          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                            Airman First Class CHARLES N. YOHE
                                   United States Air Force

                                          ACM 37950 (recon)

                                           3 September 2015

         Sentence adjudged 27 April 2011 by GCM convened at Offutt Air Force
         Base, Nebraska. Military Judge: William C. Muldoon.

         Approved sentence: Bad-conduct discharge, confinement for 9 months, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Major Matthew T. King, Major Shane
         A. McCammon, Captain Johnathan D. Legg.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel Nurit Anderson, Major Daniel J. Breen; Captain Brian
         C. Mason; and Gerald R. Bruce, Esquire.

                                                  Before

                               ALLRED, MITCHELL, and HECKER
                                   Appellate Military Judges

                                     OPINION OF THE COURT
                                    UPON RECONSIDERATION

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



HECKER, Senior Judge:

      Appellant was convicted, contrary to his pleas, by a general court-martial
composed of officer members of possessing and viewing sexually explicit depictions of
minors, in violation of Article 134, UCMJ, 10 U.S.C. § 934. He was sentenced to a
dishonorable discharge, confinement for 9 months and reduction to the grade of E-1. The
convening authority reduced the punitive discharge to a bad-conduct discharge and
approved the remainder of the sentence as adjudged.

                                    Procedural History

       On 9 April 2013, we issued a decision affirming the findings and sentence in
Appellant’s case. United States v. Yohe, ACM 37950 (A.F. Ct. Crim. App. 9 April 2013)
(unpub. op.). Mr. Laurence M. Soybel was an appellate judge on the panel that issued the
decision, pursuant to an appointment by The Judge Advocate General of the Air Force.
After the Secretary of Defense issued a memorandum on 25 June 2013 appointing
Mr. Soybel to this court, we vacated our initial decision and issued a second one on
22 July 2013, reaffirming the substance and holdings of the prior decision. United States
v. Yohe, ACM 37950 (A.F. Ct. Crim. App. 22 July 2013) (unpub. op.).

       In September 2013, Appellant filed a petition for grant of review with our superior
court. On 31 October 2013, our superior court dismissed the petition for review without
prejudice. United States v. Yohe, 73 M.J. 91 (C.A.A.F. 2013) (mem.). The record of trial
was returned to our court on 13 March 2014.

      On 15 April 2014, our superior court issued its decision in United States v.
Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not
have the legislative authority to appoint appellate military judges and that his
appointment of Mr. Soybel to this Court was “invalid and of no effect.” In light of
Janssen, we granted reconsideration on 29 April 2014, and permitted counsel for
Appellant to file a supplemental pleading.

        When Appellant’s case was initially before us, he argued (1) the evidence was
factually and legally insufficient to support his convictions, (2) the military judge
violated his right to confrontation by admitting testimonial hearsay into evidence and (3)
the military judge erred by admitting certain evidence. After we permitted Appellant to
submit a supplemental assignment of errors, he raised the issue of post-trial delay,
arguing his due process right to speedy appellate processing was violated under United
States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), and United States v. Tardif, 57 M.J.
219, 224 (C.A.A.F. 2002). In September 2014 and January 2015, we specified two
issues: (1) whether the trial court’s findings and sentence or this court’s review are
affected by the possibility that certain non-admitted evidence was improperly brought to
the attention of the panel, and (2) whether the general verdict in the case must be set aside
because certain images in the case were constitutionally protected.

       With a properly constituted panel, we have reviewed Appellant’s case, to include
Appellant’s previous and current filings and the previous opinions issued by this court.
We affirm the findings, but, for the reasons provided below, consolidate the
specifications. We affirm the sentence as adjudged.


                                             2                              ACM 37950 (recon)
                                                  Background

       In May 2009, an investigator with the Nebraska state police used a law
enforcement program to identify Internet protocol (IP) addresses that were sharing child
pornography through peer-to-peer networks, including Limewire.1 This automated
program was operated from the investigator’s computer and sent out queries using certain
key words commonly associated with child pornography. If a peer-to-peer user’s
computer was on-line and the program was being used, his computer would automatically
respond to the query by indicating it had a responsive file or files. The law enforcement
program used this response to compare the suspect file to over four million items of
known child pornography found in a law enforcement database, through a comparison of
their “hash values,” which are unique characters associated with digital files. 2 If the
“hash values” of a suspect file matched one found in the law enforcement database, the
program would automatically generate a report containing the “hash value,” the name of
the file, and the IP address of the computer that offered to share the file. Law
enforcement personnel then used that information to conduct further investigation.

       On 6 May 2009, the law enforcement program detected that an individual file of
child pornography was present and available for sharing in a Limewire folder on a
computer associated with a particular IP address. On 11 May 2009, the program repeated
the query but no longer detected that file as present in the shared folder. It did, however,
find a second file of child pornography there. The titles of these two files suggested
sexual activity by 15- and 7-year-old children, and their “hash values” matched those for
two child pornography videos found in a law enforcement database of known child
pornography. The law enforcement program did not download either video onto the
investigator’s computer. Subsequent queries by the law enforcement program in June,
July and August 2009, did not receive any responses indicating this IP address had made
child pornography available for sharing.

       Through a subpoena served on the Internet service provider, investigators learned
the relevant IP address was assigned to Appellant in his on-base dormitory room, where
he lived alone. Appellant’s laptop computer was seized on 8 October 2009. A forensic
examination of the computer’s contents was conducted by the Defense Computer
Forensic Laboratory (DCFL).

1
  Peer-to-peer file sharing is a means of obtaining and sharing files directly from other computer users who are
connected to the Internet and who are also using the peer-to-peer file sharing software. Once the peer-to-peer file
sharing software has been installed by the user, the user may interface directly with other computers that have the
same file sharing software, and is able to browse and obtain files that have been made available for sharing on those
other computers by typing search terms into the program’s search field.
2
  The values are calculated using a mathematical algorithm and are also known as “Secure Hash Algorithm” (SHA)
values. This mathematical figure will remain the same for an unchanged file, no matter where the file is found or on
which computer the file is located. Changing the file name will not make a change to this value. Investigators
compare the hash values of files in order to determine whether they are identical, a process described by the civilian
investigator in this case as “thousands of times more reliable” than DNA testing.


                                                          3                                      ACM 37950 (recon)
       Appellant was subsequently charged with and convicted of two specifications
under Article 134, UCMJ: (1) viewing one or more visual depictions of minors engaged
in sexually explicit conduct between 25 March 2008 and 8 October 2009, and (2)
wrongfully and knowingly possessing one or more such depictions during that same time
frame.

                               Sufficiency of the Evidence

       We review issues of legal and factual sufficiency de novo. See United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the
evidence is ‘whether, considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential elements beyond a
reasonable doubt.’” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002)
(quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). The test for factual
sufficiency is “whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we are] convinced of the
[Appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. In conducting
this unique appellate role, 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.

        When examining Appellant’s computer, the forensic examiner found that
Limewire had been installed on Appellant’s laptop. He did not find the two videos
identified by the law enforcement program, which indicated to him that they had been
deleted from the computer at an unknown time. The forensic examiner, however, found
evidence that two videos with the same file name had been downloaded onto the hard
drive of Appellant’s computer through the use of Limewire. He also found evidence that
a user of the computer previewed the two movies through Limewire as they were being
downloaded. For one video, the evidence indicated (1) it was partially downloaded onto
Appellant’s computer on 9 December 2008, (2) it was successfully downloaded on 6 May
2009 (the same day the law enforcement program found it in Appellant’s shared folder),
(3) it was previewed and again partially downloaded on 7 May 2009, and (4) it was
previewed again on 16 May 2009 and then successfully downloaded three minutes later.
For the second video, the evidence revealed (1) it was partially downloaded onto
Appellant’s computer on 22 August 2008, (2) it was previewed on 11 May 2009 and then
was successfully downloaded three minutes later (the same day the law enforcement
program found it in Appellant’s shared folder), and (3) it was again successfully
downloaded on 16 May 2009.

       The forensic examiner also found evidence that someone using the computer had
at some point conducted five separate searches on Limewire, looking for files containing
the terms “pthc” (an abbreviation commonly used for “preteen hard core”), “preteen


                                            4                            ACM 37950 (recon)
porn,” “pedopedo,” “young Latina” and “young.” The two videos found by the law
enforcement program both contained the word “pthc” in their filenames, and one
filename also contained the words “preteen” and “pedo.”

       The forensic examiner also testified about 16 items he found inside several areas
of Appellant’s computer. One item was a three-minute video while the other fifteen were
“thumbnails,” which are reduced-sized versions of pictures. Some of the thumbnails
depict obviously young, preteen boys engaging in homosexual acts and other obviously
preteen children engaged in sexual acts and suggestive poses, and the video depicts a
child engaging in oral sodomy.

       Appellant argues he is not guilty of possessing or viewing the thumbnail images
and three-minute video because (1) there was no evidence he knew these items were on
his computer and (2) he could not access the areas of the computer where the items were
located. He also contends the two videos cannot serve as the basis for his conviction of
viewing child pornography as they do not depict minors engaged in sexually explicit
conduct.

                                  A. Viewing of Child Pornography

       Appellant generally does not dispute that someone used his computer to preview
some portion of these two videos in May 2009. Instead, he contends there is insufficient
evidence to prove he was the person who previewed them or, even if he did preview
them, that he viewed them long enough to see the sexually explicit activity on them. For
one of the videos, he also argues that the individuals depicted in them are not minors.
We disagree.3

       The Government presented strong circumstantial evidence that Appellant was the
individual who was using the computer during the relevant time periods in May 2009
when these videos were previewed and/or downloaded. Only one user account and one
user profile was associated with the computer’s operating system, and the user account
was password protected. Appellant’s email address was associated with this user profile
and the search term “pthc” was found in an area of the computer associated with that user
profile. A close friend of Appellant testified he had never seen anyone else using
Appellant’s computer outside his presence and Appellant had never complained to him
about someone doing so. Additionally, Appellant’s work schedule revealed he was not
3
  Over defense objection, the members were shown the two videos from the law enforcement database whose “hash
values” matched those found in Appellant’s Limeware folder by the law enforcement program in May 2009. We
find the military judge did not abuse his discretion by admitting these videos even though they were not found on
Appellant’s computer. See United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). As discussed in this
opinion, the Nebraska state police investigator was able to determine exactly which videos were downloaded and
previewed on Appellant’s computer through the use of their hash values. The court members were able to view
copies of these recordings and see precisely what movies were previewed and downloaded. We do not find that the
military judge abused his discretion, nor do we find that the members would have been confused or misled or that
Appellant was unfairly prejudiced by the admission of the videos.


                                                       5                                     ACM 37950 (recon)
working at any of the times in May 2009 when the videos were being downloaded and
previewed, and no downloads or previews occurred while he was working during this
time period.

       Similarly, we find sufficient evidence present to conclude that Appellant viewed
the portions of these two videos that contained the depictions of minors engaging in
sexually explicit conduct. These two videos were available for previewing and
downloading because Appellant used Limewire to search for files containing terms
strongly indicative of child pornography, received a list of files containing some of those
terms (and whose file names described sexual activity by children), and selected these
two files from that list to download onto his computer. He then took the further
affirmative step of clicking again on the files so he could preview them as they were
downloading.

       Under the totality of the circumstances, we conclude the evidence is both factually
and legally sufficient to establish Appellant was intentionally searching for child
pornography in May 2009, found it through Limewire after using search terms designed
to find it, selected these two files for downloading and then watched these videos while
they were downloading.4 Having evaluated the entire record of trial, we are therefore
convinced Appellant’s conviction for viewing one or more visual depictions of minors5
engaged in sexually explicit conduct is legally and factually sufficient, based solely on
these two videos.

                                 B. Possession of Child Pornography

        In arguing the evidence is insufficient to sustain his conviction for possessing
images of child pornography, Appellant relies heavily on our superior court’s decision in
United States v. Navrestad, 66 M.J. 262 (C.A.A.F. 2008). There, the accused used a
public computer to search for and view child pornography images from the Internet,
leading him to several public online file storage folders created by users of an Internet
service provider. Id. at 264, 268. He opened these storage folders and viewed their
contents, which included images of child pornography. Id. at 264. Although these
images were automatically saved onto the computer’s hard drive, our superior court
found the accused lacked sufficient dominion and control to knowingly “possess” them.
Id. at 268.


4
  For the reasons discussed below, we do not find the evidence sufficient to prove Appellant viewed the other
images in this case.
5
  In one video, a young female reads a newspaper at a kitchen table for approximately 14 seconds, goes into a
bedroom and disrobes, and, approximately 1 minute later, engages in masturbation. In the second video, a young
male and young female are naked together in a bathtub and engage in sexual activity for almost 9 minutes. There is
no question that the young girl engaging in sexual behavior in the first movie was under 18 years old. Although
Appellant argues the two individuals in the second video are clearly over 18 years old, we conclude otherwise, and
find that a reasonable fact-finder could as well.


                                                        6                                     ACM 37950 (recon)
       In reaching this conclusion, the court found the following facts to be significant:
(1) there was no evidence the accused knew the images were being automatically saved
onto the hard drive; (2) there was no evidence the accused emailed, printed or purchased
copies of the images, (3) users on this public computer could not access the computer’s
hard drive or download the images onto a portable storage device, and (4) the accused did
not have the ability to control who else had access to the images in their location on the
Internet. Id. at 267–68. Within this context, the court concluded the accused’s actions
with the images “went no further” than viewing them and this “viewing alone does not
constitute ‘control’ as the term is used” in child pornography possession cases. Id. Such
possession must be “knowing and conscious.” Id. at 267.

       Because the holding in Navrestad was based on unique facts, we do not find it
dispositive as to whether Appellant possessed the two videos detected by the law
enforcement program in May 2009. Unlike the accused in Navrestad, Appellant viewed
these videos of child pornography on his personal computer; and he, through the use of
the Limewire program, directed that the two videos be downloaded onto the hard drive of
his computer. We recognize that these two videos were no longer on Appellant’s
computer when it was forensically examined. However, those items were present in a
user-accessible area of his computer (the “shared” Limeware folder) on the days in May
2009 when his computer offered to share them in response to a query sent by the law
enforcement program, as well as on several other days. Under those facts, we find
Appellant knowingly and consciously possessed the images and exercised the dominion
and control necessary to constitute “possession” of them. Therefore, the evidence is
factually and legally sufficient to convict Appellant of wrongfully and knowingly
possessing one or more visual depictions of minors engaging in sexually explicit conduct.

       We reach a different result as to whether Appellant possessed the thumbnail
images of child pornography found on his computer. All these items were found in
locations associated with either the computer’s backup system or temporary files, rather
than in locations where computer users typically save or store files.6 The forensic
examiner testified the thumbnail images were automatically created by the computer
when a user viewed a photograph or video on the computer or when the computer
conducted a system backup at a given point, and remained even after the original image
was deleted. As with the video files discussed above, the forensic examination did not
find the original photographs or videos that resulted in the creation of these thumbnails.
Unlike those video files, however, the forensic examiner could not determine the file
names of the original photographs or videos that resulted in these thumbnails, or when a
user downloaded or viewed those items. Therefore, there is not proof beyond a
reasonable doubt that Appellant was the one who viewed them. Furthermore, these
thumbnails were found in areas of the computer that an average computer could not
access without specialized computer software, none of which was found on Appellant’s
6
 These inaccessible areas included the hard drive’s unallocated space or clusters, index files, thumbcache databases
and shadow volume.


                                                         7                                     ACM 37950 (recon)
computer. There was no evidence presented that Appellant knew the images were being
saved onto his hard drive in that manner, nor was there evidence that Appellant possessed
specialized computer skills. A similar problem exists with the three-minute video, found
in the unallocated space on Appellant’s computer.

       Under these circumstances, we find the evidence factually and legally insufficient
to prove Appellant knowingly and wrongfully possessed or viewed these 16 visual
depictions or that he possessed or viewed the original depictions that resulted in their
creation. See United States v. Sanchez, 59 M.J. 566, 570 (A.F. Ct. Crim. App. 2003)
(upholding a possession conviction based on deleted files and files located in the
computer’s cache based on other evidence, including the accused’s relative sophistication
in computer matters), aff’d in part, rev’d in part on other grounds, 60 M.J. 329 (C.A.A.F.
2004); United States v. Nichols, NMCCA 201300321, unpub. op. at 11–12 (N.M. Ct.
Crim. App. 18 September 2014) (unpub. op.) (holding there was “no question the
appellant possessed child pornography” but “did not ‘knowingly possess’ child
pornography on the date charged” because the files were located in unallocated space and
there was no evidence that the appellant had the ability to retrieve files from unallocated
space); Accord United States v. Flyer, 633 F.3d 911, 919-20 (9th Cir. 2011) (citing
Navrestad and holding that evidence was legally insufficient to prove knowing
possession of child pornography in unallocated space); United States v. Moreland, 665
F.3d 137, 154 (5th Cir. 2011) (refusing to find constructive possession of child
pornography in unallocated space without additional evidence of the defendant's
knowledge and dominion or control of the images); United States v. Kuchinski, 469 F.3d
853, 863 (9th Cir. 2006) (holding that a defendant who lacks knowledge about and access
to cache files should not be charged with possessing child pornography images located in
those files without additional evidence of dominion and control over the images).7

                               C. Consolidation of the Specifications

       As described above, we have found Appellant guilty of viewing and possessing
one or more visual depictions of minors engaged in sexually explicit conduct, based
solely on the two video recordings detected by the law enforcement program in May
2009. We have also concluded that his possession of those recordings was not simply
incident to his viewing of the recordings. Under ordinary circumstances, therefore, we
would affirm both specifications.

      Here, however, the military judge instructed the panel that “[i]n order to ‘possess’
a computer file, the Accused must have been able to manipulate the image in some way.
Manipulation includes saving, deleting, editing or viewing.” (emphasis added). Once

7
  See generally Katie Grant, Crying over the Cache: Why Technology has Compromised the Uniform Application of
Child Pornography Laws, 81 Fordham L. Rev. 319 (October 2012); J. Elizabeth McBath, Trashing our System of
Justice? Overturning Jury Verdicts Where Evidence is Found in the Computer’s Cache, 39 Am. J. Crim. L. 381
(2012).


                                                     8                                    ACM 37950 (recon)
that instruction was given, Appellant would automatically be convicted of possessing the
images once it is determined he viewed them.8 Under these unique circumstances, we
elect to consolidate the two specifications and so direct in our decretal paragraph. See
United States v. Campbell, 71 M.J. 19, 22-23 (C.A.A.F. 2012). Because the panel was
also instructed they must consider the “viewing” and “possessing” specification as “one
offense” for which Appellant faced a maximum of 10 years confinement, we find the
Appellant’s sentence was not affected by the lack of consolidation at trial.

                   Admission of Thumbnail Images and the Three-Minute Video

       We have concluded Appellant’s conviction is based solely on the two videos
detected by the law enforcement program in May 2009. We must, therefore, assess
whether Appellant was prejudiced by the admission of the 15 thumbnail images and the
three-minute video that we have not used to support Appellant’s conviction.

       First, we note the trial counsel argued to the panel that Appellant could be
convicted of both specifications based solely on his actions with the two videos, and that
the thumbnails found on the computer simply prove that Appellant acted purposefully. In
light of this argument, the evidence, and the military judge’s instructions, it is possible
the panel concluded, as did we, that the government only proved beyond a reasonable
doubt that Appellant viewed and possessed the two videos. Under these circumstances,
Appellant would not have been prejudiced in sentencing regarding the other items
admitted into evidence.

        Moreover, we find this evidence would have been otherwise admissible. The three
minute video and 13 of the 15 thumbnail images clearly are sexually explicit depictions
of minor children and would have been admissible under Mil. R. Evid. 404(b) as proof of
Appellant’s intent, knowledge, or absence of mistake or accident regarding his actions
with the two videos. Mil. R. Evid. 404(b); United States v. Reynolds, 29 M.J. 105, 109
(C.M.A. 1989) (holding that in order to be admissible, the evidence of uncharged
misconduct must “reasonably support a finding” that the accused committed that
misconduct and proof beyond a reasonable doubt is not required). The other two
thumbnail images depicted fully-clothed children who are not engaged in any sexual
activity. However, the government told the panel these two images were snapshots of the
first frame of a longer video that depicted sexually explicit conduct. The Nebraska
investigator then testified that, based on his knowledge from other child pornography
cases, these two snapshots are from two videos which depict a 15-year-old and 9-year-old
child engaging in oral sodomy.9 The forensic examiner testified that the presence of all

8
  We note that this instruction is to some extent inconsistent with Navrestad’s holding that viewing alone does not
always constitute possession.
9
  In light of this and our own conclusions about the sufficiency of the evidence on appeal, we find the introduction
of these two thumbnail images did not create a circumstance where Appellant may have been convicted based in
part on conduct that is constitutionally protected. Furthermore, even if such a circumstance did exist, in light of our
superior court's recent ruling in United States v. Piolunek, it is no longer necessary to reject an entire verdict simply


                                                           9                                       ACM 37950 (recon)
these items on Appellant’s computer meant the original images were on that computer at
some point. Under these circumstances, we find these images and testimony would have
been admissible under Mil. R. Evid. 404(b).10

        This evidence would also have been admissible in sentencing under Rule for
Courts-Martial (R.C.M.) 1001(b)(4) as an aggravating circumstance directly relating to or
resulting from the offenses of which Appellant was convicted. United States v. Wingart,
27 M.J. 128, 135 (C.M.A. 1998). As such, the evidence could be used to inform the
sentencing authority’s judgment regarding the charged offense as well as placing that
offense in context, including the facts and circumstances surrounding the offense. United
States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001); United States v. Mullens, 29 M.J.
398, 400-01 (C.M.A. 1990); United States v. Vickers, 13 M.J. 403, 406 (C.M.A. 1982);
see also United States v. Buber, 62 M.J. 476, 479 (C.A.A.F. 2006). Therefore, we are
convinced beyond a reasonable doubt that the admission of the 15 thumbnail images and
3-minute video did not prejudice Appellant.

       Appellant also contends that the military judge erred by allowing the government
to admit testimonial hearsay about the two images depicting fully-clothed children by
introducing portions of the DCFL report that stated the images “contain[ed] known child
victims based on analysis with the National Center for Missing and Exploited Children
(NCMEC) database” when no one from NCMEC testified at trial. The decision as to
whether the admitted evidence violates the Confrontation Clause is reviewed de novo.
See, e.g., United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008); United States v.
Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007). Here, we are convinced that any error in its
admission was harmless beyond a reasonable doubt. United States v. Sweeney, 70 M.J.
296, 306 (C.A.A.F. 2011); see Rankin, 64 M.J. at 353.

       Among the factors we consider in assessing harmlessness in this context are:
(1) the importance of the testimonial hearsay to the prosecution’s case, (2) whether the
testimonial hearsay was cumulative, (3) the existence of other corroborating evidence,
(4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case.
Sweeney, at 306 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684). After analyzing
these factors, we find that any error in admitting this information was harmless. First, as
described above, the two images of the children were snapshots from pornographic
movies; thus, the images themselves were minimally important to the Government’s case.
Second, the fact that the individuals in these images were under the age of 18 is clear

because some of the conduct that resulted in the verdict was constitutionally protected. 74 M.J. 107, 111–12.
(C.A.A.F. 2015) (“Contrary to our conclusion in Barberi, convictions by general verdict for possession and receipt
of visual depictions of a minor engaging in sexually explicit conduct on divers occasions by a properly instructed
panel need not be set aside after the [service court] decides several images considered by the members do not depict
the genitals or pubic region.”).
10
   Because the admission of evidence under Mil. R. Evid. 404(b) is also subject to the balancing test of Mil. R. Evid.
403, we also find the probative value of this evidence was not substantially outweighed by any danger of unfair
prejudice.


                                                         10                                      ACM 37950 (recon)
upon a review of the images themselves. Third, approximately 20 other images in the
report were not labeled as depicting known child victims identified by NCMEC, and they
clearly depicted children engaged in sexual acts; thus, allowing NCMEC’s identification
of two pictures was of minimal impact. Fourth, the NCMEC comment that these children
were under the age of 18 was not relied upon by trial counsel, and the members were not
informed of the significance of the NCMEC reference. Fifth, the Nebraska state
investigator had personal knowledge of the age of these two children, and he was present
and testified about it, subject to cross-examination. Finally, Appellant’s trial defense
strategy did not hinge on the age of the people in these two images as the defense was
focused on the lack of proof that Appellant possessed or viewed them. Based on the
forgoing, we find that, even if these NCMEC references constituted testimonial hearsay
whose admission violated the Confrontation Clause, that error was harmless beyond a
reasonable doubt.

                           Non-Admitted Evidence Provided to Members

        The military judge admitted a DVD disc into evidence as Prosecution Exhibit 4.
While establishing the foundation for the DVD and before the panel, the Nebraska
investigator described this DVD as containing “IP history log files” and two video files11
associated with those log files. The investigator further stated that he verified the
contents of the DVD that same day. The record does not reflect whether the military
judge, trial counsel, or trial defense counsel examined the contents of the DVD prior to
its going to the members.

       Prior to instructions and argument, the parties held an Article 39(a), UCMJ,
session to discuss how the members would review the videos on Prosecution Exhibit 4
(as well as the thumbnail images found on Prosecution 8). With the agreement of the
parties, the panel was told they would be sent into the deliberation room with the DVDs
and a laptop so they could view the “images and the videos that are at issue” in the case.
The military judge said “the only things that are on the DVDs should be” three videos
and a number of still images. One representative from each side was authorized to go
into the deliberation room with the investigator who was setting up the laptop for the
panel. Following a brief recess, the military judge stated “the members did review the
materials.” After hearing instructions and closing argument, the panel was again given
the two DVDs and the laptop, to use during their deliberations. The military judge
instructed the panel to discuss “all the evidence that has been presented” to them.

       This court’s review of Prosecution Exhibit 4 revealed that Prosecution Exhibit 4
contained extraneous documents beyond the “log files” and videos. We then directed the
parties to brief whether the trial court’s findings and sentence or this court’s review are
affected by this error.

11
  These are the two video files discussed above that were not on Appellant’s computer, but, based on their hash
values, were found in the investigator’s database of child pornography.


                                                      11                                   ACM 37950 (recon)
        The findings of a court-martial may be impeached “when extraneous prejudicial
information was improperly brought to the attention of a member.” R.C.M. 923. In some
circumstances, evidence that court members considered extraneous prejudicial
information from a third party or from outside materials can be considered in deciding
whether the findings or sentence are impeached. Mil. R. Evid. 606(b); United States v.
Straight, 42 M.J. 244, 250 (C.A.A.F. 1995). Because Mil. R. Evid 606(b) would prohibit
members from disclosing the subjective effects of such extrinsic influences on their
deliberations, there is a presumption of prejudice from such influences. Straight, 42 M.J.
at 249.

       The burden is on the Government to rebut that presumption by proving
harmlessness. Id. (citing United States v. Bassler, 651 F.2d 600, 603 (8th Cir. 1981)). In
the absence of an objection at trial, we apply a plain error analysis under which Appellant
must show that there was an error, that the error was plain or obvious, and that the error
materially prejudiced a substantial right. United States v. Reyes, 63 M.J. 265, 267
(C.A.A.F. 2006).

       Here, in order to protect the secrecy of panel deliberations, we presume the
members viewed and considered all the evidence presented to the panel, including the
extraneous documents erroneously included on Prosecution Exhibit 4. Id. In his brief,
Appellant only expressly complains about one such document contained on the DVD—a
multi-page unsigned affidavit by an agent with the Air Force Office of Special
Investigations (AFOSI) asking the 55th Mission Support Group commander for
authorization to search Appellant’s dormitory room and seize computers and other
materials.12 This document is entitled “YOHE Search Authority.”

        It was a plain and obvious error for this document to be provided to the panel
members without being admitted into evidence. To determine whether this error had a
prejudicial impact on the findings or sentencing process, we must consider whether the
panel might have been substantially swayed by the error. United States v. Clark, 62 M.J.
195, 201 (C.A.A.F. 2005) (citing Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
To prevail, the government must demonstrate the error “did not have a substantial
influence on the findings.” Clark, 62 M.J. at 200. In evaluating this issue, we consider
“(1) the strength of the Government's case, (2) the strength of the defense case, (3) the
materiality of the evidence in question, and (4) the quality of the evidence in question.”
Id. at 200-201 (quoting United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).

        This document contains factual assertions and legal conclusions by a non-
testifying AFOSI agent, based on his investigation and experience and that of the
Nebraska investigator. The affidavit discusses computer technology (including peer-to-

12
  The other materials were (1) a document entitled “subpoena” which is a subpoena to an Internet service provider
for records relating to an IP address that did not belong to Appellant, and (2) 36 pictures associated with the search
of Appellant’s dormitory room, four of which were admitted into evidence at trial.


                                                         12                                      ACM 37950 (recon)
peer systems) and their role in the proliferation of child pornography. It states
Appellant’s IP address had made available for sharing two videos of suspected child
pornography. The AFOSI agent opines the female in one video is between 10 and 12
years old, and the two individuals in the second video are between 14 and 16 years old.
He also asserts that the videos are child pornography. The affidavit concludes “that
probable cause exists to believe there has been a violation of . . . Article 134, UCMJ
which prohibits possession, advertising, promoting, presenting, distributing, or soliciting
through interstate or foreign commerce by any means, child pornography . . . .”

       In determining whether the verdict in this case should be impeached, we attempt to
determine any prejudicial impact the extraneous evidence had on the members’
deliberations. See United States v. Diaz, 59 M.J. 79, 91 (C.A.A.F. 2003). In assessing
the impact, we consider whether there is a reasonable possibility the evidence influenced
the members’ verdict. See United States v. Ureta, 44 M.J. 290, 299 (C.A.A.F. 1996). In
making this determination, we consider what additional evidence the members
considered that supported their verdict. Id.

       The affidavit contains extraneous prejudicial information. The affidavit would not
have been evidence that the Government could have admitted during either its findings
case or sentencing case. The document contains a few pieces of information not
otherwise before the members, but we find the affidavit, even if read by the panel, would
not have had an impact on the verdict or sentence. Most of the information in the
affidavit was presented at trial by the civilian investigator who investigated Appellant’s
misconduct. This same investigator is referred to as the source of much of the
information in the affidavit. While the affidavit contains a few additional details about
file sharing networks and computers not testified to at trial, we find these details would
not have influenced the panel’s findings. Similarly, reading the affidavit’s conclusion
concerning probable cause would not have been prejudicial, given the other evidence
available to the members.

       By far the most damning evidence came from the analysis of Appellant’s
computer after it was seized. An analysis of the Appellant’s computer showed he had the
sole user profile and that profile was used to search for and look at child pornography.
We conclude that it was not reasonably possible that the extraneous evidence influenced
the members’ verdict and, therefore, the presumption of prejudice has been rebutted.

                              Post-Trial Processing Delays

       Appellant argues, citing United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.
2006), that unreasonable post-trial delay warrants relief. Appellant further cites United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), noting this court’s broad power and
responsibility to affirm only those findings and sentence that should be approved.



                                            13                             ACM 37950 (recon)
       We review de novo whether an appellant has been denied the due process right to
speedy post-trial review and whether any constitutional error is harmless beyond a
reasonable doubt. United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). A
presumption of unreasonable delay arises when appellate review is not completed and a
decision is not rendered within 18 months of the case being docketed before this court.
Moreno, 63 M.J. at 142. The Moreno standards continue to apply as a case continues
through the appellate process; however, the Moreno standard is not violated when each
period of time used for the resolution of legal issues between this court and our superior
court is within the 18-month standard. United States v. Mackie, 72 M.J. 135, 135–36
(C.A.A.F. 2013); see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010).
However, when a case is not completed within 18 months, such a delay is presumptively
unreasonable and triggers an analysis of the four factors elucidated in Barker v. Wingo,
407 U.S. 514, 530 (1972), and Moreno. See United States v. Arriaga, 70 M.J. 51, 56
(C.A.A.F. 2011). Those factors are “(1) the length of the delay; (2) the reasons for the
delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to
the appellant.” United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see Barker,
407 U.S. at 530.

        This case was originally docketed with this court on 22 June 2011, and our initial
decision was issued on 9 April 2013, over 21 months later. We then sua sponte
reconsidered our decision and issued an opinion on 22 July 2013, 25 months after the
initial docketing. Both decisions exceeded the Moreno standards and were, therefore,
facially unreasonable. Our opinions did not address the presumptively unreasonable
delay. Conducting that analysis now, we note that Appellant did not make a demand for
speedy appellate processing and thus did not reference any prejudice he suffered from the
delay.13 When there is no showing of prejudice under the fourth factor, “we will find a
due process violation only when, in balancing the other three factors, the delay is so
egregious that tolerating it would adversely affect the public’s perception of the fairness
and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). Having considered the totality of the circumstances and the entire
record, when we balance the other three factors, we find the post-trial delay in the initial
processing of this case to not be so egregious as to adversely affect the public’s
perception of the fairness and integrity of the military justice system. We are convinced
that even if there is error, it is harmless beyond a reasonable doubt.

       The time between our superior court’s action to return the record of trial to our
court for our action and this decision has not exceeded 18 months; therefore, the Moreno
presumption of unreasonable delay is not triggered and we do not examine the remaining
Barker factors. See Id. at 136; Toohey, 60 M.J. at 102.

13
  We reject Appellant’s intimation that, because the Secretary of Defense’s appointment of the civilian employee
was invalid and of no effect, the Moreno clock was not tolled by our earlier decisions. We thus decline to consider
the time from initial docketing on 22 June 2011 until this opinion as uninterrupted for purposes of analysis under
Moreno.


                                                        14                                    ACM 37950 (recon)
        A finding of harmless error does not end the inquiry, as we may grant sentence
relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c), for excessive post-trial delay
without the showing of actual prejudice required by Article 59(a), UCMJ, 10 U.S.C. §
859(a). Tardif, 57 M.J. at 224; see also United States v. Harvey, 64 M.J. 13, 24
(C.A.A.F. 2006). In United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015),
we identified a list of factors to consider in evaluating whether Article 66(c), UCMJ,
relief should be granted for post-trial delay. Those factors include how long the delay
exceeded appellate review standards, the reasons for the delay, whether the government
acted with bad faith or gross indifference, evidence of institutional neglect, harm to
Appellant or to the institution, if relief is consistent with the goals of both justice and
good order and discipline, and can this court provide any meaningful relief. Id. No
single factor is dispositive and we may consider other factors as appropriate. Id.

        After considering the relevant factors in this case, we determine that no relief is
warranted. Although the initial delay exceeded the Moreno standard by seven months, no
other time period exceeded the standards. Even analyzing the entire period from the time
the case was first docketed until today, we find there was no bad faith or gross negligence
in the post-trial processing. The reason for the delay after our initial decision was to
allow this court and our superior court to fully consider a constitutional issue of first
impression concerning whether the Secretary of Defense has the authority under the
Appointments Clause14 to appoint civilian employees to the service courts of criminal
appeals. Subsequent delays were the result of a thorough analysis of the casefile,15 and
providing the parties the opportunity to fully brief the evolving case law regarding
general verdicts in child pornography cases.16 Based on these facts, we find no evidence
of harm to the integrity of the military justice system.

       Based on our review of the entire record, we conclude that sentence relief under
Article 66, UCMJ, is not warranted.




14
   U.S. CONST. art II § 2, cl. 2.
15
   The review by this court uncovered the extraneous matters included in Prosecution Exhibit 4 that Appellant and
the Government had overlooked.
16
   See United States v. Barberi, 74 M.J. 127 (C.A.A.F. 2012) overruled by United States v. Piolunek, 74 M.J. 107
(C.A.A.F. 2015).


                                                       15                                    ACM 37950 (recon)
                                     Conclusion

   The specifications of the Charge and Additional Charge are hereby consolidated into
one specification that reads as follows:

      In that AIRMAN FIRST CLASS CHARLES N. YOHE, United States Air
      Force, 55th Security Forces Squadron, Offutt Air Force Base, Nebraska,
      did, at or near Offutt Air Force Base, Nebraska, between on or about
      25 March 2008 and on or about 8 October 2009, wrongfully and knowingly
      possess and view one or more visual depictions of minors engaged in
      sexually explicit conduct, which conduct was prejudicial to good order and
      discipline in the armed forces or of a nature to bring discredit upon the
      armed forces.

With this modification, the findings and the sentence are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                          16                           ACM 37950 (recon)
