United States v. Whiteeyes

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Michael P. WHITEEYES, Specialist
United States Army, Appellant
No. 21-0120
Crim. App. No. 20190221
Argued October 19, 2021—Decided March 25, 2022
Military Judge: Joseph A. Keeler
For Appellant: Captain Nandor F. R. Kiss (argued); Colonel
Michael C. Friess, Lieutenant Colonel Angela D. Swilley,
Major Kyle C. Sprague, and Captain Thomas J. Travers (on
brief).
For Appellee: Captain Andrew M. Hopkins (argued); Colonel
Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
Major Dustin B. Myrie, and Captain Marc J. Emond (on
brief); Major Pamela L. Jones.
Chief Judge OHLSON delivered the opinion of the Court,
in which Judge SPARKS, Judge MAGGS, and Senior
Judge EFFRON joined. Judge HARDY filed a separate
opinion concurring in the judgment.
_______________
Chief Judge OHLSON delivered the opinion of the Court.
The Military Rules of Evidence (M.R.E.) prohibit a court-
martial from considering an accused’s admission or
confession as evidence of guilt unless “independent evidence,
either direct or circumstantial, has been admitted into
evidence that would tend to establish the trustworthiness of
the admission or confession.” M.R.E. 304(c)(1) (2016 ed.).
During two interviews with the United States Army Criminal
Investigation Division (CID), Appellant made statements—
which were referred to at trial as admissions or confessions—
related to sexual abuse of his stepdaughter. Although there
was no direct evidence of the alleged crime, the military judge
concluded there was sufficient independent evidence to
corroborate Appellant’s confessions and admissions and
therefore admitted those statements into evidence.
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
Subsequently, a panel with enlisted representation sitting as
a general court-martial convicted Appellant of one
specification of sexual abuse of a child in violation of Article
120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b (2012). The United States Army Court of Criminal
Appeals (ACCA) affirmed. We granted review to determine
whether the military judge abused his discretion when he
admitted Appellant’s admissions and confessions.
We conclude the military judge did not err when he ruled
that there were certain pieces of independent evidence that
“raise[d] an inference of the truth of [Appellant’s] admis-
sion[s] or confession[s].” M.R.E. 304(c)(2). We further con-
clude the military judge did not abuse his discretion when he
ruled that these pieces of independent evidence, when consid-
ered together, “tend[ed] to establish the trustworthiness of
[Appellant’s] admission[s] or confession[s]” and admitted Ap-
pellant’s statements into evidence. M.R.E. 304(c)(1). Accord-
ingly, we affirm the decision of the ACCA.
I. Background
A. The Evidence of Sexual Abuse
At the time of the offense, Appellant was a Specialist (E-4)
serving as a military police officer at Fort Drum, New York.
In December 2017, Appellant married MM. MM and her
eighteen-month-old daughter, EM, then moved in with Appel-
lant. Appellant assisted in the care of EM, including bathing
her, dressing her, and changing her diapers. In early 2018,
Appellant made two sexually explicit comments about EM
that the military judge found relevant to the charged offenses.
On one occasion, when EM spilled milk on her face, Appellant
said it looked like she had “cum dripping from her face.” On
another occasion, when EM put a toy carrot in her mouth, Ap-
pellant said it looked like she was “sucking a dick.”
In August 2018, after the family moved to Appellant’s new
duty station in Germany, MM found pornography on
Appellant’s computer. Upset by what she found, MM
confronted Appellant and he suggested that MM contact his
team leader, Sergeant (SGT) KS. In this meeting, MM
informed SGT KS that she wanted to go home to the United
States and take EM with her so that Appellant could “get
2
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
help” without any distractions. Appellant later sent SGT KS
the following text message:
Hey sgt there is a real reason why my wife is
leaving she believes that I sexually touched her
daughter and as a concerned parent I believe
that she needs to get tested for that I don’t want
risk of losing my job if it’s true or not [sic]
Two minutes later, Appellant texted:
And I would never do anything to hurt her
daughter
SGT KS forwarded the texts to her command leadership, who
then contacted CID. After CID began investigating, MM took
EM to a physician for an examination to determine whether
EM had been sexually abused. The examination was cut short
because EM began crying, screaming, and lashing out. Ac-
cording to MM, EM “was very angry” and “didn’t want anyone
looking at her, touching her there.” No evidence of sexual
abuse was found during the portion of the exam that was com-
pleted. MM and EM then returned to the United States with-
out Appellant.
CID interviewed Appellant twice. During the first inter-
view, on August 18, 2018, Appellant admitted to having sex-
ual urges toward EM. When discussing whether EM was safe
around him, Appellant stated, “I mean yeah I’m going to have
urges, but I just think that I need to stop it.” Appellant also
said he wanted to be away from EM to “prevent [himself] from
touching her or thinking in a sexual way to[ward] her.” In the
same interview, Appellant denied touching EM sexually and
agreed to a polygraph test to verify his statements.
On September 27, 2018, Appellant returned to CID for his
polygraph examination, the results of which were inconclu-
sive. During the interview, Appellant admitted that he sex-
ually abused EM on two separate occasions. He specifically
noted that the first instance occurred in EM’s bedroom while
he changed her diaper on top of a dresser that EM’s grandfa-
ther had made. Appellant said that during this first instance
of sexual abuse, he spread EM’s labia with his hands and blew
into her vagina. Appellant said that he did this “around the
spring” in “either May or June” of 2018. Appellant stated that
3
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
he “was just curious,” and then he “realized . . . this is not
something [he] should be doing.”1
B. Consideration by the Military Judge
The Government charged Appellant with one specification
of sexual abuse of a child in violation of Article 120b, UCMJ,
for spreading EM’s labia with his hands. Prior to his court-
martial, Appellant objected to the introduction of three of his
statements on the ground that the “independent evidence” did
not “corroborate the Accused’s admissions” under M.R.E.
304(c). Appellant sought to exclude: (1) the text messages he
sent to his team leader; (2) the admissions he made about
having “urges” toward EM in his first interview with CID; and
(3) the confessions he made about sexually abusing EM in his
second interview with CID.
Prior to ruling on Appellant’s motion objecting to the in-
troduction of his three statements under M.R.E. 304(c), the
military judge ruled that Appellant’s admissions to CID about
his “urges” were admissible under M.R.E. 404(b) for the lim-
ited purpose of establishing Appellant’s state of mind about
EM and his intent. Appellant did not appeal the military
judge’s M.R.E. 404(b) ruling to either the ACCA or this Court.
Turning to Appellant’s objections to the introduction of his
statements under M.R.E. 304(c), the military judge denied
the motion and admitted all three of them.
First, the military judge concluded that M.R.E. 304(c) did
not apply to the text messages because those statements did
not qualify as admissions or confessions. Nevertheless, out of
an abundance of caution, the military judge further concluded
that even if the texts were admissions or confessions, they
would still be admissible under M.R.E. 304(c) because Appel-
lant’s statements in the texts were sufficiently corroborated
1 Appellant stated that during the second instance of abuse, he
penetrated EM’s vagina with the tip of his pinky finger. Later in
the interview, Appellant retracted this confession, stating that he
had lied about digitally penetrating EM. He confirmed in the inter-
view that he did spread EM’s labia and blow into her vagina. For
the alleged act of inserting his finger in EM’s vagina, Appellant was
charged with one specification of rape of a child and one specifica-
tion of sexual abuse of a child, in violation of Article 120b, UCMJ,
but the court-martial acquitted Appellant of this misconduct.
4
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
by the fact that MM was leaving Germany and that EM was
taken to a doctor to determine whether she had been sexually
abused. Appellant did not appeal this ruling to either the
ACCA or this Court.
Second, the military judge turned to Appellant’s admis-
sions about having “urges” in his first interview with CID.
Having already admitted those statements under M.R.E.
404(b), the military judge noted these statements did not need
to be corroborated because they qualified as statements of-
fered under a “Rule of Evidence other than [that] pertaining
to the admissibility of the admissions or confessions” under
M.R.E. 304(c)(3). He also ruled, in the alternative, that the
“sexually charged statements” Appellant made about EM
drinking milk and putting a toy carrot in her mouth were suf-
ficient “independent evidence” to support the admissibility of
the “urges” statement.
Third, the military judge ruled that the confessions of
abuse Appellant made during the second CID interview were
sufficiently corroborated. The military judge noted that
(1) “after the time period of the charged offense, EM[’s] behav-
ior changed, where she would get naked, take off her diapers
and poke objects and toys in her vagina”; (2) when describing
the alleged offenses, Appellant specifically described the
events as occurring in EM’s bedroom “on the changing table
and on a specific dresser made by the grandfather”; (3) Appel-
lant had previously made “sexually charged statements”
about EM in regard to the milk and the toy carrot.
C. The Findings, Sentence, and Appellate Proceedings
On April 5, 2019, a panel with enlisted representation
sitting as a general court-martial convicted Appellant,
contrary to his plea, of one specification of sexual abuse of a
child in violation of Article 120b, UCMJ. The panel sentenced
Appellant to a dishonorable discharge, confinement for five
years, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved the
adjudged sentence.
On appeal to the ACCA, Appellant challenged the military
judge’s denial of his motion to exclude his statements under
M.R.E. 304(c). However, the lower court concluded that the
5
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
military judge did not abuse his discretion in overruling Ap-
pellant’s objections. The ACCA affirmed the findings and only
so much of the sentence as provided for a dishonorable dis-
charge, confinement for four years and eleven months, forfei-
ture of all pay and allowances, and a reduction to E-1.2 Upon
appeal to this Court, we granted review of the following issue:
Whether the military judge committed prejudi-
cial error by admitting Appellant’s statements to
law enforcement in violation of Military Rule of
Evidence 304(c).
United States v. Whiteeyes, 81 M.J. 161 (C.A.A.F. 2021) (order
granting review).
II. Standard of Review
This Court reviews a military judge’s decision to admit a
statement under M.R.E. 304(c) for an abuse of discretion.
United States v. Jones, 78 M.J. 37, 41 (C.A.A.F. 2018).
III. Applicable Law
A. Overview
“It is a settled principle . . . that a conviction must rest
upon firmer ground than the uncorroborated admission or
confession of the accused.” Wong Sun v. United States,
371 U.S. 471, 488–89 (1963). This principle is, in turn, based
on the imperative “to prevent errors in convictions based upon
untrue confessions alone,” and on the knowledge arising from
“judicial experience” that “[c]onfessions may be unreliable be-
cause they are coerced or induced.” Smith v. United States,
348 U.S. 147, 153 (1954) (internal quotation marks omitted)
(citations omitted); see also Opper v. United States, 348 U.S.
84, 89–90 (1954).
Consistent with this principle, a number of decades ago
the President promulgated M.R.E. 304—a rule designed to
ensure that “a conviction cannot be based solely on an uncor-
2 The ACCA provided Appellant with thirty days of confinement
relief to remedy the Government’s dilatory post-trial processing.
United States v. Whiteeyes, No. ARMY 20190221, 2020 CCA LEXIS
461, at *18, 2020 WL 7384949, at *8 (A. Ct. Crim. App. Dec. 15,
2020) (unpublished).
6
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
roborated, out-of-court admission or confession of the ac-
cused.” United States v. Yates, 24 M.J. 114, 115 (C.M.A. 1987).
This rule was specifically “intended to guard against” the ad-
mission at trial of “false or coerced confession[s].” United
States v. Arnold, 61 M.J. 254, 257 (C.A.A.F. 2005); see Yates,
24 M.J. at 116 (noting that M.R.E. 304 was initially promul-
gated to “adopt[] the corroboration rule as set forth by the Su-
preme Court in Opper and Smith”).
B. M.R.E. 304
The version of the corroboration rule applicable to Appel-
lant’s case was promulgated in 2016. In this iteration, the
President revised M.R.E. 304(c) for the express purpose of
“bring[ing] military practice in line with federal practice.”
Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-12 (2016 ed.) (citing
Opper, 348 U.S. at 84; Smith, 348 U.S. at 147).3 In relevant
part, M.R.E. 304 states as follows:
(c) Corroboration of a Confession or Admission.
(1) An admission or a confession of the ac-
cused may be considered as evidence against the
accused on the question of guilt or innocence only
if independent evidence, either direct or circum-
stantial, has been admitted into evidence that
would tend to establish the trustworthiness of
the admission or confession.
(2) Other uncorroborated confessions or ad-
missions of the accused that would themselves
require corroboration may not be used to supply
this independent evidence. If the independent
evidence raises an inference of the truth of the
admission or confession, then it may be consid-
ered as evidence against the accused. Not every
element or fact contained in the confession or ad-
mission must be independently proven for the
3 In 2015, Congress directed the President to “modify Rule
304(c) of the Military Rules of Evidence” “[t]o the extent the Presi-
dent considers practicable, . . . to conform to the rules governing the
admissibility of the corroboration of admissions and confessions in
the trial of criminal cases in the United States district courts.” Na-
tional Defense Authorization Act for Fiscal Year 2016, Pub. L. No.
114–92, § 545, 129 Stat. 726, 820 (2015).
7
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
confession or admission to be admitted into evi-
dence in its entirety.
....
(4) Quantum of Evidence Needed. The inde-
pendent evidence necessary to establish corrobo-
ration need not be sufficient of itself to establish
beyond a reasonable doubt the truth of facts
stated in the admission or confession. The inde-
pendent evidence need raise only an inference of
the truth of the admission or confession. The
amount and type of evidence introduced as cor-
roboration is a factor to be considered by the trier
of fact in determining the weight, if any, to be
given to the admission or confession.
(5) Procedure. The military judge alone is to
determine when adequate evidence of corrobora-
tion has been received. Corroborating evidence
must be introduced before the admission or con-
fession is introduced unless the military judge
allows submission of such evidence subject to
later corroboration.
As an initial matter, it is important to note that the
corroboration rule outlined in M.R.E. 304 does not apply to all
admissions or confessions of an accused. M.R.E. 304(c)(3)
specifically states that corroboration is not required when an
accused makes a statement at his own court-martial, when an
accused makes a statement “prior to or contemporaneously
with” the criminal conduct, or when the statement made by
the accused is offered under a rule of evidence “other than
that pertaining to the admissibility of admissions or
confessions.”
A second important preliminary point is that M.R.E. 304
controls the standards and procedures that a military judge
must employ when deciding whether an admission or confes-
sion of an accused has been corroborated. Therefore, any ele-
ments of the common law doctrine of corpus delicti that con-
flict with the plain language of M.R.E. 304 must yield to the
rule as promulgated by the President.
We also note at the outset that the language of M.R.E. 304
has changed over the years. Therefore, any case law regard-
ing the proper application of the corroboration rule in M.R.E.
8
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
304 that is predicated on previous versions of the rule must
be approached with caution.
C. Procedures and Standards under M.R.E. 304(c)
Turning to the specific provisions of M.R.E. 304(c) as
promulgated in 2016, an analysis of the language of the rule
demonstrates that the following procedures and standards
apply when a military judge is deciding whether an admission
or a confession of an accused has been corroborated.
When the government seeks to introduce an admission or
confession of an accused, it must proffer to the military judge
evidence that it believes corroborates the accused’s state-
ment. Consistent with M.R.E. 104(b), the military judge may
admit into evidence each piece of the proffered evidence on a
conditional basis in order to make his or her M.R.E. 304(c)
determination.4
In making this M.R.E. 304(c) determination, the military
judge first must decide whether the proffered evidence is in
fact “independent evidence.” M.R.E. 304(c)(1). Independent
evidence cannot consist of “[o]ther uncorroborated confessions
or admissions of the accused that would themselves require
corroboration.” M.R.E. 304(c)(2). However, the independent
evidence may be “either direct or circumstantial.” M.R.E.
304(c)(1).
The military judge next must decide whether each piece of
independent evidence “raises an inference of the truth of the
admission or confession.” M.R.E. 304(c)(2). If an individual
piece of independent evidence meets this threshold, the mili-
tary judge may then use that evidence in the process of deter-
mining whether the accused’s statement is corroborated. A
piece of independent evidence may reach this threshold even
4 M.R.E. 104(b) states: “When the relevance of evidence depends
on whether a fact exists, proof must be introduced sufficient to
support a finding that the fact does exist. The military judge may
admit the proposed evidence on the condition that the proof be
introduced later.”
9
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
where it “raises an inference of the truth” only when consid-
ered alongside other independent evidence.5
The military judge finally must decide whether the pieces
of independent evidence, considered together, corroborate the
accused’s admission or confession. In making this
determination, the military judge must assess whether the
pieces of independent evidence “would tend to establish the
trustworthiness of the admission or confession.” M.R.E.
304(c)(1).6 If they do, the military judge will rule that the
accused’s statement is corroborated and will admit the
statement into evidence. As a result, the trier of fact may
consider the admission or confession “as evidence against the
accused on the question of guilt or innocence.” M.R.E.
304(c)(1). However, the trier of fact may also consider “[t]he
amount and type of evidence introduced as corroboration . . .
in determining the weight, if any, to be given to the admission
or confession.” M.R.E. 304(c)(4).
5 For example, if an accused confessed to running a red light
and colliding with another vehicle, a statement by a witness that
the accused drives a blue car would not “raise[] an inference of the
truth of the admission or confession.” M.R.E. 304(c)(2). However, if
another witness stated that the car that ran the red light was blue,
this second statement would create the requisite connection be-
tween the first witness statement and the accused’s confession.
6 We underscore that the two quantum thresholds contained in
M.R.E. 304 are low. First, in order for a military judge to consider
a piece of proffered independent evidence for corroboration pur-
poses, that evidence merely needs to “raise[] an inference of the
truth of the admission or confession.” M.R.E. 304(c)(2). Second, in
order for a military judge to conclude that the independent evidence
corroborates an accused’s admission or confession, that evidence
merely needs to “tend to establish the trustworthiness of the admis-
sion or confession.” M.R.E. 304(c)(1). These low thresholds are con-
sistent with prior decisions of this Court, wherein we characterized
the required quantum of evidence as “slight.” Jones, 78 M.J. at 42
(internal quotation marks omitted) (citation omitted); United States
v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988) (citation omitted); United
States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987) (internal quotation
marks omitted) (citation omitted). Therefore, these precedents re-
tain their value as examples of evidence that would meet the low
threshold as specifically articulated in the text of the 2016 amend-
ments to M.R.E. 304.
10
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
IV. Analysis
Prior to trial, Appellant made a written motion objecting
to the introduction into evidence of three of his statements
pursuant to M.R.E. 304(c): (1) the text messages he sent to his
team leader about why his wife wanted to move back to the
United States; (2) the August 18, 2018, admissions he made
to CID about having “urges” toward EM; and (3) the Septem-
ber 27, 2018, confessions he made to CID about sexually abus-
ing EM. As noted above, Appellant does not challenge on ap-
peal the admission of his statement to his team leader.
Therefore, we consider only Appellant’s statements to CID.
The military judge overruled Appellant’s objection to the
admission of the August 18, 2018, statements regarding Ap-
pellant’s “urges.” Specifically, the military judge found that
Appellant’s “sexually charged” statements about EM drink-
ing milk and playing with a toy carrot corroborated his
“urges” admissions. In regard to Appellant’s September 27,
2018, confessions, the military judge found the following in-
dependent evidence corroborated the accused’s statements:
(1) EM’s behavioral changes after she was allegedly sexually
abused by the accused, which included EM “pok[ing] objects
and toys in[to] her vagina”; (2) the accused’s description of the
location of the offense, which was in EM’s bedroom on a
changing table that was distinctive because it was “made by
the grandfather”; and (3) the sexually charged comments Ap-
pellant made about EM, such as “the milk running down her
face . . . looked like cum was dripping down her face,” and
“when she was sticking a carrot in her mouth, it looked like
. . . she was sucking a penis.” As we will explain below, the
military judge did not abuse his discretion in finding that the
September 27 confessions and the August 18 admissions were
corroborated.
A. September 27, 2018 Confessions
First, we must decide whether the military judge erred in
ruling that the three pieces of evidence cited above consti-
tuted “independent evidence” as provided in M.R.E. 304(c)(1)
(emphasis added). We conclude that he did not. None of this
evidence consisted of “[o]ther uncorroborated confessions or
admissions of the accused that would themselves require cor-
roboration.” M.R.E. 304(c)(2).
11
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
Second, we must decide whether the military judge erred
in ruling that this evidence “raise[d] an inference of the truth
of the admission or confession,” and that this evidence could
therefore be considered by him when deciding whether Appel-
lant’s statements were corroborated. M.R.E. 304(c)(2). Again,
we conclude that he did not.
In regard to the behavioral changes, as Appellant has
noted before this Court, an expert witness for the defense tes-
tified that medical experts “consider playing with one’s geni-
tals to be developmentally normal” for a child EM’s age. The
defense expert witness also testified: “We know that there’s
an increased amount of sexual behavior . . . when a parental
love leaves the family” such as when the accused was no
longer in proximity to EM. This witness further stated: “We
also know that there’s an increased amount of sexual behav-
ior when there’s [a] move[]” such as when EM and her mother
moved back to the United States.
As the Government explains in its brief, however, this
expert also testified that EM’s conduct of inserting toys into
her vagina was “concerning” and that “insertion of toys . . .
done in a repetitive nature, and done frequently, [constitutes]
problematic sexual behavior.” Although the expert stated that
he “would be very cautious in interpreting that [EM was]
sexually abused” and that it would be “inappropriate, just
from that behavior itself, to determine that [EM] had been
sexually abused,” he also stated that he “would have to look
into it” and refused defense counsel’s invitation to definitively
state that EM’s behavioral changes were not the result of
sexual abuse. Under these circumstances, we conclude that
the military judge did not err in deciding that the behavioral
changes in EM “raise[d] an inference of the truth of the
[accused’s] admission or confession” and could be considered
when deciding whether Appellant’s statements were
corroborated. M.R.E. 304(c)(2).
In regard to the description of the location of the offense,
we have some reservations about the degree to which Appel-
lant’s description of the changing table raised an inference of
the truth of his confessions. EM’s mother acknowledged in
court that Appellant assisted in the care of EM, to include
bathing her, dressing her, and changing her diapers. There-
12
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
fore, at first blush, there does not seem to be anything re-
markable about Appellant’s ability to describe the room and
changing table upon which both the diaper-changing and the
sexual abuse occurred.
We note, however, that during her testimony, EM’s
mother testified that the dresser “moved multiple times” dur-
ing their stay, but indicated that at the time of the alleged
abuse it was in the specific room identified by Appellant in
his statement to CID. Although it is a close call, we conclude
that the military judge did not err in ruling that Appellant’s
description of the location of the offense at least raised an in-
ference of the truth of his confessions and thus was a proper
subject for his consideration when deciding whether Appel-
lant’s statements were corroborated.
In regard to the comments Appellant made about EM
when she spilled milk on her face and when she had a toy
carrot in her mouth, Appellant now attempts to portray these
comments as merely “boorish, uncouth, . . . inappropriate,”
and “immature” but lacking in “corroborative value.” Brief for
Appellant at 37–38, United States v. Whiteeyes, No. 21-0120
(C.A.A.F. Apr. 5, 2021). However, the military judge specifi-
cally found that Appellant’s comments about this young child
were “sexually charged.” We find no basis in the record to dis-
pute this finding. It is not unreasonable to believe—as the
military judge apparently did—that such sexually charged
comments suggested that Appellant perceived EM in sexual
terms. Therefore, we conclude that the military judge did not
err in ruling that Appellant’s sexually charged comments
about EM raised an inference of the truth of his confessions
and thus could be considered when deciding whether Appel-
lant’s confessions were corroborated.
Third and finally, we must decide whether the military
judge abused his discretion in deciding that, cumulatively,
this independent evidence “tend[s] to establish the trustwor-
thiness of the admission or confession.” M.R.E. 304(c)(1).
Once more, we conclude that he did not. The combined inde-
pendent evidence consisting of EM’s behavioral changes, the
accused’s description of the location of the offense, and the
sexually charged comments Appellant made about EM pro-
vided sufficient corroboration of Appellant’s confessions. Ac-
cordingly, the military judge correctly ruled that the panel
13
United States v. Whiteeyes, No. 21-0120/AR
Opinion of the Court
could consider those statements “as evidence against the ac-
cused on the question of guilt or innocence.” M.R.E. 304(c)(1).
B. August 18, 2018 Admissions
The parties’ arguments give rise to three distinct issues
with respect to Appellant’s August 18, 2018, CID statements
about “urges”: (1) whether a statement admitted under
M.R.E. 404(b) can be used as independent evidence for cor-
roboration purposes under M.R.E. 304(c); (2) whether these
statements needed to be corroborated at all where the mili-
tary judge admitted them under M.R.E. 404(b); and (3)
whether these statements were sufficiently corroborated so
that they could be admitted into evidence.7
We need not reach the issue of whether Appellant’s
August 18, 2018, statements to CID about his “urges”—which
were admitted by the military judge under M.R.E. 404(b)—
could be used as independent evidence. Nor do we need to
resolve the issue of whether these statements themselves
needed to be corroborated by independent evidence. Rather,
it is sufficient for purposes of deciding this appeal merely to
address the third issue raised by the parties. Upon doing so,
we conclude that the military judge did not abuse his
discretion when he ruled that Appellant’s sexually charged
comments about the child victim were sufficient—standing
alone—to corroborate his August 18, 2018, “urges”
admissions.
V. Judgment
We hold that the military judge did not abuse his discre-
tion in admitting either Appellant’s September 27, 2018, or
August 18, 2018, statements to law enforcement. The decision
of the United States Army Court of Criminal Appeals is there-
fore affirmed.
7 M.R.E. 304(c)(3) provides that “[c]orroboration is not required
. . . for statements offered under a rule of evidence other than that
pertaining to the admissibility of admissions or confessions.”
14
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment.
I agree that the military judge did not abuse his discretion in ruling
that Appellant’s confession was properly corroborated under Military
Rule of Evidence (M.R.E.) 304(c). I write separately because I find the
independent corroborating evidence relied upon by the majority to be
lacking, and thus cannot answer the question presented without also
considering the legal puzzle that has been lurking—unaddressed—at
every stage of this case: whether evidence of Appellant’s motive and
intent admitted under M.R.E. 404(b) can be used to corroborate Appel-
lant’s confession under M.R.E. 304(c). For the reasons stated below, I
believe that it can.
I. The Corpus Delicti Doctrine
Appellant’s arguments rely heavily on the common law doctrine of
corpus delicti,1 rather than specifically on the text of M.R.E. 304. The
majority properly focuses its analysis on the text of the rule, which I
agree governs the outcome of this case. Nevertheless, given Appel-
lant’s arguments and the fact that Congress expressly directed the Pres-
ident to make M.R.E. 304 consistent with the Supreme Court’s deci-
sions interpreting the common law doctrine, see National Defense
Authorization Act for Fiscal Year 2016, Pub. L. No. 114–92, § 545, 129
Stat. 726, 820 (2015) (“To the extent the President considers practica-
ble, the President shall modify Rule 304(c) of the Military Rules of
Evidence to conform to the rules governing the admissibility of the cor-
roboration of admissions and confessions in the trial of criminal cases
in the United States district courts.”), it is a worthwhile diversion to
examine the background of the corpus delicti doctrine.
In the western legal tradition, the requirement of corroborating a
confession before it can be introduced as evidence can be traced back
to at least the seventeenth century. In its original form, the rule required
introduction of some independent evidence of the corpus delicti. The
traditional example used to justify the corpus delicti rule comes from
Perry’s Case (1660), 14 T.B. Howell, A Complete Collection of State
Trials 1312 (1816). In that case, after an elderly man disappeared, the
man’s servant was convicted and executed for murder based solely on
1 “Corpus delicti” is Latin for “body of the crime” and “reflects
the simple principle that a crime must be proved to have occurred
before anyone can be convicted for having committed it.” Black’s
Law Dictionary 433 (11th ed. 2019).
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment
the servant’s confession. The dangers of relying on an uncorroborated
confession were demonstrated when the elderly man resurfaced—very
much alive—a few years later. In response to similar cases, Matthew
Hale, who had formerly been Chief Justice of the King’s Bench, ex-
plained, “I would never convict any person of murder or manslaughter,
unless the fact were proven to be done, or at least the body found dead.”
2 Matthew Hale, The History of the Pleas of the Crown 290 (W.A.
Stokes & E. Ingersoll eds., Robert H. Small 1847) (1736).
A subsequent case involving two brothers and their brother-in-law,
The Trial of Stephen and Jesse Boorn (1819), 6 American State Trials
73 (John D. Lawson ed., 1916) (Boorn), prompted the broad adoption
of the corpus delicti rule in the United States. In Boorn, after their
brother-in-law disappeared, the first brother implicated the second
brother, who then confessed to killing the brother-in-law to avoid the
death penalty. Id. at 73–76. Both brothers were convicted of murder
based only on the second brother’s confession, but they were eventu-
ally exonerated, when the brother-in-law turned up alive. Id. at 77, 92–
94. By the end of the nineteenth century, almost every jurisdiction in
the United States adopted either the corpus delicti rule or a similar cor-
roboration requirement. See Thomas A. Mullen, Rule Without Reason:
Requiring Independent Proof of the Corpus Delicti As a Condition of
Admitting an Extrajudicial Confession, 27 U.S.F. L. Rev. 385, 401
(1993).
The Supreme Court significantly undercut the application of the
corpus delicti rule when it decided companion cases Opper v. United
States, 348 U.S. 84 (1954), and Smith v. United States, 348 U.S. 147(1954). In Opper, the Supreme Court held that independent evidence
corroborating a confession need not establish the corpus delicti of the
crime, but instead need only “tend to establish the trustworthiness of
the [confession].” 348 U.S. at 93. In Smith, the Supreme Court further
explained, “[a]ll elements of the offense must be established by inde-
pendent evidence or corroborated admissions, but one available mode
of corroboration is for the independent evidence to bolster the confes-
sion itself and thereby prove the offense through the statements of the
accused.” 348 U.S. at 156 (internal quotation marks omitted). The Su-
preme Court then acknowledged, “because this rule does infringe on
the . . . primary finder of facts, its application should be scrutinized lest
the restrictions it imposes surpass the dangers which gave rise to them.”
Id. at 197–98.
In 1951, the President incorporated the principles underlying the
corpus delicti doctrine into the military justice system by including in
2
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment
the Manual for Courts-Martial, United States (MCM), a rule describing
when an accused’s admissions or confessions could be admitted. See
MCM ch. XXVII, para. 140.a. (1951 ed.) (“A court may not consider
the confession or admission of an accused as evidence against him un-
less there is in the record other evidence, either direct or circumstantial,
that the offense charged had probably been committed by someone.”).
Although that rule (now appearing in the MCM as M.R.E. 304(c)), has
had a byzantine and fascinating history over the intervening decades,2
this case only requires consideration of the version of the rule promul-
gated by the President in 2016. Consistent with the Supreme Court’s
decisions in Opper and Smith, that rule states:
An admission or a confession of the accused may be
considered as evidence against the accused on the question
of guilt or innocence only if independent evidence, either
direct or circumstantial, has been admitted into evidence that
would tend to establish the trustworthiness of the admission
or confession.
M.R.E. 304(c)(1) (emphasis added). The rule defines the quantum of
evidence necessary to “tend to establish trustworthiness” of a confes-
sion or admission as follows:
The independent evidence necessary to establish corrobora-
tion need not be sufficient of itself to establish beyond a rea-
sonable doubt the truth of facts stated in the admission or
confession. The independent evidence need raise only an in-
ference of the truth of the admission or confession.
M.R.E. 304(c)(4) (emphasis added).
It is worth noting that divisions exist among the federal and state
courts about how the corpus delicti doctrine applies. In some jurisdic-
tions, the doctrine governs the admissibility of confessions into evi-
dence, while in other jurisdictions, it addresses the sufficiency of a con-
fession to prove guilt. 1 McCormick on Evidence § 145 (Robert P.
Mosteller ed., 8th ed., 2020). Based on the President’s decision to in-
corporate the doctrine as a M.R.E., the modern military justice system
follows the evidentiary approach. There can be no doubt that M.R.E.
304(c) governs the admissibility of confessions and admissions into ev-
2See generally Seth M. Engel, Military Law—Redefining Cor-
roboration: The History, Intent, and Effect of Congress’s Direction to
Change How Confessions Are Corroborated in Military Courts, 41
W. New Eng. L. Rev. 219 (2019).
3
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment
idence rather than the sufficiency of a confession. In contrast, the Fed-
eral Rules of Evidence contain no provision comparable to M.R.E.
304(c). Accordingly, most Article III federal courts treat the corpus de-
licti principle as a substantive federal common law rule addressing the
weight of confessions rather than their admissibility. See Charles A.
Wright et al., 22A Federal Practice and Procedure: Evidence § 5200 (2d
ed. Apr. 2021).
Other courts also disagree about what the independent
corroborating evidence must show. Some jurisdictions require the
corroborating evidence to be evidence of the charged crime. 1
McCormick on Evidence, supra at § 146. In contrast, other jurisdictions
require the corroborating evidence to support the truthfulness of a
confession. Id. § 147. Military Rule of Evidence 304(c)(4) takes the
truthfulness approach set forth by the Supreme Court in Opper,
specifying that “independent evidence need raise only an inference of
the truth of the admission or confession.” See generally 1 McCormick
on Evidence, supra, at § 147.
Thus, pursuant to the plain text of M.R.E. 304, the Court must de-
cide only whether the military judge abused his discretion when he con-
cluded that there was sufficient independent evidence to raise “only an
inference of the truth” of Appellant’s admissions such that those ad-
missions could be considered trustworthy and admitted as evidence of
Appellant’s guilt.
II. Independent Evidence of the Alleged Offense
Due to the nature of the alleged sexual abuse and EM’s young age,
the Government was unable to offer any direct evidence of Appellant’s
offense. In the absence of any such evidence, the military judge held
that three pieces of indirect evidence tended to establish the trustwor-
thiness of Appellant’s confessions and admissions: (1) Appellant’s
lewd comments about EM prior to the alleged abuse; (2) EM’s behav-
ioral changes after the alleged abuse; and (3) Appellant’s specific de-
scriptions of the location of the alleged abuse. United States v.
Whiteeyes, No. ARMY 20190221, 2020 CCA LEXIS 461, at *9–10,
2020 WL 7384949, at *4 (A. Ct. Crim. App. Dec. 15, 2020) (un-
published). Unlike the majority, I cannot agree that this evidence, with-
out more, is sufficient to corroborate Appellant’s confession.
A. Lewd Comments
During the pretrial hearing for Appellant’s motion to suppress, his
then-wife MM testified that Appellant made several lewd comments
4
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment
about EM prior to the alleged sexual abuse. First, when EM spilled milk
on her face, Appellant said it looked like she had “cum dripping from
her face.” Later, when EM put a toy carrot in her mouth, Appellant said
it looked like she was “sucking a dick.” The military judge pointed to
these statements as independent facts that corroborated the trustworthi-
ness of Appellant’s admissions that he sexually abused EM. On appeal,
the ACCA went a step further and stated, “[s]tanding alone, appellant’s
sexually charged comments about [EM] drinking milk and eating a car-
rot satisfy the ‘very slight’ quantum of corroborating evidence to estab-
lish the reliability of all the admissions at issue.” Whiteeyes, 2020 CCA
LEXIS 461, at *10–11, 2020 WL 7384949, at *5 (citing Jones, 78 M.J.
at 42). Although Appellant’s comments about EM are no doubt vulgar
and tasteless, I disagree that they offer much, if any, corroboration of
sexual assault.
The fact that Appellant made two inappropriate comments to his
then-wife provides little independent evidence of the trustworthiness of
his confession to sexually abusing EM. Even though Appellant’s com-
ments were about the victim, I believe the statements were too attenu-
ated from the alleged misconduct to offer the quantum of independent
evidence required by M.R.E. 304(c)(4) to corroborate a confession.
B. EM’s Behavioral Changes
During the motions hearing on Appellant’s motion to dismiss, Ap-
pellant’s then-wife described how EM’s behavior changed after the al-
leged sexual abuse. As the military judge explained in his ruling on the
motion, “after the time period of the charged offense, E.M.[’s] behavior
changed, where she would get naked, take off her diapers and poke
objects and toys in her vagina.” The military judge held that this was
one of the independent facts that corroborated Appellant’s confession.
Again, I disagree.
I believe that the changes in EM’s behavior provide little value in
deciding whether Appellant’s confession was sufficiently corroborated
by independent facts. An expert witness testifying on behalf of the de-
fense provided unrebutted testimony that, “[medical experts] consider
playing with one’s genitals to be developmentally normal [for a child
EM’s age].” He also stated that two factors besides the alleged sexual
abuse could have caused EM’s changed behavior: (1) Appellant, who
had been a father figure to EM, was no longer in the family, and (2) EM
and her mother moved from Germany back to the United States. The
expert witness clarified, “We know that there’s an increased amount of
sexual behavior, when a parental love leaves the family. We also know
5
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment
that there’s an increased amount of sexual behavior when there’s
moves.” He later stated, “it would be inappropriate, just from that be-
havior itself, to determine that [EM] had been sexually abused.”
Although the military judge did not have the benefit of the expert
witness’ testimony when he ruled on Appellant’s motion because the
expert did not testify until the evidence phase of the court-martial, the
expert testimony is properly included in the joint appendix and can be
considered by this Court. Per that testimony, not only was EM’s behav-
ior normal, but even if the behavior was abnormal, two other present
factors are known to be correlated with this type of the behavioral
change. In these circumstances, and in light of the unrebutted expert
testimony, I cannot say that EM’s alleged changed behavior provides
any degree of corroboration that would lead one to believe Appellant’s
confession was trustworthy.
C. Description of Where the Abuse Occurred
In Appellant’s second CID interview, he confessed that he sexually
abused EM in her bedroom while he changed her diaper on top of a
specific dresser. Appellant’s then-wife MM testified that, although the
family moved that particular dresser around their house, the dresser was
in EM’s room in May 2018, when Appellant confessed to sexually
abusing EM.
When determining whether evidence tends to establish the trust-
worthiness of a confession, a relevant consideration is the specificity
of corroborating evidence, including specific information, such as
when and where the abuse took place. See United States v. Arno, No.
ARMY Misc. 20180699, 2019 CCA LEXIS 86, at *5, 2019 WL
990799, at *2 (A. Ct. Crim. App. Feb. 26, 2019) (per curiam) (un-
published) (“When an accused confesses to committing a certain crime
in a certain place in a certain manner, evidence that the accused was
actually at that place, and had the specific motive to commit that crime,
can be considered when determining whether the confession is trust-
worthy.”). Appellant gave a detailed explanation of the place and way
he committed the sexual abuse rather than merely admitting that the
abuse took place. But, as the majority notes, there does not seem to be
anything remarkable about Appellant’s ability to describe the room
where he frequently changed the victim’s diapers.
D. Statements about “Urges”
Finding little corroborative value in the three pieces of evidence
relied upon by the courts below, I turn finally to what I believe is the
6
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment
most compelling evidence in the record, Appellant’s statements about
his sexual urges toward EM during his first CID interview. When dis-
cussing whether EM was safe around him, Appellant stated, “I mean
yeah I’m going to have urges, but I just think that I need to stop it.”
Appellant also said he wanted to be away from EM to “prevent [him-
self] from touching her or thinking in a sexual way to [sic] her.”
These statements provide strong independent evidence that would
tend to corroborate Appellant’s admissions about his sexual abuse of
EM. Yet even though the military judge admitted these statements as
evidence of Appellant’s motive or intent under M.R.E. 404(b)—and
thus they would require no independent corroboration as “statements
offered under a rule of evidence other than that pertaining to the admis-
sibility of admissions or confessions” under M.R.E. 304(c)(3)—the
military judge declined to consider those statements in his M.R.E.
304(c) analysis for Appellant’s other admissions. The military judge’s
hesitance presumably arose from his uncertainly about whether an
admission admitted for the limited purposes of proving intent or mo-
tive under M.R.E. 404(b)—but therefore expressly prohibited from
being considered by the panel as evidence of Appellant’s guilt under
M.R.E. 404(b)(1)—could be used as independent corroborating ev-
idence for other admissions as part of the court’s M.R.E. 304(c)
analysis. I believe that it can.
Appellant’s admissions to CID would be admissible evidence
unless those admissions were barred due to lack of corroboration by
the operation of M.R.E. 304(c)(1). But the plain text of M.R.E.
302(c)(3) states that no corroboration of admissions is required “for
statements offered under a rule of evidence other than that pertaining
to the admissibility of admissions or confessions,” and M.R.E.
404(b) is not such a rule. The military judge admitted Appellant’s
statements about his urges as “evidence” under M.R.E. 404(b) to
establish Appellant’s motive and intent. I see no reason, under the
M.R.E., why admitted evidence of Appellant’s motive and intent
cannot also provide an indicia of trustworthiness that corroborates
Appellant’s other admissions under M.R.E. 304(c). Indeed, the fact
that Appellant had sexual motives and intent toward EM provides
far more convincing corroboration for his confession to sexually
abusing EM than any of the other evidence proffered by the
Government.
Appellant argues that the doctrine of corpus delicti prohibits one
admission from ever being used to corroborate another admission.
But the military justice system does not follow the absolute rule that
7
United States v. Whiteeyes, No. 21-0120/AR
Judge HARDY, concurring in the judgment
Appellant asserts. Instead, the President has long elected to incorpo-
rate the concepts that motivate the corpus delicti doctrine as an evi-
dentiary rule. And while it is true that Congress directed the Presi-
dent to conform M.R.E. 304(c), to the extent practicable, with the
way the federal courts apply the corpus delicti doctrine, that does
not change the fact that this case is governed by a specific rule of
evidence instead of by an amorphous common law doctrine. Ac-
cordingly, I would hold that evidence otherwise admitted under a
“rule of evidence other than that pertaining to the admissibility of
admissions or confessions”—including M.R.E. 404(b)—may be
used to corroborate an accused’s admissions or confessions under
M.R.E. 304(c).
Appellant’s statements about having “urges” toward EM raise a
strong inference of the trustworthiness of his confession and other
admissions. The statements suggest: (1) that Appellant viewed EM
in a sexual way; (2) that Appellant’s ongoing state of mind included
sexual urges toward EM; and (3) that Appellant’s urges toward EM
were palpable enough for him to feel he should not be near her. This
raises an inference that he acted on those “urges,” and tends to
establish that his confession to having sexually abused EM was
trustworthy.
III. Conclusion
Pursuant to M.R.E. 304(c)(4), there is sufficient independent evi-
dence to corroborate an accused’s admissions if that evidence “raise[s]
only an inference of the truth” of those admissions. Based on all of the
independent evidence in this case—including the evidence about Ap-
pellant’s urges admitted under M.R.E. 404(b)—I agree that the military
judge did not abuse his discretion in holding that the independent facts
tended to “raise . . . an inference of the truth of the admission or con-
fession.” M.R.E. 304(c)(4). Like my colleagues, I would affirm the de-
cision of the United States Army Court of Criminal Appeals.
8