          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS



UNITED STATES,                              )                Misc. Dkt. No. 2013-25
                    Appellant               )
                                            )
             v.                             )
                                            )                ORDER
Airman First Class (E-3)                    )
DEX E. YARBER,                              )
USAF,                                       )
                    Appellee                )                Special Panel


WEBER, Judge:

       The Government filed an interlocutory appeal under Article 62, UCMJ,
10 U.S.C. § 862, in this matter. The Government challenges the military judge’s ruling to
entirely suppress the testimony of an alleged victim in this case,
Senior Airman (SrA) EH. Specifically, the Government contends the military judge erred
in finding the Government violated Article 46, UCMJ, 10 U.S.C. § 846; Rule for
Courts-Martial (R.C.M.) 703; and the Jencks Act, 18 U.S.C. § 3500, when SrA EH’s cell
phone containing text messages was lost. We agree with the Government that the
military judge abused his discretion. Therefore, we grant the Government’s appeal and
return this case to trial.

                                      Background

       The appellee is charged, inter alia, with two specifications of abusive sexual
contact in violation of Article 120 UCMJ, 10 U.S.C. § 920. Both specifications concern
alleged conduct toward SrA EH.

       The appellee and SrA EH were assigned to the same training squadron. They met
the evening of the alleged offenses at an on-base dining facility, when the appellee and
another male Airman invited SrA EH to sit at their table for dinner. During the meal, the
appellee and SrA EH exchanged cell phone numbers and showed each other pictures of
themselves on their respective cell phones. The pictures included SrA EH in a pet store,
SrA EH posing wearing a hat, and the appellee posing without a shirt.

       SrA EH alleges the appellee intentionally made physical contact with her leg and
foot as she sat next to him. Despite expressing no consent to this physical contact,
SrA EH alleges the appellee then twice slid his hand up her leg to the “crook of her
groin,” and she grabbed and removed his hand. SrA EH alleges the appellee then tried to
hold her hand, however, she pulled her hand free and told him “stop,” or “don’t,” or
words to that effect.

       After the other Airman left the table, SrA EH alleges the appellee grabbed her
hand and placed it on his erect penis. SrA EH states she responded by squeezing his
penis hard to make the appellee uncomfortable and telling him to stop. Less than a
minute later, according to SrA EH, the appellee again grabbed her hand and placed it on
his erect penis. SrA EH alleges she squeezed and twisted the appellee’s penis and told
him, “Cut it out now. I mean it. You will not like what happens next if you don’t.”

       Following the incident in the dining facility, SrA EH called her husband, who
encouraged her to report it. SrA EH reported the incident to a student leader in her
training squadron and then the Sexual Assault Response Coordinator. Security Forces
patrolman Technical Sergeant (TSgt) BB contacted SrA EH to interview her. During the
interview, SrA EH told TSgt BB the appellee sent her a text message indicating he knew
what he did was wrong. With SrA EH’s permission and assistance, TSgt BB viewed four
text messages between the appellee and SrA EH. TSgt BB called her supervisor,
Officer MD, to ask if she should seize the cell phone as evidence, but Officer MD
advised her not to do so. TSgt BB again questioned Officer MD if she should seize the
phone, asserting it was evidence, but Officer MD again advised her this was not
necessary. Officer MD later testified his rationale was that he believed he and TSgt BB
were not the lead investigators in the case, and he did not want to take any action that
might be at odds with the lead investigator’s actions.

       TSgt BB then asked SrA EH if she could write down the text messages and
SrA EH agreed. TSgt BB transcribed four text messages, three from the appellee and one
from SrA EH. TSgt BB testified she copied the text messages “98 percent accurate,” just
changing one word to “she” to indicate SrA EH sent the text message instead of the
appellee. TSgt BB’s transcription of the text messages reads as follows:

      1. I kno [sic] you don’t want to talk to me right now but I shouldn’t have
      done that & I promise I can learn from mistakes :1 [sic]

      2. I’m extremely sorry for what I did & want to be your friend. I promise
      to keep my hands to myself. You’re extremely cool & I want to get to
      know you as a friend at least please just give me a chance.

      She states quality woman, lady & won’t be treated like something cheap.
      You have shown lack quality [sic] with the way you treated me this
      evening. I will let you know when I have decided how to deal with your
      behavior.



                                           2                          Misc. Dkt. No. 2013-25
       3. OK I unstand [sic] & I respect what you have said I guess I just got the
       wrong idea I’m more sorry right now then [sic] I have been in a while.

According to TSgt BB, the messages numbered one through three represented text
messages sent by the appellee to SrA EH, while the portion beginning with “She states
quality woman” represented a message sent by SrA EH to the appellee. TSgt BB did not
review the call log or take any actions to positively determine these were the only text
messages between SrA EH and the appellee; rather, she relied on SrA EH’s
representation that there were no more text messages between the two.

       Having been advised not to seize the phone, TSgt BB instead instructed SrA EH
not to delete the messages in case investigators needed to see them again later. However,
no other investigative agency followed up on this matter. About five months later,
shortly before the Article 32, UCMJ, 10 U.S.C. § 832, hearing in this case, SrA EH’s
young daughter lost the phone when SrA EH gave it to her in a store to play with. The
Government attempted to obtain copies of the text messages in question from SrA EH’s
cell phone service provider but was unable to do so.

       At a pretrial session, the military judge suppressed all testimony from SrA EH
after determining the Government violated Article 46, UCMJ; R.C.M. 703; and the
Jencks Act when SrA EH’s cell phone was lost. The Government timely appealed the
military judge’s ruling pursuant to Article 62, UCMJ.

                           Jurisdiction and Standard of Review

      This Court has jurisdiction to hear this appeal under Article 62(a)(1)(B), UCMJ,
which authorizes the Government to appeal “[a]n order or ruling which excludes
evidence that is substantial proof of a fact material in the proceeding,” in a court-martial
where a punitive discharge may be adjudged.

       In contrast to our powers of review under Article 66(c), UCMJ,
10 U.S.C. § 866(c), this Court “may act only with respect to matters of law” in an
Article 62, UCMJ, appeal. Article 62(b), UCMJ; R.C.M. 908(c)(2). Thus, we are bound
by the military judge’s findings of fact unless they are clearly erroneous, and we have no
authority to find additional facts. United States v. Baker, 70 M.J. 283, 287-88
(C.A.A.F. 2011). We “‘give due deference’ to the judge’s findings of fact and accept
them ‘unless . . . unsupported by the evidence of record or . . . clearly erroneous.’”
United States v. Salazar, 44 M.J. 464, 471 (C.A.A.F. 1996) (quoting United States v.
Burris, 21 M.J. 140, 144 (C.M.A. 1985)). “When a court is limited to reviewing matters
of law, the question is not whether a reviewing court might disagree with the trial court’s
findings, but whether those findings are ‘fairly supported by the record.’” United States
v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004) (quoting Burris, 21 M.J. at 144).


                                             3                           Misc. Dkt. No. 2013-25
       We review a military judge’s ruling on a motion to suppress evidence for an abuse
of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing United
States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “‘Abuse of discretion’ is a term of
art applied to appellate review of the discretionary judgments of a trial court. An abuse
of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the
court’s decision is influenced by an erroneous view of the law.” Id. (citing United States
v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)). “Further, the abuse of discretion standard of
review recognizes that a judge has a range of choices and will not be reversed so long as
the decision remains within that range.” Gore, 60 M.J. at 187 (citing United States v.
Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).

       “In reviewing a ruling on a motion to suppress, we consider the evidence in the
light most favorable to the prevailing party.” United States v. Cowgill, 68 M.J. 388, 390
(C.A.A.F. 2010) (quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996))
(internal quotation marks omitted).

                                        Discussion

       The military judge suppressed SrA EH’s testimony based on his determination that
the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act in failing to
secure and produce SrA EH’s cell phone. Recognizing we consider the evidence in the
light most favorable to the appellee, we find the military judge abused his discretion in all
three aspects of his ruling.

                                  (1) Article 46 and R.C.M. 703

       Article 46, UCMJ, provides, in pertinent part:

       The trial counsel, the defense counsel, and the court-martial shall have
       equal opportunity to obtain witnesses and other evidence in accordance
       with such regulations as the President may prescribe.

       Our superior court has held an accused must satisfy the test announced in
California v. Trombetta, 467 U.S. 479 (1984), in order to establish a violation of Article
46, UCMJ, for lost or destroyed evidence. See United States v. Kern, 22 M.J. 49, 51
(C.M.A. 1986) (noting the Trombetta test satisfies both constitutional and military
standards of due process and is applicable to trial by courts-martial). The test articulated
in Trombetta, and further refined in Arizona v. Youngblood, 488 U.S. 51, 58 (1988),
provides that the destruction of, or failure to preserve, potentially exculpatory evidence
does not entitle an accused to relief on due process grounds unless: (1) the evidence
possesses an exculpatory value that was apparent before it was destroyed; (2) it is of such
a nature that the accused would be unable to obtain comparable evidence by other

                                              4                           Misc. Dkt. No. 2013-25
reasonably available means; and (3) the Government acted in bad faith when it lost or
destroyed such evidence.            United States v. Terry, 66 M.J. 514, 517
(A.F. Ct. Crim. App. 2008). If “material exculpatory evidence” is lost as opposed to
merely “potentially useful” evidence, the requirement to demonstrate the Government
acted in bad faith does not apply. Illinois v. Fisher, 540 U.S. 544, 547-48 (2004).

       To be entitled to relief under R.C.M. 703(f), an accused must show: (1) the
evidence is relevant and necessary; (2) the evidence has been destroyed, lost, or
otherwise not subject to compulsory process; (3) the evidence is of such central
importance to an issue that it is essential to a fair trial; (4) there is no adequate substitute
for such evidence; and (5) the accused is not at fault or could not have prevented the
unavailability of the evidence. R.C.M. 703(f)(1)-(2).

        The military judge orally ruled on the defense’s motion concerning the lost cell
phone. He did not issue findings of fact – oral or written – and he merely referred to the
evidence generally in explaining his ruling. As he issued no explicit findings of fact, our
task is more difficult in determining the basis for the military judge’s ruling. 1

       Several aspects of the military judge’s ruling concerning Article 46, UCMJ, and
R.C.M. 703 appear questionable. For example, the military judge found the evidence of
the text messages was exculpatory, but the sum of the messages is more accurately
characterized as inculpatory. Even if the appellee’s message that “I guess I just got the
wrong idea” could have furthered a mistake of fact as to consent defense, 2 it is difficult to
see how the entirety of the text messages – which contained several admissions by the
appellee – could have been “favorable to an accused” and therefore exculpatory. Kern,
22 M.J. at 51 (citations omitted). The military judge also did not clearly explain how he
concluded that any exculpatory value in the text messages was apparent before the
evidence was lost. Finally, the military judge found bad faith on the part of the
Government, “albeit maybe not intentionally.” Assuming the evidence was “potentially
exculpatory,” which requires a bad faith showing, the military judge did not explain how
the Government can unintentionally act in bad faith. This analysis would have been
particularly appropriate in a case such as this, where the inculpatory nature of the text

1
  We agree with appellate defense counsel’s concession that “there could have been a better job” with respect to
developing the military judge’s ruling. Military judges would be well advised to issue clearly labeled findings of
fact and conclusions of law, particularly when issuing a case-dispositive ruling likely to be the subject of an appeal.
2
  The Government did not charge that the “bodily harm” the appellee caused Senior Airman (SrA) EH was non-
consensual sexual contact. In this situation, involving the latest version of Article 120, UCMJ, 10 U.S.C. § 920,
some authorities have questioned whether mistake of fact as to consent to bodily harm is an applicable defense. See
Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, ¶ 3-45-16, note 9 (Version 13.2
13 November 2013) (noting that for a sexual assault charge, “ [w]hether mistake of fact as to consent to the sexual
act is a defense is an issue the military judge must decide . . . .”) (emphasis in original); Jim Clark, Professor Jim
Clark on Analysis of Crimes and Defenses 2012 UCMJ Article 120, Effective 28 June 2012, 2012 EMERGING ISSUES
6423 (2012), http://www.lexisnexis.com/documents/pdf/20120705060050_large.pdf (opining that mistake of fact to
consent is not a defense to a charge of sexual assault by causing bodily harm if the Government does not allege the
bodily harm was a “non-consensual sexual act”).

                                                          5                                   Misc. Dkt. No. 2013-25
messages meant the Government had no incentive to lose them. See Trombetta,
467 U.S. at 488 (finding no due process violation where “[t]he record contains no
allegation of official animus towards respondents or of a conscious effort to suppress
exculpatory evidence”); Youngblood, 488 U.S. at 58 (citing, as an example of bad faith,
“those cases in which the police themselves by their conduct indicate that the evidence
could form a basis for exonerating the defendant”). Finally, we question the military
judge’s summary conclusion on the R.C.M. 703 aspect of his ruling that the evidence is
of such central importance to an issue that it is essential to a fair trial. The appellee was
perfectly free to raise a mistake of fact as to consent defense with or without the text
messages, particularly where the defense was provided with the substance of the
appellee’s text messages, including his statement, “I guess I just got the wrong idea.”

       However, we need not explicitly rule on these aspects of the military judge’s
ruling because we find TSgt BB’s transcription of the text messages provided comparable
evidence to the lost cell phone that served as an adequate substitute. TSgt BB testified
her transcription of the text messages was “98 percent accurate,” with only one alteration
that did not change the substance of the messages. A substantially verbatim transcript of
text messages is the very definition of “comparable evidence.” See Kern, 22 M.J. at 52
(photographs and inventories of stolen military equipment served as comparable evidence
for the stolen items themselves); United States v. Guthrie, 25 M.J. 808, 811
(A.C.M.R. 1988) (typed, verbatim copy of a prior handwritten statement was comparable
evidence when the original statement was destroyed). The military judge’s analysis
completely ignores the fact TSgt BB copied down the text messages essentially verbatim.

        The military judge’s ruling hinted TSgt BB may not have transcribed all the text
messages, but the military judge did not explicitly find any facts concerning this issue.
To the extent the military judge’s discussion can be considered a finding of fact that
TSgt BB did not capture all the text messages, we hold such a finding is not fairly
supported by the record. TSgt BB did testify that she relied on SrA EH’s representation
that the four text messages TSgt BB transcribed represented the totality of the messages.
However, there is no evidence in the record to indicate SrA EH hid text messages from
TSgt BB, and SrA EH averred in her statement to law enforcement and in her Article 32,
UCMJ, testimony that no other text messages existed. TSgt BB was also looking at the
phone when she transcribed the text messages, meaning it would be difficult for SrA EH
to hide messages from TSgt BB even if she wanted to. The brief passage of time in
between the charged acts and TSgt BB’s viewing of the text messages also undercuts the
military judge’s finding, as do the words of the text messages themselves, which indicate
a start and finish to the conversation. Comparable evidence of the lost text messages
existed, and the transcript of the messages served as an adequate substitute for the lost
evidence. Therefore, no Article 46, UCMJ, or R.C.M. 703 violation occurred. 3
3
 The military judge also referenced photos that existed on SrA EH’s cell phone in his ruling as a possible additional
basis for finding that the missing cell phone contained exculpatory evidence. However, the military judge never
articulated any rationale to explain how these photos were exculpatory. We fail to see what exculpatory value the

                                                         6                                   Misc. Dkt. No. 2013-25
                                              (2) The Jencks Act

         R.C.M. 914 is the military counterpart to the Jencks Act. R.C.M. 914(a) provides:

         After a witness other than the accused has testified on direct examination,
         the military judge, on motion of a party who did not call the witness, shall
         order the party who called the witness to produce, for examination and use
         by the moving party, any statement of the witness that relates to the subject
         matter concerning which the witness has testified.

         R.C.M. 914(f) defines a “statement” as:

         (1) A written statement made by the witness that is signed or otherwise
         adopted or approved by the witness;
         (2) A substantially verbatim recital of an oral statement made by the
         witness that is recorded contemporaneously with the making of the oral
         statement and contained in a stenolineart, mechanical, electrical, or other
         recording or a transcription thereof; or
         (3) A statement, however taken or recorded, or a transcription thereof,
         made by the witness to a Federal grand jury. 4

R.C.M. 914 and the Jencks Act only apply to “statements” within the definition above.
In addition, for the Jencks Act and R.C.M. to apply, statements by Government witnesses
must be “in the possession of the United States.”               18 U.S.C. § 3500(a);
R.C.M. 914 (a)(1).

       Again, the military judge issued no findings of fact in concluding the Government
violated the Jencks Act, and his analysis is brief and conclusory. We find the military
judge abused his discretion in at least three respects. First, the statements were never “in
the possession of the United States,” a fact the military judge failed to analyze. Id. TSgt
BB never took physical control of the cell phone. The appellee argues the cell phone
came into the possession of the United States when TSgt BB directed SrA EH to not
delete any text messages, thereby making her a “de facto government agent.” Under a
common understanding of the word “possession,” we do not agree that directing a
witness to retain evidence brings the evidence within the Government’s “possession,” at
least under these facts. 5 Second, the military judge failed to analyze how the text

images on SrA EH’s cell phone had, as there was no evidence SrA EH’s photos were flirtatious or could have
conveyed consent to the charged actions.
4
  The Jencks Act contains a substantially similar definition of “statement,” with minor variances not relevant to this
appeal. 18 U.S.C. § 3500(e)(1)-(3).
5
  Federal Circuit Courts have generally required a statement to be in the possession of a federal prosecutorial agency
to fall within the Jencks Act. See, e.g., United States v. Naranjo, 634 F.3d 1198, 1211-12 (11th Cir. 2011) (holding
that a statement is in the possession of the United States for Jencks Act purposes “if it is in the possession of a

                                                          7                                  Misc. Dkt. No. 2013-25
messages met the definition of a “statement.” We do not see how the text messages
constitute “statements” for this purpose, as SrA EH did not sign or otherwise adopt or
approve them by incorporating them into an official statement to the Government, and the
other components of the definition do not apply. 6 Finally, even if the Jencks Act applied,
the Government did produce the statements in the form of TSgt BB’s notes. The defense
is entitled to the “statement” made by the witness, not to the precise format on which the
statements were made or the actual physical device used to transmit the messages.
See United States v. Pena, 22 M.J. 281, 283 (C.M.A. 1986) (holding the accused was not
entitled under the Jencks Act to statements recorded on audiotape when the tapes were
transcribed and there was “no indication whatsoever of substantive differences between
the taped versions . . . and the typewritten reports signed by the agents”); United States v.
Myers, 13 M.J. 951, 952 (A.F.C.M.R. 1982) (holding that under the Jencks Act, the
accused was not entitled to both the witness’s typed statement and the handwritten
statement from which the typed statement was accomplished). The Jencks Act simply
does not apply to these text messages, and even if it does, the Government complied with
the Act. 7

       We find the military judge abused his discretion in finding the Government
violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act. As no violation occurred,
there are no grounds to suppress SrA EH’s testimony.

                                                   Conclusion

       On consideration of the appeal by the United States under Article 62, UCMJ, it is
by the Court on this 20th day of February 2014,




federal prosecutorial agency”) (quoting United States v. Cagnina, 697 F.2d 915, 922 (11th Cir. 1983)) (internal
quotation marks omitted). Where the statements are physically held by someone other than a federal prosecutorial
agency, such statements are generally not considered in the possession of the United States unless the holder serves
as “an arm of the United States government.” United States v. Reyeros, 537 F.3d 270, 285 (3rd Cir. 2008) (holding
that Columbian courts holding extradition documents did not serve as an arm of the United States government and
therefore Jencks Act did not apply to such documents).
6
  See Palermo v. United States, 360 U.S. 343, 345 (1959) (noting that the purpose of the Jencks Act was to allow the
defense “under certain circumstances, to obtain, for impeachment purposes, statements which had been made to
government agents by government witnesses”); United States v. Douglas, 32 M.J. 694, 698 (A.F.C.M.R. 1991)
(holding that written notes by a government informant were covered by the Jencks Act because the notes were
prepared at the request of a law enforcement agent and adopted in the informant’s testimony).
7
  We note as well that the Jencks Act only covers statements by a witness other than the accused. Therefore, even if
the Jencks Act applied to the text messages, it would only apply to the one text message sent by SrA EH, not the text
messages sent by the appellee.

                                                         8                                   Misc. Dkt. No. 2013-25
ORDERED:

      The appeal of the United States under Article 62, UCMJ, is hereby GRANTED.
The ruling of the military judge suppressing the testimony of SrA EH in its entirety is
vacated and the record is remanded for further proceedings consistent with this opinion.

ROAN, Chief Judge, and HELGET, Senior Judge, concurring.


             FOR THE COURT


             LAQUITTA J. SMITH
             Appellate Paralegal Specialist




                                              9                       Misc. Dkt. No. 2013-25
