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

                             No. 201700073
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                     MARTINZIE G. WATKINS
             Gunnery Sergeant (E-7), U.S. Marine Corps
                            Appellant
                     _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

         Military Judge: Major M. D. Zimmerman, USMC.
   Convening Authority: Commanding Officer, 9th Marine Corps
                     District, Great Lakes, IL.
Staff Judge Advocate’s Recommendation: Lieutenant Colonel Jeffrey
                         V. Munoz, USMC.
  For Appellant: Lieutenant Commander Jacob E. Meusch, JAGC,
                                USN.
   For Appellee: Major Kelli O’Neil, USMC; Lieutenant George R.
                         Lewis, JAGC, USN
                      _________________________

                          Decided 28 June 2018
                         _________________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                         _________________________

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

   JONES, Judge:
    A special court-martial composed of members convicted the appellant,
contrary to his pleas, of violating a lawful general order and making a false
official statement, in violation of Articles 92 and 107, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892 and 907. The members sentenced
                        United States v. Watkins, No. 201700073


the appellant to reduction to pay grade E-3 and a bad-conduct discharge. The
convening authority approved the sentence as adjudged and, except for the
punitive discharge, ordered the sentence executed.
    The appellant raises five assignments of error (AOEs): (1) his conviction
for violating a lawful general order is legally and factually insufficient; (2) the
military judge erred by giving a mistake of fact instruction; (3) the military
judge abused his discretion by denying the appellant’s motion for expert
assistance and an expert witness in the area of digital forensics; (4) the
military judge abused his discretion in denying the appellant’s motion to
subpoena records; and (5) the military judge should have recused himself
because he was not impartial.
   After carefully considering the record of trial and submissions of the
parties, we are convinced that the findings and sentence are correct in law
and fact and that no error materially prejudicial to the appellant’s
substantial rights has occurred. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
     In the fall of 2014, RS met with Captain (Capt) SM, an Officer Selection
Officer, to pursue commissioning in the Marine Corps. She completed an
application package, met the physical qualifications, and attended pre-Officer
Candidate School. In April 2015, she sustained serious injuries from a
motorcycle accident, invalidating her earlier physical qualification. Capt SM
put her application on hold in the Marine Corps Recruiting System in the
summer of 2015. He also listed her as physically disqualified in his internal
filing system and moved her file to his “drop drawer” for cases he would
return to if the person sought to renew their application.1 Later that year,
Capt SM visited RS at a physical rehabilitation center. After RS confirmed
that she still wanted to join the Marine Corps, Capt SM explained to her that
she would have to “obtain new medical clearance documents . . . [and] submit
them to me so I could submit them to the Bureau of Medicine to see whether
or not they were going to requalify her.”2 The appellant became Capt SM’s
assistant near the end of 2015. The appellant met RS for the first time in
January of 2016, when he accompanied Capt SM to a meeting with RS at a
restaurant. Capt SM confirmed that RS could continue the process of seeking
a commission in the Marine Corps after she was medically cleared by her
civilian doctors. RS told them that she still wanted to become a Marine
officer, and she was actively pursuing her medical clearance from her doctors.


   1   Record at 328.
   2   Id. at 199.



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                     United States v. Watkins, No. 201700073


    In February 2016, RS began attending poolee physical training functions
at the recruiting office. It was at this time that she alleges the appellant
began asking her personal questions, such as whether it “hurt to have sex”
after her accident. She testified that they began exchanging sexually explicit
pictures, and on 24 April 2016, they engaged in sexual intercourse at his
apartment. According to RS, she saw the appellant socially three more times
after that first encounter. Their next encounter was about a week after their
sexual liaison, when the appellant appeared unannounced at her apartment
in the middle of the night. The appellant found RS alone with a man in her
apartment and accused her of cheating on him. Then, in mid-May 2016, they
saw each other in the morning and then later went out to dinner. Late that
night they had a loud disagreement in her apartment, and a neighbor called
the police. When the police responded, they found the appellant in RS’s
apartment in a state of undress. After the police left, the appellant stayed the
night with RS. RS claims the last time they saw each other was near the end
of May 2016, when they went to the zoo and out to dinner, and the appellant
again spent the night at her apartment. The following day, however, RS
became upset with the appellant so she phoned Capt SM and told him about
their relationship. To prove her claims, she texted Capt SM various photos
implicating the appellant, including one of her and the appellant together in
a hot tub.
    Capt SM informed his chain of command of RS’s allegations, and the
command initiated a preliminary inquiry. The command appointed Capt CC
to conduct the preliminary inquiry into the appellant’s alleged misconduct.
As part of his investigation, Capt CC interviewed the appellant. After
waiving his rights, the appellant told Capt CC, “[f]or the record I [sic] only
been to her house once, which was to give her purse as stated above and she
[sic] never been to my house” or words to that effect.3 Later, Capt CC
confronted the appellant with a photo of the appellant in a hot tub with RS,
and the appellant modified his story, admitting that he had been in the hot
tub with RS.
   Additional facts necessary to resolution of the AOEs are included below.




   3  Charge Sheet. At trial, Capt CC testified that the appellant’s words were “for
the record, I have never been to her house besides to return her belongings, and she
has never been to my house or apartment.” Record at 228.



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                     United States v. Watkins, No. 201700073


                                II. DISCUSSION
A. Legal and factual sufficiency of the order violation
   The appellant argues that the evidence is both legally and factually
insufficient to find that he violated a lawful general order. We disagree.
    We review questions of legal and factual sufficiency de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is “whether, considering the evidence in the light
most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
    The test for factual sufficiency is whether, “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique
appellate function, we take “a fresh, impartial look at the evidence,” applying
“neither a presumption of innocence nor a presumption of guilt” to “make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” Washington, 57
M.J. at 399.
    To satisfy its burden, the prosecution was required to prove: (1) there was
in existence a certain lawful general order in the following terms: Paragraph
4(a) of Depot Order 1100.4B, dated 1 September 2004, which prohibited
wrongfully engaging in, encouraging, or soliciting, or otherwise seeking a
nonprofessional personal relationship with a prospective officer candidate; (2)
the appellant had a duty to obey the order; and (3) between on or about 1
March 2016 and 31 May 2016, on divers occasions, the appellant violated the
order by wrongfully engaging in, encouraging, soliciting, or otherwise seeking
a nonprofessional, personal relationship with RS, then a prospective officer
candidate.4




   4Record at 429-30 (emphasis added); Charge Sheet; Appellate Exhibit (AE)
XXXVIII at 1; see also 10 U.S.C. § 892.



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                        United States v. Watkins, No. 201700073


    The appellant’s principal contention is that RS was not a prospective
officer candidate. The relevant Depot Order defined prospective officer
candidates as “[t]hose persons who are being actively processed for an officer
accession program by recruiting personnel in the course of their official
duties.”5 The appellant argues that “[g]iven that no recruiting personnel were
actively processing RS, she remained a ‘potential applicant’ as opposed to a
prospective officer candidate.”6 The government asserts that RS was actively
being processed for the officer accession program at all times during the
charged period.
    Capt SM testified that although he had put RS’s file in a temporary drop
drawer for further action, his office was still actively processing RS. It was
his opinion that she qualified as a prospective officer candidate under the
regulation. Although RS’s injuries had negated her previous medical
clearance, her injuries did not permanently disqualify her for admission
because—as Capt SM testified—only the Bureau of Medicine can make that
determination. During the entire charged period, RS was actively pursuing
clearance letters from her civilian doctors so she could be accepted into the
officer program, and the appellant’s office was actively processing her for
accession. In fact, by May 2016, when the appellant was engaged in a
relationship with RS, she had already had hardware removed from some of
her previous surgeries and had been medically cleared by a few of her civilian
doctors. When asked by a member if it was a common practice to actively
process medically disqualified applicants, Capt SM responded that it was and
then added that he had continued processing many people who had been
“permanently” medically disqualified by the Military Entrance Processing
Station and then been medically qualified by the Bureau of Medicine.7 We
find that RS was being actively processed for officer accession under the
regulation at the time of her relationship with the appellant.
   In addition to asserting that RS was no longer being actively processed as
an applicant, the appellant also renews his contention from trial that the
government failed to prove that he was the person found by the police in RS’s
apartment in the early morning hours of 2 May 2016. We reject this
contention. Candidly, this is not a case of mistaken identity. We have no


   5   Prosecution Exhibit 2 at 2 (emphasis added).
   6   Appellant’s Reply Brief of 5 Jan 2018 at 4.
    7 Record at 338. It was common practice for Capt SM’s office to retain potential

applicant files for four years in the hopes that someone who had initially expressed
interest in the Marine Corps, but was initially medically disqualified, might become
eligible.



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                      United States v. Watkins, No. 201700073


doubt it was the appellant who gave the police his full name, full social
security number, address, birthday, and provided proof of identification.
    The government’s case was formidable. They corroborated RS’s claim that
she and the appellant had been engaged in an intimate relationship. RS
provided many details about the times when and locations where she and the
appellant spent time together. She was able to describe the exterior and
interior of the appellant’s apartment. Moreover, even though she admitted to
Capt CC that she “was out for revenge [and] pissed off” at the appellant, she
provided uncontroverted photographic proof of the relationship, including a
photo of her and the appellant in a hot tub together.8
    Although the appellant provided various alibi witnesses, none of them
testified to the appellant’s whereabouts on the night he and RS first had
sexual intercourse at his apartment. Furthermore, the alibi witnesses did not
completely account for the appellant’s whereabouts during other times when
RS testified she was with the appellant. Although RS could be mistaken as to
the exact time each event occurred, we have no doubt the appellant was in a
hot tub with her and in her apartment the night the police were called. Proof
beyond a reasonable doubt is a high standard but does not “mean that the
evidence must be free from conflict.” Rankin, 63 M.J. at 557 (citation
omitted).
    The appellant also demonstrated a consciousness of guilt. When the
appellant learned that RS had contacted Capt SM regarding their
relationship, the appellant confronted RS, telling her that “[she] was going to
make him lose his job and that [she] should keep [her] mouth shut from there
on out.”9 He then took her phone “so [she] wouldn’t say anything further
about [their] relationship to anyone else.”10 Finally, in an effort to avoid
accountability for what he knew was illegal behavior, the appellant told the
investigating officer that he had only been to RS’s residence to drop off her
purse. He then changed his story when confronted with the hot tub picture.
The appellant’s words and actions show his consciousness of guilt and belie
any mistake of fact defense. See United States v. Quichocho, No. 201500297,
2016 CCA LEXIS 677, at 10, unpublished op. (N-M. Ct. Crim. App. 29 Nov
2016); see also United States v. Gomez, No. 201600331, 2018 CCA LEXIS 167,
unpublished op., (N-M. Ct. Crim. App. 4 Apr 2018).




   8   Id. at 325.
   9   Id. at 264.
   10   Id. at 283.



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                         United States v. Watkins, No. 201700073


    Based on the record before us, and considering the evidence in the light
most favorable to the government, a reasonable fact finder could have found
all the essential elements of the charged offense beyond a reasonable doubt.
Turner, 25 M.J. at 324. After weighing all the evidence and recognizing that
we did not see or hear the witnesses, we are also convinced that the appellant
is guilty beyond a reasonable doubt. Rankin, 63 M.J. at 557.
B. Mistake of fact instruction
    The appellant avers that “[t]hrough his mistake of fact instruction, the
military judge erroneously instructed the members that RS’s status as a
prospective officer candidate was a ‘true fact’ instead of a fact the
[g]overnment was required to prove beyond a reasonable doubt” to secure a
conviction for the orders violation.11 We disagree.
   Prior to trial and at trial, the appellant asked the military judge to give a
mistake of fact instruction for the orders violation charge.12 The military
judge accommodated the request, instructing the members that
             The evidence has raised the issue of mistake of fact on the
         part of the accused concerning whether the accused mistakenly
         believed that [RS] was not a prospective officer candidate in
         relation to the offense alleged in Charge I. The accused is not
         guilty of the offense if: [o]ne, he mistakenly believed that [RS]
         was not a prospective officer candidate; and two, that such
         belief on his part was reasonable.
             To be reasonable, a belief must have been based on
         information, or lack of it, which would indicate to a reasonable
         person that [RS] was not a prospective officer candidate. In
         addition, the mistake cannot be based on a negligent failure to
         discover the true facts.13
    “The question of whether the members were properly instructed is a
question of law and thus review is de novo. . . . Where there is no objection to
an instruction at trial, we review for plain error.” United States v. Payne, 73
M.J. 19, 22 (C.A.A.F. 2014) (citations omitted). Here there was no objection
by the appellant to the instruction as he specifically asked the military judge




   11   Appellant’s Brief of 5 Sep 2017 at 36-37.
   12   AE XVIII at 10; Record at 412.
   13   Record at 431.



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                          United States v. Watkins, No. 201700073


to give the generic mistake of fact instruction.14 Therefore, the appellant
bears the burden of demonstrating that: (1) there was error; (2) the error is
clear or obvious; and (3) the error materially prejudiced a substantial right of
the appellant. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011). All
three prongs must be satisfied; “the failure to establish any one of the prongs
is fatal to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348
(C.A.A.F. 2006).
    For the first time on appeal, the appellant argues that the last part of the
instruction—that “the mistake cannot be based on a negligent failure to
discover the true facts”15—erroneously instructed the members that RS’s
status as a prospective officer candidate was a true fact. The appellant
asserts that the military judge should have followed up the mistake of fact
instruction by telling the members that the appellant would also be “not
guilty of the offense if he accurately believed RS was not a prospective officer
candidate.”16 If the appellant is correct, then it was the appellant’s oversight
at trial not to ask the military judge to clarify this concept. In other words, it
is an unintended consequence of the appellant’s request for a beneficial
instruction, but it was not error.
   The government in its closing argument as to the orders violation clearly
endeavored to convince the members that RS was a “prospective officer
candidate” despite her medical disqualification.17 Defense counsel was even
more focused in arguing his client’s innocence to the members because RS
was not a “prospective officer candidate” being actively processed.18 The
defense then argued mistake of fact as an alternate position, citing RS’s two
motorcycle accidents, the placement of her file in the drop drawer, “and that
there could be no further action taken on her case, it’s reasonable for [the
appellant] to believe she was not a prospective officer candidate and that she


    14 We adopt the more generous standard of plain error analysis for the appellant.

But the appellant may have waived this purported instructional error. He made a
purposeful decision at trial to ask for the instruction, and then did not object to the
instruction when it was given by the military judge. See United States v. Gutierrez,
64 M.J. 374, 376-77 (C.A.A.F. 2007) (“This court has recognized that there are no
magic words to establish affirmative waiver. . . . In making waiver determinations,
we look to the record to see if . . . there was a ‘purposeful decision’ at play.”) (citations
omitted).
    15   Record at 431.
    16   Appellant’s Brief at 37 (emphasis in original).
    17   Record at 419.
    18   Id. at 422-23.



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                      United States v. Watkins, No. 201700073


was not being actively processed for officer accession.”19 We do not find the
military judge’s instructions to be confusing, and we find no plain error. We
have no doubt the members understood that they were to decide whether RS
was in fact a prospective officer candidate.
    Even if the instruction had been in error, we would refuse to grant relief
under the invited error doctrine. “The invited error doctrine prevents a party
from ‘creat[ing] error and then tak[ing] advantage of a situation of his own
making [on appeal].’” United States v. Martin, 75 M.J. 321, 325 (C.A.A.F.
2016) (quoting United States v. Eggen, 51 M.J. 159, 162 (C.A.A.F. 1999)
(alterations in original)). “Invited error does not provide a basis for relief.”
United States v. Raya, 45 M.J. 251, 254 (C.A.A.F. 1996) (citation omitted).
Here, the defense twice asked for the mistake of fact instruction and then
used it in their closing argument.20
C. Pretrial denial of defense expert assistance
    The appellant contends that the military judge abused his discretion in
denying the appellant’s pretrial motion for expert assistance in the area of
forensic mobile data. We disagree.
   1. The facts
    Two weeks before trial, the defense filed a late motion asking for expert
assistance in the area of digital forensics. Despite failing to show good cause
for the late filing, the military judge heard the motion. The appellant wanted
expert assistance to aid him in presenting alibi evidence via his smartphone’s
Google Timeline. Google Timeline is a feature that, in conjunction with
Google Maps, allows a person to track the date, time, and locations of a
smartphone.21 However, Google Timeline also allows the user to manipulate
the timeline.22
   At the motion session, the appellant called JM, a digital forensic
examiner. JM explained that Google Timeline is a user-friendly application
that allows one to pinpoint a phone’s location using GPS, Wi-Fi signals
emitted from the phone, and cell tower triangulation. He testified that data
in Google Timeline could be altered or deleted, and that a person could


   19   Id. at 423.
   20   Id.
   21  See generally, GOOGLE MAPS HELP FORUM, https://support.google.com/maps/
answer/6258979? co=GENIE.Platform%3DiOS&hl=en&oco=0 (last visited 11 Jun
2018).
   22   Id.



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                        United States v. Watkins, No. 201700073


determine if information was deleted by looking at the usage of other
applications on the phone. JM further testified that, if these applications
were backed up on the cloud, they could also be used to accurately pinpoint a
cell phone’s location.
    The defense argued that they needed the expert to “process and analyze
the Google [T]imeline data” and “third party data” to show that the appellant
was not at RS’s apartment when the police officer said he was there.23 The
government argued that the defense was able to access their client’s Google
account and take screenshots of the Google Timeline without the assistance
of an expert. They further averred that the defense’s requested expert, JM,
agreed that the programs were easy to understand. Last, they reminded the
military judge that several alibi witnesses had been granted to the defense.
   The military judge denied the motion, finding that the defense failed to
carry their burden to establish that the expert assistance was necessary.
         Largely, this information is cumulative with other [alibi]
         witnesses. . . . The fact that more could be out there, and
         maybe you could find that he was also logged into his
         Facebook . . . is really unpersuasive in terms of whether or not
         you’re required to have the government fund you somebody to
         go looking for that and digging for those things. . . . [Y]ou can’t
         meet the standard for making the government fund that. . . .
                                        ....
             You can’t show the expert would be of assistance.
         Specifically, when we’re talking about this particular
         information, I find that it’s easy to use and understand. . . .
             The fact that somebody from [the expert’s company] might
         be about [sic] to explain how it’s gathered or . . . pump up its
         reliability or maybe find more stuff out there isn’t enough. . . . I
         think most people have a basic understanding of . . . turning on
         the location search services on their phone and that tracks
         where your phone is. . . .
             And further, I don’t find that denial would result in a
         fundamentally unfair trial. I don’t think that looking at the
         standard of whether or not denying it would be so outrageous
         that due process would be offended. . . . It’s easy to understand
         information. It’s easy for you all to look at and see how it plugs


   23   Record at 90.



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                        United States v. Watkins, No. 201700073


         into your case. I was able to simply look at it and I completely
         understood it right away. So I’m not ruling this information is
         inadmissible, however. I’m just saying that due process doesn’t
         require the government to pay for the assistance.24
    The military judge then encouraged the government to stipulate to the
admissibility of the Google Timeline screenshots at trial or risk a substantial
delay in the case because obtaining a MILITARY RULE OF EVIDENCE (MIL. R.
EVID.) 902(11), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)
self-authenticating affidavit from Google would “take a long time.”25 He
warned the government that he would delay the trial for as long as the
defense needed to get the affidavit from Google.
   2. No abuse of discretion
    We review a military judge’s denial of expert assistance for abuse of
discretion. United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010). The abuse
of discretion standard is a strict one, calling for more than a mere difference
of opinion. The challenged action must be “‘arbitrary, fanciful, clearly
unreasonable,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J.
120, 130 (C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65
(C.A.A.F. 1997)).
   The defense is entitled to an expert’s assistance upon demonstration of
necessity and a showing that “‘denial of expert assistance would result in a
fundamentally unfair trial.’” United States v. Bresnahan, 62 M.J. 137, 143
(C.A.A.F. 2005) (quoting United States v. Gunkle, 55 M.J. 26, 31 (C.A.A.F.
2001)). The appellant must prevail by a “reasonable probability.” Id. See also
RULE FOR COURTS-MARTIAL (R.C.M.) 703, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.), and MIL. R. EVID. 702.
    The “necessity” standard has a three-part test under which the appellant
“must show (1) why the expert assistance is needed; (2) what the expert
assistance would accomplish for the accused; and (3) why the defense counsel
were unable to gather and present the evidence that the expert assistance
would be able to develop.” Bresnahan, 62 M.J. at 143 (footnote omitted). To
demonstrate necessity “an accused must demonstrate something more than a
mere possibility of assistance from a requested expert[.]” Gunkle, 55 M.J. at
31 (citations and internal quotation marks omitted).


   24   Id. at 91-92.
   25 Id. at 93. The military judge did not force a stipulation of fact on the parties.
Rather, he encouraged the stipulation of fact to get over the foundational concerns of
hearsay and authenticity.



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                      United States v. Watkins, No. 201700073


   Here the military judge found that the defense failed to carry their
burden to establish that the expert assistance was necessary. He found that
the defense failed all three prongs: they did not show why the expert was
needed, what the expert would accomplish for the accused, and how they
were unable to gather and present the evidence that the expert assistance
would help them develop. The military judge found that the Google Timeline
evidence was easy to understand and well within the purview of the defense
counsel to present at trial. Finally, the military judge concluded that the
appellant would not be denied a fundamentally fair trial if the expert
assistance was denied.
    The record shows that the government and the military judge were
focused on how easy it was to understand the Google Timeline. Neither
appeared to understand that the defense wanted expert assistance to test the
phone and see whether the appellant’s Google Timeline had been
manipulated. To their detriment, the defense failed to focus the parties on
this issue during the motions session. In fact, the defense argued to the
military judge that they needed the expert simply to assist them in
understanding the Google Timeline data to pinpoint where their client’s
phone was at certain times; they did not refer to the need to test their
evidence with the expert at all during their argument.26 Despite this setback,
the defense made the tactical decision to present the appellant’s Google
Timelines at trial, and whether the appellant manipulated the timelines
became an issue.
    The military judge did not enjoy the benefit of hindsight when he made
his ruling. Our review of his findings and conclusions is limited to whether he
abused his discretion based on the information he had at the time the motion
was litigated—prior to trial. The abuse of discretion standard is a strict one
and requires more than our disagreement with his ruling. Rather, we must
find his ruling “‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly
erroneous’” to find an abuse of discretion. McElhaney, 54 M.J. 130. Based on
these particular facts, we conclude that the military judge did not abuse his
discretion in denying the pretrial motion for expert assistance.




    26 JM testified during the motions session that he could determine if the Google

Timeline had been altered by looking at the usage of other applications on the phone.
The record is undeveloped regarding if someone inexperienced in digital forensics
could do the same thing.



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                    United States v. Watkins, No. 201700073


D. Mid-trial denial of defense expert witness
    The appellant asserts that the military judge abused his discretion in
denying the appellant’s mid-trial motion for an expert witness in the area of
forensic mobile data. We disagree.
   1. The facts
    A few days before the trial began, the government and the defense agreed
to stipulate how Google Timeline records are created and stored, as well as
how the appellant was able to access his Google Timeline via his email
address and phone number. However, the government wanted the defense to
also stipulate that Google Timelines can be manipulated or altered by the
user. The defense refused. The parties met with the military judge in two
R.C.M. 802 conferences in an attempt to resolve their differences. During
these conferences, the government made clear that they intended to present
evidence at trial that the Google Timeline was subject to manipulation by the
user. The defense countered by warning that they might seek a continuance
to secure an expert witness to rebut the contention that the appellant had
modified his Google Timeline. The military judge indicated that he would be
unlikely to grant a mid-trial continuance.
   At trial, the government presented its case and rested with no mention of
Google Timelines.
    The defense then presented various alibi witnesses, attempting to show
that the appellant was not where RS indicated he was at certain times. The
defense also admitted the Google Timeline records from the appellant’s
phone, along with the stipulation of fact regarding the authenticity of the
records. These timelines corroborated some of the defense’s alibi testimony.
However, they did not directly rebut RS’s testimony of her relationship with
the appellant or the police officer’s testimony regarding seeing the appellant
in RS’s residence.
   After the defense rested, the government announced its intention to call
Capt CC, the preliminary inquiry officer, to explain how a Google Timeline
could be manipulated. The defense objected:
          DC: In the first place . . . the testimony that they’re trying
       to get would be expert testimony from someone who’s not
       qualified to give that type of testimony. . . . [T]he more
       important point is that, we brought this issue up at a motions
       hearing [and] we requested an expert witness to address this
       exact issue.
          MJ: And it was denied.




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                         United States v. Watkins, No. 201700073


             DC: That’s correct, sir. So, at this point, them being able to
          put on evidence that it could be manipulated when we would be
          able to get an expert witness, and forensic testing show[ing]
          that it objectively was not –
               MJ: You don’t know that you’d be able to show that or not.
             DC: Sir, we–the expert witness that we spoke to testified
          that if he forensically tested the phone, that it could produce
          that –
               MJ: Or it could not. . . .27
    The defense then asked for a continuance to secure the expert witness,
which the military judge denied. Finally, the defense asked that the
government not be allowed to present the evidence through Capt CC. The
military judge again denied this request, stating, “a trial is supposed to be
about a search for the truth, and this was your evidence . . . produced by you,
that you had complete dominion and control over.”28 The defense again
argued that Capt CC was not an expert on the Google Timeline program and
could not lay a proper foundation. The military judge overruled the defense,
stating that Capt CC’s lack of expertise was not a valid reason for prohibiting
the government from calling him as a lay witness.
    Capt CC testified that Google Timeline is accessed through a user’s Gmail
account, and a user could modify the Google Timeline. He further testified
that he was able to alter his own Google Timeline such that it replicated the
appellant’s Google Timeline. When the government handed Capt CC one of
the appellant’s Google Timelines that had been admitted as a defense exhibit,
Capt CC averred, “you can change anything on this document.”29 During
cross-examination, however, the defense attacked Capt CC’s limited
experience with regard to the detectability of manipulation of the Google
Timeline. Capt CC conceded that there was no way for him to know whether
the appellant’s Google Timelines were actually altered; he could only testify
that it was possible for a user to modify them.
    2. Military judge’s ruling
    We review a military judge’s denial of an expert witness for an abuse of
discretion. United States v. Ruth, 46 M.J. 1 (C.A.A.F. 1997). This requires


    27 Id. at 386-87. In actuality, the military judge had denied the pretrial motion for

an expert consultant, not an expert witness.
    28   Id. at 387.
    29   Id. at 394.



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                        United States v. Watkins, No. 201700073


more than our disagreement with the military judge’s ruling; we must find
the military judge abused his discretion.
    “Each party is entitled to the production of any witness whose testimony
on a matter in issue on the merits . . . would be relevant and necessary.”
R.C.M. 703(b)(1). This equal right to obtain witnesses specifically includes
the “equal opportunity to obtain expert witnesses[.]” MIL. R. EVID. 706(a); see
also Art. 46, UCMJ. The standard for production of an expert witness under
R.C.M. 703(d) is more stringent than the standard for producing an expert
consultant. To require production of an expert witness the appellant must
establish the qualifications of the expert, the subject matter of the expert
testimony, the basis of the expert testimony, the legal relevance of the
evidence, the reliability of the evidence, and whether the probative value of
the testimony outweighs other considerations. Id. (citing United States v.
Houser, 36 M.J. 392, 399 (C.M.A. 1993)). Here the appellant asserts that the
military judge abused his discretion in denying the expert witness request,
yet, as the government points out, the appellant “makes no attempt to
articulate how production was justified under the Ruth factors.”30
   The appellant did not show how his expert witness was relevant and
necessary because JM had never actually reviewed the evidence. JM could
not testify whether or not the appellant had manipulated the Google
Timeline. The appellant failed to show that JM would have any basis to
render such an expert opinion. Indeed, JM would have been relegated to
speculating whether or not the appellant modified the timeline. Critically,
the appellant never established the legal relevance of his proferred evidence
and failed to meet the standards of both R.C.M. 703(b)(1) and Ruth.
    The purported relevance of the expert’s testimony was to show that the
appellant did not manipulate his Google Timeline. The appellant had the
burden to “demonstrate that the[ir] witness c[ould] offer an opinion based on
facts or data related to the issue in question.” United States v. Reveles, 41
M.J. 388, 394 (C.A.A.F. 1995) (citations omitted). In Reveles, the defense was
denied a medical expert who could have testified that there was an
alternative cause of death. Id. at 393. The Court of Appeals for the Armed
Forces held that the defense request fell short of a showing of necessity. Id. at
394. “[T]he defense made no showing that [the expert’s] testimony would be
based on the actual facts of the case. The most that the defense could proffer
was that [the expert] would testify that there was a theoretical possibility”
something occurred. Id.



   30   Appellee’s Brief of 5 Dec 2017 at 32.



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                        United States v. Watkins, No. 201700073


    Like Reveles, the defense here offered only a theoretical possibility that
the expert could testify that the Google Timeline was not altered. The
colloquy between the defense and the military judge reveals that JM could
not say if the appellant manipulated his Google Timeline because JM had
never examined the evidence. We find the military judge did not abuse his
discretion in denying the mid-trial request for the expert witness.
   3. Constitutional error and testing for prejudice
    The appellant contends that “the military judge placed the parties on
unequal evidentiary footing, which empowered the government to annihilate
the reliability of [the appellant’s] Google Timeline records while
simultaneously depriving [the appellant] of the ability to credibly challenge
the government’s offensive.”31 He avers the playing field appears uneven and
tilted in the government’s favor. The defense argues that this raises
constitutional due process concerns because the defense was denied their
right to present a complete defense.32 Assuming, without deciding, that
constitutional due process concerns are implicated, we test for prejudice and
conclude the error was harmless beyond a reasonable doubt.
   “‘For constitutional errors, the Government must persuade us that the
error was harmless beyond a reasonable doubt.’” United States v. Bess, 75
M.J. 70, 75 (C.A.A.F. 2016) (quoting United States v. Hall, 56 M.J. 432, 436
(C.A.A.F. 2002)). “The inquiry for determining whether constitutional error is
harmless beyond a reasonable doubt is whether, beyond a reasonable doubt,
the error did not contribute to the [appellant’s] conviction or sentence.”


   31   Appellant’s Reply Brief at 7.
   32  “It is undeniable that a defendant has a constitutional right to present a
defense.” United States v. Dimberio, 56 M.J. 20, 24 (C.A.A.F. 2001). “‘Whether rooted
directly in the Due Process Clause . . . or in the Compulsory Process or Confrontation
clauses of the Sixth Amendment . . . the Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense.’” United States v. Bess, 75
M.J. 70, 74 (C.A.A.F. 2016) (quoting Crane v. Kentucky, 476 U.S. 683, 690, (1986)
(additional citations omitted). See California v. Trombetta, 467 U.S. 479, 485 (1984)
(holding that an accused is entitled to “a meaningful opportunity to present a
complete defense.”) Furthermore, “[u]nder the Compulsory Process Clause, a
defendant has a ‘right to call witnesses whose testimony is material and favorable to
his defense.’” Bess, 75 M.J. at 75 (quoting Rock v. Arkansas, 483 U.S. 44, 52, (1987)
(additional citations omitted); see also United States v. Woolheater, 40 M.J. 170, 173
(C.M.A. 1994) (“the Constitutional right to present defense evidence is a
‘fundamental’ right . . .”) (citing Chambers v. Mississippi, 410 U.S. 284 (1973));
United States v. Blazier, 69 M.J. 218, 225 n.6 (C.A.A.F. 2010) (“a defendant has the
right to the compulsory process of witnesses who can provide relevant and necessary
evidence in their defense.”).



                                         16
                     United States v. Watkins, No. 201700073


United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (citations and
internal quotation marks omitted). “To say that an error did not ‘contribute’
to the ensuing verdict is . . . to find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in
the record.” United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)
(quoting Yates v. Evatt, 500 U.S. 391, 403 (1991), overturned on other grounds
by Estelle v. McGuire, 502 U.S. 62, 72 n.4 1991)) (internal quotation marks
omitted).
    As a preliminary matter, the Google Timeline only reveals where the
appellant’s phone was at a particular time, not necessarily the location of the
appellant. Therefore, the expert could only have testified regarding the
location of the phone, not the appellant. Additionally, RS may have been
mistaken as to the exact time an event occurred, and the appellant could still
be found guilty of engaging in an unprofessional relationship with her. But
most importantly, in spite of the appellant’s contentions, neither the alibi
witnesses nor the Google Timeline adequately refutes the two strongest
pieces of evidence proving his guilt—the photo of him in a hot tub with RS
and the police officer’s positive identification of the appellant at RS’s
apartment in a state of undress in the early morning hours.
    Given the overwhelming evidence the appellant was engaged in an
inappropriate relationship with RS, we are convinced beyond a reasonable
doubt that any assumed errors did not contribute to the appellant’s
conviction or sentence. “As the Supreme Court directs, we look not at some
hypothetical reasonable panel, but at ‘whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.’” Bess, 75 M.J. at
77 n.9 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (emphasis in
original) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). Here, the
Google Timelines showing the location of the appellant’s phone were
unimportant in relation to everything else the panel considered in this case.
E. Subpoena of records
   The appellant contends that the military judge abused his discretion
when he denied as cumulative a defense motion to compel records of (1) cell
phone tower data from the appellant’s cell phone account; and (2) Google
Timeline GPS data from the appellant’s Gmail account.33 We disagree.



    33 The appellant addresses more grounds for relief in his motion by citing to AE

XIII, a “Supplemental Discovery Request” dated 10 November 2016. However, during
the motions session, only the cell phone tower data and the Google Timeline GPS
data were litigated. Record at 93-96.



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                     United States v. Watkins, No. 201700073


    Each party to a court-martial is entitled to an “equal opportunity to
obtain witnesses and other evidence[.]” Art. 46, UCMJ. R.C.M. 703(a)
establishes that the opportunity to obtain witnesses and evidence includes
the benefit of compulsory process. The government may obtain, by subpoena,
evidence that is not under its control. R.C.M. 703(f)(4)(B). “Each party is
entitled to the production of evidence which is relevant and necessary.”
R.C.M. 703(f)(1). MIL. R. EVID. 401 defines relevant evidence as that which
has “any tendency to make a fact more or less probable than it would be
without the evidence[.]” Relevant evidence is “necessary when it is not
cumulative and when it would contribute to a party’s presentation of the case
in some positive way on a matter in issue.” R.C.M. 703(f)(1), Discussion. The
moving party has the burden of persuasion on these motions for appropriate
relief. R.C.M. 905(c)(2)(A), 906(b)(7). See United States v. Rodriguez, 60 M.J.
239, 246 (C.A.A.F. 2004).
    “In the case at bar, resolving the issue requires application of R.C.M. 703
to a defense request for [a] subpoena . . . . The issue is in virtually every
respect identical to a request for the production of a witness.” United States v.
Rodriguez, 57 M.J. 765, 770 (N-M. Ct. Crim. App. 2002). Therefore, we review
a military judge’s ruling on a request for production of evidence via subpoena
for an abuse of discretion. Id.; United States v. Breeding, 44 M.J. 345, 349
(C.A.A.F. 1996) (denial of a request for additional witnesses). “A military
judge abuses his discretion when: (1) the findings of fact upon which he
predicates his ruling are not supported by the evidence of record; (2) if
incorrect legal principles were used; or (3) if his application of the correct
legal principles to the facts is clearly unreasonable.” United States v. Ellis, 68
M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198,
199 (C.A.A.F. 2008)).
   1. Cell phone tower data
    Although the defense requested phone call logs in their discovery
request,34 their argument at the motions session focused on obtaining cell
phone tower data. This was to buttress the Google Timeline evidence they
wanted to present to show that the appellant was not where RS claimed he
was at certain times. The defense, as the moving party, was required as a
threshold matter to show that the cell phone tower data existed. They failed
to do so. The military judge asked the defense how long the cell phone carrier
maintained the cell phone tower data. The defense did not know. The
military judge found that depending on the retention policy of the phone
carrier, cell phone data is unavailable after 60 to 90 days without an order or


   34   AE XIII.



                                       18
                        United States v. Watkins, No. 201700073


demand to preserve it. Applying R.C.M. 703, the military judge concluded
that the defense had failed in their burden to show the existence of the data.
Rodriguez, 60 M.J. at 246 (noting that the appellant assumed the existence of
evidence and its evidentiary value with no showing that the evidence
existed). We agree with the military judge—the appellant did not carry his
burden as the moving party to demonstrate that the cell phone tower data
actually existed.
   Additionally, applying R.C.M. 703, the military judge found that if the cell
phone tower data did exist, it was cumulative with the multiple alibi
witnesses and the Google Timeline screenshots already in the possession of
the defense.35 If the data did exist, the appellant failed to show that the data
was relevant and necessary, not cumulative, and should have been produced
through compulsory process. We conclude that the military judge did not
abuse his discretion in denying the appellant’s motion to compel production.
   2. Google timeline
   The defense requested that the military judge order the government to
subpoena the appellant’s Google Timeline data and order Google to “produce
that information with a [MIL. R. EVID.] 902(11) affidavit.”36 MIL. R. EVID.
902(11) allows for self-authentication of certified domestic records of a
regularly conducted activity. In other words, the defense wanted to ensure
that their Google Timeline evidence would not have been ruled inadmissible
because they could not authenticate it at the time of trial.
    As a preliminary matter, the appellant has a duty to try to obtain the
information himself first. Rodriguez, 60 M.J. at 246. The military judge found
that there was nothing to subpoena because the defense was already in
possession of the records they sought, and requesting the same records would
be cumulative. However, the military judge indicated he would encourage the
government to stipulate to the authenticity of the evidence to prevent any

   35 Although we do not find the military judge abused his discretion, we do take
issue with his comment during the ruling when he said “I think . . . when you said
corroborative I think a synonym for that is cumulative. And I think it is cumulative
with the Google data that we already have.” Record at 95. “Cumulative” and
“corroborative” are not synonyms; corroborative evidence is not cumulative. See
United States v. Lee, 28 M.J. 52, 55 (C.M.A. 1989) (stating that the corroborative
nature of evidence does not make it cumulative). Nevertheless, we hold that the
military judge cited the correct standard under R.C.M. 703 and applied it, and he
considered the requested evidence cumulative with both the Google data and the
several alibi witnesses. We do not find that “incorrect legal principles were used” to
reach the outcome. Ellis, 68 M.J. at 344.
   36   Record at 95.



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                        United States v. Watkins, No. 201700073


foundational objections at trial. In fact, the two parties stipulated to the
foundational requirements of the Google Timeline evidence.
    We find that the appellant did not carry his burden as the moving party
to demonstrate that a government subpoena of the Google Timeline records
was not cumulative with what the appellant already had in his possession.
The appellant presented no evidence that the subpoenaed records were any
different than what the defense already had in their possession, or that the
records would have shown that the appellant did not manipulate the Google
Timelines. In sum, the appellant did not show that the records were relevant
and necessary or that they should have been produced through compulsory
process. We conclude that the military judge did not abuse his discretion in
denying the appellant’s motion to compel production.
F. Military judge recusal
    The appellant contends that the military judge should have recused
himself because he was not impartial. The appellant alleges that the military
judge “shaped the defense case from the outset of trial,” and therefore “a
reasonable person would conclude that the military judge abandoned his
impartial role.”37 A closer look at this AOE, however, reveals that the
appellant’s allegation of a lack of impartiality by the military judge is based
solely on the military judge’s permitting Capt CC’s lay testimony about
manipulating the Google Timeline but denying the appellant an expert
witness for surrebuttal.38 We rejected these issues above. Here we conclude
that the military judge never abandoned his impartial role and was not under
a sua sponte duty to recuse himself.
   “‘An accused has a constitutional right to an impartial judge.’” United
States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (quoting United States v.
Wright, 52 M.J. 136, 140 (C.A.A.F. 1999)). “There is a strong presumption


   37   Appellant’s Brief at 54.
   38   The appellant sub-divides his claim of partiality into four sub-parts:
         A. The military judge prohibited the Defense from presenting
         evidence that supported the reliability of the Google Timeline records.
         B. The military judge shaped the Defense case to focus on the Google
         Timeline records. C. After the Defense admitted the Google Timeline
         records and rested their case, the military judge allowed the
         Government to recall Capt [CC] in rebuttal to testify that the Google
         Timeline records were not reliable. D. In allowing Capt [CC] to testify
         in rebuttal, the military judge abandoned his neutral role, placing his
         impartiality and the court-martial’s legality and fairness into doubt.
   Appellant’s Brief at 56-64.



                                            20
                       United States v. Watkins, No. 201700073


that a judge is impartial, and a party seeking to demonstrate bias must
overcome a high hurdle[.]” United States v. Quintanilla, 56 M.J. 37, 44
(C.A.A.F. 2001) (citation omitted). Disqualification of a military judge may
occur for either the appearance of bias or actual bias. See R.C.M. 902(a) and
(b). “The appearance standard is designed to enhance public confidence in the
integrity of the judicial system.” Quintanilla, 56 M.J. at 45 (citing Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847, 860 (1988)). “Th[is] rule also
serves to reassure the parties as to the fairness of the proceedings[.]” Id.
(citations omitted)
    “‘[W]hen a military judge’s impartiality is challenged on appeal, the test is
whether, taken as a whole in the context of this trial, a court-martial’s
legality, fairness, and impartiality were put into doubt’ by the military
judge’s actions.” United States v. Martinez, 70 M.J. 154, 157-58 (C.A.A.F.
2011) (quoting United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000))
(quotation marks omitted). “The appearance of impartiality is reviewed on
appeal objectively and is tested under the standard set forth in United States
v. Kincheloe, i.e., ‘[a]ny conduct that would lead a reasonable man knowing
all the circumstances to the conclusion that the judge’s impartiality might
reasonably be questioned is a basis for the judge’s disqualification.’”39 Id. at
158 (quoting Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)) (quotation marks
omitted) (additional citations omitted).




    39 We acknowledge the appellant’s contention that the military judge made
several intemperate comments during the trial including that he was not “going to
have the government . . . pay to bolster [the defense’s] evidence[,]” and his suggestion
that the appellant could take the stand to rebut Captain CC’s testimony. Record at
387-88. Although we find those comments inappropriate and unnecessary, each
comment was made outside the presence of the members, and, in the context of
discussions with counsel that reflected the military judge’s understanding of the
applicable law. A thorough examination of the record reveals no prejudice to the
appellant. United States v. Reynolds, 24 M.J. 261, 264 (C.M.A. 1987). We caution
military judges against superfluous comments that might diminish public confidence
in the integrity and impartiality of the proceeding. A military judge must always
ensure that the court-martial appears fair. “[T]he issue of the appearance of fairness
in a criminal proceeding is generally understood as a reference to the appearance of
fairness to the accused. After all, it is the accused’s constitutional right to a fair trial
that is most often at issue.” United States v. Dockery, 76 M.J. 91, 100 (C.A.A.F. 2017)
(Sparks, J., concurring) (citing Press-Enterprise Co. V. Superior Court, 464 U.S. 501,
508 (1984)) (emphasis in original).




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                     United States v. Watkins, No. 201700073


    Here there is no evidence that the military judge was biased; he was firm
but fair to both sides. The full record discloses that the military judge applied
the law correctly and even-handedly. We find that the “court-martial’s
legality, fairness, and impartiality” were not put into doubt. United States
v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000) (citations and internal quotation
marks omitted). We conclude that a reasonable person observing this court-
martial would have full confidence in the judicial process.
                               III. CONCLUSION
   The findings and sentence are affirmed.
   Senior Judge MARKS and Judge WOODARD concur.
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




                                       22
