This opinion is subject to administrative correction before final disposition.




                                Before
                 CRISFIELD, FULTON, and HITESMAN,
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                             Appellant

                                     v.

                    Ignacio DELGADO
   Hospital Corpsman Third Class Petty Officer (E-4), U.S. Navy
                           Appellee

                             No. 201900065

                           Decided: 31 July 2019

 Appeal by the United States pursuant to Article 62, UCMJ. Military
 Judge: Lieutenant Colonel Roger E. Mattioli, USMC. Arraignment 19
 November 2018 by a general court-martial convened at Naval District
 Washington, District of Columbia.

 For Appellant: Lieutenant Kurt W. Siegal, JAGC, USN; Captain Brian
 L. Farrell, USMC

 For Appellee: Lieutenant Michael W. Wester, JAGC, USN

 Senior Judge HITESMAN delivered the opinion of the Court, in which
 Chief Judge CRISFIELD and Senior Judge FULTON joined.

                        _________________________

       This opinion does not serve as binding precedent but
       may be cited as persuasive authority under NMCCA
               Rule of Practice and Procedure 30.2.

                        _________________________
                     United States v. Delgado, No. 201900065


HITESMAN, Senior Judge:
    This is an interlocutory appeal by the government, filed pursuant to Arti-
cle 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2016). The
government appeals the military judge’s ruling “which excludes evidence that
is substantial proof of a fact material in the proceeding.” Art. 62(a)(1)(B),
UCMJ. The government alleges that the military judge abused his discretion
by suppressing the appellee’s confession and admissions pursuant to MILI-
TARY RULE OF EVIDENCE (MIL. R. EVID.) 304(c), MANUAL FOR COURTS-
MARTIAL (MCM), UNITED STATES (2016 ed.). We conclude that the military
judge abused his discretion and we grant the government’s appeal.

                                   I. BACKGROUND

    On 29 January 2018, the appellee arranged for his wife to meet him at his
psychotherapist’s office. The appellee told his wife he had something to tell
her and he arranged for a babysitter to watch their three children. After his
wife arrived, and with the psychotherapist present, the appellee had a diffi-
cult time speaking and began to cry. He confessed that he sexually abused
their daughter, ED, who was between 18 and 21 months of age at the time of
the abuse.
    Two weeks after the disclosure, the appellee’s psychotherapist informed
Maryland State Child Protective Services (CPS) that the appellee had admit-
ted to sexually abusing his daughter. The Naval Criminal Investigative Ser-
vice (NCIS) and CPS began an investigation during which they interviewed
the appellee’s wife; forensically interviewed two of the children; ED and AD,
and searched the appellee’s electronic media. “NCIS found no physical evi-
dence corroborating the accused’s admission.” 1 The appellee’s statements to
his wife on 29 January 2018 at his psychotherapist’s office are the only evi-
dence that he sexually abused his daughter.
    The appellee moved to suppress the statements arguing that the state-
ments lack sufficient corroboration under MIL. R. EVID. 304(c). At the Article
39(a), UCMJ, session, the government only offered the written statement of
the appellee’s wife to NCIS as independent evidence corroborating the admis-
sions and confession. The written statement of the appellee’s wife recounts
the appellee’s confession of sexual abuse at the psychotherapist’s office and
corroborates some of the details stated by the appellee. In particular, the
appellee’s wife stated that the family visited Utah in the summer of 2016 and



   1   Appellate Exhibit (AE) XXXII at 3.



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                     United States v. Delgado, No. 201900065


described the family practice of showering with the children. The appellee’s
wife further stated that it was the normal routine to stomp on the floor when
the child was finished showering as a signal for the other parent to bring a
towel for the child and get them ready for bed. Finally, the statement de-
scribes the appellee’s demeanor while he was disclosing the sexual abuse of
his daughter.
    The military judge issued a written ruling on 15 February 2019 suppress-
ing the confession on the basis that the government failed to meet its burden
to introduce independent corroborating evidence. The military judge entered
findings of fact addressing the appellee’s disclosures:
         o. The accused then stated, “It has to do with ED. I didn’t do
         anything to her. She masturbated me when we were in the
         shower together.”
         p. Upon prodding from [his psychotherapist], the accused stat-
         ed “it” happened four times.
         q. [His wife] then asked for further details of the abuse, to in-
         clude when it happened, where she was at the time, and for a
         more detailed description of the abuse.
         r. The accused stated it happened a year and a half prior,
         shortly after the last family trip to Utah, over a three-month
         period.
         s. [His wife] asked, “where was I? Did you wait until I wasn’t
         home and then say to ED ‘let’s go take a shower’? Or was it
         when I was home and you just did it before stomping your foot
         on the ground”?
         t. The accused responded, “that one.”
         u. [His wife] elicited additional details, to include the fact that
         ED used both hands to accomplish the act, that he did not have
         to teach her how to do it, and that ED was able to masturbate
         him to ejaculation twice, while on the other occasions he had to
         “finish” himself.
         v. Finally, when asked if he tried to make it fun or funny, the
         accused stated, “yes, something like that.” 2
This ruling led to the government’s interlocutory appeal sub judice.




   2   Id. at 2.



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                   United States v. Delgado, No. 201900065


                               II. DISCUSSION

    Other than his confession, there is no evidence that the appellee sexually
abused his daughter. There is no DNA evidence, no witnesses, and the al-
leged victim cannot provide any incriminating testimony or evidence.
    The government contends that, under MIL. R. EVID. 304(c), the military
judge should not have suppressed the confession because he abused his dis-
cretion by applying the wrong legal test. Having carefully reviewed the record
and pleadings, we reverse the military judge’s ruling for the reasons outlined
below.

A. Abuse of Discretion
    In this appeal, we may act only with respect to matters of law. Art. 62(b),
UCMJ; RULE FOR COURTS-MARTIAL (R.C.M.) 908(c)(2), MCM (2016 ed.). We
are bound by the military judge’s factual determinations unless they are
unsupported by the record or clearly erroneous, and we may not engage in
our own factfinding. United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004).
We review a military judge’s ruling on a motion to suppress for an abuse of
discretion. United States v. Jones, 78 M.J. 37, 41 (C.A.A.F. 2018). “[W]e re-
view factfinding under the clearly erroneous standard and conclusions of law
under a de novo standard.” United States v. Baker, 70 M.J. 283, 287 (C.A.A.F.
2011) (quoting United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “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, clear-
ly unreasonable, or clearly erroneous.” United States v. McElhaney, 54 M.J.
120, 130 (C.A.A.F. 2000) (internal quotation marks omitted). Finding legal
error, we conclude that the military judge abused his discretion when he
suppressed the appellee’s confession.

B. Corroboration of Confessions
    Our criminal justice system has long required that before an accused’s
confession can be used as the sole basis for a conviction, some independent
evidence must corroborate it. See Escobedo v. Illinois, 378 U.S. 478, 488-89
(1964). MIL. R. EVID. 304 governs how confessions and admissions are used in
courts-martial. MIL. R. EVID. 304(c) was changed in 2016 in an effort to bring
military justice practice in line with federal criminal practice. The essential
facts test was replaced with a trustworthiness standard:
       An admission or a confession of the accused may be considered
       as evidence against the accused on the question of guilt or in-
       nocence only if independent evidence, either direct or circum-
       stantial, has been admitted into evidence that would tend to
       establish the trustworthiness of the admission or confession.


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                   United States v. Delgado, No. 201900065


MIL. R. EVID. 304(c)(1), MCM (2016). Where the previous rule required inde-
pendent evidence to corroborate each essential fact before that fact was in-
troduced as part of a confession or admission, the current rule requires a
more holistic approach focusing on the overall trustworthiness of the admis-
sion or confession as a whole and eliminates a one-for-one factual corrobora-
tion requirement. The entire confession can be admitted into evidence even
though every element or fact as confessed is not corroborated. MIL. R. EVID.
304(c)(2), MCM (2016).
    A fact-based analysis of the confession and independent evidence is still
appropriate in order to determine if the confession or admission is sufficiently
corroborated. The Supreme Court suggests a fact-based analysis as a road-
map to answering the question of trustworthiness, finding that the govern-
ment must “introduce substantial independent evidence which would tend to
establish the trustworthiness of the statement, . . . [i]t is sufficient if the
corroboration supports the essential facts admitted sufficiently to justify a
jury inference of their truth.” Opper v. United States, 348 U.S. 84, 93 (1954).
Changing the language of MIL. R. EVID. 304 did not eliminate the require-
ment to corroborate facts; it merely returned the focus to the overall trust-
worthiness of the confession.

C. Errors in the Military Judge’s Ruling

   1. Findings of fact
   The military judge’s findings of fact are well supported by the record and
do not constitute clear error.

   2. Legal principles
   Corroboration must be established by independent evidence that “raise[s]
only an inference of the truth of the admission or confession,” MIL. R. EVID.
304(c)(4), and “tend[s] to establish the trustworthiness of the admission or
confession,” MIL. R. EVID. 304(c)(1). Therefore, the standard for corroboration
and trustworthiness is lower than even a preponderance of the evidence.
Smith v. United States, 348 U.S. 147, 156 (1954) (stating that independent
evidence used to corroborate a confession “does not have to prove the offense
beyond a reasonable doubt, or even by a preponderance”); United States v.
Jones, 78 M.J. 37, 42 (C.A.A.F. 2018) (finding that the quantum of evidence
needed for corroboration is small and traditionally described as slight).

   The military judge correctly identified and recited the current version of
MIL. R. EVID. 304(c) and noted that it was recently changed to abandon the
essential facts test in favor of the trustworthiness standard. However, the
military judge also ruled that “[t]he government has the burden to prove the
trustworthiness of the Accused’s confessions for admissibility by a prepon-


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                    United States v. Delgado, No. 201900065


derance of the evidence.” 3 We find that the assigned burden of proof is clearly
erroneous.

   3. Application of the correct legal principles to the facts

         a. Family trip to Utah
    Upon questioning by his wife, the appellee described the timing of the
abuse as a three-month period following the family’s last trip to Utah. This
provided the only evidence of when the abuse occurred. The military judge
found the fact that the family “took a vacation to Utah in July 2016” provided
“tangential corroboration” but did “not tend to establish the trustworthiness
of the admission or confession.” 4
   The appellee stated that the abuse happened a “year and a half prior,
shortly after the last family trip to Utah, over a three-month period.” 5 In this
case, independent evidence that there actually was a family trip to Utah in
the summer of 2016 reasonably corroborates the appellee’s statement about
when the sexual abuse occurred.

         b. Family showering routine
    The appellee stated that his daughter “masturbated [him] when [they]
were in the shower together” and confirmed that it happened when his wife
was home and that he did it “before stomping [his] foot on the ground.” 6 His
wife’s expected testimony would confirm, as a matter of routine family prac-
tice, that the appellee showered with the children and stomped “on the floor
as a way of signaling to the other parent, who was usually downstairs, that
they needed help with bedtime.” 7
    The military judge found that evidence that the appellant showered “with
his children does not support an inference of criminality, nor is it sufficient to
corroborate a confession.” 8 The military judge also ruled that evidence that
the appellee stomped when the shower was finished was “not indicative of




   3   Id. at 4.
   4   Id. at 5.
   5   Id. at 2.
   6   Id.
   7   Id. at 1.
   8   Id. at 5.



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                    United States v. Delgado, No. 201900065


sexual abuse.” 9 The military judge did not properly analyze evidence that the
appellee showered with the children and stomped when finished, as the ap-
pellee described in his admission. Because those two acts in and of them-
selves were not criminal acts, the military judge erroneously held that they
did not corroborate the appellee’s statement. This was error because the
military judge did not evaluate the impact of this evidence as corroboration
and on the overall trustworthiness of the confession.
    The analysis should not focus on the effect the evidence has on criminali-
ty, but rather on the effect the evidence has in corroborating the factual
aspects of the confessional statement. The appellee stated that he abused his
daughter in the shower and confirmed that he stomped his foot on the ground
when finished and that his wife was home at the time. The military judge
found as fact, based on the appellee’s wife’s statement, that it was a common
family practice for a parent to shower with the children and stomp when
finished to signal to the other parent. This evidence provides at least some
corroboration of the appellee’s confession pertaining to location, opportunity,
and method of the abuse in the same manner as he admitted.

         c. Appellee’s demeanor
    In addition to independent evidence corroborating factual aspects as con-
fessed, courts may also find corroboration through independent evidence of
the nontestimonial acts of an accused. See United States v. Clark, 69 M.J.
438, 444-45 (C.A.A.F. 2011) (finding an accused’s demeanor admissible before
factfinder “where it is relevant to an accused’s consciousness of guilt”); United
States v. Baldwin, 54 M.J. 551, 555-6 (A.F. Ct. Crim. App. 2000) aff’d, 54 M.J.
464 (C.A.A.F. 2001) (finding corroboration where the nontestimonial acts of
the accused show his consciousness of guilt); State v. McGill, 328 P.3d 554,
563 (Kan. Ct. App. 2014) (finding a defendant’s demeanor and behavior bol-
stered the trustworthiness of his statements).
    The government avers that the military judge’s ruling was arbitrary and
an abuse of discretion because he failed to use the proper standard. The
military judge agreed that demeanor evidence could corroborate a confession
but found that there were other reasons why the appellee might be nervous
or concerned, to include his fear that his “marriage would be ruined.” 10 The
military judge was “unwilling to use [the wife’s] description of the [appellee’s]




   9   Id.
   10   Id.



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                    United States v. Delgado, No. 201900065


demeanor as corroboration of the content of the confession itself.” 11 The mili-
tary judge’s reasoned approach was not arbitrary and his conclusion was
within the range of options available to him.

   4. Legal error
    We find that the military judge’s analysis under the law was partially in-
correct, incomplete, and, as a matter of law, constituted an abuse of discre-
tion. In this case, the military judge considered the limited facts provided by
the appellee in his confession and the independent evidence of corroboration
provided by the appellee’s wife. We find that the military judge generally
applied a fact-based corroboration analysis and evaluated the overall trust-
worthiness of the confession. He did not apply the supplanted essential facts
test, as averred by the appellant, which would exclude from evidence those
particular statements of fact that were not corroborated by independent
evidence.
    The record shows that the military judge considered the factual basis of
the appellee’s confession, to include the family trip to Utah, the practice of
showering with his daughter and stomping on the floor when finished, and
the appellee’s demeanor when confessing to his wife. However, after consider-
ing these facts and the corroborating evidence raised, the military judge
found that the “[g]overnment has not met their burden of introducing inde-
pendent evidence, either direct or circumstantial, that would tend to estab-
lish the trustworthiness of the accused’s admissions.” 12 As we have already
found, the military judge incorrectly held the government to a preponderance
of the evidence standard of proof, and here further compounded that legal
error by using it to reach the overall trustworthiness finding.
    The military judge considered evidence that the appellee showered with
his daughter and stomped when finished, and found that this conduct was
“not indicative of sexual abuse,” did “not support an inference of criminality,”
and he was not willing “to attach a criminal connotation to the fact that a
parent bathed with their child.” 13 This analysis was incomplete because it did
not address the evidence’s impact on the trustworthiness of the confession
and admissions.
   The correct analysis requires an examination of corroborating evidence
and a determination of whether that evidence tends to establish the trust-


   11   Id.
   12   Id. at 6.
   13   Id. at 5.



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                  United States v. Delgado, No. 201900065


worthiness of the statement. The military judge should have considered the
evidence establishing the family trip to Utah, the appellee’s practice of show-
ering with his daughter and then stomping when finished, and the appellee’s
demeanor and other nontestimonial acts and used these facts to evaluate the
overall impact on the trustworthiness of the confession and admissions.
    We find the military judge erred as a matter of law in suppressing the ap-
pellee’s admissions and confession. We are mindful that “[t]he military judge
alone is to determine when adequate evidence of corroboration has been
received” and our ruling does not dictate admissibility. MIL. R. EVID.
304(c)(5), MCM (2016). However, our ruling requires the military judge to
apply the correct law to the facts before ruling on the admissibility of the
confession.

                             III. CONCLUSION

    Having carefully considered the military judge’s findings of fact, princi-
ples of law, and conclusions of law, we conclude that he abused his discretion
and grant the government’s appeal. The military judge’s ruling in Appellate
Exhibit XXXII is vacated and the record of trial is returned to the Judge
Advocate General for remand to the trial court for further proceedings con-
sistent with this opinion.
   Chief Judge CRISFIELD and Senior Judge FULTON concur.

                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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