                       UNITED STATES, Appellee

                                    v.

                      Rob B. YAMMINE, Sergeant
                    U.S. Marine Corps, Appellant

                              No. 09-0720

                       Crim. App. No. 200800052

       United States Court of Appeals for the Armed Forces

                         Argued March 4, 2010

                        Decided June 10, 2010

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ., joined. BAKER, J., filed a
separate opinion concurring in the result.

                                 Counsel

For Appellant:    Lieutenant Brian D. Korn, JAGC, USN (argued).

For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Brian K. Keller, Esq. (on brief).


Military Judge:   Raymond E. Beal II




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Yammine, No. 09-0720/MC


       Judge RYAN delivered the opinion of the Court.

       As relevant to the granted issue,1 Appellant was charged

with two specifications of forcible sodomy with a child under

the age of sixteen, in violation of Article 125, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 925 (2006), and convicted

by a general court-martial -- composed of officer and enlisted

members -- of one count of sodomy with a child who had attained

the age of twelve but was under the age of sixteen, and one

count of indecent acts with a child, in violation of Articles

125 and 134, UCMJ, 10 U.S.C. §§ 925, 934 (2006), respectively.2

The members sentenced him to a dishonorable discharge, eight

years of confinement, forfeiture of all pay and allowances, a

fine of $7000 (with an additional year of confinement if the

fine was not paid), and reduction to the grade of E-1.    The

convening authority approved the adjudged sentence.

       This case presents the questions whether evidence of a list

of computer filenames suggestive of homosexual acts involving

preteen and teenage boys was admissible under Military Rule of

1
    We granted review of the following issue:

       WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
       ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S
       COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD
       PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING
       THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO
       COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.
2
  Appellant also pleaded guilty to one specification of larceny
under Article 121, UCMJ, 10 U.S.C. § 921 (2006).

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United States v. Yammine, No. 09-0720/MC


Evidence (M.R.E.) 414 (as evidence that Appellant had a

propensity to commit sodomy with a child over the age of twelve

but under the age of sixteen) or, alternatively, whether such

evidence was admissible under M.R.E. 404(b) (to show motive,

plan, or intent).   We answer both questions in the negative.

The computer filenames were treated as synonymous with

possession or attempted possession of child pornography, which,

under the facts of this case, we conclude is not a “qualifying”

offense under M.R.E. 414.   Nor, under the facts of this case,

were the filenames admissible under M.R.E. 404(b) -- the

prejudicial effect of the evidence substantially outweighs

whatever marginal relevance and probative value these computer

filenames have to the charged offenses.

                             I.    Facts

     Appellant was a drill instructor at Marine Corps Recruit

Depot Parris Island, South Carolina.       On July 10, 2006,

Appellant encountered a fourteen-year-old boy, JP, at the base

library.

     JP testified as follows:     Appellant followed him to the

library restroom and forcibly performed oral sodomy on him,

after which Appellant asked if JP needed a ride home.      JP said

“Okay,” put his bicycle into the trunk of Appellant’s car, and

the two drove together to Appellant’s barracks.      The two went to

Appellant’s room, where Appellant handcuffed JP to the bed and


                                   3
United States v. Yammine, No. 09-0720/MC


forcibly performed anal sodomy on him.     Afterwards, Appellant

drove JP home and gave JP his cell phone number.     JP called

Appellant several times over the next few days.

        In contrast, Appellant denied any physical contact

occurred, either in the library restroom or in the barracks

room.    Appellant testified that after the two left the library,

JP followed him back to his barracks on his bicycle rather than

riding in the car.    Appellant stated that JP “wanted to hang out

and talk about odds and ends.    Like I said, he was bored so, I

assumed that’s why he showed up.”      While Appellant acknowledged

that the two talked in his room for about ten to fifteen

minutes, he stated that his door was not even closed during that

brief period because the air conditioner was broken.

        On July 23, 2006, JP relayed his version of the events to

his brother-in-law, who contacted the military police.       The case

was referred to Special Agent (SA) Tony Richardson of the Naval

Criminal Investigative Service (NCIS), who interviewed JP.       JP

was able to point out Appellant’s building and provide a

description of Appellant’s room and of some of the items in the

room.

        SA Richardson arranged a telephone intercept to see if

Appellant would be willing to meet JP.     JP called Appellant and

asked Appellant to meet him at an on-base hotel that night.

Appellant agreed but did not actually show up at the hotel.


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United States v. Yammine, No. 09-0720/MC


     NCIS arrested Appellant that evening.      During a consensual

search of his room, Appellant’s laptop computer was seized and

sent to the Defense Computer Forensics Laboratory (DCFL).      DCFL

discovered three types of evidence on the hard drive --

filenames, one frame of a movie file, and remnants of Internet

searches using the term “Lolita.”      The files themselves had been

deleted and overwritten.   DCFL could determine that the files

had been downloaded between October 31 and November 1, 2004, but

could not tell when the files had been deleted.     All that

remained were the filenames -- there were no images of child

pornography on the computer.

     Appellant moved in limine to prevent the introduction of

the following list of filenames:

     (1) boy.kiddy.pedo.DX17[1].mpeg

     (2) /C:/Program Files/Kazaa/My Shared Folder/10 y teen boys
          sex (1).jpg

     (3) /C:/Program Files/Kazaa/My Shared Folder/pedo preteen
          boy little boy get (1).jpg

     (4) /C:/Program Files/Kazaa/My Shared Folder/gay teen -
          skinny boy sucked.jpg

     (5) /C:/Program Files/Kazaa/My Shared Folder/pedo preteen
          boy little boy gets sucked.jpg

     (6) /C:/Program Files/Kazaa/My Shared Folder/pedo preteen
          boy boner . . . mal19-72.jpg

     (7) /C:/Program Files/Kazaa/My Shared Folder/2 Boys-Teen
          Boy Fucking Preteen-B 26W.jpg

     (8) /C:/Program Files/Kazaa/My Shared Folder/PEDO-Boy Fun


                                   5
United States v. Yammine, No. 09-0720/MC


          Series 1.jpg

     (9) C:\Documents and Settings\Rob Yammine\Incomplete\T-
          1202102-UNDERAGED BOY FUCKED BY JUDGES R@YGOLD (7)
          child porn sex underage illegal incest lolita preteen
          !Y! incest zYz young KIDDY DAD nude French illegal pee
          forced violated.wmv

     (10) C:\Documents and Settings\Rob Yammine\Incomplete\T-
          51175444-11 yr yng lolita riding dad (preteen incest
          kiddy rape)(1)(2)(1).mpeg

     (11) C:\Documents and Settings\Rob Yammine\Incomplete\T-
          80618-2_fuck dicks young sex teen ass boy blondes
          preteen cum gay cock teens little bareback boys(1).jpg

     (12) C:\Documents and Settings\Rob Yammine\Incomplete\T-
          5385287-sex pjk rbv maria kdv nudists.mov

     (13) Fucking very fast in the ass by three
          (illegal_preteen_underage_lolita_kiddy_child_incest_
          xxx_porno_gay_fuck_young_naked_nude_little_g.mpeg.

The military judge denied the motion and admitted the filenames

under M.R.E. 414 on the theory that they were evidence of “the

accused’s commission of another offense of child molestation,”

thus allowing them to be used as evidence of the accused’s

“propensity to engage in the alleged acts.”   The military judge

added that the filenames “may further be used to establish

motive, plan and as evidence of the element for the lesser-

included offense of indecent acts with a child.”

     On appeal, the United States Navy-Marine Corps Court of

Criminal Appeals (CCA) held that it was error to admit filenames

(10) and (12) and sua sponte determined that it was also error

to admit the movie file frame (which did not portray child



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United States v. Yammine, No. 09-0720/MC


pornography) and the remnants of Internet searches using the

term “Lolita.”   United States v. Yammine, 67 M.J. 717, 729-30

(N-M. Ct. Crim. App. 2009).      However, it held these errors did

“not have a substantial influence on the findings.”       Id. at 730

(citations and quotation marks omitted).       The CCA also concluded

that the remaining filenames were properly admitted under M.R.E.

414 and that even under the “narrower purposes” permitted by

M.R.E. 404(b), “this evidence would be admissible as probative

of the appellant’s motive and intent in relation to the lesser

included offense of indecent liberties with a child.”       Id. at

726.

                           II.    Discussion

                           A.    M.R.E. 414

       M.R.E. 414 permits the admission of evidence of a prior act

of “child molestation” to show propensity to commit a charged

act of “child molestation.”      M.R.E. 414.   While we review a

military judge’s decision to admit evidence for an abuse of

discretion, the threshold question with respect to the

admissibility of the filename evidence in this case -- whether

the filename evidence constitutes evidence that Appellant

committed another offense of “child molestation” under M.R.E.

414 -- is one of law, reviewed de novo.        See United States v.

DeCologero, 530 F.3d 36, 58 (1st Cir. 2008), cert. denied, 129

S. Ct. 513 (2008) (citing United States v. Munoz-Franco, 487


                                    7
United States v. Yammine, No. 09-0720/MC


F.3d 25, 34 (1st Cir. 2007)).

     For evidence to be admitted under M.R.E. 414:

     [T]he military judge must make three threshold findings:
     (1) whether the accused is charged with an act of child
     molestation as defined by M.R.E. 414(a); (2) whether the
     proffered evidence is evidence of his commission of another
     offense of child molestation as defined by the rule; and
     (3) whether the evidence is relevant under M.R.E. 401 and
     M.R.E. 402.3

United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010)

(citing United States v. Bare, 65 M.J. 35, 36 (C.A.A.F. 2007)).4

     In analyzing whether the filenames were evidence that

Appellant had committed “another offense of child molestation as

defined by the rule” (the second threshold finding), the

military judge reasoned that under M.R.E. 414(d)(5), an “offense

of child molestation” includes “a crime under Federal law . . .

that involved deriving sexual pleasure or gratification from the

infliction of death, bodily injury, or physical pain on a

child.”   He also noted that possession of child pornography

3
  Relevance under M.R.E. 401 and M.R.E. 402 is enforced through
M.R.E. 104(b). United States v. Wright, 53 M.J. 476, 483
(C.A.A.F. 2000). “The court simply examines all the evidence in
the case and decides whether the jury could reasonably find the
conditional fact . . . by a preponderance of the evidence.”
Huddleston v. United States, 485 U.S. 681, 690 (1988).
4
     Once the three threshold factors are met, the military
     judge must then apply a balancing test under M.R.E. 403.
     The importance of careful balancing arises from the
     potential for undue prejudice that is inevitably present
     when dealing with propensity evidence. Inherent in M.R.E.
     414 is a general presumption in favor of admission.

Ediger, 68 M.J. at 248 (citations and quotation marks omitted)
(footnote omitted).

                                 8
United States v. Yammine, No. 09-0720/MC


violated 18 U.S.C. § 2252A (2006), the federal statute

criminalizing “[c]ertain activities relating to material

constituting or containing child pornography,” and that the

Sixth Circuit had stated that offenses involving child

pornography constitute “child molestation” under Fed. R. Evid.

414.   See United States v. Seymour, 468 F.3d 378, 385 (6th Cir.

2006).   Finally, the military judge found that the suggestive

filenames were evidence that the accused possessed or attempted

to possess child pornography in violation of 18 U.S.C. § 2252A.

Based on this reasoning, the military judge concluded that the

list of filenames was evidence of Appellant’s commission of

another offense of child molestation as defined by M.R.E. 414.

       The CCA agreed that possession or attempted possession of

child pornography qualifies as “child molestation” under M.R.E.

414(d)(5) because it is a crime that involves “‘deriving sexual

pleasure or gratification from the infliction of death, bodily

injury, or physical pain o[n] a child.’”   Yammine, 67 M.J. at

724.   Additionally, the CCA found that possession of child

pornography also qualifies under M.R.E. 414(d)(2) and (g)(5) as

any “‘sexually explicit conduct with children . . . proscribed

by . . . Federal law’ because it involves the ‘lascivious

exhibition of the genitals or pubic area of any person.’”     Id.

We disagree with both rationales as applied to the evidence in

this case.


                                  9
United States v. Yammine, No. 09-0720/MC

     Our review centers on the meaning of an “offense of child

molestation,” which is defined in detail by M.R.E. 414(d)-(g):

      (d) For purposes of this rule . . . ‘offense of child
     molestation’ means an offense punishable under the Uniform
     Code of Military Justice, or a crime under Federal law or
     the law of a State that involved-

       (1) any sexual act or sexual contact with a child
      proscribed by the Uniform Code of Military Justice,
      Federal law, or the law of a State;

       (2) any sexually explicit conduct with children
      proscribed by the Uniform Code of Military Justice,
      Federal law, or the law of a State;

       (3) contact between any part of the accused’s body, or
      an object controlled or held by the accused, and the
      genitals or anus of a child;

       (4) contact between the genitals or anus of the accused
      and any part of the body of a child;

       (5) deriving sexual pleasure or gratification from the
      infliction of death, bodily injury, or physical pain on a
      child; or

       (6) an attempt or conspiracy to engage in conduct
      described in paragraphs (1) through (5) of this
      subdivision.

      (e) For purposes of this rule, the term “sexual act”
     means:

       (1) contact between the penis and the vulva or the penis
      and the anus, and for purposes of this rule, contact
      occurs upon penetration, however slight, of the penis into
      the vulva or anus;

       (2) contact between the mouth and the penis, the mouth
      and the vulva, or the mouth and the anus;

       (3) the penetration, however slight, of the anal or
      genital opening of another by a hand or finger or by any
      object, with an intent to abuse, humiliate, harass,
      degrade, or arouse or gratify the sexual desire of any


                               10
United States v. Yammine, No. 09-0720/MC

      person; or

       (4) the intentional touching, not through the clothing,
      of the genitalia of another person who has not attained
      the age of 16 years, with an intent to abuse, humiliate,
      harass, degrade, or arouse or gratify the sexual desire of
      any person.

      (f) For purposes of this rule, the term “sexual contact”
     means the intentional touching, either directly or through
     clothing, of the genitalia, anus, groin, breast, inner
     thigh, or buttocks of any person with an intent to abuse,
     humiliate, harass, degrade, or arouse or gratify the sexual
     desire of any person.

      (g) For purposes of this rule, the term “sexually
     explicit conduct” means actual or simulated:

       (1) sexual intercourse, including genital-genital, oral-
      genital, anal-genital, or oral-anal, whether between
      person of the same or opposite sex;

       (2)     bestiality;

       (3)     masturbation;

       (4)     sadistic or masochistic abuse; or

       (5) lascivious exhibition of the genitals or pubic area
      of any person.

“This definition provides an exclusive list of offenses that

qualify as ‘offense[s] of child molestation.’”     United States v.

Schroder, 65 M.J. 49, 53 (C.A.A.F. 2007) (alteration in

original; emphasis added).     Thus, to be properly admitted under

M.R.E. 414, the filename evidence “must fall within the specific

definition of an ‘offense of child molestation’ set out in

M.R.E. 414.”    Id.

     “M.R.E. 414, like its counterpart Fed. R. Evid. 414, was



                                  11
United States v. Yammine, No. 09-0720/MC

‘intended to provide for more liberal admissibility of character

evidence in criminal cases of child molestation where the

accused has committed a prior act of sexual assault or child

molestation.’”   Id. at 55 (emphasis added) (quoting Manual for

Courts-Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-37 (2005 ed.) (MCM)).    But this liberal

admissibility standard does not guide or inform its threshold

inquiry:   whether a prior act is one of child molestation.    We

have noted before the “inherent tension between the Rule and

traditional concerns regarding convictions based on ‘bad

character’ evidence.   Such evidence has long been regarded as

having the tendency to relieve the government of its

constitutional burden to prove every element of the charged

offense beyond a reasonable doubt.”   Id.   Thus, we have

interpreted whether an offense “qualifies” under M.R.E. 414

strictly, rather than expansively, and continue to require that

the offense “fall within the [rule’s] specific definition.”    Id.

at 53.   Possession or attempted possession of child pornography,

while a violation of federal law, does not fall within any

defined instance of “child molestation” relied on by the

military judge or CCA under the facts of this case.

     As an initial matter, we note that M.R.E. 414(a) provides

for the admissibility of “offense[s] of child molestation”

committed by the accused.   M.R.E. 414(d) defines “child” as a


                                12
United States v. Yammine, No. 09-0720/MC

“person below the age of sixteen” (emphasis added).    M.R.E.

414(d)(2) refers to offenses that have involved “sexually

explicit conduct with children” (emphasis added).     M.R.E.

414(d)(5) refers to offenses that have involved “death, bodily

injury, or physical pain on a child” (emphasis added).     These

provisions reflect that the rule limits qualifying offenses to

crimes that involve actual persons.   While filenames may be

enough to satisfy probable cause, see United States v. Leedy, 65

M.J. 208, 215-18 (C.A.A.F. 2007), the admission of propensity

evidence requires more, see M.R.E. 412, M.R.E. 413, M.R.E. 414.

     We do not suggest that possession of particular child

pornography could not ever fall within M.R.E. 414(d)(5).

However, in this case there is no way to know what, if anything,

the files originally attached to the filenames depicted (even

though the filenames themselves were clearly suggestive).      Thus,

there is not only no way to know whether actual children were

involved, there is also no way to know whether the conduct

depicted otherwise falls within M.R.E. 414(d)(5).   The military

judge nonetheless concluded, without discussion, that possession

or attempted possession of child pornography constitutes an

offense of child molestation under M.R.E. 414(d)(5).    But while

“the infliction of death, bodily injury, or physical pain on a

child,” M.R.E. 414(d)(5), may and undoubtedly does occur in the

creation of much child pornography, in other instances, given


                               13
United States v. Yammine, No. 09-0720/MC

the breadth of the conduct and ages covered, it may not.     See,

e.g., 18 U.S.C. § 2256(2)(A)(iii), (v) (2006) (including

masturbation and lascivious exhibition of the genitals or pubic

area as sexually explicit conduct constituting child

pornography).    However emotionally traumatic possession by

others of images involving that conduct may be for the children

involved, the President limited application of this subsection:

“infliction of death,” “bodily injury,” and “physical pain” are

specific and delimiting terms.

     The CCA’s alternative rationale, that the filenames

qualified under M.R.E. 414(d)(2) (an offense or crime involving

“any sexually explicit conduct with children proscribed by the

Uniform Code of Military Justice, Federal law, or the law of a

State”), is also problematic.    The CCA majority relied entirely

on cases involving Fed. R. Evid. 414(d)(2).   Yammine, 67 M.J. at

724 & n.6.    In so doing, the CCA failed to account for the

differences between the federal rule and its military

counterpart.    The federal rule includes as an offense of child

molestation “any conduct proscribed by chapter 110 of title 18,

United States Code.”   Fed. R. Evid. 411(d)(2).   This includes

any violation of 18 U.S.C. § 2252A.   See United States v.

Bentley, 475 F. Supp. 2d 852, 856-57 (N.D. Iowa 2007), aff’d,

561 F.3d 803, 816 (8th Cir. 2009) (citing Fed. R. Evid.

414(d)(2)).    In contrast, M.R.E. 414(d)(2) uses more specific


                                 14
United States v. Yammine, No. 09-0720/MC

language, defining this category of qualifying offense as “any

sexually explicit conduct with children proscribed by the

[UCMJ], Federal law, or the law of a State” (emphasis added).

We recently determined, in the context of construing the offense

of indecent liberties with a child (a violation of Article 134,

UCMJ), that to occur “with” a child, or “with” children, conduct

must be in the physical presence of a child or children.    See

United States v. Miller, 67 M.J. 87, 90-91 (C.A.A.F. 2008).       By

analogy, this rules out the possession or attempted possession

of child pornography under the facts of this case.5

     If there were no military rule, we are mindful that we

would apply the federal rule.   M.R.E. 101(b)(1).   But the rule

recognized in federal district courts is facially more expansive

than, and thus inconsistent with, M.R.E. 414(d)(2).

Consequently, the civilian cases that admit, under Fed. R. Evid.

414, evidence of offenses involving child pornography -- such as

Seymour, 468 F.3d at 385; Bentley, 475 F. Supp. 2d at 857; and


5
  It would be contrary to our insistence that conduct fall
precisely within the rule, see Schroder, 65 M.J. at 53, to hold
that the language of this subsection of the rule precisely
covers -- as the concurring opinion suggests, Yammine, __ M.J.
__ (3-4) (Baker, J., concurring in the result) -- sexually
explicit conduct with children by someone other than the accused
for use as propensity evidence against the accused. If the
President should decide to expand the scope of this subsection -
- for the reasons suggested by the concurring opinion, id. at __
(4), or otherwise -- he can make the rule within the military
justice system precisely parallel to the federal rule in this
respect by amending the language of the subsection.

                                15
United States v. Yammine, No. 09-0720/MC

United States v. Sturm, 590 F. Supp. 2d 1321, 1327 (D. Colo.

2008) -- are not applicable, as they examined a rule with

different text.

     Because the military judge’s view of the law with respect

to a qualifying offense under M.R.E. 414 was erroneous, he

abused his discretion by admitting the filename evidence -- even

though he otherwise recognized and applied the correct

standards.   See United States v. Rader, 65 M.J. 30, 32-34

(C.A.A.F. 2007) (recognizing that an abuse of discretion can

occur when the military judge has an erroneous view of the law).

                         B.   M.R.E. 404(b)

     In the alternative, the military judge noted that the

filename evidence was admissible under M.R.E. 404(b).    That

provision provides, in relevant part, that “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith.     It

may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident . . . .”    M.R.E.

404(b).   Whereas M.R.E. 414 was “intended to provide for more

liberal admissibility of character evidence in criminal cases of

child molestation where the accused has committed a prior act of

sexual assault or child molestation,” MCM, Analysis of the

Military Rules of Evidence app. 22 at A22-37 (2008 ed.),


                                 16
United States v. Yammine, No. 09-0720/MC

admissibility under M.R.E. 404(b) is comparatively restrictive.

See Bare, 65 M.J. at 37-38.

     [T]his Court has cautioned that we do not approve “of
     broad talismanic incantations of words such as intent,
     plan, or modus operandi, to secure the admission of
     evidence of other crimes or acts by an accused at a
     court-martial under Mil.R.Evid. 404(b)”; and we have
     expressed “concern . . . with the dangers in admitting
     such evidence even if it meets the requirements of
     Mil.R.Evid. 404(b). See Mil.R.Evid. 403.”

United States v. Ferguson, 28 M.J. 104, 109 (C.M.A. 1989)

(alteration in original) (quoting United States v. Brannan, 18

M.J. 181, 185 (C.M.A. 1984)); see also Schroder, 65 M.J. at 58

(“[T]here is a risk with propensity evidence that an accused may

be convicted and sentenced based on uncharged conduct and not

the acts for which he is on trial”).

     In United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.

1989), this Court established a three-prong test, consistent

with Huddleston, 485 U.S. at 681, to determine the admissibility

of uncharged misconduct under M.R.E. 404(b):

     1. Does the evidence reasonably support a finding by the
     court members that appellant committed prior crimes, wrongs
     or acts?

     2. What “fact . . . of consequence” is made “more” or
     “less probable” by the existence of this evidence?

     3. Is the “probative value . . . substantially outweighed
     by the danger of unfair prejudice”?

     The evidence at issue must fulfill all three prongs to be
     admissible.

United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006)


                               17
United States v. Yammine, No. 09-0720/MC

(alteration in original) (quoting and citing Reynolds, 29 M.J.

at 109); see also United States v. McDonald, 59 M.J. 426, 429-30

(C.A.A.F. 2004) (explaining derivation of each prong from

Huddleston).

     The second prong mirrors the relevance concerns reflected

under M.R.E. 401 and M.R.E. 402, while the third prong reflects

the concerns ordinarily handled under M.R.E. 403.   In this case,

the military judge performed his M.R.E. 401, M.R.E. 402, and

M.R.E. 403 analyses under the assumption that the evidence was

admissible in the first instance under M.R.E. 414, and he did

not separately undertake the three-part Reynolds test before

admitting the uncharged misconduct under M.R.E. 404(b).

     We will assume without deciding that the filename evidence

reasonably supported a “determination by the factfinder that . . .

appellant committed the prior misconduct” of possession or

attempted possession of child pornography.    United States v.

Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006).    What remains

problematic is the military judge’s holding that:

     [Appellant’s] prurient interest regarding sexual acts
     including teenage boys tends to show his propensity to
     engage in such acts. “A defendant with a propensity
     to commit acts similar to the charged crime is more
     likely to have committed the charged crime than
     another. Evidence of such a propensity is therefore
     relevant.” United States v. Guardia, 135 F.3d 1326,
     1328 (10th Cir. 1998) ([c]iting Old Chief v. United
     States, 519 U.S. 172 (1997)).

Outside of M.R.E. 413 or M.R.E. 414, this is not an approved


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United States v. Yammine, No. 09-0720/MC

basis for admitting evidence.   M.R.E. 404(b).   The military

judge’s apparent reliance on M.R.E. 414 reasoning for his M.R.E.

404(b) analysis was error.

     Nor are we independently persuaded that the probative value

of the evidence was not substantially outweighed by the danger

of unfair prejudice.   We have upheld the admissibility of

“possession of pornographic books, magazines, or videos

concerning a particular partner or sexual act, at or near the

scene of an alleged sex crime, around the time of that alleged

offense,” as probative of intent or motive to commit a similar

sex act with a similar partner under M.R.E. 404(b).    United

States v. Whitner, 51 M.J. 457, 460 (C.A.A.F. 1999).     But the

probative value of the evidence in this case is substantially

lower, because the underlying files were downloaded over a

two-day period almost two years prior to the charged offenses

and subsequently deleted and overwritten.

     And the potential for prejudice from this evidence

substantially outweighed whatever probative value the filenames

did have.   The filenames were descriptive and disturbing.   And

the military judge, because the evidence was treated first and

foremost as M.R.E. 414 evidence, rather than as M.R.E. 404(b)

evidence, allowed it to be used expansively.     The Government was

allowed to use it -- and the members were instructed they could

use it -- to show Appellant’s propensity to commit the charged


                                19
United States v. Yammine, No. 09-0720/MC

offenses (an impermissible purpose under M.R.E. 404(b)) in a “he

said/he said” dispute between Appellant and JP where the

filenames -- taken as propensity evidence -- arguably

corroborated JP’s version of events.   Given this context, the

evidence was substantially more prejudicial than it was

probative of the charged offenses.   See generally Old Chief, 519

U.S. at 183-85 (holding that courts should determine probative

value and unfair prejudice in the context of the entire case).

                  III.   Harmless Error Analysis

     Finding error, we test for prejudice.   Article 59(a), UCMJ,

10 U.S.C. § 859(a) (2006) (“A finding or sentence of a court-

martial may not be held incorrect on the ground of an error of

law unless the error materially prejudices the substantial

rights of the accused”); Thompson, 63 M.J. at 231.     The question

at this stage, which we review de novo, is whether the

nonconstitutional error “had a substantial influence on the

members’ verdict in the context of the entire case.”    See United

States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007).     In

answering this question, we consider four factors:    (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. (citing

United States v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005)).     “When

a ‘fact was already obvious from . . . testimony at trial’ and


                                20
United States v. Yammine, No. 09-0720/MC

the evidence in question ‘would not have provided any new

ammunition,’ an error is likely to be harmless.”    Id.

(alteration in original) (quoting United States v. Cano, 61 M.J.

74, 77-78 (C.A.A.F. 2005)).    Conversely, where the evidence does

provide “new ammunition,” an error is less likely to be

harmless.

       This is a case of dueling facts -- Appellant’s denial that

sexual contact occurred pitted against JP’s claim that it did.6

The members were instructed that both had a bad character for

truthfulness.    The members were told that they could consider

the filename evidence, which had nothing to do with JP, “for its

tendency, if any, to show the accused’s propensity to engage in

sodomy or indecent acts or liberties with a child.”     And they

did not ignore this evidence -- rather, they asked several

questions about it.    Finally, the prosecutor told the members in

his closing argument:

       We already know, based on the evidence found on the
       accused’s computer, that he has a prurient interest in
       preteens. You have seen the titles. And I’m not going to
       read those out in open court, but they are very highly
       suggestive, very perverted. This is already the thought
       process of the accused. So he waits for his opportunity.

       The Government’s case against Appellant was significantly

strengthened by the improperly admitted filename evidence.    The

CCA appeared to recognize the importance of this evidence too,


6
    Appellant never disputed that JP was in his room.

                                 21
United States v. Yammine, No. 09-0720/MC

reasoning that “JP’s testimony is corroborated by the existence

of the file name evidence . . . located on the appellant’s

personal computer, which graphically describes sexual behavior

remarkably consistent with JP’s description of his activity with

the appellant.”   Yammine, 67 M.J. at 729-30.   And the CCA

highlighted the importance of these filenames when it stated

that evidence it had found inadmissible was “far less

prejudicial than the more specific and graphic computer evidence

we have found admissible.”    Id. at 730.

     The filename evidence, then, introduced “new ammunition”

against Appellant found nowhere else in the record.   While the

question of prejudice might otherwise be a close one, “[m]embers

are presumed to follow the military judge’s instructions,”

Harrow, 65 M.J. at 201.    The military judge’s instruction,

permitting members to use the filenames to show Appellant’s

“propensity to engage in sodomy or indecent acts with a child,”

tips the balance here.    In context, we believe that the

admission of and instruction on the use of the filename evidence

had a “substantial influence on the findings,” Berry, 61 M.J. at

97 (citations and quotation marks omitted), and materially

prejudiced Appellant’s substantial rights.

                             IV.   Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed in part and reversed in part.


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United States v. Yammine, No. 09-0720/MC

The findings of guilty as to Specifications 1 and 2 of Charge I

are set aside.   Specification 1 of Charge I is dismissed.7   The

findings of guilty as to the Specification under Charge III and

Charge III are affirmed.   The sentence is set aside.   The record

of trial is returned to the Judge Advocate General of the Navy.

A rehearing on the sentence and on findings as to the remaining

offense under Specification 2 of Charge I (nonforcible sodomy

with a child) is authorized.




7
  The findings as to Specification 1 of Charge I are not subject
to a rehearing because, under United States v. Jones, 68 M.J.
465 (C.A.A.F. 2010), indecent acts with a child under Article
134, UCMJ, is not a lesser included offense of forcible sodomy
under Article 125, UCMJ.

                                23
United States v. Yammine, No. 09-0720/MC


     BAKER, Judge (concurring in the result):

     The Government sought to offer certain file names as

evidence under Military Rule of Evidence (M.R.E.) 414; however,

the Government’s proffer did not demonstrate for the purposes of

the rule that possession of the file names, without more,

qualified as “one or more offenses of child molestation.”

M.R.E. 414(a).   Among other things, the Government’s proffer did

not include any of the files linked to the titles.   Therefore,

however suggestive the titles might have been, the military

judge could not have known whether those files contained

pictures or videos and whether those pictures or videos met the

descriptive requirements of the rule.   This, in my view, is

insufficient for the purposes of analyzing propensity evidence

under this rule.

     This is so regardless of how sections (d)(5) and (d)(2) of

the rule are read.   As a result, I find it unnecessary to

definitively interpret M.R.E. 414 in a manner that will impact

all future cases involving possession of child pornography.

Also, as importantly, I disagree with the Court’s analysis of

M.R.E. 414(d)(2), which appears to ignore the plain language of

the rule and is based on inapt case law.

     For purposes of the rule, an “‘offense of child

molestation’ means an offense punishable under the Uniform Code

of Military Justice . . . that involved . . . any sexually
United States v. Yammine, No. 09-0720/MC


explicit conduct with children proscribed by the Uniform Code of

Military Justice.”   M.R.E. 414(d)(2).   Based on this language

the Court concludes that possession of child pornography does

not qualify for admission under the rule, i.e., it does not

“involve” “any sexually explicit conduct with children.”    Citing

United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008), the Court

states, “We recently determined in the context of construing the

offense of indecent liberties with a child . . . that to occur

‘with’ a child, or ‘with’ children, conduct must be in the

physical presence of a child or children.   By analogy, this

rules out the possession or attempted possession of child

pornography under the facts of this case,” and presumably any

other case.   United States v. Yammine, __ M.J. __ (15) (citation

omitted).

     The Court’s conclusion rules out the possession of any

child pornography as a qualifying offense under the rule unless

the accused himself is physically engaged in the child

pornography “with” the victim in a picture or video.   This

conclusion is said to be based on Miller, in which this Court

determined that the elements of indecent liberties with a child

under Article 134, UCMJ,1 required that the acts be committed in


1
  Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934
(2006). At the time of Miller’s trial, the 2005 edition of the
Manual for Courts-Martial, United States -- in which indecent
acts with a child was a listed offense -- was in effect.


                                 2
United States v. Yammine, No. 09-0720/MC


the physical presence of the child in order to meet the

requirement of that offense that the conduct occurred “with” the

child.

      The Court’s analysis of M.R.E. 414(d)(2) is problematic for

two reasons.   First, it does not address the text of the rule as

a whole, and second, it ignores the distinction between the text

of section (d)(2), a rule of evidence, and the text describing a

distinct element of an offense -- indecent liberties with a

child.

      The question is whether possession of child pornography can

ever be an offense of child molestation for the purposes of

M.R.E. 414(d)(2).   First, child pornography is certainly

punishable under the UCMJ.   Second, whether possession of the

particular child pornography involves sexually explicit conduct

with children will depend on the pictures or videos at issue --

that is, whether the pictures or videos contain “any sexually

explicit conduct” and whether that conduct is “with” children.

Id.   The final inquiry is whether the sexually explicit conduct

must be with the accused.    The wording of the rule suggests not.

According to the rule, the conduct need only involve “any

sexually explicit conduct with children” (emphasis added), for

which the accused can be punished under the UCMJ.   The rule does

not state that the conduct must be “by the accused.”   The

conduct need only be attributable to the accused, i.e.,


                                  3
United States v. Yammine, No. 09-0720/MC


punishable under the UCMJ, and involve conduct with children.

That describes a broad array of child pornography.

     The second problem with the Court’s analysis is the

reliance on Miller.   Miller addressed certain language different

from the introductory language of M.R.E. 414 highlighted above.

The issue in that case dealt with the meaning of an element that

explicitly required that the accused commit the conduct in

question and required interpretation of the phrase “in the

presence of.”   Miller, 67 M.J. at 89.     There the language was

clearly distinct from the language of the rule in this case,

which addresses offenses that “involve[] . . . any sexually

explicit conduct with children.”

     I would rather not have reached this issue today because

under any reading of M.R.E. 414(d)(2) the Government simply did

not meet its burden in this case.      Given the dangers of unfair

prejudice associated with propensity evidence and the number of

child pornography cases arising in the military justice system,

the limits and permits of M.R.E. 414 in this context should be

decided based upon a more fully developed record and appellate

arguments addressing this particular point of law.




                                   4
