We test this error under a harmless error standard. 50 Both parties agree
these were errors and neither party alleges any prejudice. We agree these
scrivener’s errors did not materially prejudice Appellant’s substantial rights.
However, Appellant is entitled to accurate court-martial records. 51 According-
ly, we order the necessary corrective action in our decretal paragraph.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 52
50 Crumpley, 49 M.J. at 539.
51 Id.
52 UCMJ arts. 59, 66.
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United States v. Quezada, NMCCA No. 201900115
Opinion of the Court
As discussed above, we note that the court-martial order does not accu-
rately reflect Appellant’s pleas and the wording of the charges and specifica-
tions as they appeared when Appellant was arraigned. As noted above, we
find no prejudice in these scrivener’s errors. Accordingly, we order correction
of records in this case to accurately reflect Appellant’s pleas.
The findings and sentence are AFFIRMED.
Chief Judge MONAHAN and Senior Judge STEPHENS concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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