            U NITED S TATES N AVY –M ARINE C ORPS
                C OURT OF C RIMINAL A PPEALS
                             _________________________

                                  No. 201800056
                             _________________________

                       UNITED STATES OF AMERICA
                                Appellant
                                        v.
                              MICHAEL D. HAMBY
                         Sergeant (E-5), U.S. Marine Corps
                                     Appellee
                            _________________________

            Appeal by the United States Pursuant to Article 62, UCMJ

          Military Judge: Lieutenant Colonel E.H. Robinson, Jr., USMC.
           For Appellant: Lieutenant Clayton S. McCarl, JAGC, USN;
                        Captain Sean M. Monks, USMC.
                For Appellee: Captain Thomas R. Fricton, USMC.
                            _________________________

                              Decided 28 August 2018
                             _________________________

        Before HUTCHISON, FULTON, and TANG, Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and Proce-
dure 18.2.
                             _________________________

   FULTON, Senior Judge:
    This is an interlocutory appeal taken by the government under Article 62,
Uniform Code of Military Justice (UCMJ). 1 Following a pretrial hearing, the
military judge denied the government’s request to admit two exhibits prior to
trial, and the military judge further ruled the exhibits would not be admissi-
ble at trial. The exhibits each contain a series of emails in which, according to
the government, the appellee is one of the correspondents. The government


   1   10 U.S.C. § 862 (2016).
                   United States v. Hamby, No. 201800056


does not know the identity of the second person in either series of emails;
they are identified by name in the emails as “Alex” and “Ryan [B].” We will
refer to the two email chains as the Alex chain and the Ryan chain. The
government contends that the emails represent two separate conversations,
one with Alex and one with Ryan, in which the appellee discusses plans to
sexually abuse his stepdaughter. The Alex chain and Ryan chain email
exchanges appear to have been conducted through the Craigslist anonymous
email relay, meaning the emails from Alex and Ryan did not contain the
senders’ true email address but rather an anonymous Craigslist email ad-
dress.
   We are asked to decide if we have jurisdiction over this appeal and, if so,
whether the military judge abused his discretion by not admitting this
evidence. We conclude that we have jurisdiction to hear this appeal and that
the military judge abused his discretion with respect to both email chains.
                              I. BACKGROUND
A. The allegations against the appellee
    The appellee faces five charges and 14 specifications. Three of the charges
(the Charge and Additional Charges I and II), are relevant to this appeal.
   In the five specifications under the Charge and two specifications under
Additional Charge I, the government alleges that the appellee attempted to
rape and sexually abuse two children, and attempted to conspire to rape and
sexually abuse two children. These charges stem from an undercover Naval
Criminal Investigative Service (NCIS) operation. The government alleges
that an undercover special agent contacted the appellee about the appellee’s
Craigslist ad captioned “young girls, incest, taboo.” The agent presented as
the mother of two children, four and eight years old, and she agreed to allow
the appellee to come to her residence on Camp Foster, Okinawa, Japan, to
engage in sexual acts with the children. The special agent exchanged emails
with an email address “mattdomen@mail.com” and through the “Kik” mes-
senger application. The appellee agreed to a face-to-face meeting with the
special agent at the Camp Foster food court. As he was leaving the food court
with the agent to go the undercover agent’s home, NCIS agents apprehended
the appellee.
   Additional Charge II and its four specifications allege that the appellee
raped and sexually abused the his toddler stepdaughter, KLS, as well as
another unnamed child.




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                     United States v. Hamby, No. 201800056


B. The government’s proffered evidence
   1. Government motion to admit emails under MIL. R. EVID. 414
    Before trial, the government filed two motions to pre-admit evidence. The
first motion, Appellate Exhibit XLI, moves for the admission of two email
chains under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 414. 2 The govern-
ment avers the appellee’s email provider turned over the two email chains in
compliance with a search warrant for the contents of the appellee’s email
account, named “mattdomen@mail.com.” The Alex chain appears on its face
to be a series of emails, exchanged through the Craigslist email relay be-
tween a user who identifies himself as Alex and another Craigslist user
identifying himself as Matt. The government claims to have identified Matt
as the appellee because the emails were found in the mattdomen@mail.com
email account.
   The government argues the Alex chain shows that the appellee and Alex
made and carried out a plan to sexually abuse the appellee’s stepdaughter.
We have here reproduced some of the relevant emails, stripped of headings
and addresses:
            15 October 2016 at 1310
              [Alex]: Hey im Alex and im 25 and into things that would
         probably make my whole family disown me but what they dont
         know cant hurt them right? Anyways im puerto rican, 5’9” and
         fit/slim if you needed to know. Discreet as well so no worries
         there. Ive talked to all sorts of taboo lovers mostly of the illegal
         kind and theyre some of the best people i get along with for
         some reason so hit me up and tell me what you’re into if you
         want. It’d be good to know one more like-minded person
            15 October 2016 at 1401
             [Matt]: I like everything from beastiality to young incest.
         Mostly young taboo for me. I have a young daughter and look-
         ing for someone to play with us
            15 October at 1532
             [Alex]: Dont know if you got my last message but im defi-
         nitely into young taboo and id love to play with you guys. I can
         get on base if you’re there or meet up in public to see if im safe
         and real and not a dangerous guy. Just get along first if you
         want ya know?



   2   MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) (MCM).


                                            3
            United States v. Hamby, No. 201800056


   16 October at 1236
    [Matt]: That might be nice to do a meet and greet first. It’s
hard to get a time to do things with her since wife is a stay at
home mom. She leaves periodically on appointments and such
so those are the best times. Have you had experiences or know
anyone else with connections to younger “subjects” I’d like to
play with others or swap subjects for play if that makes sense
   ....
   18 October at 2153
    [Matt]: Nice. One thing that may be an issue, if the wife
does leave and your able to have fun with her, are you willing
to be forceful. Sometimes she’s hesitant obviously she’s inexpe-
rienced. I don’t mind
   18 October at 2203
   [Alex]: Ill definitely be willing to be forceful. Would you
mind me forcing my cock in her throat and making her gag? Or
shall i be gently forceful?
   18 October 2016 at 2235
   [Matt]: If it doesn’t leave marks im ok
   ....
   22 October at 1502
   [Matt]: She is leaving now
   22 October at 1503
   [Alex]: Heh finally. So how do I get there
   22 October at 1509
    [Matt]: leave the parking of naval hospital and get turn left
on wire mountain road, take a right on san jacinto road and
then you will take your first left on pauma st. next you will
take the first right and stay on that road. park next to the the
third set of mailboxs on the right side of the road. but not in
front of it obviously let me know when you get there
   22 October at 1517
    [Alex]: Had to go past the third set and park on the next
street just past it. Im on temecula street if thats right
   22 October at 1518



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                 United States v. Hamby, No. 201800056


          [Matt]: yes, thats fine. just didnt want you parked in front
      of the house. just walk back the direction you drove on the side
      with the mailboxes. i will stop you when you get in front of my
      house and invite you in
         22 October at 1629
          [Alex]: That was definitely fun and interesting. My god
      what timing have we got though. A second later and it might’ve
      gotten you and me into serious trouble
         22 October at 1836
         [Matt]: Yeah haha. That was fun. It all worked out though
         2 December at 0111
          [Alex]: Hey its Alex. So are we never gonna meet up again
      to play with your kid? If its something i did wrong let me know
      at least, dont just leave me hanging cause that would be
      messed up
   In the same motion, the government moved to admit the Ryan email
chain under MIL. R. EVID. 414. The Ryan chain appears on its face to be a
chain of emails between a person using a Craigslist email address that
according to the government is associated with the appellee and another
person identified as Ryan [B]. Some relevant selections of this chain are
reproduced here without headings and addresses, and edited to remove
email-related artifacts:
         5 October 2016 at 1639
         [Ryan]: Remember I’m 3 hours away... I will leave rn if u
      can guarantee I get to play with her... U could tell your wife
      your taking her to get food
         5 October 2016
         [Craigslist address]: You can be here by 8?
         ....
         5 October at 1712
         [Ryan]: On my way! How do u want this to play out!? I’m so
      hard rn... Address?
         5 October
         [Craigslist address]: It won’t be long depending on when
      you get here my wife will be back about 830. But you can do
      whatever till then


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                  United States v. Hamby, No. 201800056


          5 October at 1720
          [Ryan]: K cool what’s the address? Once I type the address
      in the GPS I will tell you what time exactly I will be there
          5 October
          [Craigslist address]: 127 Temecula st oceanside ca 92058
          5 October at 1722
          [Ryan]: Gps says 750... See u then
          5 October
         [Craigslist address]: Try to be quick, if the wife comes back
      early I won’t be able to do anything because that’s around
      daughters bed time.
          5 October at 1725
         [Ryan]: Yeah I will be superquick probably just eat her ass
      and pussy make out with her and have her lick my cock… I
      could probably be in and out in 5 to 10 minutes
          5 October
          [Craigslist address]: Perfect
          ....
          5 October
          [Craigslist address]: Wifes here
          5 October at 1901
          [Ryan]: Fuck man... This is fucked up
          5 October
          [Craigslist address]: She was supposed to get her nails done
      then goto walmart, but she changed her mind and didn’t want
      to drive that far for groceries
          5 October at 1904
          [Ryan]: It’s ok I have Monday off how does that work
   In its motion, the government argued that the two email chains tended to
show that the appellant committed other offenses of child molestation, and
that their probative value was not substantially outweighed by the danger of
unfair prejudice.




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                  United States v. Hamby, No. 201800056


   2. Government motion to admit evidence under MIL. R. EVID. 404(b)
    In a separate motion, the government argued that these same email
chains were admissible under MIL. R. EVID. 404(b) to show that the appellee
had a sexual motive when he met the special agent at the food court; that he
intended to engage in sexual acts with children; that they tended to show
absence of mistake or accident; and that they tended to show that the appel-
lee had a plan to engage in sex with children. In addition to the emails
offered under MIL. R. EVID. 414, in this motion the government also sought to
admit advertisements and portions of other email conversations that the
government alleged had been created by the appellee. On their face, the
advertisements and other email chains relate—sometimes obliquely, some-
times explicitly—to their author’s desire to have sexual encounters with
children.
   3. The motions session
   The court-martial heard both motions on the same day. In support of its
motions, the government provided the following evidence:
      1) A disc containing the Alex and Ryan email chains;
      2) A compilation of those email chains, arranged for ease of reading;
      3) A copy of the notice the government provided to the defense of the
         government’s intent to use the evidence in question;
      4) Craigslist advertisements the government maintained had been
         created by the appellee, which were provided to the government
         pursuant to a subpoena for all Craigslist advertisements linked to
         the email mattdomen@mail.com;
      5) A photo of the appellee and his step-daughter offered so that the
         court could compare it with a photo included in the Alex email
         chain;
      6) “Kik” messenger chats purportedly between the appellee and the
         undercover NCIS agent offered to show similarities in the lan-
         guage;
      7) A recording of the appellee’s verbal statement to NCIS in which
         the NCIS agent confronted the appellee with emails sent from
         mattdomen@mail.com to the undercover agent’s email account,
         which the appellee admitted he sent, and which account the appel-
         lee admitted owning and using;
      8) A Permissive Authorization to Search showing that the appellee
         gave permission to search an Android phone;




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                      United States v. Hamby, No. 201800056


         9) A copy of an official Marine Corps personnel record showing that
            the appellee lived on Temecula Street when he had been stationed
            at Camp Pendleton; and
         10) A map of Camp Pendleton.
    At the hearing, the government argued that the two email chains consti-
tuted evidence that the appellee committed other offenses of child molesta-
tion as defined by MIL. R. EVID. 414(d)(2)(G). Specifically, the government
argued that the email chain showed that the appellee conspired with Alex
and Ryan to sexually assault the appellee’s step-daughter. Consistent with
the government’s pleading, the trial counsel also argued that the evidence
tended to show the appellee’s motive, plan, absence of mistake, and intent to
sexually abuse children.
   4. The military judge’s ruling
   The military judge denied both motions to pre-admit the Alex and Ryan
email chains in a single written ruling. The ruling does not address any
evidence the government sought to admit other than the two email chains. In
his ruling the military judge made 19 numbered findings of fact and five
numbered conclusions of law.
    With respect to the admissibility of the email chains under MIL. R. EVID.
414, the military judge found that to infer from the emails that the appellee
had committed other, uncharged acts of child molestation was “speculation at
its zenith.” 3 Several factors led the military judge to this view. First, the
military judge was troubled by the apparent variance between the email
address used in the search (mattdomen@mail.com) and the email address
attributed to the appellee in the transcript of his statement to NCIS
(mattdoman@mail.com). Aside from having a “similar sounding” email
address, the military judge found that the government had presented “no
additional evidence that can place the accused in control of the e-mail account
at the time of the messages . . . [.]” 4 Additionally, the military judge noted
that the government had provided no evidence that Alex or Ryan actually
existed or that they engaged in the online correspondence the government
sought to offer. The military judge also determined that the government
failed to establish that the appellee committed another act of child molesta-
tion because the e-mails purportedly between Alex and the appellee did not
mention any acts of child molestation after the appellee and Alex allegedly
met at the appellee’s Temecula home. Similarly, since the email exchanges
indicate that Ryan and the appellee were ultimately unable to meet, and


   3   Appellate Exhibit (AE) LXXXIII at 6.
   4   Id. at 5.


                                              8
                      United States v. Hamby, No. 201800056


because Ryan remained unidentified, the military judge found that the
government could not show that Ryan and the appellee had conspired to
commit an act of child sexual molestation.
    Having found that the proffered evidence was not evidence of any other
offense of child molestation, the military judge continued his MIL. R. EVID.
414 analysis by determining that the evidence did not make any fact of
consequence more or less probable and was therefore not relevant under MIL.
R. EVID. 401 and 402. Since the proffered evidence was not evidence of a prior
act of child molestation and not relevant in any other respect, the military
judge naturally concluded that the evidence also failed the MIL. R. EVID. 403
balancing test.
    The military judge also considered the admissibility of the email chains
under MIL. R. EVID. 404(b). Citing his own conclusions about the emails’ lack
of relevance to the case, the military judge concluded the emails did not
support a finding that the appellee had committed any other uncharged acts
and, even if they did, that the emails would still be inadmissible under MIL.
R. EVID. 403 balancing test.
   The military judge’s determination that the emails were not relevant is
based in part on a finding that the government failed to authenticate the
emails. The military judge seems to have anticipated that the government
would authenticate the emails through the testimony of an NCIS agent and
by a certified domestic record of a regularly conducted activity under MIL. R.
EVID. 902(11). The government provided no such testimony or certificate.
                                    II. DISCUSSION
A. Scope of review and jurisdiction
    In cases over which a military judge presides and a punitive discharge
can be adjudged, Article 62, UCMJ, gives us jurisdiction over government
appeals of a military judge’s ruling excluding evidence that is substantial
proof of a fact material in the proceeding. 5 Our jurisdiction is narrowly
circumscribed, and we construe this jurisdictional grant strictly. 6 Because our
jurisdiction only extends to the evidence described in Article 62, UCMJ, we
must determine what evidence has been excluded by the military judge and
whether that evidence is substantial proof of a fact material in the proceed-
ing. 7



   5   10 U.S.C. §862(a)(1)(B) (2016).
   6   Clinton v. Goldsmith, 526 U.S. 529, 535 (1999).
   7   See United States v. Jacobsen, 77 M.J. 81, 86 (C.A.A.F. 2017).


                                              9
                      United States v. Hamby, No. 201800056


   1. Has evidence has been excluded?
    The government asks us to clarify the military judge’s ruling to determine
whether he excluded all of the evidence the government proffered under MIL.
R. EVID. 404(b). A desire to have an appellate court clarify a lower court’s
order is not a ground for an appeal under Article 62, UCMJ. But it is neces-
sary for us to determine what evidence has been excluded so that we do not
exceed our authority under Article 62. We have reviewed the military judge’s
ruling, bearing in mind that government appeals are disfavored, and that we
should construe our authority narrowly. We conclude that the military
judge’s ruling only clearly excludes the two email chains at issue. His ruling
does not exclude the remainder of the government’s proposed MIL. R. EVID.
404(b) evidence. Therefore, our jurisdiction only runs to the two email chains.
    The appellee contends that we lack jurisdiction altogether because the
military judge has not actually excluded any evidence. He argues that the
military judge simply denied a motion to pre-admit evidence and, since no
evidence has actually been excluded, we are without jurisdiction to entertain
this appeal. We find, however, that the military judge did in fact exclude the
Alex and Ryan email chains. Had the military judge in this case simply
declined to admit evidence until the government met certain foundational
thresholds, such as presenting a witness who could authenticate the emails,
we would agree that the ruling could not confer jurisdiction on us. 8 But here
the military judge excluded both email chains not only for surmountable
foundational reasons, but because he found them inadmissible altogether
under the Military Rules of Evidence. The military judge’s ruling is not a
preliminary finding that the government has failed to authenticate the
evidence. It has finally excluded the emails from “the pool of potential evi-
dence that would be admissible.” 9 This jurisdictional prong is satisfied.
   2. Is the excluded evidence substantial proof of a fact material in the pro-
ceeding?
    Assuming that the government could authenticate the evidence (an issue
we address below), the two email chains have some tendency to show that the
appellee has motive and a propensity to sexually abuse children. Whether the
appellant had a motive or a propensity to sexually abuse children is a mate-
rial factual question in this case. This is especially true because the appellee
told NCIS he was merely engaging in fantasy when he discussed sexually
abusing the children of the undercover NCIS agent. The admission of the two


   8   United States v. Bradford, 68 M.J. 371, 373 (C.A.A.F. 2010).
   9   United States v. Wuterich, 67 M.J. 63, 73 (C.A.A.F. 2008) (quoting United States
v. Watson, 386 F.3d 304, 313 (1st Cir. 2004)).


                                             10
                       United States v. Hamby, No. 201800056


email chains would constitute substantial proof of a relevant fact. Evidence
that appellee had the motive and propensity to sexually abuse children is
relevant to whether the appellee attempted to rape and sexually abuse two
children and attempted to conspire to rape and sexually abuse two children
as the government alleges. This jurisdictional prong is also satisfied.
   We find that we have jurisdiction to review the military judge’s ruling ex-
cluding the two email chains.
B. Standard of review on appeal
    In this appeal we may act only with respect to matters of law. 10 We are
bound by the military judge’s factual determinations unless they are unsup-
ported by the record or clearly erroneous, and may not find facts in addition
to those found by the military judge. 11 We review the military judge’s conclu-
sions of law de novo. 12 We review a military judge’s ruling on admissibility of
evidence for abuse of discretion. 13 To overturn the trial judge’s ruling on
appeal, it must be “arbitrary, fanciful, clearly unreasonable or clearly errone-
ous.” 14
C. Authenticity
   The government avers that the military judge abused his discretion by
excluding the two email chains because the government failed to authenticate
them. We agree.
    Authentication establishes, by way of preliminary evidence, a connection
between the evidence offered and the relevant facts of the case. The connec-
tion is necessary in order to establish the relevance of the particular object or
item, since an object or item is not relevant unless it is attributed to, or
connected with, a particular person, place, or issue in a case. 15 In courts-
martial, authentication is governed by MIL. R. EVID. 901 and 902. Rule 901
provides generally for the authentication of evidence through the introduc-
tion of preliminary evidence “sufficient to support a finding that the item is
what the proponent claims it is” and provides a non-exclusive list of proofs by


   10   Art. 62(b), UCMJ; R.C.M. 908(c)(2).
   11   United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004).
   12   United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015).
   13   United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).
   14   United States v. Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000) (citation and internal
quotation marks omitted).
   15   Glen Weissenberger & James J. Duane, 1 Weissenberger’s Federal Evidence §
901.1 (2018).


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                       United States v. Hamby, No. 201800056


which a party might establish the authenticity of a proposed item of evidence.
MIL. R. EVID. 902 lists the types of evidence that are self-authenticating and
therefore require no extrinsic evidence of authenticity in order to be admit-
ted. We review the military judge’s determination on authentication for an
abuse of discretion. 16 A military judge abuses his discretion when his findings
of fact are clearly erroneous or if his decision is influenced by an erroneous
view of the law. 17
    The military judge found that the government failed to show that the
emails are certified domestic records of a regularly conducted activity and
therefore self-authenticating under MIL. R. EVID. 902(11). The military judge
erred by applying this rule. The government did not attempt to show that the
documents are self-authenticating. Instead, the government claims that the
contents of the emails themselves, along with other circumstantial evidence
introduced by the government, sufficiently authenticate this evidence under
MIL. R. EVID. 901.
    MIL. R. EVID. 901(b)(4) provides for the authentication of evidence by the
“appearance, contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the circumstances.” In
support of its argument that it has met the relatively low threshold required
for authentication, the government points to links between the offered emails
and the extrinsic evidence about the appellee the government introduced.
    The emails appear to have been sent by someone using the email address
“mattdomen@mail.com.” This corresponds to the appellee’s statement in
which he admitted to using this email address. When confronted with the
content of emails sent to the undercover NCIS agent from the email address
mattdomen@mail.com, the appellee admitted he owned that email address.
He explained why he chose the email address. He admitted he sent those
emails, and he explained his rationale behind sending the emails. The emails
also contain a picture of a child purported to be the author’s step-daughter.
The government introduced a picture of the appellee with his stepdaughter,
and argues that it tends to show that the appellee is the author of the emails.
The emails instruct the second parties to come to an on-base residence on
Camp Pendleton. The government introduced evidence that the address and
directions in the e-mails correspond to the appellee’s address on Camp




   16   United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013).
   17   Id. (citations omitted).


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                      United States v. Hamby, No. 201800056


Pendleton. These types of factors can be sufficient to satisfy the MIL. R. EVID.
901(b)(4) authentication requirements for email evidence. 18
   We may not find that the appellee is in fact the author of the emails, and
we do not suggest that the military judge must come to this conclusion.
Ultimately, the authorship of the emails may be a matter for the trier of fact
to decide. But the military judge erred by determining that because this
evidence was not self-authenticating, it could not therefore have been au-
thenticated. The state of the evidence suggests that the military judge should
have considered this evidence under MIL. R. EVID. 901(b)(4). Because the
military judge was operating under an erroneous view of the law, we conclude
he abused his discretion in finding the government failed to authenticate the
e-mails.
D. MIL. R. EVID. 414 and 404(b) analysis
   1. Applicable law
   MIL. R. EVID. 414 provides for the admission of an accused’s similar
crimes in child sexual offense cases. In order to be admissible, the military
judge must determine: (1) that the accused is charged with an act of child
molestation as defined by MIL. R. EVID. 414(d)(2); (2) that the proffered
evidence is evidence of his commission of another offense of child molestation
as defined by the rule; and (3) that the evidence is relevant under MIL. R.
EVID. 401 and 402. 19
    If the evidence meets these requirements, the military judge must then
determine whether it is admissible under MIL. R. EVID. 403 and the non-
exhaustive factors in United States v. Wright. 20 These include: strength of
proof of the prior act (e.g. a conviction versus mere gossip); probative weight
of the evidence; potential for less prejudicial evidence; distraction of the
factfinder; time needed for proof of prior conduct; temporal proximity; fre-
quency of the acts; presence or lack of intervening circumstances; and rela-
tionship between the parties.




   18   See Lubich, 72 M.J. at 175 (computer data contained numerous references to
appellant’s personal computer information satisfies MIL. R. EVID. 901(b)(4); See
also United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000); United States
v. Fluker, 698 F.3d 988, 999-1000 (7th Cir. 2012).
   19   United States v. Yammine, 69 M.J. 70, 73-74 (C.A.A.F. 2010).
   20   53 M.J. 476, 482 (2000).


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                      United States v. Hamby, No. 201800056


   2. Review of military judge’s MIL. R. EVID. 414 ruling
    The military judge correctly found that the appellee is charged with an
act of child molestation as defined by MIL. R. EVID. 414(d)(2). Next, the
military judge found that “aside from an account name that is similar to the
one the accused acknowledged using in the past, there is no additional
evidence that demonstrates the accused wrote any of the alleged messages.” 21
This finding is clearly erroneous. As we noted in our discussion of authentici-
ty, the government provided other evidence, both internal to the emails and
extrinsic evidence, that the appellee was the author of the emails.
    Both email chains tend to show that the appellee conspired to commit acts
of child molestation with Alex and Ryan against the appellee’s young step-
daughter. Both Alex and Ryan were quite explicit about the sexual acts they
hoped to perform with the appellee’s step-daughter, and the emails demon-
strate both the existence of an agreement to commit these acts of sexual
molestation and the overt act of travelling to or two hours toward the appel-
lee’s home in furtherance of that agreement. Indeed, the Alex email chain
suggests very strongly that the object of the conspiracy was accomplished
because Alex wrote the encounter was “fun and interesting” and suggested
the two men were nearly caught and would have been in “serious trouble” if
they had been caught. The military judge, however, concluded that the
government failed to meet its burden to establish a prior act of child molesta-
tion occurred at all. Specifically, the military judge noted the absence of any
mention of specific acts of molestation in the e-mails between Alex and the
appellee following their alleged meeting. This finding is clearly erroneous.
The conspiracy between the appellee and Alex was the prior act of child
molestation as that term is defined in the rule. We are convinced that the
military judge erred by finding that the emails did not constitute any evi-
dence that the appellee conspired to commit an act of sexual molestation.
    The military judge likewise erred by finding that the emails were not rel-
evant under MIL. R. EVID. 401 and 402. The military judge’s determination
that the emails were not relevant is based on his faulty view that the gov-
ernment did not demonstrate that the appellee authored the emails. The
military judge’s failure to recognize the existence of any evidence that the
appellee authored the emails affected his ruling on relevance. Because there
is some evidence that the appellee wrote the emails, the emails are logically
relevant to the case. They tend to show that the appellee is motivated to
engage in sexual acts with children, and that he has a propensity to arrange
with others online to engage in the sexual abuse of children.



   21   Appellate Exhibit LXXXIII at 5.


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   Turning to MIL. R. EVID. 403 and the Wright factors, and bearing in mind
that Wright itself counsels that “evidence of prior sexual offenses should
ordinarily be admissible,” 22 we find that the military judge misapplied the
Wright factors with respect to both email chains.
    a. Strength of proof
    The military judge’s failure to recognize evidence that the appellee is the
author of the emails affected his analysis of this factor. The emails consist of
correspondence that the trier of fact may well attribute to the appellee in
which the appellee is seen entering agreements to sexually abuse his step-
daughter. The appellee’s contention that the email chains are only evidence
of fantasy role playing is substantially undermined by the specific nature of
the arrangements in the email, the fact that Ryan’s visit was thwarted, and
the care taken in the emails to avoid being caught. Of course the real mean-
ing of the emails will be determined by the trier of fact. But the military
judge’s erroneous finding that there was no evidence the appellee authored
the emails affected his application of this factor.
    b. Probative weight of the evidence
    To the extent the government can demonstrate that the appellee is the
author of the emails, the evidence is probative of the appellee’s motivation to
sexually abuse children and his propensity to arrange with others online to
sexually abuse children. The military judge erred by failing to recognize
evidence that the appellee is the author, and he therefore misapplied this
factor.
    c. Potential for less prejudicial evidence
    The military judge concluded that the less prejudicial evidence is availa-
ble to the court-martial in the form of two photographs purportedly depicting
the appellee engaging in sexual acts with a young child and the testimony of
the undercover agent pertaining to her interactions with the appellee. While
this evidence would naturally tend to show that the appellee has a propensity
to sexually abuse young children, we agree with the government that the
military judge erred as a matter of law by concluding evidence of charged
misconduct would be available to the court-martial as a substitute for the
emails. 23 Charged conduct may not be the basis for a finding that the appellee
has a propensity to commit crimes of sexual abuse against children. This
error also affected the military judge’s ruling.


    22   Wright, 53 M.J. at 482 (quoting United States v. LeCompte, 131 F.3d 767, 769
(8th Cir. 1997)).
    23   See United States v. Hills, 75 M.J. 350, 356 (C.A.A.F. 2016).


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                      United States v. Hamby, No. 201800056


    d. Distraction of the factfinder and time needed for proof of prior conduct
    The military judge found that the discrepancy between the email address
on the emails and the address as transcribed from the appellee’s interview
(mattdomen@mail.com and mattdoman@mail.com) would result in a trial
within a trial. This is clearly erroneous. The trier of fact will either accept the
government’s simple explanation—that the difference results from an inexpe-
rienced legal clerk making a phonetic transcription—or it will not. But the
question will not detain them long, and the issue will not be a significant
distraction. Nor will this evidence take long to present. At most, the evidence
will require the testimony of an agent to explain how the government came
into possession of the evidence, and why the government believes the emails
pertain to the appellee.
   The military judge’s decision that the proffered evidence is not admissible
was affected by both clearly erroneous factual findings and error of law. As a
result, we conclude the military judge abused his discretion in excluding the
e-mails.
    3. Review of military judge’s MIL. R. EVID. 404(b) ruling
    The military judge concluded that the proffered evidence did not reasona-
bly support a finding that the appellee engaged in any act that made a fact of
consequence more or less probable. He further found that even if the email
chains had some tendency to prove motive, intent, plan, or absence of mis-
take, the emails should be excluded under MIL. R. EVID. 403.
   We review the admissibility of MIL. R. EVID. 404(b) evidence using the
Reynolds test:
    1. Does the evidence reasonably support a finding by the court members
       that the [appellee] committed prior crimes, wrongs or acts?
    2. What “fact . . . of consequence” is made “more” or “less probable” by
       the existence of this evidence?
    3. Is the “probative value . . . substantially outweighed by the danger of
       unfair prejudice”? 24
   The military judge’s application of the Reynolds test is affected by the
same failure to appreciate evidence that the appellee authored the emails in
question. This failure to consider evidence in the record that the appellee
wrote the emails, led the military judge to conclude that the government had
provided no evidence (other than similar sounding email addresses) that the



    24United   States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) (ellipses in original)
(internal citations omitted).


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                   United States v. Hamby, No. 201800056


appellee was party to the email chains in question, and that in these email
chains he arranged for the sexual abuse of his young step-daughter.
    The emails have the potential to demonstrate that the appellee was moti-
vated to sexually abuse young children. They also may tend to demonstrate
the existence of a common scheme or plan in which the appellee meets
strangers online and arranges with them to engage in sexual abuse of young
children. They inform the appellee’s motive to meet the undercover NCIS
agent in the food court as being a motive to have sex with her children, and
not a motive to engage in fantasy. The military judge’s errors contributed to
his finding that this evidence is not relevant.
                              III. CONCLUSION
    The appeal is granted, and the military judge’s ruling in Appellate Exhib-
it LXXXIII is set aside. The record of trial is returned to the Judge Advocate
General for transmittal to the convening authority.
   Senior Judge HUTCHISON and Judge TANG concur.


                                   FOR THE COURT




                                   RODGER A. DREW, JR.
                                   Clerk of Court




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